Ross v. State, No. 24630

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation156 Tex.Crim. 164,233 S.W.2d 126
Decision Date19 April 1950
Docket NumberNo. 24630
PartiesROSS v. STATE.

Page 126

233 S.W.2d 126
156 Tex.Crim. 164

No. 24630.
Court of Criminal Appeals of Texas.
April 19, 1950.
On Rehearing June 7, 1950.
Rehearing Denied Oct. 25, 1950.

[156 Tex.Crim. 165] Thos. H. Dent, Galveston, for appellant.

Raymond E. Magee, County Attorney, Galveston, Emmett F. Magee, Special Prosecutor, Galveston, George P. Blackburn, State's Atty., of Austin, for the State.


The appeal is from a conviction for murder, with the death penalty.

The indictment alleges that Herman Lee Ross, the appellant, killed Guido Nesti on the 1st day of June, 1948, by shooting him with a gun.

Nesti was the keeper of a package store. Appellant went to his place at night and, in the perpetration of a robbery, shot his victim to death while he was standing with his hands up. He then walked away from the scene. Parties who witnessed [156 Tex.Crim. 166] the crime recognized appellant as he walked away, according to their testimony on the trial. Further facts in the case, including the circumstances of his arrest, his resistance and his shooting at the officers, certainly do not detract from the heinousness of his crime.

Thomas Dent, an attorney of the colored race, represented appellant and timely filed his motion to quash the indictment on the ground that the grand jury returning the indictment was composed entirely of white men. It is his position that in the impanelment of the grand jury discrimination against the colored race was shown contrary to the provisions of the Constitution of the United States. This raises a federal question, of which the Supreme Court of the United States has jurisdiction. If that court assumes jurisdiction, its decision is final.

Upon the issue thus raised there is in the record an agreement between State's attorneys and appellant's attorney, approved by the trial judge, that all appellate courts

Page 127

might determine the merit of appellant's motion to quash the indictment on the issue of discrimination on such agreed statement of facts. It is not thought necessary to set out the facts incorporated in the agreement. It is appellant's contention that under the authority of the opinions of the Supreme Court of the United States the facts, upon the question of discrimination, bring him squarely within the holdings in the cases of Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Smith v. State of Texas, 140 Tex.Cr.R. 565, 136 S.W.2d 842, 147 S.W.2d 1118; Id., 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 144 Tex.Cr.R. 415, 157 S.W.2d 369; Id., 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. The facts in the two Texas cases are so similar to those shown in the agreed statement found in the present record that no reasonable ground can be discovered why the holding of the Supreme Court of the United States in the Smith and Hill cases would not be followed by that court.

The facts of this case show without dispute a murder for the purpose of perpetrating a robbery. The appellant is a negro, his victim a white man, an Italian by birth. In addition to the circumstances of the crime, appellant's own witness placed on the stand by his attorney to testify in his behalf, Dr. E. A. Etter, testified that he had known appellant all of his life; that he had long been a sufferer from tuberculosis and syphilis; that: 'He has been an outcast, a waif of society, * * *.' He said that appellant[156 Tex.Crim. 167] had a tendency to kill and wanted to kill, and that he had never mixed with society or made any contribution to it.

It would, in the opinion of the writer, be a reflection on the colored race to say that they would not return an indictment in this case, even if the grand jury was composed of negroes in its entirety. We disclaim any intention to hold that any one of them would object to the return of a bill of indictment of this appellant, or any other person where the evidence was even similar to that now before us. However, we must recognize the holdings of the Supreme Court of the United States in cases so very similar that they cannot be distinguished from that not before us. Galveston County, with several thousand negro voters, has had two negroes on grand juries during the past thirty years. This showing will not satisfy the court that has definitely and positively expressed its view on the question of discrimination in the authorities cited.

The judgment of the trial court is reversed and the prosecution is ordered dismissed.

GRAVES, Judge (dissenting).

The statutes of Texas relative to the selection of grand jurors are explicit, and such commissioners must possess the following qualifications:

'1. Be intelligent citizens of the county and able to read and write.

'2. Be qualified jurors and freeholders in the county.

'3. Be residents of different portions of the county.

'4. Have no suit in said Court which requires the intervention of a jury.

'5. The same person shall not act as Jury Commissioner more than once in the same year.' Art. 333, Vernon's Ann.C.C.P.1948.

These three men shall select sixteen men from different portions of the county as grand jurors, who shall each have the following qualifications:

'1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who [156 Tex.Crim. 168] have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.

'2. He must be a freeholder within the State, or a householder within the county.

'3. He must be of sound mind and good moral character.

Page 128

'4. He must be able to read and write.

