State v. Wilson, 149

• Decision Date: 10 July 1964
• Docket Number: No. 149,149
• Citation: 137 S.E.2d 109,262 N.C. 419
• Parties: STATE, v. B. B. WILSON, Jr.
• Court: North Carolina Supreme Court

Page 109

137 S.E.2d 109

262 N.C. 419

STATE, v. B. B. WILSON, Jr.

No. 149

Supreme Court of North Carolina.

July 10, 1964

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

Charles V. Bell, Charlotte, for defendant.

MOORE, Justice.

Before pleading to the indictment (State v. Covington, 258 N.C. 501, 128 S.E.2d 827), defendant moved to quash the bill on the ground that members of his race had been for a long time systematically excluded from service on the grand juries of Cleveland County because of their race, and were systematically excluded from service on the grand jury which returned the true bill against him.

The true bill of indictment was found and returned on 8 July 1963. The trial was begun on 17 July 1963. The motion to quash was made 8 July 1963, and the hearing thereon was commenced 12 July 1963.

According to the 1960 Federal Census the population of Cleveland County is 66,048, of which number 15,250 are Negroes, 23%. Defendant's attorneys were permitted to inspect in open court the scrolls in the box containing the names of the jurors for the county, and they interposed no objection to the manner in which the names appeared on the scrolls. See State v. Speller, 228 N.C. 67, 47 S.E.2d 537. Pursuant to instructions of the county commissioners, the then current jury list had been made under the supervision of the county auditor by copying the names from the county tax lists. There is a separate tax list for each township. The names of white and Negro taxpayers are in the same book for each township but are listed separately. The county auditor explained: 'The reason we separate them is the State Board of Assessment requires that we make a separate report of poll tax as to White and Negro and Indians, and the only reason we separate them is just for our own convenience in preparing this report.' The names of taxpayers, white and Negro and male and female, with the exception of nonresidents and deceased persons, were included in the jury list. If taxes were listed to husband and wife, the names of both were put on the list. The list was cut into individual slips or scrolls of uniform size, each bearing only one person's name, and the scrolls were placed in the box. Names of taxpayers were included without regard to payment or nonpayment of taxes. The chairman of the Board of County Commissioners testified that the population of Cleveland County was 66,000 and he would assume that 20% of the Negroes are listed in the tax records. The county auditor stated that some names were marked off the list but he did not know how many Negro names were marked off, that it would be about the same per cent for Negroes as for whites. The clerk-typist who made the list said she didn't know how many Negroes were on the list, she would estimate the number at more than 500 and that if colored women owned property their names were included. The sheriff, who had served for 12 years and 3 years as deputy, stated: 'I don't know how many Negroes have served on the grand jury, but I do know there has been a good many. * * * I really don't know whether a Negro woman in this county has ever served on the jury--grand or petit.' One Negro served on the grand jury that returned the bill of indictment in question. Another served about a year earlier. The clerk of superior court testified that two or three Negroes had served on the grand jury during his seven years in office, but he had kept no record of it. Several Negro citizens testified that they were property owners and taxpayers but neither they nor their wives had ever been called for jury service. The county officials stated that in making the jury list there had been no discrimination on account of race.

The foregoing facts and testimony were introduced by defendant. The solicitor cross-examined defendant's witnesses, but offered no evidence. The judge made no findings of fact. With respect to the motion to quash, the record discloses no findings or ruling except the entry, 'Motion denied.' Upon many phases of the matter the evidence was uncertain and conflicting. In failing to find the material facts the court erred.

A valid indictment returned by a legally constituted grand jury is an essential of jurisdiction. State v. Covington, supra.

When, at a hearing upon a motion to quash the bill of indictment, there is a showing that a substantial percentage of the population of the county from which the grand jury that returned the bill was drawn is of the Negro race and that no Negroes, or only a token number, have served on the grand juries of the county over a long period of time, such showing makes out a prima facie case of systematic exclusion of Negroes from service on the grand jury because of race. Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77; Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. The mere denial by the officials charged with the duty of listing, selecting and summoning jurors that there was any intentional, arbitrary or systematic discrimination because of race, is not sufficient to overcome such prima facie case. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Norris v. Alabama, supra. To overcome such prima facie case, there must be a showing by competent evidence that the institution and management of the jury system of the county is not in fact discriminatory. And if there is contradictory and conflicting evidence, the trial judge must make findings as to all material facts.

In State v. Arnold, 258 N.C. 563, 129 S.E.2d 229, there was a motion to quash the indictment for racial discrimination in grand jury service. Defendant introduced evidence that there were on the tax lists 12,250 whites and 4,819 Negroes, and 5,583 whites and 2,499 Negroes were subject to poll tax, that one Negro had served on the grand jury in 24 years, another had been selected but was excused, the panels drawn for court sessions usually contained 3 or 4 Negroes, and at one time 4 or 5. The State offered no evidence. This Court held that the defendant had 'failed to carry the burden of showing facts which would permit a reasonable inference of purposeful racial discrimination.' The Supreme Court of the United States allowed certiorari and reversed the holding of this Court, stating in a per curiam opinion: 'This evidence was uncontradicted, the State cross-examining the witnesses but offering no evidence.' Further: 'The judgment below must be reversed. The ' testimony in itself made out a prima facie case of the denial of the equal protection which the Constitution guarantees.' Norris v. Alabama, 294 U.S. 587, 591, 55 S.Ct. 579, 581, 79 L.Ed. 1074.' Arnold v. North Carolina, supra.

In the instant case, it clearly appears that nearly one-fourth of the population of Cleveland County is of the Negro race, two or three Negroes have served on the grand juries of Cleveland County within the last seven years. According to the authorities above cited this makes out a prima facie case of discrimination, and the testimony of county officials that there had been no intentional or systematic exclusion of Negroes because of race is insufficient to overcome the prima facie showing. The court below found no facts and established no basis for a determination that defendant's prima facie case had been overcome. The Supreme Court of North Carolina is not a fact-finding tribunal, and we are not in a position on the present state of the record to determine whether racial discrimination with respect to jury service has in fact been practiced in Cleveland County. It is quite probable that it has not; the presumption is that public officials have performed their duties in a fair, legal and constitutional manner.

The findings of fact of a trial judge, in a hearing on such motion to quash, are conclusive on appeal if supported by competent evidence. State v. Perry, 250 N. C. 119, 108 S.E.2d 447; State v. Speller, supra; State v. Henderson, 216 N.C. 99, 3 S.E.2d 357; State v. Bell, 212 N.C. 20, 192 S.E. 852. The findings of a trial judge will not be disturbed unless so grossly wrong as to amount to an infraction of constitutional guaranties. State v. Cooper, 205 N.C. 657, 172 S.E. 199. In Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692, it is said: '* * * the trier of fact who heard the witnesses in full and observed their demeanor on the stand has a better...