Reed v. State

• Decision Date: 12 June 1967
• Docket Number: No. 44432,44432
• Citation: 199 So.2d 803
• Parties: Abraham REED v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 803

199 So.2d 803

Abraham REED v. STATE of Mississippi.

No. 44432.

Supreme Court of Mississippi.

June 12, 1967.

R. Jess Brown, L. Lackey Rowe, Jr., Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

ETHRIDGE, Chief Justice.

Abraham Reed, appellant, was convicted in the Mayor's Court of the Town of Fayette, Mississippi, on a charge of carrying a concealed weapon. He appealed, and on a trial de novo in the Circuit Court of Jefferson County, he was again convicted, from which this appeal was taken. The issues pertain to jury selection, and arrest and search of defendant's person. We affirm.

I.

Reed filed a motion to quash the jury venire on the ground of systematic exclusion of Negroes from the jury lists prepared by the county supervisors, and from the venire of the September 1966 term, and for other reasons to be later stated. The circuit court correctly overruled the motion.

The jury lists in the years 1956 through and including 1965, prepared by the Board of Supervisors of Jefferson County, did not include the name of any Negro. During the same period, 1956-65, no Negro was ever summoned on the venire for any term of court, and during the same period, no Negro ever sat on a jury in Jefferson County. During the same period, no woman ever sat on a jury in that county. The United States census of 1960 reflects that the number of white males, 21 or over, in Jefferson County was 803; the number of non-white males, 21 or over, was 1,620. The total male population, 21 or over, was 2,423 out of a total population of 10,142.

In April 1966, the board of supervisors prepared the jury list for that year. The trial was in September 1966. Appellant called the circuit clerk as a witness. He testified: There were about 250 names on the supervisors' jury list, and he estimated there were 95 Negroes, and the remainder were white. The venire for the September 1966 term contained 62 names, of which 26 were Negroes. The names of six Negroes were drawn for the grand jury venire. On jury number one for the first week of the term, there were four Negroes and six whites; on jury number two, eight Negroes and four whites; and on jury number three, six Negroes and six whites. The venire for the second week of the term contained the names of seventeen Negroes and nineteen whites. Thirty-four persons were served with process for the second week of the term; seventeen of them were Negroes. The total number of veniremen was drawn in proportion to the number of registered voters in each of the five supervisors' districts.

The circuit clerk received certified lists from the Federal Registrar of Voters, which contained approximately 800 Negroes, to be registered in his office. He added them to the registration books. There are approximately 4500 persons registered to vote in Jefferson County.

Appellant then called as witnesses the five members of the board of supervisors. At this point, the statutes are pertinent. Mississippi Code 1942 Annotated section 1766 (Supp.1966), provides:

The board of supervisors at the April meeting in each year, or at a subsequent meeting if not done at the April meeting, shall select and make a list of persons to serve as jurors in the circuit court for the twelve (12) months beginning more than thirty (30) days afterwards, and as a guide in making the list they shall use the registration book of voters and shall select and list the names of qualified persons of good intelligence, sound judgment, and fair character, and shall take them, as nearly as they conveniently can, from the several supervisors districts in proportion to the number of qualified persons in each, excluding all who have served on the regular panel within two (2) years, if there be not a deficiency of jurors. The clerk of the circuit court shall put the names from each supervisors district in a separate box or compartment, kept for the purpose, which shall be locked and kept closed and sealed, except when juries are drawn, when the names shall be drawn from each box in regular order until a sufficient number is drawn.

Mississippi Constitution section 264, as amended in 1960, states that the legislature shall provide for the qualifications of grand and petit jurors, and for procuring a list of persons so qualified and the drawing thereof for each term of circuit court.

