Moore v. Henslee

• Decision Date: 29 March 1960
• Docket Number: 16434.,No. 16433,16433
• Citation: 276 F.2d 876
• Parties: James M. MOORE and Rogers Boone, Appellants, v. Lee HENSLEE, Superintendent of the Arkansas State Penitentiary, Appellee. James Albert BOYD and Willie H. Byrd, Appellants, v. Lee HENSLEE, Superintendent of the Arkansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

276 F.2d 876 (1960)

James M. MOORE and Rogers Boone, Appellants, v. Lee HENSLEE, Superintendent of the Arkansas State Penitentiary, Appellee.

James Albert BOYD and Willie H. Byrd, Appellants, v. Lee HENSLEE, Superintendent of the Arkansas State Penitentiary, Appellee.

Nos. 16433, 16434.

United States Court of Appeals Eighth Circuit.

March 29, 1960.

W. Harold Flowers, Pine Bluff, Ark., and Harold B. Anderson, Little Rock, Ark., for appellants.

Thorp Thomas, Asst. Atty. Gen., for appellee.

Before SANBORN, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

PER CURIAM.

James M. Moore, Rogers Boone, James Albert Boyd and Willie H. Byrd, all Negroes, were jointly charged in an information filed by the Prosecuting Attorney within and for the Eighth Judicial Circuit of the State of Arkansas, of which Miller County is a part, with murdering M. R. Hamm, an aged white man, on May 9, 1956. They were first tried together in the summer of 1956, in the Circuit Court of Miller County, Arkansas, the situs of the crime, found guilty by a jury of first degree murder, and in due time were sentenced to death. This judgment was reversed by the Supreme Court of Arkansas. Moore v. State, 227 Ark. 544, 299 S.W.2d 838.

On remand and after a severance was obtained, Moore was again tried, found guilty and sentenced to die. This judgment was affirmed by the Supreme Court of Arkansas. Moore v. State, Ark., 315 S.W.2d 907, and on January 26, 1959, certiorari was denied by the Supreme Court of the United States. Moore v. State of Arkansas, 358 U.S. 946, 79 S.Ct. 356, 3 L.Ed.2d 353.

Boone, also having obtained a severance, was next tried, found guilty and sentence of death was imposed by the court. This judgment was affirmed by the Supreme Court of Arkansas. Boone v. State, Ark., 327 S.W.2d 87. Review by the Supreme Court of the United States was not requested.

Boyd and Byrd were tried jointly, and following a verdict of guilty, they also received the death sentence. The Supreme Court of Arkansas affirmed. Boyd v. State, Ark., 328 S.W.2d 122. Neither Boyd nor Byrd petitioned the Supreme Court of the United States for certiorari.

On February 11, 1960, the day before Moore and Boone were scheduled to die, they sought relief in the federal court by petition for writ of habeas corpus filed in the United States District Court for the Eastern District of Arkansas, Western Division. On the same day Honorable J. Smith Henley, of that court, entered an order to show cause why a writ of habeas corpus should not issue, and the executions of Moore and Boone were stayed. On February 17, 1960, Boyd and Byrd, who were scheduled to die on February 19, 1960, pursued the course taken by Moore and Boone. The District Court directed that the two petitions for writs of habeas corpus be consolidated for the purpose of trial.

A plenary hearing on the petitions for writs of habeas corpus was held in the district court on February 17, 1960. Appellants were present and afforded full opportunity to be heard and to offer testimony. After consideration, and on February 18, the court dismissed the petitions for writs of habeas corpus, vacated the order to show cause issued in connection with the petition of Moore and Boone, denied a certificate of probable cause, and refused a further stay of execution. On March 1, 1960, Judge Henley filed a memorandum opinion which contained his findings and conclusions.

On February 24, 1960, upon application of the appellants, this Court issued certificate of probable cause and stays of execution of the death sentences of Moore and Boone scheduled for February 26, 1960, and of Boyd and Byrd scheduled for March 4, 1960. Oral arguments on the appeals were heard on March 9, 1960.

In seeking discharge from custody, appellants contend that their convictions were obtained as the result of deprivation of their constitutional rights as guaranteed by the Fourteenth Amendment to the Constitution of the United States. Specifically, they claim, (1) that their trial on information, rather than on an indictment by a Grand Jury, violated their rights as guaranteed by the Fifth Amendment, as enforced under the Fourteenth Amendment; (2) that Negroes were systematically excluded from jury service in the Miller County Circuit Court, or illegally limited in number; (3) that their confessions were involuntary and improperly admitted.

