Allen v. State, No. 40728

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: HALL; NICHOLS, P. J., and RUSSELL
• Citation: 110 Ga.App. 56,137 S.E.2d 711
• Parties: Ralph W. ALLEN v. The STATE
• Decision Date: 07 July 1964
• Docket Number: No. 40728,No. 2

Page 711

137 S.E.2d 711 110 Ga.App. 56 Ralph W. ALLEN
v.
The STATE. No. 40728. Court of Appeals of Georgia, Division No. 2. July 7, 1964.

Page 712

Syllabus by the Court

Where a motion to quash the indictment and challenge to the array of traverse jurors is filed by any person, regardless of his race, and alleges facts showing the systematic exclusion of Negroes from service upon the grand and traverse juries of the county because of race, it is error for the trial court to overrule the motion as a matter of law, the defendant being entitled to present evidence in support of the motion to show that: a. The defendant has been denied equal protection of the law contrary to the Fourteenth Amendment of the United States Constitution. b. The defendant has been denied [110 Ga.App. 57] due process of law contrary to the Fourteenth Amendment of the United States Constitution. c. The manner of selecting grand and traverse jurors was in violation of the laws of Georgia and thereby per se injurious to the defendant.

The defendant at the November 1963 term of the Sumter County Superior Court was indicted for assault with intent to murder a police officer in that while the officer was in the performance of his duties the defendant made an assault upon and wounded him with a brick or rock, a weapon likely to produce death, with malice afore-thought and with the intent to kill. The defendant was arraigned, pleaded not guilty and made a motion to quash the indictment and a challenge to the array of the traverse jurors for the current term of the superior court, on the ground that from the panel of grand jurors that returned the indictment against him and the panel of traverse jurors put upon him for trial memebers of the Negro race had been systematically, arbitrarily, and deliberately excluded from serving as grand jurors and traverse jurors, in violation of the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. The motion alleged figures showing that according to the United States Census for 1960 46.42 percent of the population 21 years of age and over residing in Sumter County were Negroes; that in the years 1959 through 1963, of the total number of taxpayers listed on the cumulative tax digest of the county approximately 27 percent (yearly average) were Negroes, and this was the percentage in 1962. It alleged that the active grand and traverse jury lists, from which the November 1963 grand jury was drawn and from which the current panel of traverse jurors was drawn, were drawn on or about August 1962; that all names on said jury lists were members of the white race; that the tax returns from which the county's tax digest was compiled was segregated on the basis of race in that tax returns of Negroes and white persons were filed in separate volumes, all tax returns of Negroes being on yellow sheets designated 'Colored' and all tax returns of white persons [110 Ga.App. 58] being on white sheets designated 'White'; that the tax digest from which the names of prospective grand and traverse jurors were drawn was segregated in that the names of Negroes were grouped separately from the names of white persons on sheets headed by the racial designation of the persons listed on each sheet; and that the jury commissioners of the county have for over 40 years failed to select any Negroes from the tax digest for the grand jury list or for the traverse jury list, and no member of the Negro race has been called for either grand jury duty or traverse jury service in the county.

The writ of error shows that it was stipulated before the trial court that the defendant was a member of the Caucasian race, and it appeared that the defendant was engaged in voter registration among Negroes, and that counsel for the defendant argued that the defendant's rights under

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the Fourteenth Amendment to the United States Constitution would be denied whether the defendant were ethnically identifiable as black or white; and argued further that this defendant would have the same reason as a Negro for challenging a jury from which Negroes are systematically excluded because of race, because of his activities in voter registration among Negroes and his identification with Negroes in the minds of the jurors of the Sumter County community.

Upon this motion to quash the indictment and challenge to the array of traverse jurors the trial court ruled: '* * * assuming every allegation in this motion to be true, it sets forth no legal basis for such motion and therefore the motion is denied and overruled and ordered dismissed by the court.' The defendant assigned error on this judgment in the Georgia Supreme Court, and the Supreme Court transferred the case to this Court. Allen v. State, 219 Ga. 777 (135 S.E.2d 885).

C. B. King, Thomas M. Jackson, Albany, for plaintiff in error.

Stephen Pace, Jr., Sol., Americus, for defendant in error.

HALL, Judge.

1. The facts stated in the motion to quash the indictment and challenge to the array of traverse jurors show systematic exclusion of Negroes from jury service because of race. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Hill [110 Ga.App. 59] v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Crumb v. State, 205 Ga. 547, 54 S.E.2d 639. Since 1879 such systematic exclusion has been recognized to be a denial of equal protection of the laws to a Negro defendant and to be prohibited by the Fourteenth Amendment to the United States Constitution. Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664; Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497; Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839; Smith v. Texas, 311 U.S. 128, 129, 61 S.Ct. 164, 85 L.Ed. 84; Brunson v. North Carolina, 333 U.S. 851, 68 S.Ct. 634, 92 L.Ed. 1132; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Brown v. Allen, 344 U.S. 443, 470, 73 S.Ct. 397, 414, 97 L.Ed. 469; Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77. In this case we are presented with a question that has not been decided by the United States Supreme Court, whether a defendant's not being a member of a race excluded from jury service 'would alone defeat an otherwise well-established case under the [Fourteenth] Amendment.' Fay v. New York, 332 U.S. 261, 287, 67 S.Ct. 1613, 1627, 91 L.Ed. 2043; Thiel v. Southern Pacific Co., 328 U.S. 217, 225, 66 S.Ct. 984, 988, 90 L.Ed. 1181.

The United States Supreme Court has spoken, however, in language that leads us to believe that a defendant need not be a member of the Negro race to complain of the systematic exclusion of Negroes from the jury list. The exclusionary practice condemned by the Fourteenth Amendment does not depend upon the exclusion from juries of a group to which the defendant belongs or identifies himself, but on the resulting failure of the jury to represent a cross section of the community. 'Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. * * * Thus a blanket exclusion of all daily wage earners, however well-intentioned * * * must be counted among those tendencies which undermine and weaken the institution of jury trial. * * * It follows that we cannot sanction the method [excluding daily wage earners] by which the jury panel was formed in this case. [110 Ga.App. 60] * * * it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether

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he was one of the excluded class. * * * It is likewise immaterial that the jury which actually decided the factual issue in the case was found to contain at least five members of the laboring class. The evil lies in the admitted wholesale exclusion of a large class of wage earners in disregard of the high standards of jury selection. To reassert those standards to guard against the subtle undermining of the jury system, requires a new trial by a jury drawn from a panel properly and fairly chosen.' Thus the Supreme Court held that 'the general principles underlying proper jury selection clearly outlaw' a practice designed by a Federal court to relieve the economically least secure from the financial burden which jury service involves. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 224, 66 S.Ct. 984, 90 L.Ed. 1181. While in this and other decisions involving selection of Federal juries the Supreme Court exercised its power over the administration of justice in the Federal courts, the principles discussed in those opinions are applicable to the issue of the citizen's rights in State courts to the protections of the Fourteenth Amendment. '* * * whatever limitations were inherent in the historical common law concept of the jury as a body of one's peers do not prevail in this country. Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government.' Glasser v. U. S., 315 U.S. 60, 85, 62 S.Ct. 457, 472, 86 L.Ed. 680. 'It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with out basic concepts of a democratic society and a representative...