Cassell v. State of Texas, No. 46

• Court: United States Supreme Court
• Writing for the Court: Mr. Justice REED announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE; DOUGLAS; FRANKFURTER; CLARK; JACKSON
• Citation: 339 U.S. 282,70 S.Ct. 629,94 L.Ed. 839
• Parties: CASSELL v. STATE OF TEXAS
• Docket Number: No. 46
• Decision Date: 24 April 1950

339 U.S. 282 70 S.Ct. 629 94 L.Ed. 839 CASSELL

v.

STATE OF TEXAS.

No. 46. Argued Nov. 10, 1949. Decided April 24, 1950.

Mr. Chris Dixie, Houston, Tex., for petitioner.

Mr. Joe R. Greenhill, Houston, Tex., for respondent.

Mr. Justice REED announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice CLARK concurred.

Review was sought in this case to determine whether there had been a violation by Texas of petitioner's federal constitutional right to a fair and impartial grand jury.

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The federal question was raised by a motion to quash the indictment on the ground that petitioner, a Negro, suffered unconstitutional discrimination through the selection of white men only for the grand jury that indicted him. After full hearing, the trial court denied the motion, and this action was sustained by the Court of Criminal Appeals of Texas in affirming petitioner's conviction. Cassell v. State, 216 S.W.2d 813.

The Court of Criminal Appeals accepted the federal rule that a Negro is denied the equal protection of the laws when he is indicted by a grand jury from which Negroes as a race have been intentionally excluded. Cassell v. State, supra, 216 S.W.2d 819; Neal v. State of Delaware, 103 U.S. 370, 394, 26 L.Ed. 567; Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559; Akins v. State of Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692. It was from an examination of facts that the court deduced its conclusion that racial discrimination had not been practiced. Since the result reached may deny a federal right, we may reexamine the facts to determine whether petitioner has sustained by proof his allegation of discrimination. ¹ Certiorari was granted, 336 U.S. 943, 69 S.Ct. 805, to consider petitioner's claim that in this case Negroes were omitted from the list of grand jurymen either because of deliberate limitation by the Dallas County jury commissioners, or because of failure by the commissioners to acquaint themselves with available Negroes.

Acting under the Texas statutes,² the Dallas County grand-jury commissioners chose a list of sixteen males³

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for this September 1947 grand jury from citizens eligible under the statute.⁴ The judge chose twelve of these for the panel.⁵ No challenge is now made to the fairness of this statutory system. We have approved it.⁶

Petitioner's attack is upon the way the statutory method of grand-jury selection has been administered by the jury commissioners.⁷ One charge is that discrimination must have been practiced because the Negro proportion of grand jurors is less than the Negro proportion of the county's population. Under the 1940 census the total population of Dallas County was 398,564, of whom 61,605 were Negroes.⁸ This is about 15.5%. In

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weighing this matter of custom, we limit ourselves, as do the parties, to the period between June 1, 1942, when Hill v. Texas, supra, was decided, and November 1947, when petitioner was indicted. There were 21 grand juries in this period; of the 252 members of the panels,⁹ 17, or 6.7% were Negroes. But this apparent discrepancy may be explained by the fact that Texas grand jurors must possess certain statutory qualifications.¹⁰ Grand jurors must ordinarily be eligible to vote; eligibility requires payment of a poll tax;¹¹ and the validity of the poll-tax requirement is not challenged. The record shows 5,500 current Negro poll-tax payers in Dallas County in 1947, and nothing indicates that this number varied substantially from year to year.¹² The corresponding figure for all poll-tax payers, male and female, is 83,667.¹³ These figures would indicate that as a proportional matter 6.5% of grand jurors would be Negroes, a percentage approximating the ratio of Negroes actually sitting on the 21 grand jury panels.¹⁴ Without

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more it cannot be said that Negroes had been left off grand-jury panels to such a degree as to establish a prima facie case of discrimination.¹⁵

A different question is presented by petitioner's next charge that subsequent to the Hill case the Dallas County grand-jury commissioners for 21 consecutive lists had consistently limited Negroes selected for grand-jury service to not more than one on each grand jury. The contention is that the Akins case has been interpreted in Dallas County to allow a limitation of the number of Negroes on each grand jury, provided the limitation is approximately proportional to the number of Negroes eligible for grand-jury service. Since the Hill case the judges of the trial court have been careful to instruct their jury commissioners that discrimination on grounds of race or color is forbidden.¹⁶ The judge did so here.¹⁷ If, notwithstanding this caution by the trial court judges, commissioners should limit proportionally the number of Negroes selected for grand-jury service, such limitation would violate our Constitution. Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race.

We have recently written why proportional representation of races on a jury is not a constitutional requisite.¹⁸ Succinctly stated, our reason was that the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impos-

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sible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color,¹⁹ proportional limitation is not permissible. That conclusion is compelled by the United States Code, Title 18, § 243, 18 U.S.C.A. § 243,²⁰ based on § 4 of the Civil Rights Act of 1875. While the language of the section directs attention to the right to serve as a juror, its command has long been recognized also to assure rights to an accused. Prohibiting racial disqualification of Negroes for jury service, this congressional enactment under the Fourteenth Amendment, § 5,²¹ has been consistently sustained and its violation held to deny a proper trial to a Negro accused.²² Proportional racial limitation is therefore forbidden. An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.

Our holding that there was discrimination in the selection of grand jurors in this case, however, is based on another ground. In explaining the fact that no Negroes appeared on this grand-jury list, the commissioners said that they knew none available who qualified; at the same time they said they chose jurymen only from those people

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with whom they were personally acquainted.²³ It may be assumed that in ordinary activities in Dallas County, acquaintanceship between the races is not on a sufficiently familiar basis to give citizens eligible for appointment as jury commissioners an opportunity to know the qualifications for grand-jury service of many members of another race. An individual's qualifications for grand-jury

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service, however, are not hard to ascertain,²⁴ and with no evidence to the contrary, we must assume that a large proportion of the Negroes of Dallas County met the statutory requirements for jury service.²⁵ When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color.²⁶ They did not do so here, and the result has been racial discrimination. We repeat the recent statement of Chief Justice Stone in Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559: 'Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.'

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The existence of the kind of discrimination described in the Hill case does not depend upon systematic exclusion continuing over a long period and practiced by a succession of jury commissioners. Since the issue must be whether there has been discrimination in the selection of the jury that has indicted petitioner, it is enough to have direct evidence based on the statements of the jury commissioners in the very case. Discrimination may be proved in other ways than by evidence of long continued unexplained absence of Negroes from many panels. The statements of the jury commissioners that they chose only whom they knew, and that they knew no eligible Negroes in an area where Negroes made up so large a proportion of the population, prove the intentional exclusion that is discrimination in violation of petitioner's constitutional rights.

The judgment of the Court of Criminal Appeals of Texas is reversed.

Reversed.

Mr. Justice DOUGLAS took no part in the consideration or decision of this case.

Mr. Justice FRANKFURTER, whom Mr. Justice BURTON and Mr. Justice MINTON join, concurring in the judgment.

It has been settled law since 1880 that the Civil War Amendments barred the States from discriminating because of race in the selection of juries, whether grand or petty. As a result, a conviction cannot stand which is based on an indictment found by a grand jury from which Negroes were kept because of discrimination. Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed....