Appellant was convicted of murder in the first degree, and the death penalty imposed.
The deceased, a white man, on the evening of January 6, 1923, was found lying outside of the door of a negro woman's house located in the alley of Fifth avenue and Twenty-Third street, in the city of Birmingham, and the woman, known as Lillie Belle, who occupied the house, was about 50 feet away. Each had been assaulted over the head with some blunt instrument, and, apparently, at the same time.
The evidence for the state tended to show that deceased and the woman were each assaulted at the same time, as the result of a conspiracy entered into between defendant and others, details of which are unnecessary to be here stated. Under the circumstances here shown there was no error in admitting proof as to the wounds upon the woman also. The evidence further tended to show the pockets of deceased had been rifled, and, as tending to show that robbery was a motive, the evidence of the state to the effect that deceased had four $1 bills on his person when he left home that afternoon, was admissible. The state offered proof of the finding of a bloody ax the morning following this murder on the premises, which were occupied by defendant and other negroes, among them Odell Jackson, whom the state contends was a coconspirator and one of the participants in the crime. The court admitted proof that this ax was exhibited to said Odell Jackson by Mary Frances Sanders, principal witness for the state, with the request that he remove it, and he threatened said witness if she ever said anything about it. All of this was in defendant's presence, and he said nothing. Under the circumstances here appearing, we are of the opinion the evidence was admissible. Williams v. State,81 Ala. 1, 1 So. 179, 60 Am. Rep. 133.
The chief witness for the state, and upon whose testimony the prosecution rests for defendant's conviction, was Mary Frances Sanders, a negro woman who occupied a room in the house in which defendant also had a room. The defense rested upon proof of an alibi, to the effect that he was at work at a colored shoe shining shop, where he was regularly employed at the time of the commission of this crime. The defendant offered proof to the effect that this chief witness, Mary Frances Sanders, was in Texas at the time the crime was committed. In rebuttal the state offered the testimony of Mrs. O. H. Dowda, of Birmingham, whose evidence tended to show that said witness was working for her the first of the year 1923, and that she wrote a letter to the judge of the municipal court concerning witness, who was charged with vagrancy, and that the letter was dated January 20th. This letter, written by Mrs. Dowda to the municipal court judge, was then introduced in evidence, over defendant's timely objection, and to the action of the court in overruling said objection an exception was duly reserved.
The letter itself was clearly irrelevant to any issue in the case. It contained, among other things, the statement that the writer had "found her (speaking of this witness) to be a good girl," and thus containing an ex parte recommendation. The admissibility of this letter comes well within the condemnation of evidence of similar character, condemned in Whatley v. State, 144 Ala. 68, 39 So. 1014.
We are also persuaded this error was of such prejudicial character as to work a reversal of the cause. The defendant, a negro, is charged with the murder of a white man under most revolting circumstances, the details of which are calculated to arouse in the human breast great indignation. A verdict of guilt must rest upon the testimony of this witness. The question of his participation in the crime was a sharply contested issue of fact in the case. The letter contained the recommendation that, in the opinion of Mrs. Dowda, she was a "good girl"; and when the "general atmosphere" of the case is considered, we think the admission of this letter probably injuriously affected defendant's case. Crenshaw v. State,207 Ala. 438, 93 So. 465; Moulton v. State, 199 Ala. 411,74 So. 454.
Whether the questions raised as to the improper argument of the solicitor are properly presented, and, if so, whether meritorious, need not be considered, in view of the reversal of the case upon the ground indicated.
It may not be amiss to suggest, however, that, particularly in trials of this character, the solicitor in argument should be careful to refrain from any remarks calculated to arouse race prejudice, or other remarks as to local conditions not shown by the proof, or that could not properly be so shown. Moulton v. State, supra; Dollar v. State, 99 Ala. 236,13 So. 575; Smith v. State, *Page 466 197 Ala. 201, 72 So. 316; Olden v. State, 176 Ala. 12,58 So. 307.
What we have said herein should suffice for another trial of the cause. For the error mentioned, let the judgment be reversed, and the cause remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur in result.