State v. Cornell

• Decision Date: 12 April 1972
• Docket Number: No. 9,9
• Citation: State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (N.C. 1972)
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Julius CORNELL et al.

Page 768

187 S.E.2d 768

281 N.C. 20

STATE of North Carolina v.Julius CORNELL et al.

No. 9.

Supreme Court of North Carolina.

April 12, 1972.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Jacob L. Safron, and Associate Atty. Gen. Edwin M. Speas, Jr., for the State.

James E. Ferguson, II, Chambers, Stein, Ferguson & Lanning, Charlotte, and James E. Keenan, Paul & Keenan, Durham, for defendants.

BRANCH, Justice.

The primary question presented by this appeal is whether the trial judge correctly quashed the bills of indictment and the petit jury venire on the grounds of systematic and arbitrary exclusion of qualified Negroes from the jury list.

The State first contends that the trial judge erred in basing critical findings of fact on the testimony of the witness Foltz as to his recollection concerning the contents of records which he had prepaed.The State seeks to invoke the best evidence rule, which declares that a writing is the best evidence of its contents.It is ordinarily required that the writing itself be produced unless its nonproduction is excused.In re Will of Knight, 250 N.C. 634, 109 S.E.2d 470;Harris v. Singletary, 193 N.C. 583, 137 S.E. 724.However, this rule applies only where the contents or terms of the document are in question.State v. Ray, 209 N.C. 772, 184 S.E. 836;Overby v. Overby, 272 N.C. 636, 158 S.E.2d 799.

In State v. Ray, supra, this Court stated:

'The appellant directs a number of exceptions to the court's permitting the State to introduce, over his objection, parol evidence to establish the contents of Norfolk Southern freight car No. 20635, when there was evidence to the effect that the records of the railroad company showed such contents, upon the theory that such records were the best evidence of the fact sought to be proved.While it is generally agreed that writings themselves furnish the best evidence of their contents, the 'best evidence rule' has no application here, since the fact sought to be proved was whether certain cigarettes had been put in a certain car, and had no relation whatsoever to the contents of any writing or record.No problem of primary and secondary evidence was presented.The making of a record did not prohibit a witness, who loaded the car and saw what went into it, from testifying as to its contents.'

We do not think that the witness Foltz was prohibited from testifying as to his recollection of what he had personally observed simply because he had made a record of his observations.Further, the State runs afoul of the technical rule which declares that when an objection to evidence is made on a specific ground, the competency of the evidence will be determined on appeal solely on the basis of the grounds specified.Existence of another ground for the objection makes no difference unless the evidence was completely without purpose.Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597;Stansbury, N.C. Evidence, § 27 (2d ed., 1963).Here the Solicitor based his objection on the specific ground that the records in question were not official.

We therefore conclude that the evidence of witness Foltz was competent and admissible.

It is well recognized that the trial court's findings of fact will not be disturbed if there is competent evidence to support them.However, the trial court's conclusions of law are subject to review, and where rulings are made under a misapprehension of the law, the orders or rulings of the trial judge may be vacated and the case remanded for further proceedings, modified or reversed, as the rights of the parties and the applicable law may require.Harrelson v. Insurance Co., 272 N.C. 603, 158 S.E.2d 812;Horton v. Redevelopment Commission, 264 N.C. 1, 140 S.E.2d 728;Textile Insurance Co. v. Lambeth, 250 N.C. 1, 180 S.E.2d 36;Morris v. Wilkins, 241 N.C. 507, 85 S.E.2d 892.

We first consider whether the trial judge acted under a misapprehension of the law when he concluded:

'Upon such findings of fact, the court concludes that under the United States Supreme Court decisions of Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599;Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634, andJones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25, and under the applicable provisions of the United States Constitution, the defendants are entitled to allowance of their motions to quash their bills of indictment and to quash the petit jury venire.'

In State v. Spencer, 276 N.C. 535, 173 S.E.2d 765, this Court unanimously approved the following statement:

'Both state and federal courts have long approved the following propositions:

1.If the conviction of a Negro is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race, the conviction cannot stand.State v. Ray, 274 N.C. 556, 164 S.E.2d 457;State v. Wright, 274 N.C. 380, 163 S.E.2d 897;State v. Brown, 271 N.C. 250, 156 S.E.2d 272; State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870;Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599;Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77;Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991;Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77;Shepherd v. Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740;Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.

2.If the motion to quash alleges racial discrimination in the composition of the jury, the burden is upon the defendant to establish it.State v. Ray, supra;State v. Yoes, 271 N.C. 616, 157 S.E.2d 386;State v. Brown, supra;Whitus v. Georgia, supra;Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692;Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043.But once he establishes a Prima facie case of racial discrimination, the burden of going forward with rebuttal evidence is upon the State.State v. Wilson, 262 N.C. 419, 137 S.E.2d 109;State v. Ray, supra.

3.A defendant is not entitled to demand a proportionate number of his race on the jury which tries him nor on the venire from which petit jurors are drawn.Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759;State v. Wilson, supra;State v. Arnold, 258 N.C. 563, 129 S.E.2d 229, reversed on other grounds, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77.'

The following propositions of law are equally well established:

(1) The mere denial by officials charged with the duty of listing and summoning jurors that there was no intentional, arbitrary or systematic discrimination on the ground of race is not sufficient to overcome a prima facie case.State v. Wilson, 262 N.C. 419, 137 S.E.2d 109;Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866;Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84;Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.

(2) A jury list is not discriminatory or unlawful because it is drawn from the tax list of the county.Nor is a jury commission limited to the sources specifically designated by the statute.State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386;Brown v. Allen, 344 U.S. 443, 73 S.Ct. 379, 97 L.Ed. 469;State v. Wilson, supra.

(3) A person has no right to be indicted or tried by a jury of his own race or even to have a representative of his race on the jury.He does have the constitutional right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded.State v. Yoes, supra;State v. Wilson, supra;Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759;Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075.

The trial court and defendants rely upon the cases of Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599;Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634;Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25, to support the order quashing the indictments and the jury venire.Jones v. Georgia, supra, andSims v. Georgia, supra, were per curiam opinions factually similar to and decided on the authority of Whitus v. Georgia, supra.

In Whitus v. Georgia, supra, defendant attacked his murder conviction on the ground that the State systematically excluded members of his race from the grand jury which indicted him and the petit jury which convicted him.There, the jury commissioners made up the jury list from tax records which listed Negroes on yellow paper and whites on white paper.Later, the same commission reconstituted the jury box with names taken from a tax listing which denoted the names of Negro taxpayers by a '(c)' being placed opposite the name.The population of the county was 27.1% Black, 42.6% Of the potential (by age and sex) jurors were black.One of nineteen grand jurors was black, and seven of ninety petit jurors were black.The State offered no evidence tending to show or explain that the discrepancy was not the result of arbitrary, systematic exclusion of blacks.The United States Supreme Court, in reversing the judgments, Inter alia, stated:

'Under such a system the opportunity for discrimination was present and we cannot say on this record that it was not resorted to by the commissioners.Indeed, the disparity between the percentage of Negroes on the tax digest (27.1%) and that of the grand jury venire (9.1%) and the petit jury venire (7.8%) strongly points to this conclusion.Although the system of selection used here had been specifically condemned by the Court of Appeals, the State offered no testimony as to why it was continued on retrial.The State offered no explanation for the disparity between the percentage of Negroes on the tax digest and those on the venires, although the digest must have included the names of large numbers of 'upright and intelligent' Negroes as the statutory qualification required.In any event the State failed to offer any testimony indicating that the 27.1% Of Negroes on the tax digest were not fully qualified.The State,...