Brown v. State

• Decision Date: 25 October 1948
• Docket Number: 4530
• Citation: 214 S.W.2d 240,213 Ark. 989
• Parties: Brown v. State
• Court: Arkansas Supreme Court

214 S.W.2d 240

213 Ark. 989

Brown v. State

No. 4530

Supreme Court of Arkansas

October 25, 1948

Appeal from Ouachita Circuit Court, First Division; Gus W. Jones Judge.

Affirmed.

W Harold Flowers, for appellant.

Guy E. Williams, Attorney General and Oscar E Ellis, Assistant Attorney General, for appellee.

Wine, J. Ed. F. McFaddin, Justice, dissenting.

OPINION

Wine, J.

Appellant was put to trial under an information charging him with the crime of assault with intent to kill alleged to have been committed by so assaulting one Boyd Cunningham, a member of the police force of Camden, Ouachita county, Arkansas. A verdict of guilty was returned by the jury assessing his punishment at five years in the State Penitentiary. From the judgment pronounced on that verdict comes this appeal.

Appellant, in his brief, urges a reversal of the judgment of the trial court for the following reasons:

I. The court erred in overruling appellant's motion to quash the information.

II. The court erred in overruling appellant's motion to quash the regular jury panel.

III. The verdict is contrary to the law and to the evidence.

I. Motion to Quash Information. Pursuant to Amendment 21 to the Constitution of the State of Arkansas, appellant was tried under an information filed by the Prosecuting Attorney and appellant insists that prosecuting him by information rather than by indictment returned by a grand jury is violative of his rights under both the state and federal constitution. Section 1 of Amendment 21 to the State Constitution reads as follows:

"That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney."

This amendment has been successively upheld by this court in many cases. Some of the more recent being Higdon v. State, ante, p. 881, 213 S.W.2d 621; Washington v. State, ante, p. 218, 210 S.W.2d 307; Penton v. State, 194 Ark. 503, 109 S.W.2d 131; and Smith, et al. v. State, 194 Ark. 1041, 110 S.W.2d 24.

The Supreme Court of the United States has many times held that a state may -- if it so desires -- provide for prosecution by information rather than by indictment: Hurtado v. California, 110 U.S. 516, 28 L.Ed. 232, 4 S.Ct. 111; Bolin v. Nebraska, 176 U.S. 83, 44 L.Ed. 382, 20 S.Ct. 287; and Gaines v. Washington, 277 U.S. 81, 72 L.Ed. 793, 48 S.Ct. 468. For a more recent pronouncement on this point, see the case of Paterno v. Lyons, 334 U.S. 314, 68 S.Ct. 1044, in which Mr. Justice Frankfurter, in his concurring opinion said: ". . . So far as the United States Constitution is concerned, the states may dispense with accusations by grand juries, it is for New York and not for us to decide when the procedural requirements of New York law, not touching those fundamental safeguards which the United States Constitution protects, are satisfied."

Appellant quotes and seeks refuge in the dissenting opinion of Mr. Justice Black in the case of Adamson v. People of the State of California, 332 U.S. 46, 91 L.Ed. 1903, 171 A. L. R. 1223, 67 S.Ct. 1672, but the majority of that court held contrary to the views therein expressed by Mr. Justice Black and this court has followed the majority.

II. Motion to Quash Panel of Petit Jurors. Appellant, in apt time, filed his Motion to Quash Panel of Petit Jurors, in which appellant (omitting preamble) avers that: "in order to circumvent recent decisions of the United States Supreme Court reversing convictions in cases in which discrimination as is herein shown has been practiced a conspiracy, common understanding or method has been developed by which one or two Negroes are called whenever it appears that the unlawful method will be challenged. The defendant avers that the action of the Jury Commissioners of the present May, 1948, Term of the Ouachita Circuit Court, in naming two Negroes as members of the regular panel, is not in good faith as no Negroes have ever been summoned for regular jury service for a period of fifty years, more or less; and as a result thereof all Negroes in Ouachita county, Arkansas, have been denied their constitutional right of trial by a jury of their peers.

