State ex rel. Hathaway v. Henderson

• Decision Date: 07 June 1968
• Citation: 432 S.W.2d 503,1 Tenn.Crim.App. 168
• Parties: STATE of Tennessee ex rel. James HATHAWAY, Appellant, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 503

432 S.W.2d 503

1 Tenn.Crim.App. 168

STATE of Tennessee ex rel. James HATHAWAY, Appellant, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Appellee.

Court of Criminal Appeals of Tennessee.

June 7, 1968.

Certiorari Denied by Supreme Court Oct. 7, 1968.

Charles E. Maness, George C. Cloys, Union City, for appellant.

George F. McCanless, Atty. Gen., Albert D. Noe, IV, Nashville, Asst. Atty. Gen., Fleming Hodges, Dyersburg, for appellee.

OPINION

WALKER, Presiding Judge.

The petitioner below, James Hathaway, appeals from the dismissal of his petition for the writ of habeas corpus after an evidentiary hearing on June 15, 1967. The petition was filed in Davidson County and transferred to the original convicting court pursuant to T.C.A. Sec. 23--1840.

Following a full evidentiary hearing, the trial judge carefully determined the issues presented and made a thorough finding of facts and conclusions of law.

The bill of exceptions says that the petitioner prayed, was granted an appeal, and that an order was entered on the minutes of the Court accordingly. The judgment dismissing the petition does not show that such an appeal was prayed for or granted, and the minutes do not reflect it. By a minute entry in the record, it must appear that an appeal was prayed and granted for the appeal to be effective. Teasdale v. Manchester Produce Co., 104 Tenn. 267, 56 S.W. 853; Gray v. State, 207 Tenn. 39, 336 S.W.2d 22. Nevertheless, we have carefully examined and fully considered the entire record of the evidentiary hearing, the written finding and the judgment of the trial court. See State for Use and Benefit of Lawrence County v. Hobbs, 194 Tenn. 323, 250 S.W.2d 549.

After some domestic difficulty on January 1, 1963, the petitioner shot his wife three times, from which she died nearly six months later. He fled the state. He was later apprehended in Illinois and returned from Illinois for trial at the January term, 1965. Since he was indigent, two highly competent attorneys were appointed to represent him at the trial. It resulted in his conviction of murder in the first degree on March 4, 1965, and sentence to ninety-nine years in the penitentiary. His attorneys filed a motion for a new trial, and were willing to appeal the case. However, he did not want an appeal at that time.

In this proceeding, the petitioner (a Negro) says, first, that his constitutional rights were violated in that there is a systematic exclusion of Negroes from grand and petit juries in Obion County. He says that he was indicted and tried by juries from which members of his race had been unconstitutionally excluded.

The proof shows that at the January term, 1963, the petitioner was indicted for assault with intent to commit murder in the first degree. Two Negroes were on the venire at that term, but neither served on that grand jury. Under T.C.A. Sec. 40--1501, to form the grand jury, the names of all jurors in attendance are placed in a suitable receptacle and drawn by a child under ten or the judge, and the twelve first drawn shall be the grand jury for that term. All jurors in attendance are members of the panel from which the grand jury is drawn. He was, of course, not tried under this indictment.

In the meantime, his wife died after a long confinement in hospitals. At the May term, 1963, on June 24, 1963, the grand jury for that term indicted him for murder in the first degree.

There is no proof at all about the racial composition of this grand jury or of the petit juries for that term of court. Petitioner did not know whether or not there were any Negroes on the grand jury which indicted him; he was a fugitive and in another state at the time. The record is entirely silent on whether or not any Negroes served on this grand jury or the panel from which it was drawn.

On January 11, 1965, the Court appointed attorneys for petitioner and the case was set for trial on March 4, 1965.

No Negro served on the trial jury which convicted petitioner, although one and perhaps two were on the panel from which it was selected. The Circuit Court Clerk testified that in the three years before this hearing five Negroes had served on juries there. He actually named three, one of whom had served twice. He also testified that he knew of no effort on the part of the jury commissioners to systematically exclude Negroes from serving on juries in Obion County. The court records, of course, do not indicate jurors by race. Two Negroes were serving on the jury at the term of this hearing.

Other than the January term, 1965, there is no proof of the number of Negroes serving on grand and petit juries prior to the three-year period immediately preceding this hearing. This time did not cover the indictment term, although it did include the trial term.

In 1960 the population of Obion County consisted of 23,753 white persons and 3,204 Negro, making a total of 26,957. By 1964 it had increased about 2,200, but the racial composition of the 1964 population is not shown. The record does not indicate the population over twenty-one years of age, other than that there are 300 to 350 Negro voters in the most populous civil district, which includes Union City. There is, therefore, a sizeable Negro population in the county.

The burden is, of course, on the petitioner to prove the existence of purposeful discrimination. However, once a prima facie case is made out, the burden shifts to the prosecution. Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).

The question here is whether or not this testimony, in itself, makes out a prima facie case of the denial of the equal protection which the Constitution guarantees. Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77. Also see Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); and Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967).

We do not believe that this proof constituted a prima facie case of purposeful discrimination requiring the State to refute it.

In State ex rel. Smith v. Johnson, 220 Tenn. 49, 413 S.W.2d 694 (1967), our Supreme Court said:

'(1) We recognize, of course, that the constitutional rights of plaintiff in error would have been violated had there been a systematic and deliberate exclusion of members of his race, solely by reason of their race or color. See Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Carter v. State of Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839, 841 (1900). See also the numberous cases cited and discussed by the United States Supreme Court in the recent case of Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 827, 13 L.Ed.2d 759, 763 (1965).

'In Patton v. State of Mississippi, 332 U.S. 463, 469, 68 S.Ct. 184, 187, 92 L.Ed. 76 (1947), the Supreme Court of the United States said:

When a jury selection plan, whatever it is, operates in such way as always to result in the complete and longcontinued exclusion of any representative at all from a large group of negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.

'(2) We likewise recognize that inclusion of a minimal or token number of Negroes on a jury list does not prevent the application of the foregoing principles. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940).

'We further...