State v. Green, 40819

• Decision Date: 03 July 1952
• Docket Number: No. 40819,40819
• Citation: State v. Green, 221 La. 713, 60 So.2d 208 (La. 1952)
• Parties: STATE v. GREEN.
• Court: Louisiana Supreme Court

Page 208

60 So.2d 208

221 La. 713

STATE v. GREEN.

No. 40819.

Supreme Court of Louisiana.

July 3, 1952.

John Dale, Jr., Nathan M. Calhoun and Roy S. Halcomb, Ferriday, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., D. W. Gibson, Dist. Atty., Harrisonburg, for plaintiff-appellee.

McCALEB, Justice.

This is a prosecution for murder. Jim Covey, a white man over 80 years of age who lived in a cabin in the rear of the plantation of R. S. Wilds, near Wildsville, Concordia Parish, was found dead in the doorway of his cabin on October 23, 1951. An examination disclosed that his face and neck had been split open with a sharp instrument, presumably an axe; that his cabin had been ransacked and that the pocketbook he usually carried was missing. After an investigation lasting several days, the defendant, a Negro 36 years of age who also lived on the plantation of Mr. Wilds at a distance of about 2 miles from the home of the victim, was arrested by the sheriff on Saturday afternoon, October 27th, and held as a suspect. On Monday, October 29th, following hours of questioning by the sheriff and other deputies on the nights of October 27th and 28th, defendant confessed his guilt to the jailer. On the next day, Tuesday October 30th, he again confessed orally to the sheriff and this was followed by a written confession on Wednesday October 31st in the presence of the sheriff, the jailer, the district attorney and a court reporter.

On December 3, 1951, defendant was indicted for murder. He was tried on December 17th, found guilty as charged and sentenced to death by electrocution. During the trial, 19 bills of exception were reserved and he has appealed, urging the validity of 17 of them as bases for setting aside his conviction and sentence.

Shortly after he was indicted, defendant, through his attorneys, filed a motion to quash the general venire list and grand jury and petit jury arrays on the grond that there had been a systematic exclusion of Negroes from the general venire list, in violation of Article 172, Code of Criminal Procedure, LSA-R.S. 15:172, and of his rights under Article 1, Section 2 of the Louisiana Constitution and the equal protection clause contained in the Fourteenth Amendment to the Constitution of the United States.

On December 12, 1951, after a hearing, the motion to quash was overruled by the judge and, in connection therewith, counsel for defendant reserved Bills of Exceptions Nos. 1, 2, 3, 4, 5 and 6.

Bill No. 1 was taken when the judge sustained the State's objection to consideration of the motion to quash, insofar as it pertained to the petit jury array, on the ground that it was premature. Defendant contends that this was error because Article 202 of the Code of Criminal Procedure, LSA-R.S. 15:202, provides that all objections to the manner of selecting and drawing jurors or any irregularity that can be pleaded against an array on venire shall be filed prior to entering upon the trial of a case.

Inasmuch as the petit jury array had not been drawn by the Jury Commission at the time of the trial of the motion to quash, it is manifest that the complaint of defendant that the jury commissioners systematically excluded Negroes therefrom was without basis in fact. Hence, the ruling of the judge was correct.

Bills Nos. 2, 3 and 4 were reserved to the refusal of the judge, on the trial of the motion to quash, to require the jury commissioners to give testimony concerning their practice over a period of years in the selection of the general venire list and the grand and petit jurors drawn therefrom and also because he would not permit defense counsel to file in evidence the proces-verbaux of all jury commissions from 1934 to date of the trial.

