State v. Brown

Citation63 S.E.2d 99,233 N.C. 202
Decision Date02 February 1951
Docket NumberNo. 721,721
PartiesSTATE, v. BROWN.
CourtUnited States State Supreme Court of North Carolina

Atty. Gen. Harry McMullan and Asst. Atty. Gen. Ralph Moody for the State.

Hosea V. Price, Winston-Salem, and Harold T. Epps, Winston-Salem, for defendant.

STACY, Chief Justice.

Putting aside any consideration of formal matters, which are not without substance, however, the only real questions sought to be presented on the appeal are: first, whether the jury list was selected from the legally prescribed source; and, secondly, whether the defendant's confession was voluntary.

First. The Jury List. Prior to 1947, it was provided by G.S. 9-1 that the tax returns of the preceding year for the county should constitute the source from which the jury list should be drawn, and this was then the only prescribed source. To meet the constitutional change of the previous election making women eligible to serve on juries, the statute was amended in 1947 enlarging the source to include not only the tax returns of the preceding year but also 'a list of names of persons who do not appear upon the tax lists, who are residents of the county and over twentyone years of age', to be prepared in each county by the Clerk of the Board of Commissioners.

It was made to appear on the hearing that the Commissioners used only the tax returns of the county for the preceding year in selecting the jury list for the September Term, 1950, Forsyth Superior Court, from which the grand jury was drawn that performed the accusation against the defendant. This circumstance, the defendant contends, resulted in discrimination against Negroes or jurors of African descent, the race to which he belongs. The conclusion, it seems to us, is farfetched and clearly a non sequitur. It rests only in imagination or conjecture. The defendant must show prejudice, other than guess or surmise, before any relief could be granted on such gossamer or attenuate ground. There was no challenge to any member of the jury, grand or petit, and no suggestion that any was disqualified. Indeed the trial court was at pains to see that every opportunity was afforded for the selection of a fair and impartial jury.

Negroes were neither excluded nor discriminated against in the selection of either the grand or petit jury which performed in this case. One Negro woman served on the grand jury and at least one prospective Negro juror was tendered to the defendant for the petit jury and was excused or rejected by his counsel. It has been the consistent holding in this jurisdiction, certainly since the case of State v. Peoples, 131 N.C. 784, 42 S.E. 814, that the intentional, arbitrary and systematic exclusion of any portion of the population from jury service, grand or petit, on account of race, color, creed, or national origin, is at variance with the fundamental law and cannot stand. On the other hand, it has also been the holding with us consistent with the national authorities, Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692, that it is not the right of any party to be tried by a jury of his own race, or to have a representative of any particular race on the jury. It is his right, however, to be tried by a competent jury from which members of his race have not been unlawfully excluded. State v. Speller, 231 N.C. 549, 57 S.E.2d 759; State v. Koritz, 227 N.C. 552, 43 S.E.2d 77; Ballard v. U. S., 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181. No such exclusion appears here. 'The law not only guarantees the right of trial by jury, but also the right of trial by a proper jury; that is to say, a jury possessing the qualifications contemplated by law', and in the selection of which there has been neither inclusion nor exclusion because of race. Hinton v. Hinton, 196 N.C. 341, 145 S.E. 615, 616; Cassell v. State of Taxas, 339 U.S. 282, 70 S.Ct. 629.

Whatever may be the holdings in other jurisdictions, it is thoroughly settled by our decisions that the provisions of the statute now in focus are directory, and not mandatory, in the absence of proof of bad faith or corruption on the part of the officers charged with the duty of selecting the jury list. State v. Mallard, 184 N.C. 667, 114 S.E. 17, and cases there cited. Not only has no bad faith or corruption been shown on the part of the officers here, but none has so much as been suggested. State v. Smarr, 121 N.C. 669, 28 S.E. 549. Hence, the motions to quash and in arrest were properly overruled. It may be added, also, that the motion in arrest was inappropriate for defendant's present purpose, as the matters sought to be challenged are not apparent on the face of the record. State v. Sawyer, 233 N.C. 76, 62 S.E.2d 515; State v. McKnight, 196 N.C. 259, 145 S.E. 281, and cases there cited.

Finally, and in conclusion of this phase of the case, it may be said the defendant has shown no error affecting any of his substantial rights. He has pointed out no racial discrimination in the selection of the jury list, the grand jury or the petit jury which considered the indictment against him. Nor does he specifically so contend. He only says or suggests that there might have been discrimination against his race. He concedes that neither equal nor proportional representation of race is a constitutional requisite in the selection of juries. Akins v. State of Texas, supra. Indeed, proportional racial limitation is actually forbidden. Cassell v. State of Texas, supra. The defendant's position is one of possible discrimination, not one of racial imbalance in jury composition. A person accused of crime is entitled to have the charges against him performed by a jury in the selection of which there has been neither inclusion nor exclusion because of race. Cassell v. State of Texas, supra. This, the defendant has had in respect of both the grand and petit juries which performed in the case, or, at least, the contrary in respect of neither has been made to appear on the record. Hence, his claim of jury defect or irregularity is unavailing.

Second. The Defendant's Confession. The only basis of challenge to the competency of defendant's confession is that he was under arrest, being held without warrant, and was in custody at the time it was given. These circumstances, taken singly or all together, unless they amounted to coercion, were not sufficient in and of themselves to render a confession, otherwise voluntary, involuntary as a matter of law and incompetent as evidence. State v. Stefanoff, 206 N.C. 443, 174 S.E. 411; State v. Gray, 192 N.C. 594, 135 S.E....

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  • Stone v. Powell Wolff v. Rice
    • United States
    • U.S. Supreme Court
    • 6 Julio 1976
    ...ruling certain confessions admissible. In Brown, the highest court of the State had rejected these claims on direct appeal, State v. Brown, 233 N.C. 202, 63 S.E.2d 99, and this Court had denied certiorari, 341 U.S. 943, 71 S.Ct. 997, 95 L.Ed. 1369 (1951). Despite the apparent adequacy of th......
  • Brown v. Allen Speller v. Allen Daniels v. Allen
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    • U.S. Supreme Court
    • 9 Febrero 1953
    ...color.' The District Court had before it the record which had been filed in the Supreme Court of North Carolina on appeal. State v. Brown, 233 N.C. 202, 63 S.E.2d 99. Included in this record was the same transcript of proceedings in the trial court which had been before the State Supreme Co......
  • Fay v. Noia, 84
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    ...to the highest court of the State, on direct appeal from the conviction, and had been rejected by that court on the merits, State v. Brown, 233 N.C. 202, 63 S.E.2d 99, after which this Court had denied certiorari, 341 U.S. 943, 71 S.Ct. 997, 95 L.Ed. 1369. At this point, the Court held, Bro......
  • Culombe v. Connecticut
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    ...483. But see People v. Di Biasi, 1960, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825 (post-indictment). North Carolina: State v. Brown, 1951, 233 N.C. 202, 63 S.E.2d 99; State v. Rogers, 1951, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Davis, 1960, 253 N.C. 86, 116 S.E.2d 365. ......
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