Hale v. Commonwealth

• Decision Date: 21 May 1937
• Citation: 108 S.W.2d 716,269 Ky. 743
• Parties: HALE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

108 S.W.2d 716

269 Ky. 743

HALE v. COMMONWEALTH.

Court of Appeals of Kentucky

May 21, 1937

As Modified on Denial of Rehearing Oct. 8, 1937.

Appeal from Circuit Court, McCracken County.

Joe Hale was convicted of murder, and he appeals.

Affirmed.

Crossland & Crossland, of Paducah, for appellant.

B. M Vincent, Atty. Gen., and J. J. Leary, Asst. Atty. Gen., for the Commonwealth.

MORRIS Commissioner.

The appellant, Joe Hale, a negro, upon separate trial under an indictment charging him and others of murdering W. R. Toon was convicted, the jury by its verdict fixing his punishment at death. His motion for a new trial was overruled, and, from that order and the judgment pronounced and entered upon the verdict, he appeals, urging through his counsel a number of grounds as prejudicial errors, of sufficient materiality as is claimed to authorize a reversal of the judgment, each of which will be disposed of as the opinion proceeds. Perhaps the most substantial one, and which appears at the threshold of the case, is the alleged error of the court in overruling appellant's motion (which motion is not in the record) made before the trial was begun, to quash the indictment against him, and in overruling a similar motion (which is in the record) to discharge the qualified panel of petit jurors after they were selected to pass on the issue of his guilt or innocence, which was made immediately after such qualification, the latter being based upon the same ground said to have been urged for the quashing of the indictment. That ground is a right claimed by appellant as one guaranteed to him by the provisions of the Fourteenth Amendment to the Constitution of the United States as interpreted and applied by the Supreme Court of the United States in the case of Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, and others cited in that opinion, and followed in Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082.

The constitutional guaranty invoked in those cases, and which appellant attempted to invoke here, is formulated by the Supreme Court of the United States in the case of Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 689, 44 L.Ed. 839, thus: "Whenever by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States."

The inserted excerpt from that (Carter) case was quoted and approved by the Supreme Court in the opinion in the Norris case as being a correct statement of the constitutional principle therein involved, being the same, as we have stated, now invoked by appellant in this case. It will be noticed that, before the federal constitutional provision and guaranty is violated so as to mature the right of one to rely upon it, the exclusion of negroes from serving on either grand or petit juries, in the enforcement of the criminal laws of a state, must not only have been by a state through its Legislature or its courts, or its executive or administrative officers, but must have been made solely because of their race or color; but when so done, "the equal protection of the laws is denied to a member of that race who stands accused of violating the criminal laws." It therefore follows that, before the principle may be successfully invoked, the accused, seeking shelter thereunder, must charge as a fact that members of his race were so excluded in some of the ways pointed out, and in addition thereto that it was done solely "because of their race or color." When such a motion is made, setting forth the outlined ground, and the charge is proven, then an occasion is created for the application of the principle enunciated in the Norris and cited cases.

It is stated in the Norris opinion, and others therein referred to and herein cited, in substance, that the charge or motion itself specifically set forth the elements necessary for the application of the principle, as we have pointed them out and as contained in the excerpt from the Carter opinion, supra, and that such charges, or expressly stated grounds, were proven and established by the evidence heard on the trial of the motion. We construe those opinions to require not merely proof of the facts necessary to create the charge, but that such proof must be preceded by a like statement of the facts creating the right to invoke the principle, and which latter is analogous to the universal requirement of a pleading that it set forth the facts relied on, before evidence to prove the facts can become effective, although sufficient to establish the necessary ground if facts had been stated in the motion, or in some affidavit or other supporting document.

To begin with, it is not stated in this case, either in the motion which appears in the record, or in appellant's affidavit in support thereof, or elsewhere in the entire application procedure, that appellant was a member of the African race, although the court no doubt by observation knew that fact to be true. That omission is, however, a technical one, upon which we would not be inclined to hinge our opinion, even were we authorized to do so. But a more serious defect in the application, noticeable in the two motions to obtain the relief by each of them sought, is the failure of appellant in the motion or charges filed, or in his affidavit filed in support thereof, to state or make the specific grounds the basis or foundation for his motion. He set forth in his affidavit that he could prove by the present sheriff, and a number of his predecessors, going back as far as 1906, that during the entire period no member of the African race had been summoned or served on a grand or a petit jury in McCracken county. He also stated therein that he could prove the same facts by all of the circuit clerks of the McCracken circuit court throughout the same period. He likewise named a number of witnesses, consisting of attorneys at the bar, court stenographers, and others, whose professional duties called them into intimate relation with the proceedings of the McCracken circuit court, including the judge presiding at the trial, and stated that all of them would make similar statements.

It can, therefore, not be denied or questioned but that such proof, uncontradicted, would tend to establish all of the elements calling for the application of the invoked principle, and which character of proof is expressly approved in the Norris opinion; for in that case almost identical proof in support of the motion of the accused was adduced.

After naming the witnesses by whom such facts could be established, appellant further stated that such testimony, "is true and will be true when proven." But it will be perceived that the quoted statement is only a verification of the truth of the testimony by which appellant proposed to establish the grounds of his motion, provided it sufficiently charged those grounds to allow the reception of that testimony. Further along in his affidavit appellant says that, "the foregoing facts, when proved, show a long continued, unvarying and wholesale exclusion of negroes from jury service in this county on account of their race and color; that it has been systematic and arbitrary on the part of the officers and commissioners who select the names for jury service, for a period of fifty years or longer." That excerpt is clearly but an appraisement of the weight to be given testimony that appellant intended to introduce in support of his motions. In other words it was in effect a statement by him that "when I shall have introduced that testimony it will be sufficient to show the facts," which he should have, but did not, set forth in his motion. When we examine that motion we find that all that it contains is this: "Came defendant, Joe Hale, by attorney, and filed motion and moved the court to set aside the indictment in the above styled prosecution, and in support of said motion to set aside, filed his own affidavit and his supplemental affidavit." The order then recited that the parties filed their stipulation to the effect that the witnesses named in appellant's affidavits would testify to the matters and things which that stated in said affidavits. The court overruled the motion to quash the indictment and later overruled the one to discharge the trial panel, based upon the same affidavit.

Looking to the affidavit as supplementing the motion as above inserted, it will be found that it nowhere states the necessary elements for the application of the invoked principle, in that there is...