Fikes v. State

• Citation: 263 Ala. 89,81 So.2d 303
• Decision Date: 12 May 1955
• Docket Number: 2 Div. 335
• Parties: William Earl FIKES v. STATE of Alabama.
• Court: Supreme Court of Alabama

Page 303

81 So.2d 303

263 Ala. 89

William Earl FIKES v. STATE of Alabama.

2 Div. 335.

Supreme Court of Alabama.

May 12, 1955.

Rehearing Denied June 23, 1955.

Peter A. Hall and Orzell Billingsley, Jr., Birmingham, for appellant.

Si Garrett, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

PER CURIAM.

Defendant was convicted of first degree burglary with intent to ravish Jean Heinz Rockwell in an apartment dwelling which she occupied, and was sentenced to death,--Section 85, Title 14, Code of 1940.

The evidence was that on Friday night about '10:20' of April 24, 1953, Mrs. Rockwell was asleep in her bedroom. She had two babies, one of whom was in an adjoining bedroom and the younger in her room. Her husband was not at home. When she awakened around '10:15' a Negro man was sitting on her as she lay in bed. She knew he was a Negro but did not see his face as it was covered. She could not identify defendant as that person. He had a knife belonging to her which he had gotten from the kitchen. He told her he was going to kill her. She began struggling to get off the bed and with him holding on to her she managed to get into the hall (where there was a light) adjoining her room. She went all the way down the hall and into the living room in the front of her apartment. There he fell over a stool and fell on Mrs. Rockwell. She was screaming and he threatening to kill her with the knife at her throat, and he told her 'to straighten out'. She grabbed the knife and got it out of his hand. He jumped up and ran down the hall and out through the kitchen and back door. She fell up against the back door and locked it. It was locked when she went to bed but was open when he ran out of it. The kitchen was in the middle of the apartment between the dining room and bedrooms. There was an outside entrance to the kitchen with a screen and wooden door. The screen to the window was also open and the window up. There were holes in the screen over by the latches, but these holes were not there before he entered the apartment.

The indictment properly set out the charge, and the record shows that the requirements of law were complied with in respect to it. It was signed by the solicitor and endorsed by the foreman of the grand jury, with the caption required by law, and filed in open court in Dallas County on November 12, 1953. Defendant was arraigned, pleaded not guilty and not guilty by reason of insanity, and was represented on arraignment and throughout the trial by attorneys. The court set the date of trial for December 7, 1953, and drew a special venire as required by law. No question is raised in respect to such matters.

On November 19, 1953 defendant filed a motion in writing to quash the indictment, alleging in substance that he is a member of the Negro race, a citizen of Alabama and of the United States; that Negroes are and were systematically excluded from grand juries organized in Dallas County solely because of their race or color; and are discriminated against in the organization of grand juries in said county solely because of their race or color in that no members of said race, or a mere token number, are included on the jury roll or have their names placed in the jury box, or if their names are so placed they are not drawn for service on any grand jury, or if they are drawn they are not listed, thereby denying to defendant due process and equal protection of the laws guaranteed to him by the Constitution and laws of Alabama and the Fourteenth Amendment of the United States Constitution.

That no Negro served on the grand jury which returned the aforesaid indictment against defendant in this cause; nor has any Negro served on a Dallas County grand jury in modern times. That there exists a system, practice or custom in drawing or organizing grand juries to serve in Dallas County designed to totally exclude Negroes from service on such grand juries, or to discriminate against them solely on account of their race or color contrary to the Constitution and laws of Alabama and the Fourteenth Amendment to the Constitution of the United States.

