Sims v. State

• Citation: 221 Ga. 190,144 S.E.2d 103
• Decision Date: 14 July 1965
• Docket Number: No. 22939,22939
• Parties: Isaac SIMS, Jr. v. The STATE.
• Court: Supreme Court of Georgia

Page 103

144 S.E.2d 103

221 Ga. 190

Isaac SIMS, Jr. v. The STATE.

No. 22939.

Supreme Court of Georgia.

July 14, 1965.

Rehearing Denied July 26, 1965.

Syllabus by the Court

1. (a) The defendant failed to make out a prima facie case of invidious discrimination under the Fourteenth Amendment in his challenge to the composition of the grand jury. Jury lists for prior years would not be relevant in the face of a showing that no discrimination existed in the composition of the present juries.

(b) The challenge to the array on the ground that qualified Negroes have never served as jury commissioners in Charlton County is not meritorious.

(c) The provisions of Code Ann. § 59-106 are directory only, and the failure to strictly comply with them does not violate any rights guaranteed to defendant.

(d) There is no merit in the plea in abatement challenging the composition of the grand and petit juries on the ground that these jurors were selected from tax digests kept on the basis of race.

(e) The presumption that the prosecutor is utilizing his peremptory challenges to obtain an impartial jury is not overcome by allegations that the prosecutor exercised four of his peremptory challenges to strike Negroes from the jury.

2. The trial judge did not abuse his discretion in overruling the motion for change of venue.

3. It was not error to overrule the plea in abatement challenging the constitutionality of Code Ann. § 26-1302 on three grounds.

4. 'Where several indictments for the same offense are pending against the same person, it is immaterial upon which he is first tried.'

5. (a) The evidence was sufficient to support the verdict.

(b) It was not error to admit defendant's confession into evidence. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, distinguished.

(c) The trial court having allowed the evidence of the confession to go to the jury since there was no evidence that it was not voluntary did not thereafter err in leaving to the jury the question of whether or not the defendant's confession was voluntary and in instructing the jury to disregard the confession in the event they should determine that it was not voluntary, particularly since he later approved the verdict of the jury.

(d) Because the jury made no recommendation of mercy, it is unnecessary to determine whether the given charge was error.

6. The ruling made in 5(b) is controlling here.

Howard Moore, Jr., William H. Alexander, Atlanta, for plaintiff in error.

Dewey Hayes, Sol. Gen., Douglas, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.

DUCKWORTH, Chief Justice.

Isaac Sims, Jr., a Negro, was convicted of rape by force in the Superior Court of Charlton County and was sentenced by that court to death by electrocution. (Sims' first conviction for this offense was reversed by this court in Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766). Sims' amended motion for new trial having been overruled, he brings his case to this court for review. Error is assigned on the court's orders overruling the challenge to the array, the motion to suppress illegally obtained evidence, the motion for change of venue, the pleas in abatement, the motion to quash the indictment, and the amended motion for new trial.

1(a) The first, second and fourth grounds of the challenge to the array and the sole ground to the plea in abatement challenging the composition of the grand jury is that the system for compiling jury lists in Charlton County, Ga., operated to systematically and arbitrarily exclude and include Negroes for jury service. It was shown that the jury lists were compiled from tax digests which were maintained on the basis of race. However, one of the jury commissioners testified that race was not a factor in the compilation of jury lists. No evidence was introduced to contradict his testimony. It was shown that there was one Negro on the grand jury which indicted defendant and at least five Negroes on the jury list from which the jury who tried defendant was made up. The burden of proof was on the defendant to make out a prima facie case of invidious discrimination under the Fourteenth Amendment. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 828, 13 L.Ed.2d 759. All the defendant showed here, as was done in Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, a recent United States Supreme Court case involving allegations of discrimination in the selection of jurors, is that the percentage of Negroes on the jury list did not reflect the percentage of Negroes in the county. This is not sufficient to show invidious discrimination. As was said in the Swain case: 'a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn.'

Under the evidence in this case, the defendant did not make out a prima facie case of invidious discrimination, and the court did not err in overruling the challenge to the array or the plea in abatement on this ground.

It is also urged that the court erred in excluding certain jury lists which were offered as evidence in connection with the claims of discrimination against Negro jurors. Jury lists for a ten year period were offered in evidence. All were excluded except for the lists of the jurors from which the juries who indicted and convicted were taken. As mentioned above, there was no showing of discrimination on the juries which indicted and convicted the defendant. This being true, we are of the opinion that the court properly excluded the jury lists for prior years. They would not be relevant in the face of a showing that no discrimination existed in the composition of the present juries.

(b) The third ground of the challenge to the array is that qualified Negroes have never served as jury commissioners in Charlton County. It was stipulated by the parties that no Negroes had served in the last eight years. This contention was decided adversely to defendant in Avery v. State, 209 Ga. 116, 122, 70 S.E.2d 716, 721, reversed on other grounds, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, and that decision is controlling here.

(c) The fourth ground of the challenge to the array is that the lists from which the traverse jurors were drawn was revised annually instead of biennially or triennially as required by Code Ann. § 59-106 (Ga.L.1955, pp. 247-48). There is no merit in this contention. The provisions of the Code are directory only, and the failure to strictly comply with them does not violate any rights guaranteed to defendant. Haden v. State, 176 Ga. 304(1), 168 S.E. 272; Daughtery v. State, 59 Ga.App. 898, 2 S.E.2d 519.

(d) The ground in the plea in abatement challenging the legal composition of the grand jury and the ground in the plea challenging the legal composition of the petit jury on the ground that the jurors, grand and petit, were taken by the jury commissioners from a list of taxpayers in the tax digests of Charlton County which are kept on the basis of race were properly overruled.

These grounds of the pleas are without merit for two reasons. First Code § 92-6307 requires county tax receivers to make out separately on the tax digests the names of colored and white taxpayers. No attack is made on this statute. Secondly, the evidence introduced on the hearing of these pleas shows without dispute that the jury commissioners, in making up the grand and petit jury lists, did so as provided by the laws, and jurors were selected without regard to race or where their names appeared on the tax digests.

(e) The final ground of the challenge to the array is that four Negroes, because of their race, were systematically included on the jury list and that the state prosecutor exercised four of his peremptory challenges to strike the Negroes. No showing was made that such procedure was customarily followed in order to exclude Negroes from jury service. The decision of the United States Supreme Court in Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, is decisive on this point. It was there held: '[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. * * * The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.' The final ground of the challenge to the array is not meritorious.

The court did not err in overruling the plea in abatement or the challenge to the array.

2. A motion for change of venue on the ground that defendant could not secure a fair and impartial trial in Charlton County was overruled by the court. This was not error. None of the evidence introduced by the defendant tended to show that an impartial jury could not be obtained in Charlton County. The ruling of a trial judge on a motion for change of venue will not be disturbed by this court unless an abuse of discretion is shown. Rawlins v. State, 124 Ga. 31(2), 52 S.E. 1; Coleman v. State, 141 Ga. 737(1), 82 S.E. 227. Clearly, the trial judge does not abuse his discretion in overruling the motion when no evidence is introduced to support the allegations of the motion.

3. Defendant's plea in abatement, which challenged the constitutionality of Code Ann. § 26-1302 (Ga.L.1960, pp. 266-67) on three grounds was overruled. That Code section provides: 'The crime of rape shall be punished by death, unless the jury reccommends mercy, in which event punishment shall be...