Norris v. State

• Citation: 229 Ala. 226,156 So. 556
• Decision Date: 28 June 1934
• Docket Number: 8 Div. 582.
• Parties: NORRIS v. STATE.
• Court: Supreme Court of Alabama

156 So. 556

229 Ala. 226

NORRIS v. STATE.

8 Div. 582.

Supreme Court of Alabama

June 28, 1934

Rehearing Denied Oct. 4, 1934.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Clarence Norris was convicted of rape, and he appeals.

Affirmed.

Samuel S. Leibowitz, Jos. R. Brodsky, Osmond K. Fraenkel, George Rosier, and Carol King, all of New York City, and George W Chamlee, Sr., of Chattanooga, Tenn., for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst Atty. Gen., for the State.

GARDNER Justice.

This is defendant's second appeal from a judgment of conviction of rape on the person of one Victoria Price. The first judgment of conviction, in the circuit court of Jackson county, where the indictment was preferred, was here affirmed (Weems v. State, 224 Ala. 524, 141 So. 215), and subsequently reversed by the Supreme Court of the United States (Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A. L. R. 527) upon the theory of inadequate representation by counsel.

From these authorities, in connection with a consideration of the separate appeals of those jointly indicted with this defendant (Patterson v. State, 224 Ala. 531, 141 So. 195; Powell v. State, 224 Ala. 540, 141 So. 201), the interested reader may obtain a more complete history and outline of the salient facts, the reiteration of which is here unnecessary.

Mindful of our duty in cases of this character, we have carefully scanned the record for error whether or not pressed upon our attention, with the result that we find all questions of any moment and deserving of separate treatment in our opinion are those forcibly urged by counsel in oral argument and in brief. The discussion here will therefore be confined to those questions, which will be here considered in the order of their presentation in brief.

The first relates to the action of the trial court in overruling defendant's motion to quash the indictment. Defendant is a negro, and insists in his motion that his rights under the Fourteenth Amendment to the Constitution of the United States have been violated, in that persons of the negro race, duly qualified under the laws of Alabama to serve as members of the grand jury that found the indictment against him, were excluded from the list from which said grand jury was drawn, and from the said grand jury, solely by reason of their race and color.

The state joined issue on this motion and denied the averments thereof. The rule applicable appears to have been definitely settled by the Supreme Court of the United States, illustrated by the following brief excerpts from one or two decisions. From Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839, quoted in Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 259, 48 L.Ed. 417, the following: "Whenever, by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the 14th Amendment of the Constitution of the United States. Strauder v. West Virginia, 100 U.S. 303 ; Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567, 574; Gibson v. Mississippi, 162 U.S. 565, 40 L.Ed. 1075, 16 S.Ct. 904."

And the burden rests upon the accused to offer proof in support of the motion, or, as expressed in Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 339, 50 L.Ed. 497, "the grounds assigned for quashing the indictment should have been sustained by distinct evidence, introduced or offered to be introduced, by the accused."

The Martin Case, supra, is also to the effect that the mere fact that no one of the negro race was on the grand jury that returned the indictment does not suffice to show any discrimination, the court saying: "A different conclusion in this case would mean that, in a criminal prosecution of a negro for crime, an allegation of discrimination against the African race because of their race could be established by simply proving that no one of that race was on the grand jury that returned the indictment or on the petit jury that tried the accused; whereas, a mixed jury, some of which shall be of the same race with the accused, cannot be demanded, as of right, in any case; nor is a jury of that character guaranteed by the 14th Amendment. What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury as well as in the impaneling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color. Virginia v. Rives (Ex parte Virginia) 100 U.S. 313, 323, 25 L.Ed. 667, 671; In re Wood (Wood v. Brush) 140 U.S. 278, 285, 35 L.Ed. 505, 11 S.Ct. 738. Whether such discrimination was practiced in this case could have been manifested only by proof overcoming the denial on the part of the state of the facts set out in the written motions to quash. The absence of any such proof from the record in this case is fatal to the charge of the accused that his rights under the 14th Amendment were violated." Other authorities noted are: Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667; Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Lee v. State, 163 Md. 56, 161 A. 284; Bonaparte v. State, 65 Fla. 287, 61 So. 633; Lewis v. State, 91 Miss. 505, 45 So. 360.

The jury board in this state is composed of three members, and the qualifications for jurors are set out in section 8603, Code 1923 (see, also, Gen. Acts 1931, pp. 44 and 55), as follows: "The jury commission shall place on the jury roll and in the jury box the names of all male citizens of the county who are generally reputed to be honest and intelligent men, and are esteemed in the community for their integrity, good character and sound judgment, but no person must be selected who is under twenty-one or over sixty-five years of age, or, who is an habitual drunkard, or who, being afflicted with a permanent disease or physical weakness is unfit to discharge the duties of a juror, or who cannot read English, or who has ever been convicted of any offense involving moral turpitude. If a person cannot read English and has all the other qualifications prescribed herein and is a freeholder or householder, his name may be placed on the jury roll and in the jury box."

There can be no objection to this statute, and none is interposed as to its validity. Speaking of a similar statutory provision of the state of South Carolina, the court in Franklin v. South Carolina, 218 U.S. 161, 30 S.Ct. 640, 642, 54 L.Ed. 980, said: "We do not think there is anything in this provision of the statute having the effect to deny rights secured by the Federal Constitution. It gives to the jury commissioners the right to select electors of good moral character, such as they may deem qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions. There is nothing in this statute which discriminates against individuals on account of race or color or previous condition, or which subjects such person to any other or different treatment than other electors who may be qualified to serve as jurors. The statute simply provides for an exercise of judgment in attempting to secure competent jurors of proper qualifications."

The argument is directed, therefore, not against the statute, but its administration by the jury commissioners as agencies of the state. This becomes, of course, a matter of proof. Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497.

Both defendant and the state so proceeded, and much evidence was offered on the issue thus framed. Any detail discussion would extend this opinion to undue length, and reference will be made only to salient features of the proof and legal principles applicable thereto.

The total population of Jackson county is 36,881, of which there are 18,801 males. The white population is 34,192, and that of the colored race, 2,688. It thus appears at the outset that the negro population form a small percentage of the total population. As to the male population over twenty-one years of age there are 8,801, and of these only 666 are of the negro race. In some parts of the county there are very few negroes at all, as disclosed by the testimony of the witness Stewart, one of the jury commissioners, who stated that south of the river there are "practically no negroes living in there."

And as throwing some light on this phase of the question, though of no material importance, is the further proof that in so large a county as Jackson there is not a single negro doctor.

True defendant's proof tends to show that in a long number of years no negro had been called for jury service in that county, and such proof, under the authorities, is to be given its due weight. But the question presented is much broader than that, and unless the court is persuaded from all the evidence there has been a discrimination against the negro on account of his race or color, by his exclusion from the jury roll on the part of the jury commission for that reason, the motion is not sustained. For the authorities are all to the effect that a member of the colored race, party to a trial involving his life, liberty, or property, cannot claim, as a matter of right, that his race shall have a representative on the jury, and that a mixed jury in a particular case is not within the meaning of the Constitution, necessary to the equal protection of the law. The only right in this respect,...