That when the indictment was returned the census of the United States showed that the male population of Dallas County over the age of twenty-one numbered 13,996, of which 6,040 were whites, and that the Negroes over twenty-one years numbered 7,956. That a great majority of said Negro males are native born citizens of Dallas County, householders and freeholders, generally reputed to be honest and intelligent men, esteemed in the community for their integrity and good character and are not habitual drunkards nor afflicted with disease or physical weakness such as would disqualify them to discharge the duties of grand jurors, and otherwise possess all of the qualifications and none of the disqualifications set out in the Constitution and laws of Alabama and of the United States which govern the situation and service of grand jurors: yet the jury commission failed or refused to place on the jury roll and in the jury box the names of such Negro male citizens of Dallas County, and at that time the jury roll of said county contained less than two percent of the names of the total number of Negro male citizens eligible under the Constitution and laws of Alabama and of the United States for jury duty in said county. Those details are further elaborated. The facts thus alleged were verified by the affidavit of defendant.

On the same day another motion in writing was filed by defendant to quash the indictment, alleging that it was based solely upon an alleged confession of guilt which was extorted and illegally obtained from defendant by and through force and violence or threats of force and violence, coercion, torture and brutality by officers and detectives of the City of Selma and of Dallas County, Alabama, while acting in their official capacity and he was deprived of due process and equal protection of the law guaranteed by the Constitution and laws of Alabama and the Fourteenth Amendment to the Constitution of the United States. That prior to the return of the indictment defendant was arrested without warrant on May 16, 1953, was never taken before a magistrate but was held in the city jail of Dallas County for several days without a formal charge and without being permitted to confer with counsel, his parents or friends, and was subsequently taken to Kilby prison in Montgomery where he has remained until the present time, and where he was not allowed to confer with counsel, his parents or friends until he had been indicted in this cause and after he had been subjected to days of uninterrupted questioning by officers of the City of Selma and of Dallas County, and subjected to violence or threats of violence, coercion and force or threats of force, and an alleged confession was extorted from him, which is the sole basis of said indictment, and he was thereby deprived of his rights to due process and equal protection guaranteed by the Constitution and laws of Alabama and the Fourteenth Amendment to the Constitution of United States. Defendant also moved to quash the venire or array drawn to try him and assigned the same grounds in substance as those assigned in the first named motion to quash the indictment as amended supra.

It appeared from the evidence submitted on the motion that on June 2, 1953 this defendant had been indicted in several cases of a similar nature, including the one now on trial. That motion to quash them had been made and acted on October 9, 1953, resulting in their being quashed on substantially the grounds set up in the first motion herein set forth. The evidence on the instant motion showed that there was a jury roll dated '1942 to 1951' and another from '1951 to 1953'. The grand jury which returned the indictment of June 1953 was drawn from the box based on the roll of '1951 to 1953'; although there were some cards in the box of persons whose names were not on the roll. The jury commissioners had not always been careful to put all the names on the jury roll; and had put some cards of names in the box not on the roll. On that particular jury roll there were shown to be eight Negroes. Those indictments were quashed on October 9, 1953. The jury commission went about revising the roll and refilling the box on about the first of October (may be the 5th). They made investigation from available sources, such as the city and telephone directories, the list of registered voters, and by personal inquiry and personal contact. They communicated with Negro leaders and others and used their own personal knowledge as to the fitness of persons subject to jury service--males over twenty- one years and not over sixty-five years. They were confronted with the statute, section 3, Title 30, as amended, Pocket Part Code, which is as follows:

'The following persons are exempt from jury duty, unless by their own consent: judges of the several courts; attorneys at law during the time they practice their profession; officers of the United States; officers of the executive department of the state government; sheriffs and their deputies; clerks of the courts and county commissioners; regularly licensed and practicing physicians; dentists; pharmacists; optometrists; teachers while actually engaged in teaching; actuaries while actually engaged in their profession; officers and regularly licensed engineers of any boat plying the waters of this state; passenger bus driver-operators, and driver-operators of motor-vehicles hauling freight for hire under the supervision of the Alabama public service commission; railroad engineers, locomotive firemen, conductors, train dispatchers, bus dispatchers, railroad station agents, and telegraph operators when actually in sole charge of an office; newspaper reporters while engaged in the discharge of their duties as such; regularly licensed embalmers while actually engaged in their profession; radio broadcasting engineers and...