Heard v. State

• Decision Date: 12 April 1954
• Docket Number: No. 18527,18527
• Citation: 81 S.E.2d 467,210 Ga. 523
• Parties: HEARD v. STATE.
• Court: Georgia Supreme Court

Page 467

81 S.E.2d 467

210 Ga. 523

HEARD v. STATE.

No. 18527.

Supreme Court of Georgia.

April 12, 1954.

Lindsey Heard, a Negro convict, was placed in jail on September 7, 1953, charged with the offense of rape upon a white woman. Counsel were appointed for the defendant on the day preceding the holding of a committal trial, which was attended and participated in by counsel on September 11. The defendant was indicted by a grand jury of Cherokee County, Georgia, on September 15, 1953, and was tried and convicted of rape, without a recommendation of mercy, on September 24, 1953.

On the call of the case for trial, counsel for the defendant presented and filed a written motion to quash the indictment, and a challenge to the array of the traverse jurors, in which it was alleged that for more than thirty years no member of the Negro race has served on the grand or traverse jury of said county; that the grand judy which returned the indictment and the panel of traverse jurors put upon the defendant were both composed solely of male citizens who are members of the white race; that there are numerous citizens of the county who are members of the Negro race and who are competent and legally qualified to serve as grand and traverse jurors, but that names of these persons have been purposely and expressly discriminated against as to service by virtue of placing their names upon colored papers or by having the fact that they are members of the Negro race well known to those persons who made up the jury panels so that they might be peremptorily rejected by those whose duty it is to draw the names of the persons who are to serve upon the juries; that the total number of names appearing on the petit jury list of said county is in excess of 826; that all of said names appearing thereon are the names of members of the white race, or if there are names of members of the Negro race upon the list, they are listed upon yellow paper or are set apart from the names of white citizens by some other means unknown to movant; that the names of the three Negro citizens whose names appear on the petit jury list are well known to the persons who draw the names of the various petit juries; that the systematic and purposeful discrimination against Negroes serving on the petit jury of the county and on the panel of petit jurors which is put upon the defendant is a violation of his rights under article 1, section 1, paragraphs 3 and 25 Code, §§ 2-103, 2-125, of the Constitution of the State of Georgia, and a violation of his rights under the Fourteenth Amendment to the Constitution of the United States and of Title 8 U.S.C.A. § 44, now 18 U.S.C.A. § 243; that according to the United States Census for 1950, there were 19,925 members of the white race and 825 members of the Negro race who lived in said county; that there were 5,560 white male citizens 21 years of age or older, and there were 200 Negro male citizens 21 years of age or older in said county, and that the name of no Negro male citizen appears in regular form on the petit jury list of said county.

On the trial of the motion to quash the indictment and the challenge to the array of the petit jury the defendant introduced the testimony of seven named witnesses who testified that they were residents and taxpayers of Cherokee County and had resided there for various periods of time, ranging from 20 to 49 years; and that they had never been summoned to serve and had never served on the grand or petit jury of that county. Whether these witnesses were members of the white or Negro race does not appear from the record. Certain members of the Bar testified that they had never seen a Negro serve on either jury in that county, although the evidence did disclose that at least one Negro had been summoned to serve on the grand jury, but was either excused at his own request or the jury was completed before his name was reached on the list of names drawn for service at that term.

There was no evidence that the names of white and Negro jurors appearing in the jury box were placed upon different color slips, as alleged in the challenge; but, on the contrary, the uncontradicted testimony of the clerk of the superior court was to the effect that the names of all of the jurors, whether white or Negroes, appeared upon the same size and color slips in the jury box without any mark of any kind to distinguish between white and Negro jurors; that the names of jurors were drawn from the jury box by the judge of the superior court in the presence of the clerk and sheriff; that the clerk wrote down the names of the jurors in the order in which and as they were drawn, and that the jury panels, both grand and petit, were made up from these lists as thus drawn; and that no irregularity had occurred, and no discrimination had been practiced in the drawing, summoning, and impaneling of the jurors. Four of the jury commissioners were sworn as witnesses, all of whom testified that there was no discrimination by them against the Negro race in making up the lists of the jurors; that they lived in different portions of the county, and that members of the Negro race lived in only two of the sixteen militia districts of the County. The evidence further discloses that, after the revision of the jury list in 1948, there were 177 names of white persons and the name of one Negro in the grand jury box; that, after the 1950 revision, there were 221 whites and one Negro, and after the 1952 revision there were 303 whites and one Negro. The evidence further discloses that the tax books for the year 1952, from which the last jury revision was made, showed a total of 3,904 white male tax payers and 82 Negro tax payers for the entire County, and 2,604 white...