Smith v. State

• Decision Date: 28 May 1902
• Citation: 69 S.W. 151
• Parties: SMITH v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

69 S.W. 151

SMITH v. STATE.¹

Court of Criminal Appeals of Texas.

May 28, 1902.

Appeal from district court, Grayson county; Rice Maxey, Judge.

Robert Smith was convicted of murder, and appeals. Reversed.

J. P. Cox, for appellant. Robt. A. John. Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death; hence this appeal.

When the case was called for trial, and before announcement, appellant presented a motion to quash the indictment on the ground that, the appellant being a colored person, members of his race were discriminated against in the formation of the jury that returned the bill of indictment. The motion is in proper form, and was drawn under that clause of the fourteenth amendment of the constitution of the United States which has been construed to guaranty to colored persons the equal protection of the laws in the formation of grand and petit juries. The motion was contested by the state and testimony was heard thereon and the motion overruled, and appellant reserved his exception. In addition to the testimony admitted by the court, appellant offered the testimony of other witnesses, which, on objection, was excluded by the court; defendant reserving his exception thereto.

We will consider both bills of exception together. It was shown in support of the motion: That the population of Grayson county consisted of 60,000 or 70,000 people. That there were about 8,000 voters in the county. Of these, about 1,500 were colored voters. That, of the negro voters, about one-third were qualified jurors. But since reconstruction, that is, for about 25 years, no negro had been known to sit on a grand or petit jury in the county. That white jury commissioners were invariably appointed by the courts to draw the jury lists, and that no negroes were drawn. On one occasion a negro was accidentally drawn, but he was gotten rid of on some pretext. The case having been previously reversed on the ground of discrimination against the colored race in the formation of the grand jury, the learned judge instructed the jury commissioners who were impaneled to draw a list of grand jurors, who subsequently presented this indictment, and, among other things, told them, in the selection of grand and petit jurors, not to discriminate against the colored race. The jury commissioners selected by him were all of the white race. Judge Maxey, who presided at the trial, testified, substantially, that of his personal knowledge he did not know it to be a fact that negroes had been excluded from service as jury commissioners and grand and petit jurors because they were negroes. That as district judge he might appoint a negro as jury commissioner if he were best qualified, but that was a matter that would have to be passed upon when it was presented. That he did not know what he would do as to selecting a jury commissioner if he believed that the negroes were equal in intelligence and fitness with the white people; that was a question involved in the condition of mind that he had never yet attained, and that he did not know what he would do in such case. That there might be a condition of affairs that would make him believe it was best for the administration of the laws of the country to appoint a negro as jury commissioner; if so, he would appoint him. If such condition of affairs were brought about, he did not know what he would do. That there was a prejudice against the colored man serving as a juror or jury commissioner, and he thought it detrimental to the public generally, and detrimental to the colored race, to appoint them on juries. That he did not know a colored man, unless it was Dr. Prince, who possessed all the requirements of a jury commissioner. That he knew a great many negroes in the county who could read and write, also a great many who were householders and freeholders. That he had no prejudice against the colored race which would cause him to discriminate against them in the administration of his office. The three jury commissioners who were appointed by Judge Bliss, the predecessor of Judge Maxey, all testify, — their testimony being substantially to the same effect. They state that they selected the best material to compose the grand jury, and also the best that they knew for the petit jury; that they were furnished with the assessment rolls of the county, and opposite the negroes was the abbreviation "Col.," which they understood to mean colored. They state that they did not discuss the question of discrimination only to a limited extent. One testified that they discussed the matter and, if he knew of any colored men who possessed sufficient qualifications, they would not have discriminated against them on account of race and color. He also states that, if he thought it were necessary, he would have selected a negro on the jury, but that...