Story v. State

• Citation: 97 So. 806,133 Miss. 476
• Decision Date: 19 November 1923
• Docket Number: 23491
• Court: United States State Supreme Court of Mississippi
• Parties: STORY v. STATE

97 So. 806

133 Miss. 476

STORY v. STATE

No. 23491

Supreme Court of Mississippi

November 19, 1923

(En Banc.) January 1, 1920

1 RAPE. Evidence held to sustain conviction.

In a prosecution for rape, in which the defendant denied having had intercourse with the prosecutrix, evidence held to sustain conviction.

2. CRIMINAL LAW. Argument of counsel constituting an appeal to race prejudice held ground for reversal.

In a prosecution of a negro for rape of a mulatto, in which the defendant was given a death sentence, statement of prosecuting counsel, in argument to the jury, that "the evidence shows the defendant, while ravishing this woman said to her, 'White woman, stop your hollering!' Look at her---she is almost white, " held ground for reversal, being an appeal to race prejudice.

3. CRIMINAL LAW. Improper argument prejudicing jury is ground for reversal.

Improper argument of counsel which will materially prejudice the minds of the jury against the accused is a substantial wrong done him in the trial, for which there must be a reversal.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Holmes county, HON. S. F. DAVIS, Judge.

Columbus Story, alias Lum Story, was convicted of rape, and he appeals. Reversed and remanded.

Reversed and remanded.

E. T. Neilson, for appellant.

It was error to force Lum Story to exhaust his peremptory challenges by holding the jurors were competent who testified on their voir dire that they had read an account of the alleged crime in the Lexington Advertiser, had formed and expressed opinions and would enter the jury box with such opinions, and that it would take evidence to remove such opinions, and that they were guided in the ordinary affairs of life by their opinions, and to hold as qualified jurors men who had pending cases in which the attorney assisting the prosecution was their attorney under their employment or under the employment of a near relative in whose cause, a sister's, they were enlisted deeply, and more especially is this true considering the condemnatory articles in the Lexington Advertiser and the rehearsal or statement of case closely in line with the testimony of the prosecutrix, except in a few points.

"Juror who states that he has a fixed opinion from what he had read to remove which will take strong enough evidence to convince, is incompetent, though he states that he is not interested and will be governed by the law and the evidence as presented. James M. Murphy v. State of Miss., 92 Miss. 203, 45 So. 865."

Where the defendant used every peremptory challenge allowed him it was fatal error to overrule his challenges of disqualified jurors for cause. Dixon v. State, 59 So. 5. The closing argument by the counsel assisting the district attorney in its bitter denunciations and fierce racial appeal, considering the nature of the case was fatally injurious to defendant, was not based on fact, and vitiates the judgment of conviction.

"Within the limits of the testimony, the right of argumentation, illustration, and comment is free' but that freedom does not extend to the assumption of facts not in evidence, as to the basis of argument, to the prejudice of the adverse party." Perkins v. Guy, 55 Miss. 153.

"Where the counsel for the state in a capital case, so abuses his privilege in argument and comment on the testimony as, by misstating facts or commenting on facts not in evidence, as to induce the belief of probable injustice as a result, the Circuit Court should interfere, and if it does not this court will reverse." Cavanah v. State, 56 Miss. 299.

In the argument counsel for the prosecution was permitted without interference by the court to say that defendant is a man of bad, dangerous, and desperate character, but I am not afraid to denounce the butcher boy, although I may, on my returning to my house, find it in ashes over the heads of my defenseless wife and children. Held, that this being the unsworn statement of a fact by counsel which had it been offered in evidence would have been incompetent, and being of a character well calculated to influence the jury against the accused, it presents a good ground for the reversal of the judgment and the granting of a new trial. Martin v. State, 63 Miss. 505.

"For counsel for the state on a prosecution for murder of revolting barbarity, where the testimony on which a conviction must rest is of a doubtful character, to make the statements in his argument, having no predicate in the facts, that if the jury turned the defendant loose he might perpetrate his lust on some of the white women of the county; and that he was satisfied defendant's motive for committing the crime was because he was lusting after the wife of the person killed," is ground for a reversal. Sykes v. State, 42 So. 875.

"Race prejudice has no place in the jury box, and trials tainted by appeals thereto cannot be said to be fair and impartial. It is the duty of the court to see that the defendant is tried according to the law and the evidence, free from any appeal to prejudice or other improper motive, and this is emphasized when a colored man is placed upon trial before a jury of white men. Mulattoes, negroes, Malays, whites, millionaires, paupers, princes and kings in the courts of Mississippi are on precisely the same and exactly equal footing, all must be tried on the facts and not abuse, trials are to vindicate innocence or ascertain guilt, and are not to be vehicles for denunciation.

"Every defendant at the bar of his country, white or black, must be accorded a fair trial according to the law of the land, and that law knows no color. Hardaway v. State, 99 Miss. 223, 54 So. 833, Ann. Cas. 1913 D 1116, 88 Miss. 259."

"The injection of race question into court trials has been uniformly condemned by this court. Mosely v. State, 112 Miss. 858."

"Where on a trial for murder the district attorney characterized accused as a bad negro, although the evidence did not support such charge, and further stated that he never prosecuted innocent persons, and he had investigated this case, such remarks constituted reversible error, where the court sustained defendant's objection to the remarks but did nothing more." Kelly v. State, 113 Miss. 850.

"Manifestly, the district attorney went out of the record, and in doing so he appealed to racial prejudice and Southern sentiment upon the crime laid at appellant's door. This was wrong and may have been a strong factor with the jury. Reversed and Remanded." Garner v. State, 120 Miss. 750, 751, 752. 83 So. 83.

S. C. Broom, Special Assistant Attorney-General, for the state.

The remarks of Mr. Pepper, the counsel who assisted the district attorney in the prosecution of this case alleged to be improper as shown by the special bill of exceptions, is as follows: "The evidence shows that the defendant while ravishing this woman said to her 'White woman stop your hollering.' Look at her--she is almost white. This shows you where his passions are leading to."

And continuing his remarks he said: "This is one of the most desperate criminal in this country. Who would feel safe with this man at large? The penitentiary would not hold him a minute. He should not be allowed to breathe the same air with you nor with the people of this county or state. Six feet of earth with him under it is his only proper place. There is but one instruction applicable to him and that is the first part of the first instruction on the form of your verdict which should be returned without any modification and that is your duty to do and make your return--'We the jury find the defendant guilty as charged.'"

Much has been written on the subject of proper discussion with reference to the argument of counsel, in cases both civil and criminal, and the general rule seems to be stated in 2 R. C. L. 411, as follows: "Counsel should not be too closely confined in his argument to the jury. The most liberal freedom of speech should be allowed. He should be permitted to discuss the facts proven or admitted in the pleadings, arraign the conduct of the parties, and attack the credibility of witnesses, and he may indulge in oratorical conceit or flourish. He may repeat the evidence verbatim for the purpose of commenting on it in the connection in which it was introduced at the trial, . . . It is now generally conceded that counsel properly may state his views thereon, and his conclusions deduced from the evidence in the case . . . Where there is some evidence before the court from which facts stated by counsel in argument can be inferred, he will be justified in making such inference although the evidence by which it is sought to be maintained is not strong or clear."

And again on page 415 of 2 R. C. L. it is said: "Counsel may legitimately appeal to the jury to perform their duty in the particular case, and in that connection may refer to the fact that litigation is expensive and that the jury should agree on a verdict if possible."

And on page 416 of this same volume we find the following: "And it has been ruled that he may state to the jury that if a verdict for a less...