State v. Speller
| Decision Date | 04 May 1949 |
| Docket Number | 147 |
| Parties | STATE v. SPELLER. |
| Court | North Carolina Supreme Court |
This is the second time that this case has come to this Court on the appeal of the prisoner, a Negro man, from a sentence of death pronounced on a verdict of a petit jury finding him guilty of the capital felony of rape upon a white woman. On the former appeal, this Court reversed the conviction and judgment and remanded the action to the Superior Court of Bertie County for a new trial because it concluded that the prisoner had been denied his constitutional rights through the purposeful exclusion of members of his race from the grand jury by which he was indicted. State v. Speller, 229 N.C. 67, 47 S.E.2d 537. The prisoner was indicted anew on the same charge at the August Term, 1948, of the Superior Court of Bertie County by a different grand jury composed of members of both the white and Negro races. The validity of the second indictment is not challenged. When arraigned thereon, the prisoner pleaded 'not guilty' and procured a continuance of the trial to the November Term, 1948, of the Superior Court in Bertie County.
On the opening day of that term, towit, November 15, 1948, the presiding judge entered an order on his own motion under G.S s 1-86 directing that a special venire of 75 persons should be summoned from Warren County, a county in the same judicial district as Bertie, to appear in the Superior Court of Bertie County at 3:00 o'clock P.M. on the following day as the jury panel for the trial of this case, and providing that the names of such persons should be drawn from the jury box of Warren County by a child under ten years of age in the presence of the Clerk to the Board of Commissioners of Warren County, the solicitor of the district, the prisoner, and counsel for the prisoner.
Neither the solicitor nor counsel for the defense had any notice that the jury panel would be called from Warren County until the trial judge read and signed the order therefor in open court on the first day of the term. Warrenton, the county seat of Warren County, is about 82 miles from Windsor, the county seat of Bertie County, where the prisoner made his home, and more than 50 miles from Durham and Raleigh, where counsel for the defense resided and ordinarily practiced law. The record does not indicate that the prisoner or his attorneys possessed any personal knowledge of Warren County or its affairs when trial was had in this case.
Pursuant to the order for the special venire scrolls bearing 75 names were drawn from the jury box of Warren County in the courthouse at Warrenton about 5:00 P.M on Monday, November 15, 1948, by a child under ten years of age in the presence of the clerk to the Board of Commissioners of Warren County, the solicitor, the prisoner and counsel for the defense. As a result of absence or illness, 18 of those whose names were drawn did not receive a summons to serve on the panel; but the remainder, consisting of 56 white men and 1 Negro, appeared at the courthouse of Bertie County in Windsor at the appointed hour on Tuesday November 16, 1948.
Before the trial jury was chosen, sworn, or impaneled, counsel for the prisoner lodged 'a challenge to the entire array of petit jurors upon the ground of disproportionate representation of negroes on petit juries in Warren County and long, continuous and systematic exclusion of negroes from petit juries in Warren County, all contrary to the laws of the State of North Carolina and of the United States. ' When they interposed their challenge to the array, the attorneys for the defense moved 'the Court to grant time to get evidence from Warren County on the issue of disproportionate representation of negroes on petit juries and long and continuous exclusion of negroes from petit juries in Warren County. ' The trial judge denied this motion, but announced that he would 'hear any evidence that the defendant has,' and that there were 'at least 59 people from Warren County, one of whom is a negro, in the court room.'
Counsel for prisoner thereupon undertook to support the challenge to the array by calling six witnesses at random from the special veniremen and other bystanders in the courtroom. One of these witnesses, to-wit, T. W. Sykes, the only Negro on the panel, testified that he had been a juror in Warren County 'a time or two' in the 44 years he had resided there, but that he did not recall any other Negroes who had served on the grand jury or the petit jury in Warren County during that period. Three of the witnesses stated that 'Negroes had served on petit juries in Warren County almost every term of court in the last 8 or 10 years. ' The other two disclaimed any knowledge of the matter in controversy. It was agreed, however, that many Negroes owned property in Warren County.
After these six witnesses had testified, the court temporarily desisted from hearing evidence on the challenge to the array and proceeded with the selection of a trial jury from the special venire of 57 persons so that members of the venire not chosen as trial jurors might not be detained in Bertie County overnight. In taking this course, the presiding judge announced that the trial jury would not be impaneled until he had ruled on the prisoner's challenge to the array. An all-white trial jury was selected after the prisoner had exhausted the 14 peremptory challenges allowed him by statute and had sought unsuccessfully to excuse one of the trial jurors by a challenge to the poll.
When the trial jury was thus completed, the prisoner moved the court that such jury be sent from the courtroom while the evidence of three Negroes, to-wit, A. V. Sykes, L. E. Sykes, and Freddie Hicks, was offered 'in continuation of the motion challenging the array of petit jurors. ' This motion was denied, and these three witnesses were called to the stand in the presence of the trial jurors. A. V. Sykes, L. E. Sykes, and Freddie Hicks testified that they were aged 42, 41, and 39 years respectively; that they were Negroes residing and owning property in Warren County; that they had never been summoned to jury service in Warren County; and that they knew of only one or two Negroes who had ever acted as grand or petit jurors in Warren County. When the presiding judge made his findings of fact on the prisoner's challenge to the array, he found that
After presenting the evidence of these three witnesses, the prisoner rested in respect to his challenge to the array, and court adjourned for the day. On the following morning, to-wit, Wednesday, November 17, 1948, the State offered certain officers of Warren County as witnesses on this phase of the controversy. They testified, in substance, that at every biennial revision of the jury list during the 20 years last past the Board of Commissioners of Warren County had put into the jury box the names of all adult residents of Warren County, irrespective of their race or color, who were of good moral character and sufficient intelligence and who had paid all taxes assessed against them during the preceding year. The prisoner elicited evidence on the crossexamination of the State's witnesses to the effect that in 1940 Warren County had a population of 23,145 people, of whom 8,036 were white and 15,109 were Negroes, and that during the four years next preceding the drawing of the special venire in the case at bar 1,077 whites and 28 Negroes had been called to jury service in Warren County.
The court made voluminous findings of fact to the effect that during the 20 years next preceding the trial of this action the Board of Commissioners of Warren County had fully complied with all of the provisions of chapter 9 of the General Statutes relating to jurors by putting on the jury list and in the jury box the names of all adult residents of the county, without regard to race or color, who were 'of good moral character and of sufficient intelligence' and who had made timely payment of 'all the taxes assessed against them,' and that no Negroes had been excluded from the grand or petit juries of the county during such period because of their race or color. On the basis of these findings, the court overruled the prisoner's challenge to the array, and thereupon the trial jury thereofore chosen from the special venire from Warren County was impaneled and charged with the case.
Both the prosecution and the defense offered testimony as to the merits of the action. No good object will be served by recounting the facts in detail. It will suffice for present purposes to note that the State's evidence tended to show that shortly after 10:30 P.M. on July 18, 1947, the prisoner assaulted and raped the prosecutrix with savage brutality in the yard at her home a mile and a half from Windsor, and the prisoner's testimony tended to establish an alibi.
The trial judge instructed the jury that it could return any one of the following four verdicts, to-wit: (1) Guilty of the capital felony of rape; (2) guilty of an assault with intent to commit...
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