Dixon v. State
| Decision Date | 10 June 1946 |
| Docket Number | 28156. |
| Citation | 67 N.E.2d 138,224 Ind. 327 |
| Parties | DIXON v. STATE. |
| Court | Indiana Supreme Court |
Lockyear & Lockyear and Paul Wever, all of Evansville, for appellant.
James A. Emmert, Atty. Gen., Frank E. Coughlin, 1st Asst. Atty Gen., and Forrest W. Lacey, Jr., Deputy Atty. Gen., for appellee.
Appellant was charged by indictment, tried and convicted of first degree murder, in the Vanderburgh Circuit Court. The trial began January 10, 1945. At the appropriate time appellant filed his written challenge to the entire array of prospective petit jurors, alleging in substance as follows:
1. That said array of prospective jurors was not selected according to law.
2. That said array was selected in such a manner as to violate the constitutional rights of the defendant and to deny him the equal protection of the law guaranteed by the Fourteenth Amendment of the Federal Constitution.
In support of the challenge, among other things, he says he is a negro. That the population of Vanderburgh County is between 110,000 and 140,000, of whom from 6,000 to 10,000 are negroes, and of these negroes more than 2,000 are qualified for jury service in the county. The remaining population is composed almost entirely of white persons of whom from 10,000 to 20,000 are qualified for jury service.
That the present jury commissioners and their predecessors for a period of more than five years immediately last past, by means unknown to petitioner, have filled the jury box for the December, 1944, term of the Vanderburgh Circuit Court and for the special venire drawn in this cause and for all juries in the county, with names of white citizens only, and that all negroes were systematically and arbitrarily excluded, solely upon the fact of their race or color. That the exclusion of qualified negro jurors has been systematic, arbitrary, and long-continued, and has amounted to a wholesale exclusion of negroes from jury service in the county on account of their race and color. That these facts are matters of common knowledge within the county, and the exclusion of members of defendant's race from jury service in the county, constitutes a denial of the equal protection of the law guaranteed petitioner by the Fourteenth Amendment of the Constitution of the United States.
Wherefore the petitioner challenges the entire array of prospective jurors called in this cause.
A hearing was had on appellant's challenge. To sustain the same appellant called as witnesses the follows: Clyde Oviatt, the court bailiff who had served for two years beginning January 1, 1943, testified, among other things, that during that time he had attended each jury trial held in the Vanderburgh Circuit Court; that approximately twenty to twenty-five criminal jury trials were had, and that no person of the colored race had been called for jury service in that court during that time.
Harold Huck testified that he was bailiff of that court for a period of ten years immediately prior to January 1, 1943. There were quite a number of criminal cases tried during that time. Some persons--very few--of the colored race were on the jury panel, but none ever served. None ever came into the court room to be examined as a prospective juror.
Ed J. Sauer testified: That he had been Chief Deputy Clerk of the Vanderburgh Circuit Court since January, 1933, and for a number of years last past had been present when juries were selected to try criminal cases. He was asked, 'During the time you have been Chief Deputy Clerk, have you ever seen any person of the colored race serve upon any criminal jury in the Vanderburgh Circuit Court?' The state's attorney objected to the question, whereupon the court, addressing appellant's counsel, stated:
After a statement by appellant's counsel, the court said: The witness then testified: That he had known of no colored person serving upon any jury in the Vanderburgh Circuit Court in criminal cases from January 1, 1943, until the present time. He did not know whether any had been called as prospective jurors during that time.
Sina McGill testified she had been a jury commissioner of Vanderburgh County since January 1, 1943. She and the other jury commissioner select the names for jurors off the tax schedules in both assessors offices, which comprise the records of the three commissioner's districts. They selected the names they thought would make good jurors, and that would serve. The assessors' records did not always show whether the persons selected were white or colored. They never discriminated between the races. She did not know how it happened that no colored person had been drawn as a prospective juror during the time she had served as a jury commissioner. She said, 'for no particular reason, no colored person has been selected as a prospective juror in the Vanderburgh Circuit Court in the last two years.'
M. D. Banks testified that he is a minister, and has resided in Vanderburgh County approximately ten years. He frequently attended trials of criminal cases in the courts including the circuit court. That he has not seen or known of any person of the colored race serving as a juror in Vanderburgh County, or called as a prospective juror. There are from seven thousand to twelve thousand colored persons in the county, many of whom are qualified voters of the county and householders or freeholders.
John Wesley Appleby testified that he is a minister. That he has lived in Vanderburgh County for eight years past, and during that time has attended numerous trials of criminal cases in the courts of the county, and never saw a person of his race on a jury, and never knew of one being called for jury service. The population of the county is about 120,000 persons of whom between 6,000 and 12,000 are colored and hundreds of these are householders and freeholders of the county.
The state presented, as its only witness, Earl Shrode, who testified that he has been a special deputy sheriff working out of the Vanderburgh Circuit Court for the past two years. He has summoned persons for jury service in the circuit court during that time. About March 1, 1943, he tried to serve a 'jury subpoena' on a colored man whose name he could not recall. A colored lady came to the door. In answer to his inquiry, the lady told him the man he was looking for was her father and that he was dead. That is the only instance he could recall. During the past two years no colored person had been in the court as a prospective juror.
The court declined to hear argument, and thereupon overruled appellant's challenge.
By his motion for new trial and assignment of error appellant properly questions this ruling. No other question is attempted to be presented.
We are mindful of the fact that the lower court has heard the evidence and determined that it was not sufficient to justify the challenge. In this situation we can not weigh the evidence, but we are required to examine it to ascertain if there is any evidence or proper inference to support the ruling.
So far as applicable to this case, § 1 of the Fourteenth Amendment to the Federal Constitution is as follows:
'* * * 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.'
To further implement this amendment, on March 1, 1875, Congress enacted a law which ever since has been, and is now in effect, as follows:
'No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; * * *.' 8 U.S.C.A. § 44.
In this appeal there is no contention that the laws of the State of Indiana with reference to the selection of either grand jurors or petit jurors, § 4-3301 to 4-3319 Burns' 1933, in any manner infringes the Fourteenth Amendment. The essence of the challenge is that these laws are so administered in Vanderburgh County by the administrative officers chosen to select the names that are placed in the jury box, and...
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