
    (111 So. 798)
    No. 28437.
    STATE v. BRICE.
    March 28, 1927.
    
      (Syllabus by Editorial Staff.)
    
    
      1. Criminal law <&wkey;723(5) — District attorney’s remarks, appealing to race prejudice, held* reversible error.
    In prosecution of colored man, for murder of colored man, tried by jury of white men, remarks of district attorney that defendant should not be tried by same law as white man, and that “you can’t try a negro by negro evidence the .same as you can try a white man by white evidence,” objection to which was overruled, was reversible error as appeal to race prejudice and appeal to jurors to violate oath of giving defendant fair trial.
    2. Criminal law &wkey;»726 — District attorney’s appeal to. race, prejudice in prosecution of negro for murder of negro., held not justified by defense attorney’s statement that defendant would be acquitted if he were white.
    In prosecution of negro for murder of negro, tried by jury of white men, statement by defendant’s attorney that defendant would be promptly acquitted if be were white man, did not justify district attorney’s retort with appeal to race prejudice and demand for unfair verdict.
    3. Criminal law <&wkey;73d(I)— Improper argument of district attorney is tacitly approved by court’s overruling objection thereto.
    Overruling of objection to improper argument by district attorney is tacit approval thereof by court.
    .Appeal from Seventh. Judicial District Oourt, Parish of Concordia; R. M. Taliaferro, Judge.
    Lei'oy Brice was convicted of manslaughter, and he appeals.
    Verdict and sentence annulled, and case remanded for new trial.
    Dale, Dale & Dale, of Vidalia, for appellant.
    Percy Saint, Atty. Gen., and Jos. M. Reeves, Dist. Atty., of Vidalia (E. R. Schowalter, of New Orleans, of counsel), for the State.
   O’ÑIELL, C. J.

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 yoú 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 ease be remanded to the district court for a new trial.  