State v. Eock Young.
| Decision Date | 15 October 1918 |
| Citation | 82 W.Va. 714 |
| Court | West Virginia Supreme Court |
| Parties | State v. Eock Young. |
The appropriate way to put in issue the validity of an indictment because of the improper constitution of the grand jury which found the same is by plea in abatement. (p. 716).
A paper filed in a criminal case in time for a plea in abatement, containing the allegations necessary to raise the question of the validity of an indictment because of the improper constitution of the grand jury, and properly verified, will be treated as a plea in abatement, notwithstanding the pleader designates it a motion to quash. (p. 716).
Whenever by any action of the state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand or petit jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him contrary to the Fourteenth Amendment to the Constitution of the United States. (p. 716).
A plea in abatement in a criminal case charging that the defendant belongs to the Negro race, that there are a large number of men of his race within the county qualified for grand jury service, that none such were upon the grand jury which found the indictment against him, that the list from which the grand jury which indicted him was drawn contained the name of no person of the Negro race, and that the county commissioners in making such list excluded all persons of the Negro race therefrom solely because of their race or color, sufficiently charges that he has been denied the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. (p. 717).
An instruction attempting to define the term "reasonable doubt, '' and concluding with these words addressed to the jury, "If you doubt as men you should doubt as jurors, but if you do not doubt as men you should not doubt as jurors," should not be given. (p. 717).
Upon the trial of one charged with murder, it is proper for the state to prove the whole transaction culminating in the murder, even though this involves proof that the accused committed an assault upon another in his efforts to accomplish the death of his victim. (p. 718).
Reversed and remanded for new trial.
Error to Circuit Court, Raleigh County.
Brown W. Payne, and J. M. Ellis, for plaintiff in error. E. T. England, Attorney General, and Chas. Ritchie, Assistant Attorney General, for the State.
Upon an indictment charging him with the murder of Gaston Booth the defendant was, by the criminal court of Raleigh county, tried, convicted, and sentenced to life imprisonment. The circuit court of said county refused to review the judgment of conviction, and this writ of error is prosecuted thereto. The defendant is a negro, and before pleading to the indictment he tendered what is called a motion to quash the indictment upon the ground that he was denied the equal protection of the law, in that persons of the Negro race were excluded from the grand jury which found the indictment against him solely because of their race or color. As we said in the case of State v. Cook, 81 W. Va. 686, 95 S. E. 792, the appropriate way to challenge the proper constitution of the grand jury finding the indictment is by plea in abatement, but where a paper called a motion to.quash is filed in time for a plea in abatement, is verified as such pleas are required to be verified, and contains allegations which, if true, would invalidate the indictment, it will be treated as a plea in abatement, notwithstanding the pleader may call it a motion to quash. The paper filed in this case called a motion to quash was verified by the affidavit of the defendant, was filed in proper time for a plea in abatement, and will be taken and treated as such. Upon the filing of this paper the state demurred thereto, and the court sustained this demurrer. Of course by demurring to this plea the state admitted all of the allegations contained in it, and the only question is its sufficiency. It charged that the county commissioners, whose duty it is to select the persons from whom the grand jury which found the indictment in this case were taken, selected no persons of color, or of African descent, known as negroes, but, on the contrary, excluded from their list all persons of African descent known as negroes, solely because of their race and color; and it further charges that the grand jury making the indictment was composed exclusively of persons of the white race, and that all persons of the colored race were excluded therefrom for the reason aforesaid; that the colored race constitutes about one-eighth of the population of Raleigh county, a large number of whom are qualified to serve as grand jurors, and that they were excluded from serving as grand jurors on the ground of their race and color, and alleging that this denied to the defendant the equal protection of the laws, he being of the colored race. This plea, we think, properly raised the question which the defendant desired to present. If the facts alleged in it are true, he was denied the equal protection of the law. As we said in State v. Cook, supra, "Whenever by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand or petit jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him contrary to the Fourteenth Amendment to the Constitution of the United States.'' This plea avers that there were in the county a substantial number of colored men qualified for grand jury service, and that they were excluded, from the grand jury which found the indictment against the defendant solely because of their race and color. If this is true the indictment should...
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