LexisNexis(TM) = Academic

Knight v. State
No. 37205
Supreme Court of Mississippi
207 Miss. 564; 42 So. 2d 747; = 1949 Miss.=20 LEXIS 366

November 14, 1949, = DecidedPRIOR HISTORY: [***1]
Appeal from=20 the circuit court of Jones County, F. B. Collins, Judge.
DISPOSITION: Reversed and remanded.
HEADNOTES:
Criminal procedure = --=20 miscegenation -- necessary proof and burden thereof.
In a prosecution for miscegenation the burden is upon the = State to=20 prove beyond all reasonable doubt that the party in question had = one-eighth or=20 more of Negro (or Mongolian) blood, and failing to do so conviction will = be=20 reversed.

SYLLABUS: Davis Knight was = convicted=20 under a charge that, being a Negro or mulatto male person with 1/8 or = more of=20 Negro blood, he had married a white female person and had feloniously = cohabited=20 with her as man and wife, and he appeals.
COUNSEL: Quitman Ross, for appellant.
The insufficiency of the evidence to convict appellant was = challenged=20 by his request for a peremptory instruction and his motion for a new = trial, and=20 will be here argued together in order to avoid prolixity in presenting = what is=20 really the same thing at two different places in the brief.
Actually the only competent evidence introduced against the = appellant=20 was the testimony of Tom Knight, who is his great-uncle. The testimony = of the=20 witness Valentine is and should be discounted in its entirety,=20 because [***2] the most charitable thing that can be said = about it is=20 that he was mistaken in the identity of the person to whom he referred.=20 Actually, and in truth and fact, his testimony constitutes perjury of = the first=20 order, he not having been born until 1890 and Rachel Knight = unquestionably died=20 in 1889.

Tom Knight, age 88 years at the = time of this=20 trial, filled with venom and hatred, testified to certain racial = characteristics=20 of Rachel, which if believed and taken most strongly against this = appellant,=20 merely indicated that she was a Negro of full blood. He seems to have = some time=20 early in life become enraged at his father to such an extent that he did = not=20 attend his funeral and did not know exactly where he was buried. He did = not=20 know, or claimed he did not know, that his father, Newton Knight, and = the one=20 who he described as having distinct Negro characteristics were buried in = the=20 same burial plot a few feet from each other. He did not personally know = when or=20 where Rachael died or where she was buried. It is true that if he gave = his age=20 correctly, and this is not questioned, he was twenty-eight years old at = the time=20 of her death. Just when he saw her last, in what circumstances=20 and [***3] at how frequent intervals during the latter period = of her=20 life does not appear, he having left the home of his father and the = vicinity in=20 which his father and Rachel lived some time before her death. It must be = at once=20 apparent to any practical person that it is nothing short of stretching=20 childhood recollection to the breaking point to say from recollection = that a=20 person who died sixty years ago was of pure blood, white, Negro, Indian, = Mongolian, or whatnot. To have said that she was predominantly Negro, = and this=20 in effect is what he did say, sounds entirely reasonable. But to permit=20 imprisonment in the penitentiary of a person for being one-eighth Negro, = when=20 the establishment of this fact depends solely upon the testimony of one = old man,=20 who merely says that Rachael was a Negro and had distinct Negro = characteristics=20 is going further than justice will permit. And this is especially true = when this=20 evidence is solidly impeached by the testimony of at least three = disinterested=20 persons, all of whom are old enough to and had known and observed Rachel = Knight=20 in her lifetime.

These persons had no = interest of the=20 outcome of this case and it is not shown that they had any reason=20 whatever [***4] to appear and swear falsely, yet each of them = swore=20 in the most positive terms they had known, seen and been around Rachel = Knight on=20 many occasions and that she absolutely was not a Negro. It is true that = one of=20 them said that she was part Cherokee Indian and this was what she = claimed to be.=20 Nevertheless, all of the witnesses agreed that she was of ginger-cake = color, did=20 not have kinky hair and did not possess the distinct racial = characteristics by=20 which all pure Africans are identified.

It = may be said=20 that the court below had a right to and should have assumed that the = jury would=20 do its duty and make a verdict in accordance with the proof based upon = the=20 instructions of the court. This the jury failed to do and brought in a = verdict=20 which was and is against the overwhelming weight of the evidence and the = court=20 should have set this verdict aside and granted the new trial when it was = asked=20 to do so in a proper motion therefor, as was done.

