Brookins v. State

• Decision Date: 08 July 1965
• Docket Number: No. 22979,22979
• Citation: 144 S.E.2d 83,221 Ga. 181
• Parties: John William BROOKINS v. The STATE.
• Court: Georgia Supreme Court

Page 83

144 S.E.2d 83

221 Ga. 181

John William BROOKINS v. The STATE.

No. 22979.

Supreme Court of Georgia.

July 8, 1965.

Rehearing Denied July 26, 1965.

Syllabus by the Court

1. The evidence on the motion to quash the indictment and the challenge to the array of traverse jurors was sufficient to meet and overcome the prima facie case of arbitrary and systematic exclusion of Negroes from jury service and the trial judge properly denied the motion to quash and the challenge to the array.

2. Code Ann. § 59-106 (Ga.L.1878-79, pp. 27, 34, as amended) which provides that the most experienced, intelligent and upright persons are to be chosen as grand jurors from the tax digest, and Code Ann. § 92-6307 (Ga.L.1894, p. 31) which requires that the names of whites and Negroes be in separate places in the tax digest are not violative of the guarantees of equal protection of the laws and due process of the law under the 14th Amendment of the United States Constitution as they evince no clear and palpable conflict with these constitutional provisions and are capable of a construction in harmony with them.

C. B. King, Albany, for plaintiff in error.

Harvey L. Jay, Sol. Gen., Fitzgerald, for defendant in error.

MOBLEY, Justice.

On January 25, 1965, John William Brookins, a Negro, was indicted by a Crisp County grand jury for assault with intent to murder one Lucious Childers, a white man. This was the second indictment returned against the defendant, Brookins, for the same offense, the first indictment of October 26, 1964 having been dismissed by the State. The record shows that during December of 1964 the jury list and selection procedure had been revised in an effort to insure selection of jurors without discrimination based upon race. The January indictment was returned by a grand jury selected from the revised list of prospective jurors.

Defendant filed a motion to quash the indictment and a challenge to the array of traverse jurors on February 2, 1965 alleging that the grand jury and the traverse jury were composed entirely of white persons; that for a period of more than 75 years no Negroes have been called for grand jury or traverse jury service prior to the October 1964 term of the court; that the grand jury list from which the present panel of jurors who returned the present indictment was drawn and the list from which the present panel of traverse jurors was drawn are composed of a disproportionately high number of whites as opposed to Negroes; that there are numerous Negroes of the county who are competent and legally qualified to serve as jurors; that there is at present arbitrary and systematic exclusion of Negroes from jury duty solely because of their race, and that during the October 1964 term of the Superior Court of Crisp County and subsequent thereto there has been an inclusion of a token number of Negroes on the jury lists. It is also alleged that, at present, Negroes have their names arranged on the jury list 'at the particular lettered catagory and alphabetically out of order,' that the names of Negro females are listed without the title of 'Miss' or 'Mrs.' while the names of whie females do have such title; that the selection of the grand jury and of the traverse jury was carried out in violation of the guarantees of equal protection of the law and due process of the law under the 14th Amendment of the United States Constitution by reason of arbitrary and systematic exclusion of Negroes from service on the grand jury and the present panel of prospective traverse jurors; and that Code § 59-107 (sic) providing for the selection from the tax digests of the most experienced, upright and intelligent citizens to serve as jurors, and Code § 92-6307 requiring that the names of colored and white taxpayers shall be made out separately on the tax digest, when taken together, and in their application, constitute a violation of defendant's rights to equal protection of the law and due process of the law under the 14th Amendment of the Unites States Constitution because these statutes require the jury commissioners to make their selection of jurors by a process that makes a distinction between whites and Negroes. After a hearing, the trial court denied the motion to quash and the challenge to the array.

The exception is to that judgment.

The evidence at the hearing on the motion to quash and the challenge to the array, set out in part in the opinion, considered entirely of the testimony of the members of the jury commission of Crisp County, namely, Joseph W. Bridges, chairman of the commission, Carl Whelchel, Jr., Anthony LaPorte, Charles S. Worthy, John T. Williams, and N. O. Stephens, and the testimony of James L. Dorough, Clerk of the Superior Court of Crisp County, and that of C. B. King, the attorney for defendant.

1. The constitutional principle raised in this case has been summed up by the Supreme Court of the United States in Carter v. State of Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839 as follows: 'Whenever by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States,' citing Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664, and others. 'The principle is equally applicable to a similar exclusion of negroes from service on petit juries.' Norris v. State of Alabama, 294 U.S. 587, 589, 55 S.Ct. 579, 580, 79 L.Ed. 1074, citing Strauder v. State of West Virginia, supra; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497. [A]lthough the state statute defining the qualifications of jurors may be fair on its face, the constitutional provision affords protection against action of the State through its administrative officers in effecting the prohibited discrimination.' Norris v. State of Alabama, supra, citing Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Carter v. State of Texas, supra.

A prima facie case of arbitrary and systematic exclusion of Negroes from jury service on the basis of race may be established by proof of a long and continued history of the exclusion of Negroes from juries. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Norris v. State of Alabama, supra; 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; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Neal v. State of Delaware, supra. The evidence is undisputed that prior to the December 1964 term of the Superior Court of Crisp County there had been a long history of 75 years in which only a few Negroes had served on a jury in Crisp County. This is sufficient to establish a prima facie case of discrimination against Negroes as a group in the selection of the grand jury which returned the present indictment, and of the panel of traverse jurors. The jury commission recognized the fact as did the Solicitor General, and the revision of the jury lists prior to the second indictment of this defendant was to correct that situation and remove any and all discrimination in the preparation of the grand and traverse lists of Crisp County.

The question presented here is whether there was evidence sufficient to rebut the prima facie case of the violation of defendant's constitutional rights. The Federal cases where discrimination was found may be characterized by their lack of rebutting evidence. In Norris v. State of Alabama, supra, the jury commissioner testified that there had been no discrimination in the selection of the jurors, that Negroes were not excluded because of their failure to meet the qualifications of age, integrity, etc., but that Negroes were 'never discussed.' In short, they were not considered for jury service. There was further testimony that specified Negroes of 30 or more in number were qualified for service on the grand jury and that a large group of nearly 200 Negroes were qualified to serve as trial jurors, and no testimony was given in rebuttal of these assertions. The court, in reversing the conviction and the denial of the motion to quash the indictment and the motion to quash the trial venire, stated that the conclusion that the exclusion of Negroes from juries was because there were none possessing the requisite qualifications cannot be sustained.

In Pierre v. State of Louisiana, supra, prima facie case of discrimination was made and there was evidence that there were many Negroes qualified to serve on juries in the parish where the indictment was returned. The court noted that the jury commissioners were not made witnesses by the State and there was no evidence that Negroes were disqualified because of bad character or criminal records. It concluded that the prima facie case was not met by the State.

In Smith v. State of Texas, supra, and Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839, the deciding factor appeared to be that the jury commissioners did not know any Negroes who might be qualified for jury service. In the former case the court, in reversing the conviction, concluded that '[W]here jury commissioners limit those from whom grand juries are selected to their own personal acquaintance, discrimination can arise from commissioners who know no negroes as well as from commissioners who know but eliminate them. If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.' In the latter decision, also reversing a conviction, the court held that 'with no evidence to the contrary, we must assume that a large proportion of the Negroes of Dallas County met the statutory...