Kelly v. State
| Decision Date | 09 April 1917 |
| Docket Number | 19664 |
| Citation | 74 So. 679,113 Miss. 850 |
| Court | Mississippi Supreme Court |
| Parties | KELLY v. STATE |
APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN JR., Judge.
Horace Kelly was convicted of murder and appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
John J Adams, for appellant.
The district attorney in his closing argument in this case before the jury, made use of the following unwarranted and prejudicial remarks, as shown by appellant's motion for new trial and signed by the court as follows, to wit:
"You must give me this negro; I must have him; I never will feel like prosecuting another, if you don't and I want you to go and give me this negro."
We submit that there is not a scintilla of proof in this record to warrant statements as here made; they are unwarranted and in violation of the rules governing the trials of criminal cases and of such character well calculated to influence the minds, excite the passions and arouse the prejudice of the jurors and while in that inflamed condition cause them to render a verdict against appellant, not supported by the proof in the case, absolutely depriving appellant of that fair and impartial trial guaranteed by the law to him. This court has repeatedly said that matters dehors the record and prejudicial statements made by the district attorney in his closing argument before the jury was reversible error; the remarks here made by the district attorney were highly inflammatory and prejudicial to appellant. Constitution, sec. 26; Hampton v. State, 50 So. 545; Sykes v. State, 42 So. 875; Harris v. State, 50 So. 626; Hardaway v. State, 54 So. 833; Martin v. State, 63 Miss. 505.
The law accords to every defendant a speedy, fair and impartial trial and it is the duty of the courts to see that they are tried according to the law and the evidence, free from any appeal of passion, prejudice, or other improper conduct or motive and it is fully emphasized when a negro is placed on trial before a jury of twelve white men, every defendant, white or black, should be accorded such a trial. Hampton v. State, 40 So. 545; Sykes v. State, 42 So. 875; Hardaway v. State, 54 So. 833; Mosely v. State, 73 So. 793.
Frank Robenson, for appellant.
Exception was taken to certain remarks of the district attorney as shown by the special bill of exceptions. I think the action of the court in sustaining the objections to these remarks cured any error in the use of such language. However, I do not think these remarks are of such a character as to constitute reversible error and do not come within the cases cited by counsel for appellant. Taking a portion of any speech and setting it off by itself, it is very difficult to realize accurately the force of the remarks since the court does not have the benefit of the other parts of the speech nor any remarks that may have been made by counsel for appellant. I submit that these statements, though they may be the results of the zeal of the district attorney, are not objectionable to the extent of causing a reversal. Even when taken in the abstract, they do not rise to the character of being inflammatory or calculated to arouse the passions of the jury on the ground of race prejudice or otherwise.
The defendant, Horace Kelly, a negro, in the circuit court of Coahoma county, was tried and convicted of the murder of one Martha Ann Kimmons, a negro woman, and sentenced to be hanged, from which judgment this appeal is prosecuted.
The testimony upon which the defendant was convicted was principally that of a negro woman, Rosa Dearing, who claimed to have witnessed the tragedy. Rosa was also indicted for this offense, but the indictment was nolle pros'd against her. The other material testimony against the defendant was that of a negro man by the name of Cato, a paramour of the woman killed, who testified to a rather strange confession made to him by the accused. The defense was an alibi proved principally by the members of the family of the accused. After a careful consideration of the record we have concluded that we would not disturb the finding of the jury alone upon the testimony.
In the closing argument of the case the district attorney used the following language, as is shown by the special bill of exceptions:
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Dean v. State
... ... so sure of an acquittal in the case that they, in substance, ... did not care to clutter up the record with such objections ... Brumfield ... v. State, 102 Miss. 610, 59 So. 849; Evans v. State, ... 87 Miss. 459, 40 So. 8; Kelly v. State, 113 Miss. 850, 74 So ... Generally ... where matters occurred at a trial that are not shown by the ... record, they can only be shown by a bill of exceptions and ... showing them by testimony on motion for a new trial is ... unavailing ... Keeton ... v. State, ... ...
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Dean v. State
...up the record with such objections. Brumfield v. State, 102 Miss. 610, 59 So. 849; Evans v. State, 87 Miss. 459, 40 So. 8; Kelly v. State, 113 Miss. 850, 74 So. 679. where matters occurred at a trial that are not shown by the record, they can only be shown by a bill of exceptions and showin......
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