Avery v. State

• Decision Date: 14 April 1952
• Docket Number: No. 17810,17810
• Citation: 70 S.E.2d 716,209 Ga. 116
• Parties: AVERY v. STATE.
• Court: Georgia Supreme Court

Page 716

70 S.E.2d 716

209 Ga. 116

AVERY v. STATE.

No. 17810.

Supreme Court of Georgia.

April 14, 1952.

Rehearing Denied May 14, 1952.

Syllabus by the Court.

No error assigned requires a reversal of the judgments complained of.

James Avery was arrested on October 29, 1950, for the offense of rape in Walker County, and was committed to jail. At the February, 1951, term of Walker Superior Court he was informed by the solicitor general of the judicial circuit in which Walker County is located that an indictment charging him with rape would be presented for grand-jury action during that term of the court. Prior to indictment, he filed a written challenge to the array of grand jurors, alleging that the grand jury had not been legally organized. His challenge was based on the grounds that Code, § 59-106, which requires the jury commissioners to select jurors from the books of the tax receiver, offends stated provisions of the State and Federal Constitutions; that no Negro has ever been appointed to membership on the board of jury commissioners in Walker County, but Negroes, because of race and color, have been systematically excluded from service thereon; and that no proper jury lists and jury book have been made up and kept for inspection as required by Code, § 59-109. Concerning this it was stipulated: The accused is a Negro man; his alleged victim is a white woman. No Negro has even been appointed to membership on the board of jury commissioners for Walker county. According to the Federal census for 1950, Walker County has a population of 38,265. The tax digest shows that Walker County, in 1950, had 9,364 registered white property owners and 464 registered colored property owners. The jury commissioners revised the lists of grand and traverse jurors for Walker County in 1950, selecting for such service only those men whose names appeared on the 1950 tax digest for the county. At the hearing of the challenge an alphabetical list of names, certified by the clerk of the superior court and the six jury commissioners for Walker County as being a correct list of the names of those selected for grand and traverse jury services at the board's meeting, which convened on August 14, 1950, was tendered by the accused and allowed in evidence. Another alphabetical list, by militia districts, and headed 'Grand and Traverse Jurors, 1950,' but not signed by anyone was also tendered by the accused and allowed in evidence. The letter 'G' appears opposite the respective name of several jurors appearing on the latter list, and the following certificate, dated May 22, 1951, is attached thereto: 'Georgia, Walker County. I, Thos. W. Bryan, Clerk Superior Court in and for said County do hereby certify that the foregoing is a true and correct copy of the original Grand and Traverse list, by districts, now remaining on file in this office.' No evidence explanatory of the letter 'G' was offered by either party, but it was stipulated that the two jury lists introduced by the accused 'have been on hand in the Clerk's office ever since October 29, 1950, which is the date of the alleged crime, that they have been available for public inspection, and that at all times there has been a person present at all usual office hours who could and would explain those lists to any person that might be interested as to which were members of the grand jury and which were members of the traverse jury box.' No contention was made that the challenged grand jurors were not regularly drawn from the grandjury box. The objection to the grand jury was denied and the accused excepted pendente lite.

The accused was indicted for rape. He moved for a change of venue which was subsequently granted and his case was transferred to Fulton County for trial. Upon being arraigned for trial in Fulton County he filed a written challenge to the array of traverse jurors put upon him, alleging: in the first six paragraphs of his challenge, that the trial jurors furnished him had been illegally selected and impaneled, because Code, § 59-106, which requires the jury commissioners to select jurors from the books of the tax receiver, offends stated provisions of the State and Federal Constitutions; and, in the remaining paragraphs, because the selection of 20,509 white jurors and 1,115 colored jurors from a total number of 105,035 white and 17,736 colored taxpayers is an excessively small number of jurors actually selected for service, and the number of colored jurors when compared with the number of white jurors actually selected is excessively disproportionate and the result of a deliberate and systematic exclusion of a required proportionate number of the Negro race for jury service; that, in making up the jury box, the jury commissioners have placed the names of white and colored jurors on slips of paper of different colors, the names of the white jurors being placed therein on white slips and the names of the colored jurors being placed therein on yellow slips; that the jury commissioners have not supplied the Clerk of the Superior Court of Fulton County with a proper list of those traverse jurors selected for service as required by Code, § 59-109; and that no legal and proper list of traverse jurors has been kept on file in the office of the Clerk of the Superior Court of Fulton County as required by law, and by reason of such failure the accused has been deprived of his right to examine the same and ascertain if the jurors put upon him have been legally selected.

