Smith v. State

• Decision Date: 02 December 1903
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

77 S.W. 453

SMITH v. STATE.

Court of Criminal Appeals of Texas.

December 2, 1903.

Appeal from District Court, Grayson County; Rice Maxey, Judge.

Robert Smith was convicted of murder in the first degree, and appeals. Reversed.

George Peter Brown and Sidney J. Wilson, for appellant. Chas. Batsell, Asst. Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death. This case has been before this court twice before, and on both occasions it was reversed, because in the formation and impanelment of the grand jury which found the indictments against appellant (a negro) he was discriminated against on the part of the court. Smith v. State, 42 Tex. Cr. R. 220, 58 S. W. 97; Smith v. State, 69 S. W. 151, 5 Tex. Ct. Rep. 434. Since the last reversal a new grand jury was impaneled, and appellant reindicted. He made a motion to quash the indictment on the same ground as heretofore, to wit: "That appellant was a negro, and was charged with the murder of Aria Taylor, a white woman; that no negroes were placed on the grand jury which indicted him, and that there are from 2,000 to 3,000 negroes resident citizens of Grayson county, who are qualified jurors, and who were qualified to sit as grand jurors, being about one-fourth of the jury population of said county; that the jury commissioners appointed by the court were all white men; that in selecting the grand jury they drew no negroes on said grand jury, and in this connection they discriminated against him in the formation of said grand jury, and thus denied him the equal protection of the law, which is guarantied him under the fourteenth amendment to the Constitution of the United States and the decisions thereunder." After hearing the evidence, the court overruled said motion to quash, and appellant reserved his bill of exceptions. We have carefully examined the record testimony contained in this bill of exceptions, and discover no material change from the conditions attending the impanelment of the two former grand juries, except here it is apparent that there was an endeavor, as was stated by the assistant county attorney of Grayson county in his argument, to avoid the effect of the decisions of the Supreme Court of the United States and of this court. In the former trials no person of African descent was drawn on the grand jury, but in the present instance it appears the commissioners managed to draw one person of African descent. On investigation, however, it was shown that he was either dead or had left the county a number of years before this offense was committed. While the commissioners, in their testimony, attribute this mistake to an accident, still it does not occur to us that it relieves the situation, even if they had drawn a negro juror who was a citizen of the county, and who was still alive. Of itself it would not show a lack of discrimination against the negro race. They testify that their purpose was to give the negroes representation on both the grand and petit juries, and that they decided to put one negro on each list. We do not understand that the law requires that negroes shall be drawn or serve on juries, but the law does require that in the selection of grand and petit juries the negro race be not discriminated against where a negro is to be indicted or tried. It is no answer to this proposition to say that, in order to meet the decisions of the Supreme Court of the United States, they discussed the question, and decided to place one negro on the grand jury, in order that the negro race be represented. An effort to comply with the fourteenth amendment and the decision thereunder, instead of endeavoring to avoid the same, in a colored population shown to exist in Grayson county, might have entitled the negro race to a greater representation on both the grand and petit juries than is here shown. And when we take in connection with this the fact that the commissioners drew or selected a dead negro to serve on the grand jury, it makes it evident that they did not exercise that care in the selection of as important a body as the grand jury that would indicate their purpose was not to discriminate against the negroes. In this connection we refer to the testimony of Judge Bryant, the federal judge of that district, who states that he has negroes from Grayson county, both on the grand and petit juries, serving during his court, showing that there must be persons of African descent who can be found, and who are considered capable of performing duties devolving on grand juries. While we fully understand the sentiment that may have actuated the officers of the court below, and appreciate their disinclination to place the administration of the law, even in part, in the hands of a people assumed to be inferior to the white race, yet under the law and before the law all are equals, and in its administration no favors can be shown, nor can either the letter or spirit of the law be ignored.

It is said, however, that appellant should have exercised his right of challenge to the array, and, having failed to do so, he cannot now complain, although his race may have been discriminated against in the selection of a grand jury. In reply to this we would observe that there is some evidence that appellant made an effort to get into communication with the court in regard to the impanelment of the grand jury, and wrote a note, and gave it to one of the attendants at the jail; but it does not appear to have reached any officer of the court or the grand jury. Moreover, his lawyer, Mr. Cox, who had previously managed the case on appointment, but was on the eve of retiring from the defense of appellant, brought this matter to the attention of the court about the time the...