Howard v. State
| Decision Date | 29 October 1968 |
| Docket Number | No. 5518,5518 |
| Citation | 446 P.2d 163,84 Nev. 599 |
| Parties | Thomas Cornelius HOWARD, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Charles L. Kellar, Las Vegas, for appellant.
Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., Las Vegas, for respondent.
A Clark County jury found Howard guilty of first degree murder and directed his imprisonment for life. His appeal presses three claims of error. We find that none has merit and affirm the conviction. 1
1. It is asserted that the trial jury was an unconstitutional jury since, in the total selection process, Negroes, nonvoters, and exempt jurors were automatically excluded. It is the practice in Clark County to select prospective jurors from the list of registered voters. Since this case was tried in 1967, the Jury Commissioner used the list of 93,357 voters who had registered to vote at the general election of November 1966. From that number was purged the names of 26,853 registered voters who did not vote. The names of those remaining, 66,504 in number, were placed on individual addressograph cards, and all cards deposited in a huge drum from which was drawn a jury panel of 7,042 persons for the 1967 court year. 2 From that panel was drawn 800 names to serve all departments of court for the first few months of 1967, and about 350 of those 800 were found to be exempt from serving. From the remaining 450, about 107 were assigned to the Howard case.
a) A state court conviction violates the equal protection clause of the Fourteenth Amendment if based on a verdict of a jury from which Negroes are excluded because of race. Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). Such discrimination must be proved. Tarrance v. State of Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903). The record before us contains nothing to suggest an exclusion of Negroes from jury service because of race. Our statutes do not exclude them. Cf. Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1882). Neither may we find an under-representation of Negroes because of the selection method employed since the record is silent as to the number of Negroes who were qualified electors in Clark County, the number who registered to vote and voted, and the number whose names were drawn for trial jury service for the term of court in question. Thus, there exists no basis from which to ascertain whether a significant disparity exists between the percentage of Negroes who are qualified electors and eligible for jury service and those on the jury venire. Cf. Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Whitus v. Georgia, supra. On this record there is no substance to the charge that Negroes were excluded from jury service because of race.
b) Registered voters who did not vote were automatically excluded in the jury selection process. Statutory law provides that trial jurors shall be selected from the qualified electors of the county not exempt by law from jury duty, whether registered as voters or not (NRS 6.045(2); NRS 6.050), and NRS 6.010 specifically provides that 'every qualified elector of the state, whether registered or not, who has sufficient knowledge of the English language, and who has not been convicted of treason, felony, or other infamous crime, and who is not rendered incapable by reason of physical or mental infirmity, is a qualified juror of the county in which he resides.'
Appellant contends that he was entitled to be tried by a jury drawn from a venire of qualified electors, and that it was impermissible to limit such electors to those who registered to vote and actually voted. It it true that the above noted statutes provide that one may be a juror if a qualified elector whether registered as a voter or not. It does not follow, however, that the statutory purpose was to require inclusion of non-registered voters on the venire. The statutory references to voting registration permit the inclusion of qualified electors who have not registered to vote, but do not require their inclusion. The provision is directory (State v. Squaires, 2 Nev. 226 (1866)) and we find no statutory violation in the selection process employed here. We do not decide whether a question of federal constitutional dimension would arise if the record were to demonstrate that exclusion of qualified electors who had not registered to vote carried with it a concomitant discrimination because of race c) The statutory exemptions from jury service provided for by NRS 6.020 were automatically honored in the jury selection process. Some 350 persons enjoying exempt status were eliminated from the panel of 800 persons drawn to serve the court during the first few months of 1967. It is claimed that this automatic purging without request from the persons involved was without authority and invalidated the jury finally selected to try Howard. This claim is not sound. Efficient administration suggests the wisdom of eliminating exempt...
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Bean v. State
...previous cases of State v. Williams, 50 Nev. 271, 257 P. 619 (1927); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968); Howard v. State, 84 Nev. 599, 446 P.2d 163 (1968), are inconsistent with our ruling in this case, they are overruled. However, Howard declared only the incompatibility of ......
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Walker v. State, 5557
...L.Ed.2d 433, filed April 2, 1969. The trial court properly construed the cited statute as interpreted by this court in Howard v. State, 84 Nev. ---, 446 P.2d 163 (1968); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968); State v. Williams, 50 Nev. 271, 257 P. 619 (1927). See also State v. L......
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