Hamilton v. State

• Decision Date: 26 March 1941
• Docket Number: No. 21490.,21490.
• Citation: 150 S.W.2d 395
• Parties: HAMILTON v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W.2d 395

HAMILTON v. STATE.

No. 21490.

Court of Criminal Appeals of Texas.

March 26, 1941.

Rehearing Denied May 14, 1941.

Appeal from District Court, Falls County; Terry Dickens, Judge.

W. M. Hamilton was convicted for homicide, and he appeals.

Affirmed.

Robert D. Peterson, of Marlin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

The appellant is charged with the voluntary killing of one Babe Gates, a negro woman, with his malice aforethought. The punishment assessed is confinement in the penitentiary for twenty-five years.

This is the second appeal in this case. The opinion delivered by this court on the former appeal is reported in 138 Tex.Cr.R. 205, 135 S.W.2d 476, where the material facts constituting the offense are stated. Consequently, we deem it unnecessary to re-state the same here as there is no material difference in the facts proven on this trial and those proven at the former trial.

Upon this trial, as in the former trial, appellant filed a verified motion to quash the indictment on the ground of discrimination against the negro race, of which he is a member, in the appointment of jury commissioners and in the selection of grand and petit jurors, which, he asserts, was in violation of the Fourteenth Amendment to the Constitution of the United States. In support of this motion the present district judge testified, in substance, that he had held this office for about four years. At the time he appointed a jury commission to select a grand jury, he selected all white men, and that he had not named a negro on such commission during his tenure of office, and that upon a check back he did not find any negro as far back as 1936 on either commission or grand jury. The grand jury was selected out of sixteen names, all names placed in a hat and the slips drawn out and placed on the lists of the first twelve in the order drawn. He did not recall the name of any negro drawn on the grand jury. He appointed the jury commission who drew the grand jury that found the indictment against appellant. He knew of some negroes who might have made good commissioners. He gave that matter no thought at such time; he only tried to get three good men, and he instructed them not to discriminate at all in their selections; he gave them the poll list and the taxpayers' list, and told them that negroes, when qualified otherwise, might serve on the jury, and not to discriminate between the races. Falls County's population is about 38,000, with about 12,000 or 15,000 negroes.

Mr. Depew, one of the jury commissioners, testified that he, Mr. Cousins and Mr. Gray were the three men appointed by Judge Dickens to select a grand jury and jurors for such term of court. He selected four grand jurors and seventy-two petit jurors, and was personally acquainted with them all so selected by him. There were no negroes on this list. He didn't think he knew any negroes thus qualified. He did not discriminate against any person because he was of the negro race. "I tried to select men who were honest, fair and impartial. I do not know whether any names drawn by the other commissioners were negroes or not. I drew none."

Cuyler Cousins, another jury commissioner, testified: "We selected 16 names as grand jurors, as well as the petit jurors. I do not know whether the names I drew were negroes or not. There were some negroes' names drawn in the list. I do not know how many. I think I know some negroes who are qualified to serve as grand jurors. Judge Dickens told us to pick names for the jury list regardless of whether they were white or black, not to discriminate against the negro race, and I did not so discriminate. I did draw names whom I did not know whether they were white or black, and one or two negroes were drawn on the jury panel for this present term of court. I followed the poll and taxpayers' list in making my selections. I did not select any negroes for the grand jury panel. I imagine I know some negroes in this county who can read and write, of sober habits, sound judgment and honest. I did not discriminate against them on account of the fact that they were of the negro race."

Harold Gray, the third commissioner, testified: "I might have selected some negroes on the jury panel. Some of them I did not know. I took the poll and taxpayers' lists and selected from them. I am not very well acquainted all over the county. I do not personally know any negroes that are qualified to sit on grand and petit juries. I didn't select any negroes that I know of myself. I selected a portion of our lists of jurors from my immediate vicinity. We did not discriminate against the negro race. Judge Dickens instructed us not to discriminate against the negroes, and we did not do so. I do not remember running across the name of any negro on my list. If I did I did not skip his name and fail to draw him because of his race. I took a section and each of the others took a section, and then we added them together."

