Allison v. State (248 S.W.2d 147, 1952)

MORRISON, Judge.

The offense is rape; the punishment, death.

In view of our disposition of this appeal, a statement of facts will not be necessary other than to observe that the appellant was a member of the colored race and the injured party was a white woman.

Bill of exception No. 16 relates to- a portion of the argument of the district attorney, to-wit:

“I am not criticizing the defendant ■for bringing a witness of the same race. I just want to let you know for the purpose of the record they try to help their own -race.”

The objection' was that such argument was not supported by the record, constituted unsworn testimony of the district attorney, and was an appeal to racial prejudice.

The court refused appellant’s request that the jury be instructed not to consider the albove argument.

The bill further reflects that, during the course of the examination of the witnesses for the appellant, who had testified to an alibi, the district attorney asked three of them if it were not true that they were members of the same race as appellant and, in addition, asked appellant’s mother, who had testified that appellant had never before been in trouble, this question:

“You mean he has never been caught for raping a white woman before?”

It is further shown that the' prosecutor later asked this witness:

“The next time you saw him he was in jail charged with raping a white woman ?”

We think the argument as shown above was subject to the objection that it was unsworn testimony of the district attorney and was an appeal to racial prejudice. Wade v. State, 151 Tex.Cr.R. 447, 208 S.W.2d 101. The implication was clear that State’s counsel sought to condemn as a class all testimony coming from members of the colored race. There was no testimony in the record to support such a condemnation.

Judge Morrow in Arnold v. State, 96 Tex. Cr.R. 214, 256 S.W. 919, made a profound observation when he said:

“The truth may come from members o