Eastling v. State

• Decision Date: 30 March 1901
• Citation: 62 S.W. 584,69 Ark. 189
• Parties: EASTLING v. STATE
• Court: Arkansas Supreme Court

62 S.W. 584

69 Ark. 189

EASTLING v. STATE

Supreme Court of Arkansas

March 30, 1901

Appeal from Perry Circuit Court, ROBERT J. LEA, Judge.

Judgment reversed and cause remanded.

Scipio A. Jones and J. H. Carmichael, for appellant.

It was error not to allow appellant to be present at the formation and impaneling of the grand jury. Sand. & H. Dig., § 2067; 50 Ark. 542; 42 Ark. 394; 43 Ark. 395; 10 Ark. 631; 177 U.S. 447. In the selection of the jury appellant was denied the equal protection of the law. 103 U.S. 370; 100 U.S. 339; id. 313; id. 303; 140 U.S. 278; 58 S.W. 97; 177 U.S. 442; 39 Tex. Cr. Rep. 345. The evidence fails to show premeditation and deliberation, and the sentence cannot stand for murder in the first degree. 56 Ark. 5.

Jeff Davis, Attorney General, and Chas. Jacobson, for appellee.

No such discrimination is shown in the selection of the grand jury as entitled appellant to have the indictment quashed.100 U.S 313, 320, 322, 334.

BUNN C. J. BATTLE, J. do not concur.

OPINION

BUNN, C. J.

This is an indictment against the appellant, Ed Eastling, in the Perry county circuit court, upon which he was tried and convicted in said court at its August term, 1900, of murder in the first degree, from which he appealed to this court, after motions to quash indictment and for new trial were made by him and overruled.

There were two causes assigned in support of the motion to quash the indictment. The first was that the defendant, although in jail at the time, was not given an opportunity to appear and object to the formation of the grand jury which found the indictment, as entitled by statute to do in such case; and also because he was taken before the grand jury, while considering the case, without his knowledge of the nature of the proceedings had by them, and without his consent, and while there he was required to make statements in regard to the alleged crime.

It was irregular to fail to give him an opportunity to challenge the grand jury before they were sworn as such, for the statutory cause, but the defendant does not show that any of the grand jurymen were disqualified under the statute, which showing could be made available as well on the motion to quash as by challenge in the first instance.

The evidence does not sustain the motion to quash on the ground that the defendant was compelled to testify before the grand jury while investigating the charge against him, but, on the contrary, it appears from the evidence, that while before the grand jury for the purpose of identification, while another was testifying, he was warned that he could not be required to make any statement unless he chose to do so; and it appears that while he made a statement as to the matter leading up to the homicide in this case, he did so by his own request, in order, as he expressed it, that he might tell his side of the transaction.

The second ground of the motion to quash is, in the language of the motion, as follows, to-wit: "Because the jury commissioners appointed to select the grand jury which found and presented said indictment selected no persons of color, or of African descent, known as 'negroes,' to serve on said grand jury, but, on the contrary, excluded from the list of persons to serve as such grand jurors all colored person, or persons of African descent, known as 'negroes,' because of their race and color; that fully one-fourth of the population and of the legal electors who were qualified to serve as such jurors in Perry county were negroes, and that on account of their race and color, they have been excluded from serving on any jury in said circuit court for eighteen years, which is a discrimination against the defendant, who is a negro; and that such discrimination is a denial to him of the equal protection of the laws of the United States."

The allegation constituting the second ground of the motion to quash is to the effect that the absence of negroes on the grand jury was not only a fact, but that it had for its purpose a discrimination against the negro race, and did in fact discriminate against the defendant, and amounted to a denial to him of an equal protection of the laws, as guarantied by the first section of the fourteenth amendment of the constitution of the United States.

It is sufficient to say, in the outset of the discussion of this particular subject, that a mere absence of negroes from the grand jury cannot of itself be considered as a sufficient showing to sustain the motion to quash on this ground. It must appear that the exclusion of the negroes from the grand jury was brought about for the purpose solely of denying the equal protection of the laws to the defendant, or his race, on account of race or color.

The first section of the fourteenth amendment of the constitution of the United States reads as follows, to-wit: "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 persons within its jurisdiction the equal protection of the laws."

Primarily, as will be readily seen from the language, the effect of this first section of the fourteenth amendment is to prohibit the states from making laws which discriminate against the negro race, but recently emancipated when the amendment was adopted; and it has been so construed in many decisions of the federal supreme court. In that view of it congress has legislated upon the subject, and in that view alone, and provided that whenever it shall appear that any law of a state so discriminates, then it shall be ground for removal of any cause affected thereby from the state to the federal court. In such cases, the question is purely one of law,--that is to say, it arises upon the proper construction of the state law,--to determine whether or not the law does really so discriminate. All cases in which that phase of the amendment is the subject of discussion are applicable only incidentally, if at all, to the case at bar, which arises also from the fourteenth amendment, but not from any express language therein contained, but from the construction given to it by the courts.

In Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, Mr Justice Strong, in delivering the opinion of the court said: "The provisions of the fourteenth amendment of the constitution we have quoted all have reference to state action exclusively, and not to any action of private individuals. It is the state which is prohibited from denying to any person within its jurisdiction the equal protection of the laws, and consequently the statutes partially enumerating what civil rights colored men shall enjoy equally with white persons, founded as they are upon the amendment, are intended for protection against state infringement of those rights. Section 641 (of the Revised Statutes) was also intended for their protection against state action, and against that alone." That was a case in which the application was for removal under said section of the statute. The petition was denied because no discriminating law of the state was called in question by it, but it contained only allegations of a failure to administer the state laws, which were in accord with the federal constitution (as they are in this state). The allegation is one of fact, to be determined in the course of the trial and judicial proceedings as any other fact in the case. Continuing, the learned judge said in that case: "But when a subordinate officer of the state, in violation of state law, undertakes to deprive an accused party of a right which the statute laws accords to him, as in the case at bar, it can hardly be said that he is denied, or cannot enforce, 'in the judicial tribunals of the state' the rights which belong to him. In such case it ought to be presumed that the court will redress the wrong. If the accused is deprived of the right, the final and practical denial will be in the judicial tribunal which tries the case, after the trial has commenced. If, as in this case, the subordinate officer whose duty it is to select jurors fails to discharge that duty in the true spirit of the law; if he excludes all colored men solely because they are colored; or if the sheriff to whom a venire is given composed of both white and colored citizens neglects to summon the colored jurors only because they are colored; or if a clerk whose duty it is to take the twelve names from the box rejects the colored jurors for the same reason,--it can with no propriety be said the defendant's right is denied by the state, and cannot be enforced in the judicial tribunals. The court will correct the wrong, will quash the indictment or the panel, or, if not, the error will be corrected in a superior court. * * * The assertions in the petition for removal that the grand jury by which the petitioners were indicted, as well as the jury summoned to try them, were composed wholly of the white race, and that their race had never been allowed to serve as jurors in the county of Patrick in any case in which a colored man was interested, fall short of showing that any civil right was denied, or that there has been any discrimination against the defendants because of their color or race....