
    Ezra Hampton v. State of Mississippi.
    [40 South. Rep., 545.]
    Crijiinai Law. Argument of counsel. Abuse.
    
    It is reversible error for a district attorney, in prosecuting a mulatto for murder, to be allowed to make a statement in his argument to the jury affirming a material fact not based upon or warranted by the evidence, followed by the further statements that “not a negro in that great concourse of negroes who threaten to be respectable has dared to come here and testify in behalf of this mulatto” (pointing to defendant), that “in any other state of the Union defendant would be hanged: without benefit of clergy;” that “mulattoes should be kicked' out by the white race and spurned by the negroes;” and that “they, mulattoes, are accursed by every white man who loves his race and despised by every negro who respects his.”
    Erom tbe circuit court of Kemper county.
    Hon. Robert E. Cochran, Judge.
    Hampton, tbe appellant, was indicted, tried, and convicted of tbe murder of one Henry Welch, and sentenced to tbe penitentiary for life, from wbicb conviction and sentence be appealed to tbe supreme court.
    Tbe facts upon wbicb tbe case turned in tbe supreme court, are fully stated in tbe opinion of tbe court.
    
      
      G. J. Rancher, and George H. Ethridge, for appellant.
    The language of the district attorney was a most flagrant abuse of right, unsanctioned by law or justice. lie not only stated things to be facts which were not in evidence, but impeached the character of witnesses for defendant by his unsworn statements. The law provides the way in which to attack a witness, and when the attorney for the state failed to attack them as prescribed by law, he had no right to inject his unsworn statement as to their character. 1 Thompson on Trials, secs. 971, 972. It was the duty of the court to stop the district attorney at the request of counsel for defendant, and when counsel for defendant protested against the remarks of the attorney for the state and the court did not check him, it was only adding fuel to the flames, and without further comment we cite the following authorities: 1 Thompson on Trials, see. 958; lb., sec. 955; 16., sec. 956; 16., sec. 282; 76., sec. 242; 76., sec. 963 and note on page 747; 44 Wis., 282-282; Coleman v. State (Ala.), 6 South. Rep., 290; Cavanah v. State, 56 Miss., 299; Martin v. State, 63 Miss., 503; Lamar v. Slate, 65 Miss., 90 (s.c., 3 South. Rep., 78) ; State v. Thompson, 30 South. Rep., 895'; Ragland v. State (Ala.), 27 South. Rep., 983; Scott v. Slate (Ala.), 20 South. Rep., 468; Lee v. State, 75 Miss., 625 (s.c., 23 South. Rep., .628); Anderson v. State (Ala.), 16 South. Rep., 108; Florence, etc., v. Field (Ala.), 16 South. Rep., 538; Jenkins v. State (Fla.), 18 South. Rep., 182; Dollar v. Stale (Ala.), 13 South. Rep., 575.
    
      R. V. Fletcher, assistant attorney-general, for appellee.
    The remarks of the district attorney complained of do not appear by special bill of exceptions, but only in the motion for a new trial. Such being the attitude of the record, this ground of error cannot be considered. Powers v. State, 83 Miss., 681 (s.c., 36 South. Rep., 6).
    
      Argued orally by George H. Ethridge, for tbe appellant, and by R. V. Fletcher, assistant attorney-general, for the appellee.
   Gakhoon, J.,

delivered tbe opinion of tbe court..

It appears that tbe district attorney was permitted by tbe court to use tbe following language over objection: “Tbe shirt was cut and fixed in tbe jail with Charley Stuart's knife.” Tbis is without support in tbe evidence. Tbe district attorney further said to tbe jury these words: “Not a negro in that great concourse of negroes who threaten to be respectable has dared to come here and testify in behalf of tbis mulatto” (at tbe same time pointing to tbe defendant). He further said to tbe jury tbat: “In any other commonwealth in tbis Hnion (pointing to tbe defendant) be would be bung without benefit of clergy.” He further said to tbe jury, referring to tbe evils of miscegenation, tbe defendant being a mulatto, tbat “mulattoes should be kicked out by the white race and spurned by tbe negroes; tbat tbe defendant was whiter than himself, tbe counsel of defendant, or the judge, or any of tbe jury, but tbat they were negroes, and tbat as long as one drop of tbe accursed blood was in their veins they have to bear it; tbat these negroes (referring to tbe defendant and bis brother) thought they were better than other negroes, but in fact they were worse than negroes; tbat they were negritoes (pointing at the defendant), a race bated by tbe white race and despised by tbe negroes, accursed by every white man who loves bis race, and despised by every negro who respects his race.”

Mulattoes, negroes, Malays, whites, millionaires, paupers, princes, and kings, in tbe courts of Mississippi, are on precisely tbe same exactly equal footing. All must be tried on facts, and' not on abuse. Only impartial trials can pass tbe Red Sea of tbis court without drowning. Trials are to vindicate innocence or ascertain guilt, and are not to be vehicles for denunciation.

Reversed and remanded.  