Williams v. State, 4 Div. 917.

• Decision Date: 21 February 1933
• Docket Number: 4 Div. 917.
• Citation: 25 Ala.App. 342,146 So. 422
• Parties: WILLIAMS v. STATE.
• Court: Alabama Court of Appeals

146 So. 422

25 Ala.App. 342

WILLIAMS v. STATE.

4 Div. 917.

Court of Appeals of Alabama

February 21, 1933

Appeal from Circuit Court, Covington County; E. S. Thigpen, Judge.

Jesse Williams, alias Jesse Lundy, was convicted of miscegenation (felonious adultery), and he appeals.

Reversed and remanded.

E. O. Baldwin, of Andalusia, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

SAMFORD Judge.

The indictment charged that defendant, a negro, or the descendant of a negro, did live together with Bessie Batson (alias etc.), a white person, in a state of adultery or fornication.

This defendant is a man about twenty-three years of age, and is the son of a white woman, who, at the time of the birth of defendant, was legally married to, and was living with, Amer Williams, a white man. About two weeks after the marriage of Amer Williams and this defendant's mother, who was Fronie Lundy before her marriage to Williams, this defendant was born, and from his birth until the present he has lived with his mother, brothers and sisters, grandparents, uncles and aunts, and tenants on the farm of the grandfather, all of whom were white people without taint of negro blood. Per contra, the state introduced as witnesses an old midwife and an eminent local physician, who testified, after qualifying as experts, that they had made examination of defendant in his infancy and from certain infallible signs found on his body they found him to be a person of negro blood.

There was no act of cohabitation directly proven, but the state introduced two very willing witnesses, who testified to a state of facts from which the acts of cohabitation might be legally inferred, and also an agreement to continue such illicit relations. This testimony was thoroughly discredited not only on account of the unnatural and flagrant acts testified to by them, but by the overwhelming weight of the evidence tending to prove their testimony to be untrue.

No evidence was introduced tending to prove an illicit relation between defendant's mother and a negro man, other than the fact that there was an old negro man living with defendant's grandfather prior to and at the time of the birth of defendant, and the further facts as testified to by the experts that defendant had negro blood, and other testimony that he now was dark skinned and had black curly hair and resembled a negro.

While several of defendant's witnesses were being examined by the solicitor, the solicitor was permitted to ask the witnesses: "Does he look like a white person?" "Does he look like a white man?" "Would you say that he looks like a white person?" These questions while asked during cross-examination, were not seeking to cross-examine the witnesses as to any facts to which they had testified. Without having been qualified as to a knowledge of the characteristics of the white race, these questions called for conclusions, and were improper. Weaver v. State, 22 Ala. App. 469, 116 So. 893.

The following statement appears in the bill of exceptions:

"In his closing argument to the jury, the solicitor for the state, made the following statement: Since the days of the Carpetbagger colored people have thought, and still think, that they are as good as a white man. To that argument, the defendant duly and legally excepted. The court sustained the objection and made the following statement to the jury: I instruct the jury not to consider it. The defendant, because of the above argument, by the solicitor, to the jury, moved the court to withdraw the case from the jury. The court overruled the defendant's motion to withdraw the case from the jury and the defendant duly and legally excepted. Again, in his closing argument to the jury, the solicitor made the following statement: Down here in the south there are a few white people and a great number of colored people, and we should keep the colored man in his place. The defendant objected to this argument, the court overruled the objection and the defendant duly and legally excepted. In his closing argument to the jury, the solicitor made the following statement: Possibly a way back, there was a situation that obtained, where some white person was thrown in a similar situation, that caused the passage of this statute. To this argument to the jury, the defendant objected, the court overruled the objection and the defendant duly and legally excepted. The solicitor continued in his closing argument to the jury and made the following statement: They were brought over here by the ship loads. Some

...