Norris v. State of Alabama 15 8212 18, 1935

Decision Date01 April 1935
Docket NumberNo. 534,534
PartiesNORRIS v. STATE OF ALABAMA. Argued Feb. 15—18, 1935
CourtU.S. Supreme Court

Mr. Samuel S. Leibowitz, of New York City (Messrs. Walter H. Pollak, Osmond K. Fraenkel, and Carl S. Stern, all of New York City, on the brief), for petitioner.

Mr. Thomas E. Knight, Jr., of Montgomery, Ala., for the State of Alabama.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

Petitioner, Clarence Norris, is one of nine negro boys who were indicted in March, 1931, in Jackson county, Ala., for the crime of rape. On being brought to trial in that county, eight were convicted. The Supreme Court of Alabama reversed the conviction of one of these and affirmed that of seven, including Norris. This Court reversed the judgments of conviction upon the ground that the defendants had been denied due process of law in that the trial court had failed in the light of the circumstances disclosed, and of the inability of the defendants at that time to obtain counsel, to make an effective appointment of counsel to aid them in preparing and presenting their defense. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.

After the remand, a motion for change of venue was granted and the cases were transferred to Morgan county. Norris was brought to trial in November, 1933. At the outset, a motion was made on his behalf to quash the indictment upon the ground of the exclusion of negroes from juries in Jackson county where the indictment was found. A motion was also made to quash the trial venire in Morgan county upon the ground of the exclusion of negroes from juries in that county. In relation to each county, the charge was of long-continued, systematic, and arbitrary exclusion of qualified negro citizens from service on juries, solely because of their race and color, in violation of the Constitution of the United States. The state joined issue on this charge and after hearing the evidence, which we shall presently review, the trial judge denied both motions, and exception was taken. The trial then proceeded and resulted in the conviction of Norris who was sentenced to death. On appeal, the Supreme Court of the state considered and decided the federal question which Norris had raised and affirmed the judgment. 156 So. 556. We granted a writ of certiorari. 293 U.S. 552, 55 S.Ct. 345, 79 L.Ed. —-.

First. There is no controversy as to the constitutional principle involved. That principle, long since declared, was not challenged, but was expressly recognized, by the Supreme Court of the state. Summing up precisely the effect of earlier decisions, this Court thus stated the principle in Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 44 L.Ed. 839, in relation to exclusion from service on grand juries: 'Whenever by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Neal v. Delalware, 103 U.S. 370, 397, 26 L.Ed. 567, 574; Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075.' This statement was repeated in the same terms in Rogers v. Alabama, 192 U.S. 226, 231, 24 S.Ct. 257, 48 L.Ed. 417, and again in Martin v. Texas, 200 U.S. 316, 319, 26 S.Ct. 338, 50 L.Ed. 497. The principle is equally applicable to a similar exclusion of negroes from service on petit juries. Strauder v. West Virginia, supra; Martin v. Texas, supra. And although the state statute defining the qualifications of jurors may be fair on its face, the constitutional provision affords protection against action of the state through its administrative officers in effecting the prohibited discrimination. Neal v. Delaware, supra; Carter v. Texas, supra. Compare Virginia v. Rives, 100 U.S. 313, 322, 323, 25 L.Ed. 667; In re Wood, 140 U.S. 278, 285, 11 S.Ct. 738, 35 L.Ed. 505; Thomas v. Texas, 212 U.S. 278, 282, 283, 29 S.Ct. 393, 53 L.Ed. 512.

