State v. Brice

The appellant, who is a colored man, was tried by a jury composed entirely of white men, for the murder of a colored man, and was found guilty of manslaughter. The district attorney, in his closing argument to the jury, said: "The defendant should not be tried by the same law as a white man." The defendant's attorney promptly objected to the remark, but the judge overruled the objection; and a bill of exceptions was reserved to the ruling. Thereafter, in his argument to the jury, the district attorney said: "You can't try a negro by negro evidence the same as you can try a white man by white evidence." The defendant's attorney again objected, but the court again overruled the objection, and another bill of exceptions was reserved.

The judge should have sustained the objection, and, if requested by the defendant's attorney, should have instructed the jury immediately that the remarks of the district attorney were improper, not only as an appeal to race prejudice, but as an argument that the jurors should violate their oath and their duty to give the defendant a fair and impartial trial. In the per curiam the judge says that he considered the argument of the district attorney permissible because he was answering a statement made by the defendant's attorney in his argument to the jury, to the effect that, under the facts and circumstances of the case, the defendant would be promptly acquitted if he were a white man. That statement did not permit the district attorney to retort with an appeal to race prejudice, or to ask for an unfair verdict. By overruling the objection to the argument, the judge tacitly sanctioned it. The judge's sanction in such cases is apt to have great effect upon the verdict of the jury.

Our conclusion that a new trial must be granted because of the errors which we have mentioned makes it unnecessary to consider the other bills of exception in the record.

The verdict and sentence are annulled, and it is ordered that this case be remanded to the district court for a new trial.