Dixon v. State

• Decision Date: 04 May 1949
• Docket Number: A-10953.
• Citation: Dixon v. State, 206 P.2d 231, 89 Okla.Crim. 205 (Okla. Crim. App. 1949)
• Parties: DIXON v. STATE.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

206 P.2d 231

89 Okla.Crim. 205

DIXON v. STATE.

No. A-10953.

Court of Criminal Appeals of Oklahoma

May 4, 1949

Appeal from District Court, Bryan County, Sam Sullivan, Judge.

Lonzo Dixon was convicted for the crime of assault with a dangerous weapon and sentenced to a term of five years in the penitentiary, and he appeals.

Affirmed.

Syllabus by the Court.

1. The exclusion of Negroes from jury service solely on account of their race and color denies a Negro charged with crime the equal protection of the laws, contrary to the Fourteenth Amendment of the Constitution of the United States.

2. The mere fact that the jury was composed solely of white men will not be ground for challenge in such case. There is no law requiring that Negroes shall be selected to sit upon juries. The only law upon this subject is, they must not be excluded therefrom solely on account of their race or color.

3. Officers charged with the duty of selecting and summoning jurors can exercise their own discretion in selecting those persons who, in their judgment are competent and qualified to serve as such jurors provided, that they do not exclude competent persons who are Negroes, solely on account of their race and color.

4. The burden is on defendant to show by competent evidence that Negroes were actually excluded from the jury panel solely because they were Negroes, and where the evidence fails to sustain this allegation, it is not error for the trial court to overrule the challenge to the panel for such cause. Record examined, Held, there was no discrimination against Negroes in the case at bar.

5. Where a defendant testifies in a hearing on the competency of a confession that he signed the confession because of threats of harm and blows which were struck him by an officer having him in custody, and the officer alleged to have committed the abuse does not testify, and there is no testimony to refute the statements of the defendant, the alleged confession is inadmissible as a matter of law.

6. It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error.

7. Error in the introduction of incompetent testimony, which is afterwards excluded by the trial court, is not such prejudicial error as will entitle the defendant to a new trial.

W. L. (Bill) Steger, of Durant, and Roy G. Baker, of Sherman, Tex., for plaintiff in error.

Mac Q. Williamson, Atty. Gen. and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

This is an appeal by Lonzo Dixon, a Negro, the defendant below, who was charged, tried and convicted by a jury that fixed his punishment at five years in the State Penitentiary and upon which verdict the trial court pronounced judgment and sentence accordingly.

The victim of the assault J. C. Farrington was a commissioned deputy sheriff who, together with two other officers, saw the defendant and another person drinking whiskey, in a public place, and after putting the defendant under arrest and while seeking to search him, the defendant shot the said Farrington with a pistol with the intent to kill the said officer. The defendant does not question the sufficiency of the evidence to sustain the conviction.

In his brief he presents three propositions: first, that the court erred in overruling the defendant's challenge to the array and motion to quash the panel of jurors. Second, he contends that the court erred in overruling his motion to suppress the evidence of his signed confession and, third, he urges the court erred in denying his motion for a mistrial because of certain testimony produced by Cliff Keirsey, Sheriff of Bryan County, a witness for the State. The first contention is predicated upon the proposition that defendant was a Negro man from the adjoining State of Texas, and was tried in the District Court of Bryan County, Oklahoma, in the City of Durant. He contends that the record discloses that no Negroes have been called for jury service in Bryan County and by reason thereof the defendant was denied his constitutional rights. To support this contention he relies upon Holland v. State, 61 Okl.Cr. 215, 67 P.2d 58; Carrick v. State, 41 Okl.Cr. 336, 274 P. 896; Smith v. State, 4 Okl.Cr. 328, 111 P. 960, 140 Am.St.Rep. 688; Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497, 498; Hollins v. State, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500, on appeal from this court, Hollins v. State, 56 Okl.Cr. 275, 38 P.2d 36; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. In Holland v. State, supra, 61 Okl.Cr. at page 220, 67 P.2d at page 60, this court said:

'It is well settled that a denial to citizens of the African race solely on the ground of their race and color of the right or privilege accorded to white citizens of participating as jurors in the administration of justice is a discrimination contrary to the Fourteenth Amendment of the Constitution of the United States, which ordains that:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Carrick v. State, 41 Okl.Cr. 336, 274 P. 896; Smith v. State, 4 Okl.Cr. 328, 111 P. 960, 140 Am.St.Rep. 688.

'The Supreme Court of the United States has repeatedly held that discrimination against persons qualified to serve as jurors, solely because of their race or color, is a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment, and that such a discrimination entitles a person of the race against which it is practiced to interpose a challenge to the jury panel when he is a party to an action to be tried before a jury drawn from the panel. See Martin v. Texas, 200 U.S. 316, 319, 26 S.Ct. 338, 50 L.Ed. 497, 498.'

In Smith v. State, supra, this court said:

'(a) When a negro is charged with violating the criminal laws of a state, and when under oath he challenges the panel of the jury upon the ground that the commissioners who selected such jury and the sheriff who summoned them had excluded from the jury all persons of African descent solely on account of their race and color, and offers evidence to sustain this ground of challenge, the trial court should hear the evidence, and if it is of the opinion that as a matter of fact negroes were intentionally excluded from the panel, solely upon the ground of their race and color, said motion should be sustained. This has been repeatedly decided by the Supreme Court of the United States, and all state tribunals are bound thereby.

'(b) The mere fact that the jury was composed solely of white men will not be ground for challenge in such case. There is no law requiring that negroes shall be selected to sit upon juries. The only law upon this subject is they must not be excluded therefrom solely on account of their race or color.

'(c) Officers charged with the duty of selecting and summoning jurors can exercise their own discretion in selecting those persons who, in their judgment, are competent and qualified to serve as such jurors, provided, that they do not exclude competent persons who are negroes, solely on account of their race and color.'

This court has closely adhered to the Supreme Court's pronouncements on this subject, as an examination the cases relied on by the defendant discloses. In the body of the opinion in Smith v. State, supra, 4 Okl.Cr. at page 332, 111 P. at page 961, 140 Am.St.Rep. 688, the court said:

'The ground upon which the decisions of the Supreme Court of the United States rest is not that negroes were not selected to sit upon juries, but that they were excluded therefrom solely on account of their race or color. In other words, there is no law to compel the jury commissioners or other officers of the court to select or summon negroes as jurors. They can select any persons whom they regard as competent to serve as jurors without regard to their race or color, but the law prohibits them from excluding negroes solely on account of their race or color. * * * There is no law requiring an officer to place negroes on the panel simply because they were negroes. It is his duty to select the best jurors without regard to race or color. When this is done, the law is satisfied.'

In every such case the burden is upon the movant to sustain his motion to quash the jury panel, as was said in Hollins v. State, 56 Okl.Cr. 275, 38 P.2d 36, 37:

'The burden is on defendant to show by competent evidence that Negroes were actually excluded from the jury panel solely because they were Negroes, and where the evidence fails to sustain this allegation it is not error for the trial court to overrule the challenge to the panel for such cause.' See also Houston v. State, 63 Okl.Cr. 49, 72 P.2d 526. Each such case must, therefore, be determined by its own facts.

In the case at bar the evidence in relation to this question reveals the following situation, the population of Bryan County is approximately 40,000, of which between 1,000 and 1,200 are Negroes and of whose numbers some 20 or 30 are listed on the personal tax rolls. The testimony of Judge Paul who was judge of the District Court of Bryan County for some 10 years prior to the present incumbent reveals that he instructed his jury commissioners not to discriminate against p...