The action of the judge, in limiting the inquiry of defense counsel to the general venire list and to the grand jury which returned the indictment, was founded on a statement of the district attorney that, after the decision of the Supreme Court of the United States in Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839, a new method of jury selection had been adopted by the Jury Commission of Concordia Parish relative to the consideration of eligible Negroes for jury service and that, therefore, it was unnecessary to inquire into the practices of the past. This statement was tantamount to an admission by the district attorney that there had been systematic exclusion of Negroes from grand and petit jury service in Concordia Parish prior to November 27, 1951, when the jury commission met and selected a new general venire of 300 names, from which list the grand jury that indicted the defendant was selected. In view of this, defendant was not harmed by the refusal of the judge to allow his counsel to explore the practices of the past--notwithstanding that the methods employed by jury commissioners over a long period is generally of high relevance for the purpose of establishing system in cases of claimed racial exclusion which operates as a denial of equal protection of the law. Thus, admitting, in the case at bar, that Negroes were excluded from consideration for jury service in the past, the question remains whether they were excluded from the general venire list which was selected on November 27, 1951 and whether there was discrimination in the drawing of grand jurors from that list.

This involves a perpension of Bill of Exceptions No. 6, which was taken to the overruling of defendant's motion to quash. However, we pretermit discussion of this bill for the moment, so that disposition may be made of Bill No. 5, which was taken when the judge, at the trial of the motion to quash, sustained the State's objection to a question propounded by defense counsel to the Clerk of Court, who was asked to state whether it was the intent or purpose of the jury commission to systematically include on the venire list a certain number of members of the colored race. The objection maintained by the judge was founded on the notion that the witness was not in a position to testify as to the intent of the jury commission.

There seems to be no good reason why the Clerk of Court, who is ex officio a member of the Jury Commission, Article 175 of the Code of Criminal Procedure, LSA-R.S. 15:175, should not have been required to answer the question if the intent and purpose of the Commission was a matter within his knowledge. However, the error in excluding the testimony was harmless inasmuch as the ultimate question of intent and purpose to discriminate by inclusion or exclusion was a matter for decision by the Court. Therefore, we pass on to a consideration of the important issue whether the jury commission has discriminated against defendant in this case.

According to the evidence of the five jury commissioners and the Clerk of Court, it appears that, on November 27, 1951, the commissioners met and were addressed by the district attorney. He informed them of the decision of the Supreme Court of the United States in Cassell v. Texas, supra, explaining its effect to the best of his ability and advised that they discard the general venire list then in use and start anew by selecting another general venire, giving due consideration to eligible Negro male citizens of the parish as well as whites. Conformably, another general venire of 300 names of eligible male citizens was selected by the jury commissioners, which included 10 or 12 Negroes. This list was composed of persons with whom the jury commissioners (or one or more of them) were personally acquainted--practically all of them being registered voters. The registration roll was not used as a basis for selection but was consulted for the purpose of ascertaining the correct spelling of the names of persons suggested by the individual commissioners.

After the general venire was completed, the commissioners selected the 20 persons comprising the grand jury that indicted defendant. In doing so, they drew names out of the general venire box and selected those 20 men whom they considered to be the best grand jury material. Of the 20 selected in this manner, three were Negroes. Each jury commissioner testified that he endeavored to be impartial and that the commission did not exclude or otherwise discriminate against any person because of his race or color.

In view of this uncontroverted evidence, it is difficult to perceive that defendant has been denied equal protection of the law. Indeed, his counsel concede that our law, Article 172 of the Code of Criminal Procedure, LSA-R.S. 15:172, provides an equitable method for selection of jurors and that the commissioners have conscientiously tried to administer it fairly, in keeping with the instructions given them. It is their contention, however, that the commissioners labored under a misconception of standards for determining discrimination and that, therefore, defendant has been denied equal protection of the law. In advancing this proposition, counsel acknowledge that determination of the question of discrimination is not to be gauged by percentages of Negro and white population¹ nor upon the number of qualified electors;² the gravamen of the argument is that, in this case, there has been a purposeful inclusion of a token number of Negroes on the general venire list which, counsel say, is equally as violative of the constitutional prohibition against discrimination on account of race or color as purposeful exclusion would have been.

There can be little doubt, under the jurisprudence of the Supreme Court of the United States, Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692, and Cassell v. Texas, supra, and that of this court, State v. Perkins, 211 La. 993, 31 So.2d 188, 193, and cases there cited, that systematic or purposeful inclusion of a token number of Negroes on a general venire or on a grand or petit jury is as constitutionally objectionable as...