Opinion
No. 42297.
April 23, 1962.
1. Civil rights — systematic exclusion of Negroes from jury — quashing indictment and special panel.
Motion to quash rape indictment and special panel should have been granted where defendant was a Negro, and no Negroes had ever served upon juries of the county, although there were Negro qualified electors in the county, and although some names of Negroes had been put in box where they might have been drawn as jurors, in the year in which crime occurred and in which defendant was indicted and tried there were no names of Negroes in the jury box.
Headnote as approved by Jones, J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREENE, JR., J.
Douglas C. Stone, Shields Sims, Columbus, for appellant.
I. The Court erred in overruling motion to quash the indictment.
II. The Court erred in overruling motion to quash special venire.
III. The two assignments of error both relate to the same principle of law regarding the exclusion of negroes from the grand and petit juries solely because of their race, denying this negro defendant equal protection under the law as required by the Fourteenth Amendment. McGee v. State, 203 Miss. 592, 33 So.2d 843; Patton v. State, 332 U.S. 463, 92 L.Ed. 76, 68 S.Ct. 184; Amend. XIV, U.S. Constitution.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. To be a qualified juror in Mississippi one must, among other things, be a qualified elector, the procedure for the drawing of names, etc., being set out in Section 1766 of the Mississippi Code of 1942.
II. The burden of becoming qualified to register and vote and thereby becoming a qualified juror is upon the prospective registrant and juror and he must be a qualified juror at the time he is summoned for jury service. Flowers v. State, 209 Miss. 86, 41 So.2d 352; Poston v. Daily, 210 Ky. Rep. 649.
III. The record in this case is completely silent with respect to any effort made by the pertinent public officials to prohibit or even discourage negroes from qualifying as electors in Lowndes County.
IV. Even if appellant had argued the relative small number of qualified negro electors, since the burden is upon the registrant himself to qualify, in the absence of any evidence to the contrary, it will be presumed that all eligible negro applicants for registration were, in fact, registered.
V. While several people testified that they had not known of a negro to serve on a jury in Lowndes County, those in the best position to know, the chancery clerk and circuit clerk, testified that negroes names had been put into the jury box where they were subject to withdrawal as jurors. Cameron v. State, 233 Miss. 404, 102 So.2d 355.
VI. The question has always been whether there was a purposeful exclusion of members of the defendant's race because of race. Kennard v. State, 242 Miss. 691, 128 So.2d 572.
VII. A mere showing that negroes were not included in a particular jury is not enough; there must be a showing of actual discrimination because of race. Snowden v. Hughes, 321 U.S. 1, 88 L.Ed. 497.
VIII. It is fundamental that, before exclusion of a class can be complained of, such class must be established. Hernandez v. Texas, 347 U.S. 475, 98 L.Ed. 866.
Upon this record, to affirm this case would be a vain and futile thing. The Supreme Court of the United States has so said in no uncertain terms.
Defendant was convicted of rape and sentenced to death. He is a negro. The victim was white.
The only assignment of error presented to us is the overruling by the lower court of a motion to quash the indictment and the special panel because of an alleged systematic discrimination against negroes.
Proof was taken and it was shown by men who had lived in the county for over 60 and 70 years and occupied official positions that, within their memory, no negroes had ever served upon the juries of Lowndes County, and it was not known of one having been summoned to serve.
It was shown that there were negro qualified electors in the county and that in recent years "some" names of negroes had been put in the box where they might be drawn as jurors. However, for the year 1961, being the year in which this crime occurred and in which the defendant was indicted and tried, there were no names of negroes in the jury box.
In the case of Patton v. State, a similar situation existed — in fact, this Court cannot distinguish between the essential facts in the two cases. When the Patton case came to this Court it was affirmed in an opinion by Judge Griffith, 201 Miss. 410, 29 So.2d 96. Judge Griffith reasoned that the evidence failed to show any systematic and wilful exclusion.
The Supreme Court of the United States reversed this Court and said: "When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand." (Hn 1) We are compelled by the decision of the United States Supreme Court in the Patton case to hold that the lower court erred in overruling the motions to quash and the case is therefore reversed and remanded.
Reversed and remanded.
All Justices concur.