State v. Koritz

• Decision Date: 05 June 1947
• Docket Number: 723
• Citation: 43 S.E.2d 77,227 N.C. 552
• Parties: STATE v. KORITZ et al.
• Court: North Carolina Supreme Court

43 S.E.2d 77

227 N.C. 552

STATE v. KORITZ et al.

No. 723

Supreme Court of North Carolina

June 5, 1947

Criminal prosecutions on four separate warrants charging the defendants, Philip Milton Koritz, Cal Roberson Jones, Margaret DeGraffenreid and Betty Keels Williams severally, with resisting, delaying or obstructing a police officer of the City of Winston-Salem in discharging or attempting to discharge a duty of his office in violation of G.S. s 14-223, consolidated and tried together as all of the alleged offenses arise out of the same transaction or the same series of transactions.

The cases were tried originally in the Municipal Court of the City of Winston-Salem and again de novo on appeal to the Superior Court of Forsyth County.

When the cases were called and consolidated for trial in the Superior Court, the defendants first interposed a motion to quash the warrants and to discharge the panel of petit jurors because of discrimination against the Negro race in making up the jury list from which the jurors were summoned for the term. Three of the defendants are Negroes; one is a White man. Several days were consumed in hearing this motion, with both sides offering evidence in respect of the matter.

The defendants offered evidence tending to show, according to their contention, that the number of Negroes selected for jury service out of the total number of eligible Negroes in the County was disproportionately small to the number of Whites selected in the same manner, and that the use of separate tax lists for Whites and Negroes was discriminatory against both races. Out of 23,450 possible eligible White jurors, only 10,367 names appear in the box and out of 4,900 possible eligible Negro jurors only 255 names are in the box. The result is discrimination against both races, so the defendants say.

The State, on the other hand, offered evidence tending to show so it contends, that there was no studied or deliberate discrimination against either race on the part of the jury commissioners, and that the large number of Whites as compared with the number of Negroes who were actually selected for jury service was not the result of any prejudice or intentional discrimination against the latter race. Walter A. Mickle, the County-City Tax Collector, and former deputy sheriff who assisted in the actual drawing of juries from 1936 to 1946, says: 'I never heard any commissioner discuss whether a man was black or white, that I remember, during the time I was in the office as Chief Deputy, at the drawing of the jury.'

After hearing the evidence, the trial court made the following findings:

1. That as the defendants are being tried upon warrants, and not upon bills of indictment, the method of selecting grand juries in Forsyth County is not germane to the present motion.

2. That a fair representation of Negroes was placed in the jury box by the commissioners; and that there was no intentional discrimination in preparing the jury list either in respect of color or religion.

The court thereupon overruled the motion to quash the warrants and the jury panel. Defendants excepted to the findings and rulings. Exceptions Nos. 1 and 2.

Announcement was then made that each defendant would have 6 peremptory challenges, making a total of 24, and that there were only 20 regularly drawn and summoned jurors. The court ordered that 25 talesmen be summoned, not less than 10 of whom should be Negroes. On inquiring of counsel for defendants whether they wished the talesmen drawn from the box or summoned by the sheriff from among the persons qualified to act as jurors in the County, counsel for the defendants, Mr. Avnet, replied: 'In the light of our motion, I would not care to indicate; just leave that matter for your Honor. ' It was agreed that a venire of 25 would be sufficient, but defendants excepted to the order. Exception No. 3.

The jury as finally selected was composed of seven Whites and five Negroes. Six were taken from those regularly drawn and summoned for the term, and six from the special venire. The defendants used 23 of their 24 peremptory challenges, one being in respect of a Negro on the special venire. They still had one peremptory challenge left when the jury was completed. The court found that the proportion of Negroes on the jury, as finally selected, was generous to that race. Exception by the defendants. Exception No. 4.

Verdicts: Guilty as to Philip Milton Koritz, Cal Roberson Jones and Margaret DeGraffenreid. Not guilty as to Betty Keels Williams.

Judgments: 12 months on the roads as to Philip Milton Koritz; 10 months on the roads as to Cal Roberson Jones, and 8 months in prison as to Margaret DeGraffenreid.

The defendants appeal, assigning errors.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

William Reid Dalton, of Reidsville, and I. Duke Avnet and Harold Buchman, both of Baltimore, Md., for defendants.

STACY Chief Justice.

The defendants have abandoned all their exceptions, save the first four which go to the competency of the petit jurors selected to try the consolidated cases. When all is said and done in respect of these exceptions, we are met with the paramount fact that the jury as finally selected was satisfactory to the defendants, and they were not required to take any juror over objection. They announced their contentment with the jury without exhausting all their peremptory challenges. It was composed of 7 White men and 5 Negroes.

In respect of special veniremen summoned to serve as petit jurors, a challenge to the array may be interposed for cause; and, if this be overruled, challenges to the polls are still available. State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613; State v. Levy, 187 N.C. 581, 122 S.E. 386. To present an exception on rulings to challenges to the polls, the appellant is required to exhaust his peremptory challenges and then undertake to challenge another juror. Oliphant v. Atlantic Coast Line R., 171 N.C. 303, 88 S.E. 425. The court's action in the matter must be hurtful and its effect unavoidable before it will be held to vitiate the trial. State v. Cockman, 60 N.C. 484; State v. Benton, 19 N.C. 196.

The trial court was at pains to see that every opportunity was afforded for the selection of a fair and impartial jury. The defendants would be entitled to no more on a new trial, and this they have already had. State v. Levy, 187 N.C. 581, 122 S.E. 386; State v. Sultan, 142 N.C. 569, 54 S.E. 841, 9 Ann.Cas.310; State v. English, 164 N.C. 497, 80 S.E. 72; State v. Bohanon, 142 N.C. 695, 55 S.E. 797. Their right is not to select but to reject jurors. Having been tried by twelve jurors who were unobjectionable to them, the defendants have no valid ground to urge that they have been prejudiced by the composition of the jury. State v. Pritchett, 106 N.C. 667, 11 S.E. 367; State v. Hensley, 94 N.C. 1021. 'The defendant did not exhaust his peremptory challenges. * * * When such is the case, the objection to a juror, who could have been rejected peremptorily, is not available. ' State v. Bohanon, supra [142 N.C. 695, 55 S.E. 798]; Oliphant v. Atlantic Coast Line R., 171 N.C. 303, 88 S.E. 425.

The trial court was obviously correct in holding that the composition of the grand jury could in no way affect the defendants. They were tried on warrants sworn out in the Municipal Court, and not on bills of indictment returned by the grand jury, as was the case in State v. Peoples, 131 N.C. 784, 42 S.E. 814. No rights of theirs were passed upon by the grand jury. The question is put aside as irrelevant. The case of Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, strongly relied upon by the defendants, dealt with the composition of a grand jury. It is inapplicable here.

The principal point, argued by the defendants, is the manner in which the petit jurors were selected. Six regular jurors who were summoned for the term did serve on the jury, and it is these jurors of which the defendants now complain, albeit they might have been excused with or without cause. It has been held in a number of cases that mere irregularity on the part of the jury commissioners in preparing the jury list unless obviously, designedly, or intentionally discriminatory, would not vitiate the list or afford a basis for a challenge to the array. State v. Daniels, 134 N.C. 641, 46 S.E. 743; State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613. There is a finding on the present record, which is supported by the evidence, that no discrimination was intended or resulted from the manner in which the jury list was prepared. This suffices to sustain the ruling...