Miller v. Commonwealth

• Decision Date: 27 November 1907
• Citation: 105 S.W. 899,127 Ky. 387
• Parties: MILLER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

105 S.W. 899

127 Ky. 387

MILLER v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 27, 1907

Appeal from Circuit Court, Hardin County.

"To be officially reported."

Andrew Miller was convicted of murder, and appeals. Affirmed.

O'Mearo & James, for appellant.

N. B Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.

SETTLE J.

The appellant, Andrew Miller, was indicted in the Hardin circuit court for the crime of murder. The trial resulted in a verdict at the hands of the jury finding him guilty and fixing his punishment at confinement in the penitentiary for life. Judgment was entered upon the verdict, and sentence pronounced in the usual manner. The appellant having been refused a new trial, complains of the judgment, and by this appeal asks its reversal, upon the sole ground that the trial court erred in overruling his plea in abatement and motion to quash the indictment.

The plea and motion were entered upon the calling of the case for trial and before appellant was required to plead to the indictment, and were based upon his affidavit, which declared him to be a negro, and that he and his race had on account of their race and color, and in violation of the fourteenth amendment of the Constitution of the United States, been discriminated against by the jury commissioners charged with the duty of selecting the grand jury that found and returned the indictment under which he was convicted, in that "they selected no person or persons of color, or of African descent, known as negroes, to serve on said grand jury, but, on the contrary, did exclude from the list of persons to serve as such grand jurors all colored persons or persons of African descent, known as negroes, because of their race and color, and that said grand jury were composed of persons exclusively of the white race, while all persons of the colored race, or persons of African descent, known as negroes, although consisting of and constituting about one-fifth of the total number of persons qualified for jury service, were excluded therefrom on account of their race and color, and have been so excluded from serving on any jury in this court for a great many years. * * *" The order of the court recites, in substance, that appellant offered to introduce evidence to sustain the foregoing statements of the affidavit, but that the court refused to hear such evidence and overruled the plea and motion without doing so. It will be observed, however, that neither the affidavit or order mentions the names of the witnesses by whom the evidence in question would be furnished, or that they were present to testify, nor were the particular facts to which it was claimed they would severally testify set forth in appellant's affidavit, by affidavits of the witnesses themselves or by the bill of exceptions in the form of an avowal. Moreover, it does not appear from the appellant's affidavit that the assessor's books of Hardin county from which the jury commissioners are by law required to select the names of persons qualified for jury service contain the names of any persons of the negro race qualified for jury service, or that appellant was, in fact, prejudiced by the failure of the commissioners to select persons of that race to serve as members of the grand jury, if there was such failure.

This court, recognizing the binding force of section 1 of the fourteenth amendment of the Constitution of the United States, which forbids any state to "deny to any person within the United States the equal protection of the laws," as far back as the year 1880, declared the then existing statute prescribing the qualifications of jurors unconstitutional in so far as it excluded from jury service persons of the negro race (Commonwealth v. Johnson, 78 Ky. 509; Commonwealth v. Wright, 79 Ky. 22, 42 Am.Rep. 203; Haggard v. Commonwealth, 79 Ky. 366) and shortly thereafter the statute was so amended by the Legislature as to conform to the requirements of the fourteenth amendment of the federal Constitution. It is not declared by the fourteenth amendment, nor has any court, federal or state, ever held, that a negro cannot lawfully be indicted and tried unless the jury is composed in part of persons of his own race, or that a white person cannot lawfully be indicted and tried unless the jury is composed in part of persons of his own race. The fourteenth amendment contemplates no other restriction upon the power of the state to prescribe the qualifications of jurors, except to inhibit a disqualification on...