Judge E. M. Dodson, District Judge prior to the present judge, testified: "I was district judge from 1926 to 1934. I don't think I ever named any negro as jury commissioner during my tenure of office; there was one negro drawn on the grand jury panel but he failed to qualify and was excused. There were negroes drawn on the petit jury panel, but I do not think any one of the negroes served; those who qualified were excused by the attorneys. I always instructed my commissioners to select good men who were best qualified under the law, whether they were white or black, I did not discriminate against the negroes when appointing the jury commissioners. I kept in mind the statute relative to such commissioners, that they be well qualified, outstanding men and citizens that know the people of the county. I never willfully refused to select the name of a negro because of the fact he was a negro. I do not exactly remember how many negroes have served on juries under me, but I remember on a negro's trial, when he received the death penalty, there were several negroes on the jury venire, and from time to time there would be a negro juror on the panel; most of them were not able to qualify for some cause or other. I do not think I am able to pick any negro in the town of Marlin who would meet the statutory requirements for a jury commissioner. I think I know some in the county that could qualify."

G. H. Carter resided in Falls County, and practiced law there forty-two years. He had been a county official. He testified: "I recall a negro serving on the grand jury about 15 or 18 years ago. I do not remember any negro on any jury commission. I know of a number of negroes on the petit jury, 10 or 12 years ago. During that time I have seen negroes on jury panels, a year or two ago. I do not know of any jury commissioner discriminating against the negro race. I think I know some negroes qualified to serve as jury commissioners and as grand jurors. The county is about 40 per cent negroes in population."

Mr. Van Pelt, the district clerk, testified that there were no negroes on the grand jury during the six years he served as such clerk; there were some negroes drawn on the petit jury, but none finally served on the jury. He knew some negroes who were able to read and write and were of sober habits. He did not know what per cent of the negroes are thus qualified.

Judge Prentice Oltorf testified that he was district judge of this district for about eight years in 1918 to 1926. "I never appointed a negro jury commissioner while in office, and I do not now have any recollection whether a negro was drawn on the grand jury or not, but I do not now recall seeing one on such panel. There might have been one or two drawn but I am pretty sure none ever served, and I don't think any negro served on the petit jury while I was in office. If they showed up they were either disqualified or excused; they didn't serve. I imagine a few negroes in this county could qualify as jury commissioners under the law, and I think a few could qualify as grand jurors, and a few scattered around who could qualify as petit jurors. I never did as district judge discriminate against the negro when selecting my jury commission. I just named the men. I didn't give that any thought. I just selected good men, and those I thought of were white men. I never instructed them at all relative to the different races. There were negroes drawn on the petit jury panel. I have no recollection of any on the grand juries. I don't remember whether the petit negro jurors were excused or just disqualified."

A. L. Hunter, presumptively a negro physician who lived in Marlin, testified: "I am well acquainted with the negroes in Falls County. I think there are about 10,000. I think about 50 per cent of these persons are able to read and write, and of sober habits. I have never heard of a negro serving either as jury commissioner or on a grand or petit jury in Falls County. I have never been called for service as such. I do not know how many negroes have been drawn for jury service; I do not know whether any negroes are drawn for jury service this present week. I cannot state of my own knowledge that the officers have willfully discriminated against the negro race in the selection of jurors. I do not know what the jury commission does. There are 5 or 6 negroes in Marlin who are practicing professions of different kinds. There are no other negro physicians in Falls County. There is one dentist in this county of the negro race."

Janie Belle Ray testified "I was district clerk of Falls County 7 years from 1931 to 1938. During my term of office I do not remember any negro serving on the grand or petit jury. There might have been one negro on the grand jury panel and some on the petit jury panel. I do not remember that any one of them ever served. I do not know of any officials ever discriminating against the negro race; the judge always told the commissioners...