HALL
v.
UNITED STATES.

*78 Mr. A.H. Garland for plaintiff in error.

Mr. Assistant Attorney General Whitney for defendants.

*80 MR. JUSTICE GRAY, after stating the facts, delivered the opinion of the court.

The defendant was on trial for killing Yates in Arkansas in 1891, and not for killing a negro in Mississippi two years before. Evidence as to his killing the negro and his arrest and trial therefor in Mississippi was introduced for two purposes only: first, by the district attorney, to test the knowledge of the witnesses to the defendant's character; and afterwards by the defendant himself, to show that his return to Mississippi after the killing of Yates had another object than to flee from justice.

If the defendant had murdered the negro in Mississippi, and had been there convicted therefor, evidence, either of the murder, or of the conviction, would have been incompetent to support the indictment against him for the murder of Yates in Arkansas. Boyd v. United States, 142 U.S. 450, 458. But it was testified by the defendant, and assumed by the district attorney, that the defendant had been acquitted of the charge of murdering the negro; and it was not objected that the record of the acquittal should have been produced.

The district attorney, in his closing argument to the jury, insisted that, from reading the newspapers and magazines, we know trials in the State of Mississippi of a white man for killing a negro to be farces; that the defendant came to the Indian country from Mississippi "with his hands stained with the blood of a negro;" and that "the killing of a negro in Mississippi, for which the defendant had been tried and acquitted there, was murder." The defendant instantly objected to all these declarations, expressions, and arguments of the district attorney; and excepted to the action of the court in overruling his objections.

*81 The ground on which the presiding judge, in the opinion delivered on overruling a motion for a new trial, (contained in the record, and cited by the attorney for the United States in this court,) justified his own action and that of the district attorney in this regard, was that "it is unquestionably a sound rule that historical facts, of which courts take judicial notice, may be alluded to in argument for the purpose of illustration," and that he considered it "a historical fact in this country" that in Mississippi the trial and acquittal of a white man for the killing of a negro is a farce.

Whether or not such is the condition of things in that State is a matter of personal belief and opinion rather than of unquestioned historical fact. It is hard to see how the fact, if admitted, that in a certain locality all persons indicted for crimes or offences of a certain class are acquitted, has any tendency to prove that every person, or any particular person, there indicted for such a crime or offence, is guilty.

But the district attorney did not content himself with alluding to the supposed fact by way of illustration. He relied upon it, and upon his inference therefrom that the defendant's hands were stained with the blood of the negro, and other like expressions and declarations of his own, to establish that "the killing of a negro in Mississippi, for which the defendant had been tried and acquitted there, was murder." This whole branch of his argument was evidently calculated and intended to persuade the jury that the defendant had murdered one man in Mississippi, and should therefore be convicted of murdering another man in Arkansas.

The attempt of the prosecuting officer of the United States to induce the jury to assume, without any evidence thereof, the defendant's guilt of a crime of which he had been judicially acquitted, as a ground for convicting him of a distinct and independent crime for which he was being tried, was a breach of professional and official duty, which, upon the defendant's protest, should have been rebuked by the court, and the jury directed to allow it no weight.

The presiding judge, by declining to interpose, notwithstanding the defendant's protest against this course of argument, *82 gave the jury to understand that they might properly and lawfully be influenced by it; and thereby committed a grave error, manifestly tending to prejudice the defendant with the jury, and which, therefore, was a proper subject of exception, and, having been duly excepted to, entitles him to a new trial. Wilson v. United States, 149 U.S. 60, 67, 68.

The instructions given to the jury upon other subjects may not take the same shape upon another trial, and need not be considered.

Judgment reversed, and case remanded, with directions to set aside the verdict and to order a new trial.