State v. Covington, s. 438

• Decision Date: 11 January 1963
• Docket Number: 439,440,Nos. 438,s. 438
• Parties: STATE, v. Jay Vann COVINGTON.
• Court: North Carolina Supreme Court

Page 827

128 S.E.2d 827

258 N.C. 501

STATE, v. Jay Vann COVINGTON.

Nos. 438, 439, 440.

Supreme Court of North Carolina.

Jan. 11, 1963

Samuel S. Mitchell, Raleigh, and Scupi & Witt, Washington, D. C., for defendant-appellant.

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

PARKER, Justice.

In each of the three cases here numbers 438-440 defendant's exceptions and assignments of error are identical with his exceptions and assignments of error in case number 437, State v. Covington, N.C., 128 S.E.2d 822. In all four of these cases defendant is represented by the same counsel. In these four cases, cases numbers 437-440, defendant has filed one brief, and the State by its Attorney General has done likewise.

In each of these three cases defendant's motion to quash the indictment was made before pleading to the indictment, and therefore in apt time. G.S. § 9-26; State v. Perry, 248 N.C. 334, 103 S.E.2d 404; Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Gardner, 104 (.C. 739, 10 S.E. 146.

State v. Covington, supra, decides the identical questions presented for decision here by defendant's assignments of error, and is controlling, unless the defendant waived any objection to the grand jury which indicted him by his plea of guilty in each of the three cases.

The Court speaking by Ervin, J., stated in Miller v. State, supra: 'The right of a Negro defendant to object to a grand or petit jury upon the ground of discrimination against members of his race in the selection of such jury is waived by failing to pursue the proper remedy.' Here the defendant pursued in apt time the proper remedy to challenge the legality of the grand jury that indicted him.

In State v. Covington, supra, the Court said:

'The Supreme Court of the United States in an unbroken line of cases stretching back for eighty years has held that the indictment of a Negro defendant by a grand jury in a state court from which members of his race have been intentionally excluded solely because of their race is a denial of his rights to the equal protection of the laws as guaranteed by the 14th Amendment to the United States Constitution. State v. Perry, 250 N.C. 119, 108 S.E.2d 447; Miller v. State, supra; 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.

'A like conclusion is reached in North Carolina by virtue of our decisions on 'the law of the land' clause embodied in the Declaration of Rights Article I, section 17, of the North Carolina Constitution, and we have consistently so held since 1902. State v. Peoples, 131 N.C. 784, 42 S.E. 814; State v. Speller, 229 N.C. 67, 47 S.E.2d 537; Miller v. State, supra; State v. Perry, 248 N.C. 334, 103 S.E.2d 404; State v. Perry, 250 N.C. 119, 108 S.E.2d 447.'

Therefore, it necessarily follows that the indictment of a Negro defendant by a grand jury in a state court from which members of his race have been intentionally excluded solely because of their race is not good, for the reason that as to such Negro defendant it is not a legal grand jury, and defendant pursued the proper remedy, motions to quash the indictments here in apt time under our practice, to object to the legality of the grand jury that indicted him.

'A valid warrant or indictment is an essential of jurisdiction.' State v. Morgan, 226 N.C. 414, 38 S.E.2d 166.

In Gibbons v. Territory, 5 Okl.Cr. 212, 115 P. 129, the Court said: 'A valid indictment returned by a legally constituted grand jury is a jurisdictional requirement.'

There is abundant authority that a plea of guilty does not waive a jurisdictional defect. Weir v. United States, 7th Cir., 92 F.2d 634, 114 A.L.R. 481; People v. Green, 368 Ill. 242, 13 N.E.2d 278, 115 A.L.R. 348; Berg v. United States, 9th Cir., 176 F.2d 122; 22 C.J.S. Criminal Law § 424(7); ibid., § 162; 4 Wharton's Criminal Law and Procedure, by Ronald A. Anderson, § 1901, p. 770. See People v. Green, 329 Ill. 576, 161 N.E. 83.

In People v. Kelly, 198 Misc. 1119, 104 N.Y.S.2d 385, the Court said: 'A plea of guilty standing alone does not constitute a waiver of fundamental constitutional rights in the protection of which every reasonable presumption is indulged. Bojinoff v. People, supra [299 N.Y. 145, 85 N.E.2d 909]; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.'

Courts indulge every reasonable presumption against a waiver by a defendant charged with crime of fundamental constitutional rights, and do not presume acquiescence in their loss. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093.

In Johnson v. Zerbst, supra, the Court said, 'A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.'

In each of the three cases here, before pleading to the indictments, the defendant, a Negro, made a written motion to quash the indictment in each case on the ground that the grand jury which returned the indictments against him, in violation of his rights under Article I,...