Smith v. State of Texas, No. 33
| Court | United States Supreme Court |
| Writing for the Court | BLACK |
| Citation | 85 L.Ed. 84,311 U.S. 128,61 S.Ct. 164 |
| Parties | SMITH v. STATE OF TEXAS |
| Docket Number | No. 33 |
| Decision Date | 25 November 1940 |
v.
STATE OF TEXAS.
Messrs. Sam W. Davis, William A. Vinson, and Harry W. Freeman, all of Houston, Tex., for petitioner.
Mr. George W. Barcus, of Austin, Tex., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
In Harris County, Texas, where petitioner, a negro, was indicted and convicted of rape, negroes constitute
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over 20 per cent of the population, and almost 10 per cent of the poll-tax payers; a minimum of from three to six thousand of them measure up to the qualifications prescribed by Texas statutes for grand jury service. The court clerk, called as a state witness and testifying from court records covering the years 1931 through 1938, showed that only 5 of the 384 grand jurors who served during that period were negroes; that of 512 persons summoned for grand jury duty, only 18 were negroes; that of these 18 the names of 13 appeared as the last name on the 16 man jury list, the custom being to select the 12 man grand jury in the order that the names appeared on the list; that of the 5 negroes summoned for grand jury service who were not given the number 16, 4 were given numbers between 13 and 16, and 1 was number 6; that the result of this numbering was that of the 18 negroes summoned, only 5 ever served, whereas 379 of the 494 white men summoned actually served; that of 32 grand juries empanelled, only 5 had negro members, while 27 had none; that of these 5, the same individual served 3 times, so that only 3 individual negroes served at all; that there had been no negroes on any of the grand juries in 1938, the year petitioner was indicted; that there had been none on any of the grand juries in 1937; that the service of negroes by years had been: 1931, 1; 1932, 2; 1933, 1; 1934, 1; 1935, none; 1936, 1; 1937, none; 1938, none.
It is petitioner's contention that his conviction was based on an indictment obtained in violation of the provision of the Fourteenth Amendment that 'No state Articles 333—350, Vernon's Ann.C.C.P. jurisdiction the equal protection of the three grand jury commissioners are appointed; was denied him rests on a charge that negroes were in 1938 and long prior thereto intentionally and systematically excluded from grand jury service solely on account of their race and color. That a conviction based upon an indictment returned by a jury so
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selected is a denial of equal protection is well settled,1 and is not challenged by the state. But both the from different parts of the county; they of Appeals were of opinion that the evidence failed to support the charge of racial discrimination. For that reason the Appellate Court approved the trial court's action in denying petitioner's timely motion to quash the indictment. 2 But the question decided rested upon a charge of denial of equal protection, a basic right protected by...
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