Miller v. State

Citation237 N.C. 29, 74 S.E.2d 513
Case DateJanuary 30, 1953
CourtUnited States State Supreme Court of North Carolina

Page 513

74 S.E.2d 513
237 N.C. 29
MILLER,
v.
STATE
No 1
Supreme Court of North Carolina.
Jan. 30, 1953
Writ of Certiorari Denied April 6, 1953.
See 73 S.Ct. 792.

Taylor & Mitchell, Raleigh and Frank Brower, Durham, for the petitioner.

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

ERVIN, Justice.

This is the first proceeding under the North Carolina Post-Conviction Hearing Act to come before the North Carolina Supreme Court.

The trial of the proceeding in the Superior Court was accordant with the procedure established by the act. G.S. § 15-221. After hearing the testimony, the presiding judge made findings of fact in commendable detail, declared his conclusions of law upon them, and entered final judgment adverse to the petitioner.

The findings of fact of the judge are binding upon the petitioner on this review if they are supported by evidence. State v. Brown, supra; State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613; State v. Henderson, 216 N.C. 99, 3 S.E.2d 357; State v. Bell, supra; State v. Walls, 211 N.C. 487, 191 S.E. 232; State v. Cooper, 205 N.C. 657, 172 S.E. 199; State v. Daniels, 134 N.C. 641, 46 S.E. 743.

The petitioner undertakes to challenge the sufficiency of the evidence to support the findings of fact of the judge by excepting in general terms 'to each of the findings of fact * * * set out by the court,' and by asserting[237 N.C. 44] without specification in his first assignment of error that 'the court committed prejudicial error in finding the facts as he did.' This exception and this assignment of error fall short of the requirement that 'When it is claimed that findings of fact, so made by the trial judge, are not supported by the evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged errors.' Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, 353. Since the petitioner's life hangs in the balance, we have nevertheless examined and weighed the evidence in this proceeding with the same meticulous and painstaking care we would have employed had he noted appropriate exceptions and assignments of error to all of the findings of fact adverse to him.

The evidence supports the findings of fact. Yea, it necessitates them. It appears, in substance, in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 30, and 31 of the statement of facts, which contains a complete history of the original criminal action resulting in the petitioner's conviction

Page 524

and this proceeding as such history is revealed by the record proper in State v. Miller, supra, the application of the petitioner for the writ of certiorari for the review of this proceeding, the answer of the State to that application, and the transcript of the record in this proceeding.

We digress at this point to make some incidental observations. In reaching the conclusion that the evidence compels the findings of fact made by the presiding judge, we have not disregarded the arithmetical arguments advanced by the petitioner on the basis of the testimony of his witnesses D. E. Redditt, the Tax Collector of Beaufort County, and Bryan Marslender, the Clerk of the Superior Court of Beaufort County. The petitioner's assertion that 'only 15 Negroes * * * sat as grand jurors' in Beaufort County during the five years next preceding the trial of this proceeding rests solely upon a bit of evidence given by Redditt on his third and final appearance on the witness stand. On a proper analysis this testimony is destitute of probative value. Redditt had nothing to do with the selecting, drawing, or summoning of persons for jury service in Beaufort County. He had, moreover, no connection with the administration of justice in Beaufort County, or with the keeping of any records relating to that endeavor. He did not, in fact, possess any knowledge whatever of the racial composition of Beaufort County grand juries, and his own evidence on his prior appearances on the witness stand positively negatives any implication that he did. Redditt merely testified on his last visit to the stand that he had made an examination in some unexplained way of 23 unauthenticated writings purporting to be grand jury lists of Beaufort County covering in part the five years next preceding the trial of this proceeding, and that he had 'identified 15' of the 414 [237 N.C. 45] persons whose names appeared in such writings 'to be Negroes.' Manifestly this testimony leaves to speculation the racial identities of the other 399 persons listed.

The transcript of the record reveals that 64 weeks of court were held in Beaufort County in the five years preceding the hearing in this proceeding, and that 2,211 persons were drawn for jury service during 43 of these weeks. It does not expressly appear how many persons were drawn for such service during the other 21 weeks because the number drawn for the first week of the May Term, 1949, was not proved at the trial, and the exhibit showing the numbers drawn for the remaining 20 weeks was omitted from the transcript of the record when its evidential contents were settled by stipulation between counsel for the petitioner and the solicitor of the judicial district embracing Beaufort County. Since it was customary to draw no fewer than 36 persons for service as petit jurors during each week of civil court and no fewer than 54 persons for service as grand and petit jurors during each week of criminal court as authorized by G.S. § 9-3, it can be inferred with complete assurance that at least 900 persons were drawn for jury service in Beaufort County during the 13 weeks of civil court and the 8 weeks of criminal court included in the 21 weeks set forth above. This being true, at least 3,111 persons were drawn for service as grand and petit jurors in Beaufort County during the 64 weeks of court held in the five years next preceding the trial of this proceeding.

