State v. Logan

• Decision Date: 17 December 1937
• Docket Number: No. 35118.,35118.
• Citation: 111 S.W.2d 110
• Parties: THE STATE v. ANDERSON LOGAN, Appellant.
• Court: Missouri Supreme Court

111 S.W.2d 110

THE STATE v. ANDERSON LOGAN, Appellant.

No. 35118.

Supreme Court of Missouri.

Division Two, December 17, 1937.

Appeal from Callaway Circuit Court. — Hon. W.C. Hughes, Special Judge.

REVERSED AND REMANDED.

Don C. Carter for appellant.

(1) "The court erred in refusing to sustain and in overruling defendant's motion to quash the trial venire of thirty men summoned by the deputy sheriff of Callaway County, Missouri." Norris v. Alabama, 55 Sup. Ct. 579; Carter v. Texas, 177 U.S. 442; Strauder v. West Virginia, 100 U.S. 303; Neal v. Delaware, 103 U.S. 370; 1 Mo. Law Review, p. 82. (2) "The court erred in giving Instruction 4, on the part of the State." (3) "The court erred in refusing the request of counsel for defendant for permission to poll and question the jury on their verdict when it was returned into court." (4) "The court had no authority to receive and accept such verdict and assess the death penalty upon defendant." Norris v. Alabama, 55 Sup. Ct. 579; Carter v. Texas, 177 U.S. 442; Strauder v. West Virginia, 100 U.S. 303; Neal v. Delaware, 103 U.S. 370; 1 Mo. Law Review, p. 82. (5) "The court in assessing the death penalty upon defendant under the verdict, deprives the defendant of his life without due process of law, in violation of the Fifth Amendment (Article V) of the Constitution of the United States of America, and in violation of Section 30 of Article II of the Constitution of Missouri. And the defendant will be denied his right to a `speedy,' public trial by an impartial jury of Callaway County, Missouri, as provided by Section 22 of Article II of the Constitution of Missouri." Norris v. Alabama, 55 Sup. Ct. 579; Carter v. Texas, 177 U.S. 442; Strauder v. West Virginia, 100 U.S. 303; Neal v. Delaware, 103 U.S. 370; 1 Mo. Law Review, p. 82.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.

The motion to quash the trial venire of thirty jurors was properly overruled by the trial court. Amend. XIV, U.S. Const.; Missouri v. Lewis, 101 U.S. 31; Frank v. Mangum, 237 U.S. 309; Secs. 8746, 8748, 8750, R.S. 1929; State v. Riddle, 78 S.W. 606, 179 Mo. 293; State v. Thomas, 157 S.W. 330, 250 Mo. 203; State v. Jeffries, 109 S.W. 614, 210 Mo. 323.

ELLISON, J.

The appellant, a negro, was convicted of murder in the first degree in the Circuit Court of Callaway County on change of venue from Boone County, and his punishment fixed by the jury at death. On this appeal his assignments of error are directed to the selection of the jury which tried him, and to the giving of two instructions. His main contention is that negroes were deliberately excluded from the list of thirty talesmen summoned by a deputy sheriff, from which the jury was drawn, in violation of his rights under the Fifth and Fourteenth Amendments of the Constitution of the United States and Section 30, Article II, Constitution of Missouri, and the holding in the "Scottsboro case," Norris v. Alabama, 294 U.S. 587, 79 L. Ed. 1074, 55 Sup. Ct. 579.

As to the homicide, the State's evidence was clearly sufficient to support the verdict. The statement of facts in appellant's own brief, summarizing the evidence, shows that he shot and killed his wife, Angela Logan, with a shotgun in broad daylight on the streets of Columbia, and also fired at a fleeing negress who was with her. Both of them were within the peace at the time. The appellant was incensed because his wife had sued him for divorce, and thought others had intermeddled in their affairs.

The issue on the selection of the jury stands out prominently in the record. After both sides had announced ready for trial the prosecuting attorney proceeded to interrogate concerning their qualifications as jurors a special venire of thirty talesmen who had been summoned for jury service in the cause by the sheriff under an order of the court made over three weeks before. Counsel for appellant elicited the fact that all these men had been summoned on the special venire and then challenged the array because no members of the regular panel for that term of court had been called. This objection was overruled, counsel for appellant refused to examine the talesmen further, and all thirty were accepted on the panel. The court then directed counsel for the respective parties to make their peremptory challenges, whereupon appellant's counsel asked for time to prepare a motion to quash the panel, stating he had already prepared a motion to quash the regular panel, which he had supposed would be called, but could not use it since all the members of the panel were talesmen. He disclosed his objection would be that negroes had been discriminated against in the selection of the panel.

