Millhouse v. State

• Decision Date: 23 April 1936
• Docket Number: 1 Div. 895
• Citation: Millhouse v. State, 232 Ala. 567, 168 So. 665 (Ala. 1936)
• Parties: MILLHOUSE v. STATE.
• Court: Alabama Supreme Court

168 So. 665

232 Ala. 567

MILLHOUSE v. STATE.

1 Div. 895

Supreme Court of Alabama

April 23, 1936

Rehearing Denied June 18, 1936

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Frank Millhouse was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

THOMASFOSTER, and KNIGHT, JJ., dissenting.

Statute relating to jury boards was designed to give circuit judges more clearly defined power in having jury boxes refilled when found necessary or expedient in administration of justice.Gen.Acts 1935, p. 713.

The bill of exceptions shows the following:

"H.Austill Pharr, a witness called in support of the motion to quash the indictment, being first duly sworn, testified as follows, on direct examination:

" 'My name is H. Austill Pharr.I am one of the Jury Commissioners of the County of Mobile, State of Alabama.I have been such for four or five years--appointed in the early part of Governor Miller's administration.I am familiar with and know the qualifications of jurors.I prepare or have a part in preparing the jury rolls of this county.I have excluded from the jury rolls of this county a negro because I found, first, that he was under twenty-one years or over sixty-five, and he was excluded by reason of his age; second, because he was a person who was not esteemed in the community for being a decent and honorable citizen, of common sense and judgment.I did see or hear of the jury commissioners not going to take that negro because he was not esteemed in the community for good sense and judgment.I do not think I would be called on to give specific instances of things of that kind.I do not know a particular case where I had occasion to say I could not take that negro because he has a disease which may affect or does affect his mentality.

" 'Did you ever say to yourself as a jury commissioner in compiling the jury roll, "I am not going to take that negro because he has been convicted of a crime involving moral turpitude"?'

"The State objected to the question as being irrelevant, incompetent and immaterial.The court sustained the objection, to which ruling of the courtthe defendant then and there duly reserved an exception.

"The witness continued: 'I have known of a negro in Mobile County who was excluded by reason of the fact that he had been convicted of crime involving moral turpitude.I have known of a negro in Mobile County who was excluded by reason of the fact that he could not read English and that at the same time that negro was not a freeholder or householder.'

" 'Isn't it a fact that negroes in this county have been excluded arbitrarily because of their race and color?'

"The State objected to the question.Mr. Chamberlain: 'I do not know when she is talking about, whether at the time the jurors' names were placed in the box from which the grand jury in this case was drawn, or some other time.'

"The court sustained the objection, to which ruling of the courtthe defendant then and there duly reserved exception.

"Miss Gerhardt: 'I am talking about during the time that you have been a jury commissioner of Mobile County.'

"Mr. Chamberlain: 'It would be material, as far as the court is concerned, if it was during the time this last box was filled from which this grand jury was impaneled.The test of this case will be whether the jury box as it was composed at the time this indictment was found did not contain certain names that ought to be in there by reason of any systematic system of excluding certain names.'

"Miss Gerhardt: 'If your Honor please, I would like for the record to show that the defendant offered to prove by the jury commissioner on the stand from the time that he has been a jury commissioner of Mobile County, Alabama, that negroes have been excluded from the jury roll arbitrarily because of their race and color.'

"Mr. Chamberlain: 'I object to that, if the court please, unless it relates to this particular jury box from which jurors were drawn to serve on the grand jury that returned this indictment.'

"The court sustained the objection, to which ruling of the courtthe defendant then and there duly reserved exception.

" 'Q.How long prior to the drawing of the July grand jury were additional names placed in the jury box?A.How long before?'

" 'Q.Yes.A.I think they have always been put into the jury box of Mobile County.'

" 'Q.Did you, or not, have any additional names placed in the jury box prior to this July grand jury?'

"The State objected to the question for the same reason--did they have names put in there prior to that--it might have been five years previous.

"The objection was sustained, whereupon counsel for defendant stated: 'If your Honor please, in view of the testimony that they have always had them in there, I again offer to show that ever since he has been a jury commissioner the names of negroes have been arbitrarily and systematically excluded from the jury box.'

"The court: 'You cannot take up with the court things that do not have a bearing on the case.I will allow you to prove, if you can, that the jury box and jury roll from which the grand jury was selected and impaneled in this case that there were in there or that they were systematically excluded by reason of their race or color.You may prove that, if you can.'

" 'Q.Isn't it a fact that just a few days before the grand jury was drawn, the names of a very few negroes were placed in the jury box, just in order to avoid this question being raised in this particular case?'

"The State objected to the question as calling for the conclusion of the witness.The court sustained the objection, to which ruling of the courtthe defendant then and there duly reserved an exception.

" 'Q.How many names of negroes were placed in the jury box just prior to the drawing of the July grand jury?'

"The State objected to the question on the ground that the question is whether or not they were systematically excluded.The court sustained the objection, to which ruling of the courtthe defendant then and there duly reserved an exception.

" 'Q.Were there any negroes drawn on the grand jury that brought in the indictment against these defendants?'

"The State objected to the question on the ground that it was immaterial.The court sustained the objection, to which ruling of the

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