'5. He must not have been convicted of any felony.

'6. He must not be under indictment or other legal accusation for theft or of any felony.' Art. 339, Vernon's Ann.C.C.P.1948.

The statute makes no further demands relative to such grand jurors other than as above stated. Naught is found in our statutes relative to whom they shall be, nor to the method as to how they shall be listed, nor as to their color or race.

It is stipulated herein that no person of the negro race, save one, for a period of thirty years had served on a grand jury in Galveston County, and the argument follows that one judging the present by the past, the claim is made that such shows a discrimination against the colored race upon the part of jury commissioners in the past and at the present time. In other words, this is trying the present jury commission upon the action of commissioners of the past thirty years and finding the acts of these earlier commissioners conclusive of the discrimination of the present three commissioners. This is ex post facto testimony at least. This record shows the presence of seven negroes on the trial jury venire and one wonders if such reflects discrimination against appellant's race.

One is again led to wonder how long will this record of commissioners of the past remain the standard on which a court should decide that such ancient acts of those long since passed from the stage of action as the scales in which a high court would weigh the acts and motives of the present jury commissioners.

If due process of law means a fair and impartial trial, enforcement officers should be told how long they should be under a prejudgment of the higher court as having violated the American Common Law, as found not in a statute but in the decisions of the high court of the land.

[156 Tex.Crim. 169] Furthermore, one wonders which ones of our statutes have been repealed by a quasi-legislative authority, as for instance, the statute relative to the appointment of an attorney for a defendant only in a matter charging a capital offense.

One wonders again where it is said, either by statute or in common-law decisions, that due process of law depends upon the actions of men for thirty years back.

I, therefore, enter my dissent herein upon the belief that this man has received a fair and impartial trial, Lisenba v. People of State of California, 314 U.S. 219, 243, 62 S.Ct. 280, 86 L.Ed. 166, 167, especially page 180, Headnote 12, and that there has been no unfair discrimination against him shown; that the acts of the past grand jury commissioners are neither conclusive nor persuasive of the acts of the present commissioners in the selection of the grand jury that found the indictment against appellant, nor do I find aught against the fairness of his treatment before this trial jury.

It is apparent from the facts herein presented that it would be incredible to believe that any grand jury, no matter of what color composed, could fail to return an indictment against this man for this useless killing. The finding of an indictment alone by this grand jury is the matter at issue, and not the trial upon the merits. I do not think the personnel of this grand jury, nor of the previous grand juries for a long period of time, could have affected the giving of a fair and impartial trial of this appellant before a trial jury on a murder indictment found by any grand jury.

Recognizing the futility of a dissent in this cause, nevertheless, my views are herein expressed, based on the conviction that this man has had a fair and impartial trial; that a useless thing would be done by dismissing this indictment, to be again heard by another grand jury composed in some part at least of men of different races.

I, therefore, respectfully dissent herein.

On State's Motion for Rehearing

GRAVES, Judge.

In our original opinion herein, this court, as well as many other judges throughout this state, had labored under the impression

Page 129

that the cases cited in our original opinion had held [156...

To continue reading

Request your trial
7 cases
  • Morris v. State, 25892
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 11, 1952
    ...entered into the selection and organization of the jury commissioners. There were three contentions raised in Ross v. State, Tex.Cr.App., 233 S.W.2d 126. One of them was the above. When this case reached the Supreme Court of the United States, Ross v. Texas, 341 U.S. 918, 71 S.Ct. 742, 95 L......
  • Gentry v. Texas Dept. of Public Safety, 14303
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 19, 1964
    ...and immunities under the protection of the general rules which govern society." (Emphasis added.) In Ross v. State, 156 Tex.Cr.R. 164, 233 S.W.2d 126, reversed 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352, the Court said: 'Due process of law means only 'a fair and impartial trial' upon the fac......
  • Threadgill v. State, 25246
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 11, 1951
    ...The objection was overruled by the trial court, and this Court, quoting the Coats case, declined to reverse because of said argument. [156 Tex.Crim. 164] In Cross v. State, 129 Tex.Cr.R. 526, 89 S.W.2d 217, 219, the District Attorney said: 'If you acquit this defendant we might as well burn......
  • Oliver v. State, 24984
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 13, 1950
    ...216 S.W.2d 813, Id., 339 U.S. 282, 70 S.Ct. 629; Weems v. State, 148 Tex.Cr.R. 154, 185 S.W.2d 431, 435; Ross v. State, Tex.Cr.App., 233 S.W.2d 126, Also this bill does not show that appellant is a Negro, or that appellant was prejudiced in any way. It merely states a ground of objection, a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT