Bailey v. Henslee, 16142.
Decision Date | 27 April 1959 |
Docket Number | No. 16142.,16142. |
Citation | 264 F.2d 744 |
Parties | Luther BAILEY, Appellant, v. Lee HENSLEE, Superintendent of Arkansas State Penitentiary, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Thad D. Williams, Little Rock, Ark., for appellant.
Thorp Thomas, Asst. Atty. Gen. of Arkansas (Bruce Bennett, Atty. Gen. of Arkansas, on the brief), for appellee.
Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.
This appeal is from an order denying appellant's petition for writ of habeas corpus. Appellant, a negro, was charged in the Circuit Court of Pulaski County, Arkansas, with the crime of rape upon a white woman. On the trial before a jury he was convicted and upon a verdict of guilty the court imposed a death sentence as required by the statutes of Arkansas. When the case was called for trial defendant interposed a motion to quash the petit jury panel on the ground that in the selection of the panel negroes had been systematically excluded. On this motion he submitted the testimony of the deputy clerk of the court, who, based on the records of the clerk's office, testified in substance as follows: That his record shows that two negroes were selected by the jury commissioners for the March 1952 term, out of a total of 24. It is the general procedure of this court to select 24 jurors on the regular panel and 12 alternates. These two negroes actually served. There was one negro on the jury panel for the September 1952 term. There were two negroes selected for the March 1953 term. Five negroes served during the September 1953 term; three were on the extra panel and two on the regular panel. For the special panel five jurors were selected out of 21. There is nothing to indicate on the record whether they were white or colored. There were two negroes on the March 1954 term. There were 24 persons on the special panel; only five were selected. The record does not indicate whether the remainder were colored or white. Two negroes were selected on the panel for the September 1954 term. There was a special panel for that term of 100 names; seven persons were selected; they were all white. He did not know whether the remaining people on the list were colored or white. Three negroes served on the March 1955 regular panel. One person was used from the special panel of 100 names. Four negroes were included in the 100. Only one person out of 100 was used on the September 1955 special panel. There were three negroes on the regular panel. Three negroes were selected on the regular panel for the March 1956 term. The first special panel selected has 150 names on it; it does not indicate colored and white. The first 100 on this list were ordered to report this morning; 27 of them are here; none are negroes. Following this testimony counsel for appellant requested the court to allow the jury commissioners for all the terms from the 1952 March term until the 1956 March term, inclusive, to testify as to the matters and allegations set out in his motion to quash the regular panel and the special panel of petit jurors. To this request the court responded:
Appellant had requested subpoenaes for certain witnesses which were duly issued and served but he had not prior to the opening of his trial secured subpoenaes for the jury commissioners. At the hearing on motion to quash the panel appellant made no offer to prove to what the jury commissioners would, if called, testify. Following his conviction and sentence he moved for a new trial on various grounds, but did not allege as error the refusal of his request that the jury commissioners be subpoenaed. His motion for new trial being denied, he appealed to the Supreme Court of Arkansas alleging 31 errors but did not allege as error the refusal of the court to order subpoenaes issued for the jury commissioners as witnesses, but did allege error in the overruling of his motion to quash the panel on the ground that in the selection of the petit jury panel negroes had been systematically excluded and also alleged that the evidence was insufficient to prove the guilt of the defendant beyond a reasonable doubt. On the hearing in the instant proceeding for writ of habeas corpus the records of defendant's trial in the state court and on his appeal to the Supreme Court of Arkansas and his application for writ of certiorari to the Supreme Court of the United States were by stipulation made a part of appellant's showing.
It appears from the record that shortly after midnight on June 14, 1956 appellant entered the home of the prosecuting witness through a window, ravished the occupant, stole $190 from her purse, and seriously beat and bruised her. In doing so he lost his billfold in her room, and the prosecuting witness' purse was found in appellant's automobile. The evidence of guilt is without substantial dispute. Responding to appellant's assignment that negroes had systematically been excluded from the jury panel, the Supreme Court of Arkansas, Bailey v. State, 227 Ark. 889, 302 S.W.2d 796, 799, said:
After the Supreme Court of the United States had denied certiorari, appellant proceeded for relief under a so-called post conviction statute, which reads as follows:
Act 419 of 1957. * * *"
In this proceeding he charged that he had been denied rights guaranteed him by the Constitution of the United States in that he had been denied compulsory process. The trial court denied any relief and in doing so, among other things said:
On appeal from the court's order denying relief the Supreme Court of Arkansas affirmed the decision of the trial court. Bailey v. State, 313 S.W.2d 388, 390. In the course of its opinion affirming the trial court it is said, inter alia:
Bailey v. State, ...
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Bailey v. Henslee
...conclusions reached by the panel (on which one of us sat) of this court which heard the first federal appeal in the case, Bailey v. Henslee, 8 Cir., 264 F.2d 744, and while we agree that the posture of that appeal and the record then before the court clearly called for the affirmance of the......
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Bailey v. Henslee
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