The question is of the application of this established principle to the facts disclosed by the record. That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied. When a federal right has been specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in express terms but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights. Thus, whenever a conclusion of law of a state court as to a federal right and findings of fact are so intermingled that the latter control the former, it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured. Creswill v. Knights of Pythias, 225 U.S. 246, 261, 32 S.Ct. 822, 56 L.Ed. 1074; Northern Pacific Railway Co. v. North Dakota, 236 U.S. 585, 593, 35 S.Ct. 429, 59 L.Ed. 735, Ann. Cas. 1916A, 1; Ward v. Board of Com'rs of Love County, 253 U.S. 17, 22, 40 S.Ct. 419, 64 L.Ed. 751; Davis, Director General, v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 68 L.Ed. 143; Fiske v. Kansas, 274 U.S. 380, 385, 386, 47 S.Ct. 655, 71 L.Ed. 1108; Ancient Egyptian Order v. Michaux, 279 U.S. 737, 745, 49 S.Ct. 485, 73 L.Ed. 931.

Second. The evidence on the motion to quash the indictment. In 1930, the total population of Jackson county, where the indictment was found, was 36,881, of whom 2,688 were negroes. The male population over twenty-one years of age numbered 8,801, and of these 666 were negroes.

The qualifications of jurors were thus prescribed by the state statute (Alabama Code 1923, § 8603): 'The jury commission shall place on the jury roll and in the jury box the names of all male citizens of the county who are generally reputed to be honest and intelligent men, and are esteemed in the community for their integrity, good character and sound judgment, but no person must be selected who is under twenty-one or over sixty-five years of age, or, who is an habitual drunkard, or who, being afflicted with a permanent disease or physical weakness is unfit to discharge the duties of a juror, or who cannot read English, or who has ever been convicted of any offense involving moral turpitude. If a person cannot read English and has all the other qualifications prescribed herein and is a freeholder or householder, his name may be placed on the jury roll and in the jury box.' See Gen. Acts Alabama 1931, No. 47, p. 59, § 14.

Defendant adduced evidence to support the charge of unconstitutional discrimination in the actual administration of the statute in Jackson county. The testimony, as the state court said, tended to show that 'in a long number of years no negro had been called for jury service in that county.' It appeared that no negro had served on any grand or petit jury in that county within the memory of witnesses who had lived there all their lives. Testimony to that effect was given by men whose ages ran from fifty to seventy-six years. Their testimony was uncontradicted. It was supported by the testimony of officials. The clerk of the jury commission and the clerk of the circuit court had never known of a negro serving on a grand jury in Jackson county. The court reporter, who had not missed a session in that county in twenty-four years, and two jury commissioners testified to the same effect. One of the latter, who was a member of the commission which made up the jury roll for the grand jury which found the indictment, testified that he had 'never known of a single instance where any negro sat on any grand or petit jury in the entire history of that county.'

That testimony in itself made out a prima facie case of the denial of the equal protection which the Constitution guarantees. See Neal v. Delaware, supra. The case thus made was supplemented by direct testimony that specified negroes, thirty or more in number, were qualified for jury service. Among these were negroes who were members of school boards, or trustees, of colored schools, and property owners and householders. It also appeared that negroes from that county had been called for jury service in the federal court. Several of those who were thus described as qualified were witnesses. While there was testimony which cast doubt upon the qualifications of some of the negroes who had been named, and there was also general testimony by the editor of a local newspaper who gave his opinion as to the lack of 'sound judgment' of the 'good negroes' in Jackson county, we think that the definite testimony as to the actual qualifications of individual negroes, which was not met by any testimony equally direct, showed that there were negroes in Jackson county qualified for jury service.

The question arose whether names of negroes were in fact on the jury roll. The books containing the jury roll for Jackson county for the year 1930-31 were produced. They were produced from the custody of a member of the jury commission which, in 1931, had succeeded the commission which had made up the jury roll from which the grand jury in question had been drawn. On the pages of this roll appeared the names of six negroes. They were entered, respectively, at the end of the precinct lists which were alphabetically arranged. The genuineness of these entries was disputed. It appeared that after the jury roll in question had been made up, and after the new jury commission had taken office, one of the new commissioners directed the new clerk to draw lines after the names which had been placed on the roll by the preceding commission. These...

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