Preston v. State, 25188

• Decision Date: 30 May 1951
• Docket Number: No. 25188,25188
• Citation: 242 S.W.2d 436,157 Tex.Crim. 228
• Parties: PRESTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 436

242 S.W.2d 436

157 Tex.Crim. 228

PRESTON v. STATE.

No. 25188.

Court of Criminal Appeals of Texas.

May 30, 1951.

Rehearing Denied Oct. 17, 1951.

William Woodburn, Navasota, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Commissioner.

Appellant, a Negro, was convicted in the District Court of Trinity County and given the death penalty for the offense of rape, alleged to have been committed in Walker County, the alleged victim being a 44-year-old white woman, who was married and the mother of two children, one about grown.

The indictment was returned by a Walker County grand jury, and the venue was changed by the court on his own motion to Trinity County, another county of the 12th Judicial District of Texas.

The first point presented in appellant's brief is that the trial court erred in failing to grant him a new trial on the ground that appellant was arraigned and required to plead to the indictment in Walker County without the aid or assistance of counsel, thereby depriving appellant of his right to counsel and thereby materially injuring him. This point is raised by Bill of Exception No. 39, the contention being that appellant was deprived of the right to question, by proper motion, the organization of the Walker County grand jury on the ground of racial discrimination in the selection of its members.

The record shows that Honorable Max M. Rogers, Judge of the 12th Judicial District, who impaneled the grand jury and ordered the change of venue and who presided at the trial in Trinity County, selected two attorneys residing in Walker County and notified them of their appointment to represent appellant. Thereafter, on the day preceding the arraignment, having determined that the vanue should be changed, Judge Rogers, by written order, appointed as his counsel the two attorneys who have ably represented appellant on the trial. One of such attorneys having qualified as county attorney, the other has continued such representation on appeal.

Art. 564, C.C.P., provides in part that motions to set aside the indictment shall be disposed of before a change of venue is ordered.

It does not follow that the trial court is without authority to entertain such a motion in the new county, upon a showing that appellant has not waived such right, but has been deprived of the opportunity to sooner make the attack.

Under the facts alleged, we have no doubt that had appellant, after the change of venue and before the trial, filed in Trinity County an attack upon the grand jury on the ground of racial discrimination, and shown therein that he had had no opportunity to present such motion prior to the change of venue, that the trial judge would have exercised the power vested in him to hear the motion and the evidence thereon in order that he might rule upon the matter and in the event of his ruling being adverse to appellant's contention, that such ruling might be reviewed on appeal. Appellant filed no such motion, but first raised the question on the motion for new trial.

The bill does not allege that in fact there existed such discrimination.

In order to show error, it was incumbent upon appellant to show that the ground of racial discrimination in fact existed. For appellant to assert that the judgment should be reversed because he was denied an opportunity to question the organization of the grand jury for racial discrimination if in fact he had no ground therefor would find no support in law or in reason.

The court heard evidence on the motion for new trial wherein it was shown that two Negroes were members of the grand jury which returned the indictment; that Negroes had served on previous grand juries in Walker County, there being one Negro drawn on each grand jury panel since 1939, a large number having served as grand jurors.

There is no evidence otherwise which might be construed to evidence discrimination against Negroes in the selection of grand juries generally and the evidence affirmatively shows that the particular grand jury which indicted appellant was selected without discrimination. The court did not err in overruling the motion for new trial on this ground.

Appellant next presents in his brief the overruling of his motion to quash the venire upon his allegation that veniremen were selected in Trinity County in violation of the 14th Amendment to the Constitution of the United States.

Our attention is directed to the following testimony heard on the motion:

'Dorsey Smith, a member of the Negro race, and also one of the jury commissioners who made up the list of veniremen to be summoned for this case, testified that the court in instructing the jury commissioners told them to be careful in what they did and not make any discrimination and to select only as to population with regard to white and colored veniremen.

'The court in questioning Dorsey Smith brought out the fact that the court instructed the jury commissioners to select jurors with regard to white and colored veniremen according to the population of white to colored, and further questioning by the court brought out the fact that the court went so far as to comment on the percentage of white people as compared to the percentage of Negro people.

'Another jury commissioner responsible for the jury list of veniremen summoned for this case, Edwin McClain, a white man, testified to substantially the same facts. He testified that they were told by the court 'to kind of get a couple or three or four colored people according to the population around over the county and to get good, honest sober citizens.' He further testified that the lists did compose a fair cross-section of the county as to race and color of qualified jurors. According to the testimony of Mr. McClain, the jury commissioners were told not to bring any jury list back without members of every race in the county on it.'

If we understand appellant's contention, it is that though two of its five members were Negroes, and though nine Negroes were drawn for jury service by them, the jury commission discriminated against the Negro race in that they limited the number of Negroes selected for service at the term to the proportion which the Negro race bore to the population of the county.

In Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 632, 94 L.Ed. 839, cited by appellant, proportional racial limitation was held to be forbidden, the Supreme Court declaring further: 'An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.'

Other testimony of the two jury commissioners demonstrates, we believe, that there was no discrimination, and that the number of jurors of the Negro race selected and drawn by the jury commission was not limited to a proportional representation.

Dorsey Smith testified that the trial judge told the jury commissioners to select good, honest, fair-minded people who wanted to do the right thing, and not to discriminate against any man because of his race or color, and that there was no discrimination by the commissioners in their selection of jurors.

Edwin McClain testified that the judge told the jury commissioners that he couldn't tell them how many members of any race to put on any jury; that the matter of selection of the individual jurors would be left entirely to the commissioners; that no man was to be discriminated against or left off of the jury because of his color; that if they found a juror who they thought would make a good juror, the commissioners could not refuse to put him on 'because he was a white man or because he was a colored man,' and that there was no discrimination against any race in the selection of the jurors by the jury commissioners.

It is not shown in the record what disposition was made of the jurors of the Negro race whose...