Jones v. State

• Decision Date: 19 January 1926
• Docket Number: 6 Div. 857
• Citation: 109 So. 189,21 Ala.App. 234
• Parties: JONES v. STATE.
• Court: Alabama Court of Appeals

109 So. 189

21 Ala.App. 234

JONES v. STATE.

6 Div. 857

Court of Appeals of Alabama

January 19, 1926

Appeal from Circuit Court, Jefferson County; W.E. Fort, Judge.

Hattimer Jones was convicted of manslaughter in the second degree, and he appeals. Reversed and remanded.

D.G Ewing, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen Jim Davis, Sol., and Willard Drake, Asst. Sol., both of Birmingham, for the State.

SAMFORD J.

The indictment in its first paragraph is a complete charge of murder in the first degree, and meets every requirement of a charge of that crime.

There is a second paragraph in the indictment separate from the first count which charges no offense, but the motion and demurrers as filed by defendant are directed to both counts or paragraphs upon the contention that no offense is charged. The indictment does completely charge murder in the first degree, and the second paragraph charges nothing, means nothing, adds nothing to the indictment, takes nothing away from it, and may be considered as surplusage.

The remarks of the solicitor in his argument to the jury as set out in the two colloquies between the solicitor, the court and defendant's counsel, when taken and considered in connection with everything that took place in the trial and in the presence of the jury, can be construed to have had but one purpose, and that was, by calling attention to the color of defendant and those who were riding in the automobile with him, to arouse the prejudice of the jury against the defendant by reason of his race. The specific remarks of the solicitor to which exceptions were taken were:

"He was trying to save his own yellow head and that of his black mammy and pickaninny sitting on the back of the car,"

--and after the court had sustained the defendant's objection as to color, the solicitor continued:

"The fact remains that, when a witness takes the stand, the jury has the right to look at the color of that witness, the expression of the eye, any peculiarity that it has, and everything about the witness, that they may determine what credit they will give to the testimony of that witness."

The court again on motion excluded the reference to color. The defendant moved the court to instruct the jury that the remarks were highly improper, and in ruling on the motion the court said:

"Very well, sir, I would not say that, because the court does not think it highly improper."

We cannot conceive of a clearer case where an attempt was made to direct the minds of the jury to the race and color of defendant, which admittedly could not legally be done, and which the court recognized by its ruling, so that, as to the objections made, the rulings of the court were with the defendant, and as to those there is nothing in the record calling for review. B. Ry., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543; Bean v. State, 18 Ala.App. 281, 282, 91 So. 499.

We then have only for review the action of court in refusing the motion of defendant that "the court instruct the jury that that is highly improper argument on the part of counsel," and to the remark of the court in connection with its ruling: "I would not say that, because the court does not think it highly improper." Taken in connection with the colloquy as set out in the record and the character of the case then on trial, this court is of the opinion that the argument was highly improper, calling for prompt and positive instructions from the court. It may well be doubted that even prompt and positive action on the part of the court would have cured the injury already done to the defendant, and certainly the perfunctory ruling of the court in excluding remarks as to the color of defendant did not have that effect. It is the first, and one of the highest, duties of a trial judge to see that a defendant on trial in a criminal case has a fair and an impartial trial, and to prevent, as far as possible, all improper, extraneous influences from finding their way to the jury. One such extraneous influence, well known of all men, is race prejudice, and, when such is ingenuously injected into the trial of a case by the prosecutor in his closing argument to the jury, the court ex mero motu, and certainly on motion of defendant, should use prompt and vigorous methods in letting the jury know that such arguments will not be tolerated by the courts. Justice is blind, says the law, and in her judgment must see no man, color, race, or condition. Wolffe v. Minnis, 74 Ala. 386; Met. L. Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Florence C. & I. Co. v. Field, 104 Ala. 471, 16 So. 538; Powe v. State, 19 Ala.App. 215, 96 So. 370; Simmons v. State, 14 Ala.App. 103, 71 So. 979. We are also of the opinion that the exception is so presented as to require review.

The court in its oral charge gave the following definition of manslaughter in the second degree.

"Manslaughter in the second degree is defined as the unlawful killing of another human being, without malice and without the intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor, or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner."

This definition is sustained by the decisions. Pippin v. State, 19 Ala.App. 384, 97 So. 615; 1 Mayfield, Dig. 639, pars. 7 and 8; Estes v. State, 18 Ala.App. 606, 93 So. 217.

Refused charge 26 is bad, in that such charge pretermits a consideration of all the evidence. Good character, when proven, is evidentiary to be considered along with the other evidence, and it is only when so considered that it may generate a reasonable doubt.

The trial court did not err in reading to the jury that part of the ordinances of Birmingham regulating the operating of motor vehicles in said city. One...