"That the total population of Ouachita county, Arkansas, as of April 1, 1940, according to sixteenth census, is 31,151, divided as to the races as follows: white, 16,446 and Negro, 14,697, that the Negro population is more than forty per cent of the total population; that the total number of electors eligible for consideration as jurors is 7,719; that defendant avers and believes that of the total number of electors in Ouachita county, 1,496, or approximately 20% of the total number of electors, are members of the Negro race.

"That 32 persons were summoned as jurors for the May, 1948, Term of Ouachita County Circuit Court; and that the said Jury Commissioners named only two qualified electors in the Negro race; that the said Jury Commissioners and their predecessors, for a period of 50 years, more or less, have never selected from qualified Negro electors, who had been, were, and still are, numerous on the list of qualified electors of Ouachita county, Arkansas, regular members of the jury panel; and further, the defendant avers and believes that the Jury Commissioners either of their own volition or upon a directive of the Judge of the said Ouachita County Circuit Court named the two present Negro members of the panel in order to prevent the present panel from being challenged successfully.

"That the two Negro members of the present panel are exempt from Jury service under §§ 8294 and 8295 of Pope's Digest of the Statutes of Arkansas.

"That no Negro has ever been named as jury commissioner in the Ouachita County Circuit Court, despite the fact that the Judge of the said Court is empowered to appoint three Jury Commissioners whose duty according to law is to select grand and petit jurors for the Ouachita Circuit Court.

"That there has been now and for a long time prior to a systematic exclusion of Negroes from jury panels despite the fact that the list of qualified jurors are designated by law according to race.

"The defendant charges that this constitutes a discrimination against him, a Negro, and such discrimination is a denial to him of equal protection of the laws of the United States of America as guaranteed by § 1 of the Fourteenth Amendment to the Constitution of the United States of America. Petitioner further alleges that due process of law is being denied by the State of Arkansas, through its administrative officers, and prays that the present Petit Jury panel be quashed."

Appellant's motion seems highly inconsistent in its various aspects. The substance of the said motion being that he, as a Negro, is being discriminated against and his constitutional rights violated by what he terms a systematic exclusion of members of his own race from juries in Ouachita county, yet at the same time admitting that two members of his own race were members of the regular jury panel, but avers that the jury commissioner's action "in naming two Negroes as members of the regular panel is not in good faith, as no Negroes have been summoned for regular jury service for a period of fifty years, more or less."

It does not seem important to a determination of this case what may or may not have been done or practiced in this respect in the past for a period of fifty years or any other number of years. Assuming that appellant might have produced proof that such practice may have been followed and may have been erroneously followed, if such practice was discontinued as is admitted by appellant in empanelling the jury present for service at the time of appellant's trial, it would seem to be a violent presumption or conclusion on the part of appellant that the action of the jury commissioners in naming two Negroes as members of the regular panel was not in good faith. On the contrary, would it not be more reasonable and plausible to assume that the jury commissioners selected these two Negro members in perfectly good faith to strictly comply with the law of the land and to obviate any claim of discrimination. As to that portion of appellant's motion which avers that the two Negro members of the present panel were exempt from jury service under §§ 8294 and 8295 of Pope's Digest of the Statutes of Arkansas. Section 8294 provides that no members of certain professions or avocations or persons sixty-five years of age shall be compelled (italics supplied) to serve on grand or petit juries and § 8295 provides that any licensed undertaker or embalmer may be excused (italics supplied) from service on petit or grand juries. These sections are permissive and not a prohibition against such persons serving as members of petit and grand juries, but only permit such persons to claim exemption and such rights of exemption could not have here worked to the prejudice of appellant. It is not even suggested that such exemption was claimed by either of the two Negro jurors. The record in this case clearly shows that formal arraignment and drawing of the jury was waived by both appellant and the Prosecuting Attorney, and there is no showing that appellant exhausted all of his peremptory challenges or that the two Negro members were challenged by the state or did not in fact serve on the trial jury.

Assuming that appellant's figures are correct, and that there are 1,496, or approximately 20 per cent of the total number of electors of Ouachita county who are members of the Negro race, proportionate representation of races for selection as jurors has never been held to be mandatory: Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667; Thomas v. Texas, 212 U.S. 278, 53 L.Ed. 512, 29 S.Ct. 393.

Section 8306 of Pope's Digest...