Gibson v. State of Mississippi, 711

Decision Date13 April 1896
Docket NumberNo. 711,711
Citation162 U.S. 565,16 S.Ct. 904,40 L.Ed. 1075
CourtU.S. Supreme Court

[Syllabus from pages 565-567 intentionally omitted] The plaintiff in error was indicted in the circuit court of Washington county, Miss., for the crime of having, in that county, and on the 12th day of December, 1892, killed and murdered one Stinson.

When the case was called for trial the accused presented a petition for its removal to the circuit court of the United States for the Western division of the Southern district of Mississippi. The petition was verified by the oath of the accused, to the effect that the facts set forth in it were true and correct to the best of his knowledge and belief, and was as follows:

'This petition respectfully shows unto this court: That John Gibson, a citizen of said state and of the United States of America, is a negro of the African descent and color black. That, under the constitution of the state of Mississippi, which was adopted in the constitutional convention in November, 1890, it prescribes that the qualification for persons to serve as jurors in said state shall be that the ability of said citizens, qualified electors of the county and state, male, being citizens thereof, not having [been] convicted of specified crimes, shall be able to read and write; but the legislature shall provide by law for procuring a list of persons so qualified to draw therefrom of grand and petit jurors for each term of the circuit court. Const. Miss. § 264. Section 2358 of the Code of Mississippi for 1892, adopted 1st day of April, 1892, and in force at the time of the finding of the bill of indictment filed herein against relator, provides that at the first meeting of each year, or as soon as practicable thereafter, the board of supervisors shall make a list of persons to serve as jurors in the circuit court for the next two terms to be held more than thirty days afterwards, and as a guide in making the list they shall use the registration book of voters, and shall select and list the names of qualified persons of good intelligence, sound judgment, and fair character, and shall take them, as nearly as it can, conveniently, from the several districts, in proportion to the number of the qualified persons in each, excluding all who have served on the regular panel within two years, if there be not a deficiency of jurors. Relator states that, under section 283 of the new constitution of Mississippi, the indictment returned against him should have been by a jury of the grand inquest of the said county, under the laws of the Code of said state, adopted in 1880, because the crime for which this indictment was returned is alleged to have been committed January, 1892, before the statute of 1892 took effect.

'Relator states that, under the laws of said state, provided by the Code of 1880 thereof, the only qualifications required, are shown by section 1661 of said Code, to wit: 'All male citizens of the United States and not being under the age of twenty-one years nor over the age of sixty years, and not having been convicted of any infamous crime, shall be qualified to serve as jurors within the county of their residence.' Section 1664 of Code of 1880 also provides that the board of supervisors of each county shall, at least twenty days before every term of the circuit court, select twenty persons competent to serve as jurors in said county, to be taken, as nearly as conveniently may be, in equal numbers from each supervisor's district of the county, who shall serve as grand jurors for the next ensuing term of said court.

'Relator states that, at the time the said grand jury of said county was selected, impaneled, and charged by this court at the December term, 1892, a great federal [right] of his was abridged, viz. the civil right guarantied to him under the fourteenth amendment to the constitutiion of the United States, particularly, to wit, 'No state shall deny to any person within its jurisdiction the protection of the laws.'

'Relator states that on the 9th day of January, 1892, Robert Stinson, a white man, was killed at Refuge plantation, in the said county, and that he was accused of the homicide; that prosecution against him had been commenced before the adoption of the Code of 1892; that by reason of the great prejudice against him by the officers charged with the selection of the said jury of grand inquest for the said December term of the said circuit court, which officers so charged are all members of the white race, and the relator herein being a member of the black race, black in color (although at the time of selecting the grand jurors for the said December term, 1892, there were in the five supervisors' districts of the said county of Washington 7,000 colored citizens competent for jury service of the county of Washington, state of Mississippi, and 1,500 whites qualified to serve as jurors in said county, there had not been for a number of years any colored man ever summoned on the grand jury of said county court; and that the colored citizens were purposely, on account of their color, excluded from jury service by the officers of the law charged with the selection of said jurors),—relator states that by reason of the great prejudice against him in this matter that the said officers of the law charged with the selection of the said grand jurors for the December term, 1892, on account of his color, being that of a negro, black, and the deceased being that of a white man, of the white race, in selecting persons to serve as grand jurors at said term, all colored men were purposely, on account of their color, excluded by said officers; and that the said grand jury did then and there, being all white men, purposely selected on account of their color, present the bill of indictment against relator for the murder of Robert Stinson aforesaid, on account of his color, and pray summons for witnesses to prove same. Relator avers that, by reason of the great prejudice against him on account of his color, he could not secure a fair and impartial trial by an impartial petit jury of the county of Washington, state aforesaid, and prays an opportunity to § bpoena witnesses to prove the same, and, therefore, after hearing same, doth pray the removal of his case from this court to the United States circuit court for the Western division of the Southern district of Mississippi, and that record hereof be properly certified to said court by an order from this court.'

The petition for removal was denied, and the defendant excepted to the action of the court.

Thereupon the accused demanded that a special venire be summoned to try his case. The regular jury box for the court having been produced for the purpose of drawing therefrom the special venire, the defendant moved 'to quash said jury box,' upon the ground that it was illegal, and had but few names therein. That motion was sustained, and a writ of special venire facias was directed to be issued for summoning 50 good and lawful men and qualified jurors to appear on a named day to serve as jurors in the cause. The sheriff was directed to serve on the defendant or his counsel a copy of the writ of venire facias, together with his return thereon, showing the names of the persons so summoned, and also a copy of the indictment. This order was executed, and, the requisite number of jurors having appeared, on a subsequent day of the court, the defendant moved to quash the special venire. The motion was overruled, the defendant taking an exception. The accused then announced himself ready for trial. A jury was selected, the defendant pleaded not guilty, and the trial resulted in a verdict of guilty as charged in the indictment. The opinion of the supreme court of the state states that this was the third trial of the defendant for the crime charged, each trial resulting in a verdict of guilty.

A new trial was asked upon various grounds, one of which was that the court erred in overruling the defendant's petition for the removal of the cause into the circuit court of the United States for trial; another, that it erred in not sustaining the motion to quash the special venire of 50 'good and lawful' men to serve as special jurors. These points were insisted upon in the supreme court of Mississippi. But that court held that there was no error in overruling the motion to remove the case into the federal circuit court. It also refused to disturb the verdict and judgment. 17 South. 892.

E. M. Hewlett, for plaintiff in error.

[Argument of Counsel from pages 571-579 intentionally omitted]

Page 579

Frank Johnston, for the State.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The first question presented for our consideration relates to the application of the accused for the removal of the prosecution from the state court into the circuit court of the United States.

By section 641 of the Revised Statutes it is provided: 'When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state, where such suit or prosecution is pending, any right secured to him by any law pro-

Page 580

viding for the equal civil rights of the citizens of the United States, * * * such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the state court shall cease,' etc.

In Neal v. Delaware, 103 U. S. 370, 385, 386, reference was made to the previous cases of Strauder v. West Virginia, Virginia v. Rives, and Ex parte Virginia, 100 U. S. 303, 313, 339, and to sections 641 and ...

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