Addison v. State

• Decision Date: 03 February 1954
• Docket Number: No. 26748,26748
• Citation: 271 S.W.2d 947,160 Tex.Crim. 1
• Parties: Morris ADDISON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 947

271 S.W.2d 947

160 Tex.Crim. 1

Morris ADDISON, Appellant, v. The STATE of Texas, Appellee.

No. 26748.

Court of Criminal Appeals of Texas.

Feb. 3, 1954.

Rehearing Denied April 7, 1954.

Henry E. Doyle, Francis L Williams, Houston, Kenneth Lamkin, Austin, for appellant.

Bob Long, Dist. Atty., Sam Kimberlin, Jr., Asst. Dist. Atty., Wesley Dice, State's Atty., Austin, for the State.

DAVIDSON, Commissioner.

Murder is the offense; the punishment, death.

It is appellant's contention that he has been denied due process of law because members of the Negro race, of which he is one, were discriminated against because of their race in the selection, organization, and impaneling of the grand jury which returned the indictment upon which this conviction is predicated.

This contention is embraced in two parts: (a) racial discrimination in the selection of the jury commission which selected the grand jury, and (b) racial discrimination in the selection of the grand jury.

There is an absence of any evidence of express or intentional discrimination against the Negro race, as such, or of this appellant because he is a Negro. To establish that the claimed discrimination has been shown, appellant relies upon facts which he contends constructively establish discrimination.

The statutory law of this state governing the selection and impaneling of grand juries, Chap. 1, Title 7, Vernon's Ann.C.C.P., is not, within itself, unfair, and it is capable of being carried out without out racial discrimination. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84. If discrimination occurs, then, it is only in the administration of the statutes.

We consider, first, the claim that there was discrimination in the selection of the jury commission which selected the grand jury.

The jury commission is selected by the district judge only. Art. 333, V.A.C.C.P.

The act of the judge in selecting the jury commissioners has no direct connection with the grand jury that is ultimately selected. If no irregularity or discrimination exists or is practiced by the jury commissioners in selecting the grand jury panel, then the individual who is indicted by that grand jury has not been injured; jured; nor does he have just ground to complain of the appointment of the jury commissioners.

An irregularly or illegally drawn jury commission may, in the performance of its duties, select an entirely regular, proper, and legal grand jury, in which event constitutional or statutory mandates relative thereto have been satisfied.

If appellant has been here discriminated against by reason of race, as he claims, such discrimination must rest in the act of the jury commissioners and not in the act of the judge in selecting the jury commissioners.

These were the views expressed upon the subject in McMurrin v. State, 156 Tex.Cr.R. 434, 239 S.W.2d 632, and Morris v. State, Tex.Cr.App., 251 S.W.2d 731. The Supreme Court of the United States denied certiorari in each of these cases. 342 U.S. 874, 72 S.Ct. 115, 96 L.Ed. 657, and 345 U.S. 951, 73 S.Ct. 863, 97 L.Ed. 1374.

So then, appellant's contention here rests upon whether discrimination was practiced against members of the Negro race by the jury commissioners in the selection of the grand jury which returned the instant indictment.

The evidence adduced as to the allegation of race discrimination in the organization of the grand jury must be looked to in determining the correctness of the trial court's ruling. Being only a pleading, the allegation of the motion to quash cannot be considered as evidence or as established fact.

There is no suggestion that the jury commissioners discriminated, intentionally or purposely, against members of the Negro race in selecting the grand jury panel out of which the grand jury was selected. There is no evidence as to the manner of selection and racial composition of previous grand juries. There is no proof which would render applicable the so-called rule of long, continuous, or systematic exclusion or inclusion of members of the Negro race for grand jury service within the contemplation of the holding of the Supreme Court of the United States in the cases of Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; and Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 633, 94 L.Ed. 839.

The inference to be drawn from the failure of the appellant to show the racial composition of previous grand juries is, of necessity, that the facts would not be of benefit to him here.

There is no escape from the conclusion, then, that appellant's contention must stand upon the proposition that, in the performance of their duty in the selection of the grand jury, the jury commissioners failed to fairly familiarize themselves with the qualifications of the eligible jurors of the county without regard to race or color. Cassell v. Texas, supra.

The rule to which reference is made is stated in the Cassell case as follows:

'When the commissioners were appointed pointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. They did not do so here, and the result has been racial discrimination.'

As supporting that conclusion, the court quoted from the Hill case, supra, as follows:

'Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any contervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service."

The conclusion of the court that racial discrimination was there shown was expressed as follows:

'The statements of the jury commissioners that they chose only whom they knew, and that they knew no eligible Negroes in an area where Negroes made up so large a proportion of the population, prove the intentional exclusion that is discrimination in violation of petitioner's constitutional rights.'

The converse of the rule is equally true, which is that if, in the performance of their duty to select a panel of sixteen names from which the grand jury of twelve is ultimately selected, the jury commissioners familiarized themselves fairly with the qualifications of the eligible jurors of the county without regard to race or color and make their selections upon that basis and information, it cannot be said that race discrimination has been practiced in the selection of a grand jury so drawn.

The instant facts must be looked to for a determination of the question thus presented. Those facts are shown, primarily, by the testimony of the five jury commissioners.

It is beneficial to note the names and qualifications of the men who composed the jury commission: Commissioner Jones, a teacher in the University of Texas, with considerable experience as a jury commissioner and as a grand juror, resided in the...