At the outset we observe that the question of the guilt of appellants is not an issue. In this situation and in view of the posture of the cases in this Court, it is wholly unnecessary to abstract the facts and circumstances attending commission of the crime. They are reported in Moore v. State, 227 Ark. 544, 299 S.W.2d 838.

Information Issue.

The trial court disposed of this issue summarily as being without merit. We agree. The Supreme Court of the United States has consistently recognized that state prosecutions initiated by the filing of an information by the Prosecuting Attorney, here authorized by Ark. Const. Amend. 21, do not violate the constitutional rights of the accused under the Fourteenth Amendment. Hurtado v. People of State of California, 110 U.S. 516, 538, 4 S.Ct. 111, 292, 28 L.Ed. 232; Gaines v. State of Washington, 277 U.S. 81, 86, 48 S.Ct. 468, 72 L.Ed. 793; Bute v. People of State of Illinois, 333 U.S. 640, 657, 68 S.Ct. 763, 92 L.Ed. 986.

The Jury Issue.

After reversal of the first conviction, appellants filed their joint motion to quash the jury panel on the ground that Negroes had systematically been excluded from jury panels solely on account of their race. After a full hearing was conducted by the circuit court on this issue the motion was denied. With respect to Moore, the district court found there was no evidence to substantiate the charge of racial discrimination in the selection of the jury which decided his case.

Nothing that we may utter can add to or affect the principle so firmly established and so recently re-enunciated by the Supreme Court, "* * * state exclusion of Negroes from grand and petit juries solely because of their race denie(s) Negro defendants in criminal cases the equal protection of the laws required by the Fourteenth Amendment. Strauder v. West Virginia, 100 U.S. 303 25 L.Ed. 664. (1880)." Patton v. State of Mississippi, 332 U.S. 463, 465, 68 S.Ct. 184, 185, 92 L.Ed. 76. Compare, Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. An examination of the record bearing upon the course pursued in Miller County, Arkansas, in the selection of juries makes it quite apparent that appellants' charge of systematic exclusion and studied evasion is without foundation in proof. As demonstrated by the Supreme Court of Arkansas in its opinion in Moore v. State, supra, 315 S.W.2d at pages XXX-XXX-XXX, the facts are that from November, 1953, to and including June, 1957, with the exception of the November, 1956 term, the jury commissioners of Miller County, Arkansas, have consistently selected from one to ten Negroes for jury service in that county.

The focal point of appellants' contention, as advanced in their brief and in oral argument, is that discrimination in the selection of jury panels in Miller County, Arkansas, is necessarily practiced because the Negro race is not represented on the jury commission which is composed of three citizens. It is suggested that "it is almost impossible" for an all-white jury commission to keep informed of the habits and qualifications of the Negro population so that eligible members of that race can be selected for jury duty. We are not persuaded by this novel argument which fails to find support in either precedent or logic. Adoption of the principle contended for would require indulgence in the unwarranted presumption that jury commissioners entirely of one race will not discharge their "duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color." Cassell v. State of Texas, 339 U.S. 282, at page 289, 70 S.Ct. at page 633.¹ Moreover, we are satisfied that the theory advanced by appellants would in reality lead to complexities in the administration of an important facet of our system of trial by juries. Application of the principle contended for, could not, in our view, be limited to the white and negro races. It would encompass all races, and the numerous nationalities and religious denominations existent in this country. The words of Mr. Justice Reed, speaking for the Court in Akins v. State of Texas, 325 U.S. 398, at page 403, 65 S.Ct. 1276, at page 1279, seem to be peculiarly appropriate:

"The number of our races and nationalities stands in the way of evolution of such a conception of due process or equal protection. Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried. But such defendants are entitled to require that those who are trusted with jury selection shall not pursue a course of conduct which results in discrimination `in the selection of jurors on racial grounds.\'" (Emphasis supplied.)

Beyond peradventure of a doubt, the test to be applied in the selection of juries, as laid down by the Supreme Court, is simple and understandable and application thereof should cause no insurmountable problems or difficulties. Our careful and considered examination of the pertinent evidence in light of the governing rule, convinces us that the test was satisfied in the trial of these cases.

Confessions.

In oral argument, counsel for appellants, with candor, stated that the circumstances surrounding the obtaining of the individual confessions from each of the appellants are accurately reflected in the opinions of the Supreme Court of Arkansas. Moore v. State, Ark., 315 S.W.2d 907; Boone v. State, Ark., 327 S.W.2d 87; Boyd v. State, Ark., 328 S.W.2d 122. Our review of the factual aspect...