It=20 is worthy of note that this appellant and his antecedents and immediate = family=20 have lived in the same immediate locality for more than one hundred = years past,=20 and he and his immediate family live there now, yet the State did not = undertake=20 to [***5] show that at any time in his entire life he had = ever=20 associated with Negroes or conducted himself in such a manner as to = indicate to=20 the public that he considered himself a Negro, nor did it undertake to = prove any=20 statement that he had ever made to any person that he was a Negro, = although all=20 this proof would have been competent had it been available. On the = contrary the=20 proof all shows, without contradiction, that every public record ever = made by=20 this appellant concerning his race showed him to be a white man. When he = registered for the draft during the late war, he registered as a white = man. When=20 he was inducted he was inducted along with other white registrants of = Jasper=20 County as a white man at Camp Shelby in this State. Having been inducted = he was=20 chosen for naval service and served in the Navy with white troops and as = a white=20 man. Having served honorably, he was discharged as a white man. Being = once again=20 in civil life, he married a white woman as a white man, his physical = appearance=20 being such that his race was not questioned by the official who issued = the=20 license or the one who performed the marriage ceremony. Although = competent so to=20 do the State did not prove a single [***6] act or word of = this man=20 wherein he had ever acknowledged or indicated to anyone that he was a = Negro,=20 although he and his parents and grandparents have lived in the same = community=20 for more than a century.

George H. = Ethridge,=20 Assistant Attorney General, for appellee.

I = desire to=20 call the court's attention to the difference in Section 263 and Section = 207 of=20 the Mississippi Constitution. Section 263 is the constitutional basis = for=20 prohibiting a marriage between a white person and a Negro or mulatto or = a person=20 who shall have one-eighth or more Negro blood. This is a specific = requirement=20 under this section as to a marriage denounced by the section. To sustain = a=20 prosecution based on said section, and the statute following it, the = proof must=20 show beyond a reasonable doubt that the defendant had one-eighth or more = Negro=20 blood. It is not sufficient to show that the defendant had some Negro = blood but=20 it must show affirmatively and positively that he had one-eighth or more = of=20 Negro blood. Many persons are classed as Negroes in public opinion who = have far=20 less than one-eighth Negro blood.

I submit = that even if=20 the court should be of the opinion that there was enough evidence=20 for [***7] the jury to find that the appellant was one-eighth = Negro=20 that such verdict would be against the overwhelming weight of the = evidence, and=20 this was alleged in the motion for a new trial in the case and in my = judgment=20 should have been sustained as the evidence is overwhelming, in my = opinion, that=20 the appellant had less than one-eighth Negro blood, if he had any Negro = blood,=20 and it would not matter how objectionable the marriage of a white person = to a=20 person with Negro blood might be, it would not come within the = requirements of=20 the statute. This is a criminal case and the proof must be certain and = free from=20 reasonable doubt. Nothing can be taken by implication or presumption of = law in=20 this case and it does not give rise to a sufficient probability to = amount to a=20 presumption of fact.

JUDGES: In = Banc.=20 Montgomery, J.

OPINIONBY: = MONTGOMERY
OPINION: [*568] = [**747] =20 Davis Knight was indicted by the grand jury of Jones County, the = indictment,=20 omitting the formal parts, reading as follows: -- "Davis Knight on the = 21st day=20 of June, 1948 in the County and District aforesaid did, being a citizen = of the=20 State of Mississippi and a Negro or mulatto male person, with 1/8 or = more of=20 Negro blood, and [***8] being a person who is prohibited by = the laws=20 of the State of Mississippi from marrying a white person or person of = the=20 Caucasian race, did on or about the 18th day of April, 1946, wilfully = and=20 feloniously and unlawfully marry Junie Lee Spradley, a white female = person and=20 did wilfully, feloniously and unlawfully live with her = [*569] and=20 cohabit with her as man and wife, against the peace and dignity of the = State of=20 Mississippi."

There was a plea of not = guilty and a=20 trial resulting in a verdict of guilty, judgment accordingly, and the = imposition=20 of sentence. The case is before us on appeal from that judgment.
The basis for the indictment is Section 459 of the = Mississippi Code of=20 1942, which reads as follows:

"The marriage = of a white=20 person and a Negro or mulatto or person who shall have one-eighth or = more of=20 Negro blood, or with a Mongolian or a person who shall have one-eighth = or more=20 of Mongolian blood, shall be unlawful, and such marriage shall be = unlawful and=20 void; and any party thereto, on conviction, shall be punished as for = marriage=20 within the degrees prohibited by [**748] the last two = sections; and=20 any attempt to evade this and the two preceding sections by=20 marrying [***9] out of this state and returning to it shall = be within=20 them."

It will be noted that to make out = the offense=20 under the indictment and our statute it was necessary for the State to = prove=20 beyond all reasonable doubt that the defendant had one-eighth or more = Negro=20 blood. The Attorney General, both in the brief for the State and in his = oral=20 argument before the court, has admitted that the proof in this record = fails to=20 meet this burden. We have carefully examined the record and we are = convinced by=20 it that the Attorney General was justified in making such admission and = that the=20 proof in this case does not establish beyond every reasonable doubt that = the=20 defendant had one-eighth or more Negro blood. The verdict is against the = overwhelming weight of the evidence. For this reason the judgment of the = lower=20 court cannot be permitted to stand but must be reversed and remanded.

Reversed and remanded.

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