Green v. State
| Decision Date | 25 May 1953 |
| Docket Number | No. 4724,4724 |
| Citation | 258 S.W.2d 56,222 Ark. 222 |
| Parties | GREEN v. STATE. |
| Court | Arkansas Supreme Court |
Jim Merritt, McGehee, Claude Cruce, Wilmar, for appellant.
Tom Gentry, Atty. Gen., and Thorp Thomas, Asst. Atty. Gen., for appellee.
On June 27, 1952 an information was filed by the Prosecuting Attorney against Warren Green [a Negro] charging him with grand larceny for stealing a cow valued at more than $35. On September 20, 1952 Green was tried and convicted by a jury which fixed his punishment at imprisonment in the Penitentiary for three years.
In appellant's motion for a new trial and on appeal he assigns numerous grounds for a reversal. We have concluded that one of these assignments, later considered, calls for a reversal and therefore the other assignments which relate to the admissibility of certain testimony, the eligibility of a jury commissioner, the opening of the jury list, etc., need not be discussed.
Negroes excluded from the trial jury. Three days before the trial appellant filed a motion to quash the regular panel of the petit jury on the ground that the jury commissioners had intentionally excluded electors of the Negro race from said jury panel and that Negroes had been intentionally and systematically excluded from jury service in Drew County for 20 years, solely because of color, all in violation of the Constitution of the United States and the Constitution of the State of Arkansas. Some question arises as to whether the motion went only to the regular jury panel or to it and the special jury list. As we view this case it makes no material difference in this instance how the motion is construed but we think the effect of the motion challenged the regular panel and it shall be so considered.
Pursuant to statute the jury commissioners in February 1952 selected the jurors for the September 1952 term of court. They selected for the regular panel 24 regular and 6 alternate jurors, all White. At the same time they also selected a special panel consisting of 17 Whites and 9 Negroes, the latter being at the bottom of the list. This last list was selected pursuant to Ark.Stats. § 39-220 and, as provided therein, was to be used in lieu of bystanders when and if the regular panel was exhausted. In this instance the regular panel list was opened some 10 days before the first day of the September term of court and it appears that the special list was opened some few days before the defendant was put on trial.
The trial judge overruled appellant's motion to quash the jury panel with a statement to the effect that every jury commission in his district had always been and will continue to be instructed to select jurors without regard to race, creed or color, and that this instruction had been given to the jury commission involved in this case.
At the hearing on the motion facts developed pertinent to the question under consideration, in addition to those mentioned above, are substantially as follows:
According to the oral testimony introduced and the records exhibited at the hearing on the motion, no Negro had ever been selected on the regular panel of jurors in Drew County for many years and only in one instance had a Negro been selected as an alternate on such panel, and the only instances where Negroes had served as jurors in any capacity, or had the opportunity to so serve, were the ones presently mentioned. A. J. Hicks, colored, was an alternate on the list selected in February 1949 and served one day. At the 1948 September term four Negroes were called as bystanders to serve on a jury. A former sheriff who served from 1943 to 1949 remembered calling some Negroes as bystanders to serve on a jury, but this could have been the same incident before mentioned.
The three jury commissioners testified that they had no objections to having Negroes on the juries and that they did not exclude Negroes from the September 1952 list because of color. They also stated that the judge had instructed them to disregard race, color and creed in selecting jurors.
It is not disputed that approximately one-third of the qualified electors in Drew County are Negroes and that a substantial number of them have the qualifications to serve as jurors.
Under the above factual situation were the constitutional rights of appellant prejudiced by the trial court's refusal to grant his motion to quash the regular panel of the petit jury? In our opinion the answer is in the affirmative.
Past exclusion. In our opinion the factual situation here makes out a prima facie case that Negroes had been systematically excluded from jury service in Drew County for many years before the trial of appellant, and that such exclusion was because of color. Only once in the past had a Negro been selected by the jury commissioners on the regular panel of petit jurors, and in that instance he was chosen as an alternate. The relatively few instances when Negroes had been allowed to serve on special panels, not selected by jury commissioners, in no way conform to the mandate against racial discrimination contained in the 14th Amendment to the Constitution of the United States. The...
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