Mississippi Code 1942 Annotated section 1762 (Supp.1966) states particularly who are competent jurors. It states:

Every male citizen not under the age of twenty-one (21) years, who is either a qualified elector, or a resident freeholder of the county for more than one year, and has not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors within a period of five (5) years and who is not a common gambler or habitual drunkard, is a competent juror; but no person who is or has been within twelve (12) months the overseer of a public road or road contractor shall be competent to serve as a grand juror. But the lack of any such qualifications on the part of one or more jurors shall not vitiate an indictment or verdict. However, be it further provided that no talesman or tales juror shall be qualified who has served as such tales juror or talesman in the last preceding two (2) years; and no juror shall serve on any jury who has served as such for the last preceding two (2) years; and no juror shall serve who has a case of his own pending in that court, provided there are sufficient qualified jurors in the district, and for trial at that term.

The circuit court judge in his discretion may authorize resident freeholders to serve as jurors. Miss.Code 1942 Ann. §§ 1762-01, 1762-02 (Supp.1966). Section 1762-03 provides how the lists of jurors are procured, stating that as a guide in making the lists they shall use the registration book of voters and the land assessment rolls of the county, 'and shall select and list the names of qualified persons of good intelligence, sound judgment, and fair character * * *'

One of the supervisors stated that he did not select people who were drunkards or gamblers, or who were sick. Another said that he eliminated people that were over the age of 65 years, who would be ineligible to serve as a juror if their age were claimed. Another supervisor said that he eliminated people who drank and 'cut-up.' Another testified that he tried to select good jurors. He had no objection to any of them on the list. A lady supervisor said that she chose the people that she thought would be good jurors.

Overruling the motion to quash the venire, the circuit judge found that the Supervisors of Jefferson County had made an honest effort to comply with state and federal law in selecting juries without discrimination as to race, and that they had done an honest and fair job. The list which was drawn for the September 1966 term showed no discrimination between the races.

The record affirmatively reflects that the supervisors were not guilty of any invidious discrimination as to race in their selection of the jury venire. Supervisors are laymen, not skilled in verbally duplicating the statutory criteria, but a fair reading of their testimony shows that in substance they were following the statutes.

Moreover, the undisputed facts as to the racial constitution of the juries for the September term rebut any charge of systematic exclusion of Negroes. The presumption of discrimination which might arise from the practices of previous years was effectively and thoroughly rebutted. In short, the record does not show any such discriminatory exclusion in this case; the evidence is to the contrary. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 97 L.Ed. 469 (1953). The question of systematic exclusion poses a factual issue which must be determined by the particular facts of each case as they arise from the various counties of the state. Dunning v. State, 251 Miss. 766, 171 So.2d 315 (1965). The presumption of purposeful prior exclusion was overwhelmingly rebutted by witnesses offered by defendant on his motion to quash. He then had the burden of proof to show purposeful and systematic exclusion, and he failed to do this.

Appellant further contends that Code section 1766 is unconstitutional, because it provides for the selection of jurors on a basis of vague, subjective and nonreviewable standards, thus vesting unlimited discretion in the board of supervisors. This argument ignores the interrelationship of several pertinent statutes, which are in pari materia.

Code sections 1766 and 1762-03 require that jurors must be 'qualified persons of good intelligence, sound judgment, and fair character * * *' They must also be read along with the above-quoted section 1762, which states that every male citizen, not under 21 years of age, who is a qualified elector and able to read and write, has not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors within a period of five years, and who is not a common gambler or habitual drunkard, is a competent juror. These related statutes are in pari materia. Many of their criteria are wholly objective in the definition of a competent juror. These standards modify and define the more general criteria of intelligence, judgment and character. Moreover, most of the states of the Union use in part a formula substantially similar to that of 'good intelligence, sound judgment and fair character.' Alabama Code, tit. 30, § 21 (1958); Ga.Code Ann. § 59-106 (1965); N.C.Gen.Stat. § 9-1 (1953); Texas Rev.Civ.Stat. art. 2133 (1964). Considered as a whole, the statutes providing for selection of jurors are not void for vagueness, but reasonably definite standards. See Miss.Code 1942 Ann. § 1798 (1956) (jury-laws directory only).

Code section 1762 excludes women from jury service. Appellant contends that this is an invalid discrimination. However, ...