The court was about to overrule the request on the ground that the order for the special venire had been made over three weeks before and counsel for appellant had announced ready for trial, and then asked counsel for the State if they objected to the filing of the motion. They answered that they did not object, and said "We will take it up when we see it, and see what it is." Thereupon the court gave counsel for appellant twenty minutes within which to prepare and file the motion.

The motion to quash the panel assigned the following reasons:

"That the deputy sheriff of Callaway County, Missouri, in the selection and summoning of the aforesaid venire of thirty (30) men unlawfully discriminated against the defendant, in violation of the Fourteenth Amendment to the Constitution of the United States of America in that he arbitrarily selected all white citizens and did not select or summon any negroes to sit as jurors in said case, although there are many hundreds of legally qualified negroes resident of Callaway County, Missouri, who are qualified to sit as jurors in the trial of cases, both civil and criminal, in the Circuit Court of Callaway County, Missouri."

In support of the motion appellant first called as a witness, J.C. Owen, the deputy sheriff who summoned the special venire. He said the selection of the talesmen was left to him. His further testimony was as follows (italics ours):

"Q. Mr. Owen, will you tell the Court why in the selection of the thirty men you chose only white men and no negroes? A. I have got good citizens, within the borders of Callaway County, — citizens who have not been challenged, so far as I know.

"Q. Well, there is no question but what these men are all good citizens. A. Yes, sir, — or they would not be on that list.

"Q. But I am asking why, in the selection of this 30, didn't you get some negro men? A. The order calls for thirty good men.

"Q. Are there any good negro citizens in Callaway County? A. I haven't made that a study.

"Q. Would you say that there weren't any? A. No, — I haven't made that a study.

"Q. Would you say that there were not any good colored citizens eligible to jury service in Callaway County? A. I don't think I am qualified to answer that.

"Q. Will you give me your reason why you never attempted to select any negroes to sit in the trial of this case?

"Mr. SAPP: We object to that. The Court: Objection sustained. He has not said that he attempted not to, — he said that he went out and got thirty good men. (Exceptions saved.)

"Mr. CARTER: Q. Could you tell us, or will you tell us why, in the selection of thirty good men you didn't get some negroes?

"Mr. SAPP: He has answered that by saying that he went out and selected thirty good men.

"The COURT: You may answer whether or not you made any discrimination according to names and color, or whether you went out and got thirty good men that you came in contact with, — Mr. Sheriff, did you make any discrimination in selecting the thirty men, because of their race, or color, or did you go out and select thirty good men that you came in contact with, — which did you do?

"The WITNESS: A. I selected men that I thought were suitable for jury service, who had not been in court as felons, and men whose reputations were good. I aimed to get that kind, and always do, Your Honor. I have not been in the habit of going out and getting negro juries, and I don't know who would make good negro jurors.

"Mr. CARTER: Q. If, when you had gone out to get this panel of 30, there had been four or five good negro men sitting at your door, Callaway citizens, would you have selected one of them? A. Well, I can't say, because I am not qualified to say whether they would have made good jurors.

"Q. Would you have selected them — A. If I had known it?

"Q. Yes. A. I don't think so.

"Q. Why? A. Well, that has not been the custom.

"Q. How long have you been Deputy Sheriff? A. Well, I have been a Deputy Sheriff about two years and six months.

"Q. How long were you Sheriff before that? A. Four years.

"Q. I will ask you to tell this Court whether or not in all that period of time as Sheriff and Deputy Sheriff of Callaway County you ever selected a negro to sit as a juror? A. No, sir.

"Q. Why didn't you? A. Well, I could answer you better out of the courtroom.

"Q. Beg your pardon? A. I could answer you better out of the courtroom. We haven't been raised that way, now, — to be plain with you.

"Q. That is what I am getting at, — you haven't been raised that way? A. No, sir.

"Q. And when you selected the thirty to sit as jurors in this case you knew when you left your office you were not going to bring in any negro names on that list? A. I think I have just formerly stated my answer to that question.

"Q. Well, answer the question. A. No, sir.

"Q. You would not have. That is all.

"The COURT: Q. Mr. Sheriff, are there people of other nationalities in this county besides what we call `Americans' — are there Germans in this county? A. Yes, sir.

"Q. And of other nationalities, too? A. Yes, sir.

"Q. When you go out — and when you went on this occasion did you inquire as to a man's nationality, — did you? A. I did not.

"Q. What I want to get at is this: You had in your hand a venire...