Carter v. State

• Decision Date: 07 December 1898
• Citation: 48 S.W. 508
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W. 508

CARTER v. STATE.

Court of Criminal Appeals of Texas.

December 7, 1898.

On motion for rehearing. Overruled.

For former opinion, see 46 S. W. 236.

DAVIDSON, J.

Appellant was convicted of murder in the first degree, with the death penalty affixed, and prosecuted an appeal to this court. The judgment of the lower court was affirmed at the last Austin term, 1898, and now comes before us on motion for rehearing.

The points relied on in the motion for rehearing are (1) the action of the court below in overruling appellant's motion to quash the indictment on account of the method pursued in impaneling the grand jury; and (2) the refusal of the court to entertain appellant's motion to quash the panel of petit jurors selected to try the case. Both questions were presented on the submission of the case, and we decided against appellant, in accordance with the provisions of our statute. While our attention was called to the federal constitution on this subject, it was not discussed by us. Our attention is again called to this matter, and it is urgently insisted that the impanelment of both the grand and petit juries was in violation of that provision of the fourteenth amendment to the constitution of the United States, and the federal statutes passed in pursuance thereto, which guaranty to all persons, regardless of race, color, or previous condition of servitude, the equal protection of the laws.

We will quote so much of the bills of exception as it is contended present the federal questions:

"Bill No. 1. Be it remembered that on the 17th day of March, 1898, the above-entitled and numbered cause was called for trial, and the defendant in open court, before he was arraigned, and before pleading to the indictment, presented and read to the court the following motion to quash said indictment, to wit: `And now comes the said defendant, in his own proper person, and moves the court to set aside and quash the indictment herein against him, because the jury commissioners appointed to select the grand jury which found and presented said indictment selected no person or persons of color or of African descent, known as "negroes," to serve on said grand jury, but, on the contrary, did exclude, from the list of persons to serve as such grand jurors, all colored persons or persons of African descent, known as "negroes," because of their race and color; and that said grand jury were composed exclusively of persons of the white race, while all persons of the colored race, or persons of African descent, known as "negroes," although consisting of and constituting about one-fourth of the population and of the registered voters in said city and county of Galveston, and although otherwise qualified to serve as such grand jurors, were excluded therefrom on the ground of their race and color, and have been so excluded from serving on any jury in said criminal district court for a great many years, which is a discrimination against the defendant, since he is a person of color, and of African descent, known as a "negro"; and that such discrimination is a denial to him of the equal protection of the laws, and of his civil rights guarantied by the constitution and laws of the United States. All of which the defendant is ready to verify. [Signed] Seth Carter. Sworn to and subscribed before me this 13th day of January, 1898. Florence T. Atkins, Notary Public in and for Galveston County, Texas. [Seal.]' After reading the said motion, the defendant asked leave of the court to introduce witnesses, and offered to introduce witnesses, to prove and sustain the allegations therein made; but the court refused to hear any evidence in support of the said motion, and thereupon overruled the same, without investigating into the truth or falsity of the allegations of said motion,—to which action of the court the defendant then and there excepted, and tenders this, his first bill of exceptions," etc.

"Bill No. 2. Be it remembered that on the 17th day of March, 1898, at the trial of the above-entitled case, after the jury had been selected, duly accepted by both parties, and impaneled and sworn according to law to try said cause, but before the introduction of any evidence in the case, the defendant presented and read to the court the following motion to quash the panel of petit jurors selected to try said case, to wit: `And now comes the said defendant, in his own proper person, and moves the court to set aside and quash the panel of petit jurors selected and summoned to try him in the case herein, because the jury commissioners appointed to select the list of petit jurors from which the present panel were drawn selected no persons of color or of African descent, known as "negroes," so that they might be drawn on said panel, but that said jury commissioners excluded from the list of persons selected to serve as petit jurors for this term of this court all persons of color or of African descent, known as "negroes," because of their race and color; and that said panel, as well as the list of jurors, selected for the entire term of this court, is composed exclusively of persons of the white race, while all persons of the colored race, or persons of African descent, known as "negroes," although constituting about one-fourth of the population, and of the registered voters in said city and county, and although otherwise qualified to serve as jurors, were excluded therefrom, on the ground of their race and color, and that they have been so excluded from serving on any jury in this court for a great many years, which is a discrimination against the defendant, since he is a person of color and of African descent, known as a "negro"; and that such discrimination is a denial to him of the equal protection of the laws, and of his civil rights guarantied by the constitution and laws of the United States. All of which the defendant is ready to verify. [Signed] Seth Carter. Sworn to and subscribed before me this 13th day of January, 1898. Florence T. Atkins, Notary Public in and for Galveston County.' After reading the said motion, the defendant asked leave of the court to introduce witnesses, and offered to introduce witnesses, to prove and sustain the allegations therein made; but the court refused to hear any evidence in support of the said motion, and thereupon overruled the same, without investigating the truth or falsity of the allegations of the said motion,—to which action of the court the defendant then and there excepted, and tenders this, his second bill of exceptions," etc.

We will first discuss the questions involved in the impanelment of the grand jury. It is contended that the motion to quash the indictment on this account comes too late; that it should have been presented in a motion to challenge the array. As treated in the original opinion, we there intimated that his challenge should have been to the array, and not by motion to quash. However, our statute points out the grounds of the motion to challenge the array, and it does not include the grounds here urged. The fourteenth amendment to the federal constitution, and statutes passed thereunder, would seem to make race discrimination in the organization of a grand jury a ground of challenge to the array, and, where practicable, we believe the question should be raised by a motion to challenge the array of jurors. But in this particular case no opportunity was afforded appellant to challenge the array, because the grand jury which returned the bill against him had been impaneled prior to the commission of this offense. He did, after his arrest under the indictment and before his arraignment, move to quash the indictment on the ground that in the organization of the grand jury colored persons were discriminated against, in that none were selected by the jury commissioners. This was his first opportunity to test this question, and was proper practice, and timely, under the decisions of the supreme court of the United States. Neal v. Delaware, 103 U. S. 370; U. S. v. Gale, 109 U. S. 63, 3 Sup. Ct. 1. We think, under our statute, this question should have been raised in a motion to set aside the indictment or in the form of a special plea. True, this is not one of the causes stated in our Code of...