The petitioner undertook to have Marslender classify the 3,111 persons as to race by merely inspecting their bare names as they were recorded on minute dockets, which contained no indication of the race of any of them. Marslender stated that he did 'not know too many colored people in Beaufort County personally,' and that his mere perusal of the bare names on the minute dockets enabled him to identify only 28 of the 3,111 persons in question as Negroes. He testified further, however, that he did 'not mean to testify' these 28 persons comprised 'all the Negroes on these panels'; that he was able to classify only 815 of the 3,111 persons in question as members of the white race; and that he was totally unable to testify as to the racial identities of the remaining 2,268 persons whose names appeared on the minute dockets. These things being true, the intimation

Page 525

that only 28 Negroes were called for jury service in Beaufort County during the five years prior to the hearing in this proceeding finds no support in Marslender's evidence. Indeed, such intimation flies in the face of Marslender's positive statement: 'I know there have been but a very few terms of court when there haven't been colored people on the grand jury, or the petit jury, or both.' The 36 members of the regular panel and the 27 special veniremen mentioned in paragraphs 16 and 22 of the statement of facts are included in the 815 persons classified by [237 N.C. 46] Marslender as members of the white race. We close these incidental observations by noting that Lonnie Dennis, the only Negro witness, testified he did not know any Negroes qualified to serve on a jury who had been excluded from so doing by officials of Beaufort County.

Apart from the North Carolina PostConviction Hearing Act, the law bearing on the questions arising on this review is well settled. It is set forth in the numbered paragraphs which follow:

1. A state denies to a Negro citizen charged with crime the equal protection of the laws contrary to the Fourteenth Amendment to the United States Constitution whenever its legislators, or its courts, or its administrative officers intentionally exclude Negro citizens from service upon the grand jury that indicts him or the petit jury which tries him solely because of their race or color. Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740; Moore v. People of State of New York, 333 U.S. 565, 68 S.Ct. 705, 92 L.Ed. 881; Brunson v. State of North Carolina, 332 U.S. 851, 68 S.Ct. 634, 92 L. Ed. 1132; Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Hale v. Commonwealth of Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050; Hollins v. State of Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Ex Parte State of Virginia, ...

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48 practice notes
  • State v. Yoes, No. 659
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 1, 1967
    ...229, reversed on another ground in Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.E.2d 77; Miller v. State, [271 N.C. 632] 237 N.C. 29, 74 S.E.2d 513; State v. Brown, 233 N.C. 202, 63 S.E.2d 99. Consequently, the indictment of a Negro defendant by a grand jury from which member......
  • State v. Bass, No. 78
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 9, 1972
    ...jurisdiction, State v. Sloan, 238 N.C. 547, 78 S.E.2d 312 (1953), or for irregularity in the selection of the grand jury, Miller v. State, 237 N.C. 29, 74 S.E.2d 513 (1953), or for irregularity in the selection of the petit jury, State v. Litteral, 227 N.C. 527, 43 S.E.2d 84 (1947), or for ......
  • Case v. State of Nebraska, No. 843
    • United States
    • United States Supreme Court
    • May 24, 1965
    ...was adopted.1 It was followed by passage of a statute in North Carolina in 1951 which was 'modeled' on the Illinois Act.2 Miller v. State, 237 N.C. 29, 51, 74 S.E.2d 513, 528 (1953). Nebraska is the seventh State to adopt such a statute since Young v. Ragen, supra.3 There exists in some Sta......
  • State v. Rogers, No. 20
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • July 11, 1969
    ...is at liberty to prescribe such qualifications for jurors as it deems proper without offending the Fourteenth Amendment. Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Knight, 269 N.C. 100, 152 S.E.2d 179; Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991. Prior to 1947......
  • Request a trial to view additional results
48 cases
  • State v. Yoes, No. 659
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 1, 1967
    ...229, reversed on another ground in Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.E.2d 77; Miller v. State, [271 N.C. 632] 237 N.C. 29, 74 S.E.2d 513; State v. Brown, 233 N.C. 202, 63 S.E.2d 99. Consequently, the indictment of a Negro defendant by a grand jury from which member......
  • State v. Bass, No. 78
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 9, 1972
    ...jurisdiction, State v. Sloan, 238 N.C. 547, 78 S.E.2d 312 (1953), or for irregularity in the selection of the grand jury, Miller v. State, 237 N.C. 29, 74 S.E.2d 513 (1953), or for irregularity in the selection of the petit jury, State v. Litteral, 227 N.C. 527, 43 S.E.2d 84 (1947), or for ......
  • Case v. State of Nebraska, No. 843
    • United States
    • United States Supreme Court
    • May 24, 1965
    ...was adopted.1 It was followed by passage of a statute in North Carolina in 1951 which was 'modeled' on the Illinois Act.2 Miller v. State, 237 N.C. 29, 51, 74 S.E.2d 513, 528 (1953). Nebraska is the seventh State to adopt such a statute since Young v. Ragen, supra.3 There exists in some Sta......
  • State v. Rogers, No. 20
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • July 11, 1969
    ...is at liberty to prescribe such qualifications for jurors as it deems proper without offending the Fourteenth Amendment. Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Knight, 269 N.C. 100, 152 S.E.2d 179; Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991. Prior to 1947......
  • Request a trial to view additional results

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