A general demurrer interposed by the State was sustained to the first six paragraphs of the challenge and was overruled to the remaining grounds thereof. The accused excepted pendente lite to that part of the judgment which was adverse to him. Concerning this challenge, it was stipulated that Fulton County, in 1950, had a population of 671,797, of which 505,983 were white and 165,814 were colored people, and that tax returns were made in 1950 by 105,035 white and 17,736 colored taxpayers. On the hearing of his challenge the accused introduced three witnesses, who testified in brief as follows: The jury commissioners for Fulton County select all grand and traverse jurors exclusively from the books of the tax receiver--his tax digest, but no one is selected or rejected for jury service because of race or color. The present jury lists for Fulton County were completed on July 25, 1946. They were made by the jury commissioners from the tax returns of white and colored people for 1948. In its last revision of the jury lists the board of jury commissioners employed the following procedure: Employees of the board made a card for each separate taxpayer of the county from a bound volume of individual tax returns. From these cards the jury commissioners selected those best qualified for jury duty, making a list of the same as selections were made. The list was then turned over to a printer who made copies of it, after the jury commissioners had checked his proof copy against the original list. From the printer's copies tickets were made and placed in the jury boxes by the jury commissioners and one printed copy was retained intact and placed in a binder, upon the cover sheet of which was attached a certificate by the jury commissioners and the Clerk of the Superior Court of Fulton County, certifying that it contained the names of those selected for jury service by the jury commissioners. In keeping with a practice, which has been carried on in Fulton County for fifty years or more, the names of white jurors are placed in the jury boxes on white slips and the names of colored jurors are placed in the jury boxes on yellow slips. This is done for the purpose of aiding the sheriff in locating and summoning individual jurors. The challenged jurors were regularly drawn from the traverse jury box by one of the Judges of the Superior Court of Fulton County, without regard to race or color and both white and colored traverse jurors were drawn. It is a common occurrence for both white and colored jurors to serve. Five colored grand jurors served at the July-August, 1951, term of the court. An entire panel or more of colored traverse jurors sometimes serves. A method adopted and practiced by the Judges of the Superior Court of Fulton County in drawing juries prevents any discrimination in jury service as between the white and the colored jurors.

The objection to the trial jurors was overruled and the accused excepted pendente lite. The case resulted in a verdict of guilty, without recommendation, and the accused was sentenced to be electrocuted. His motion for a new trial, which was amended by adding several special grounds, was overruled. The accused excepted and sued out a writ of error to this court assigning error upon the judgment overruling his amended motion for new trial and upon his pendente lite exceptions.

Frank M. Gleason, Rossville, Geo. P. Shaw, LaFayette, for plaintiff in error.

John W. Davis, Sol. Gen., Summerville, for defendant in error.

CANDLER, Justice (after stating the foregoing facts).

1. We will first consider and dispose of the questions raised by the defendant's challenge to the array of grand jurors in Walker County.

(a) The Constitution of this State by article 6, section 16, paragraph 2 declares that 'The General Assembly shall provide by law for the selection of the most experienced, intelligent and upright men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors. Nevertheless, the grand jurors shall be competent to serve as traverse jurors. The General Assembly shall have the power to require jury service of women also, under such regulations as the General Assembly may prescribe.' Except as to the above last-quoted sentence, the Constitution of 1877 required and provided for the same. As its compliance with this constitutional mandate, the General Assembly has provided for the selection of grand and traverse jurors by a board of six jury commissioners...