State v. Perry

• Decision Date: 29 April 1959
• Docket Number: No. 433,433
• Court: North Carolina Supreme Court
• Parties: STATE, v. A. E. PERRY.

Page 447

108 S.E.2d 447

250 N.C. 119

STATE, v. A. E. PERRY.

No. 433

Supreme Court of North Carolina.

April 29, 1959

Malcolm B. Seawell, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

Taylor & Mitchell, Raleigh, for defendant, appellant.

PARKER, Justice.

This action was here on a former appeal by the defendant. State v. Perry, 248 N.C. 334, 103 S.E.2d 404. An examination of the case on the former appeal and of the instant case shows that the bill of indictment in this case is the same bill of indictment that was before this Court on the former appeal of this case.

This appears from our decision of the former appeal: The defendant is a Negro doctor Lillie Mae Rape is a white woman. The bill of indictment, which charges that the offense was committed in Union County on 4 October 1957, was found on 28 October 1957 by the grand jury of Union County at the October 1957, Mixed Term Union County Superior Court, which convened on the day the indictment was found. The defendant on 28 October 1957, in apt time, before pleading to the bill of indictment, (State v. Linney, 212 N.C. 739, 194 S.E. 470; State v. Speller, 229 N.C. 67, 47 S.E.2d 537), filed a written motion to quash the bill of indictment, for the reason that Negroes because of their race have been systematically excluded from serving upon grand juries of Union County for a long period of time, and that Negroes because of their race were excluded from serving upon the grand jury of Union County at the term of court when the bill of indictment was found, and that such systematic exclusion of members of the defendant's race from the grand juries of Union County is a violation of his rights guaranteed to him by the due process and equal protection clauses of the Federal Constitution Amend. 14, and by Art. I, Sec. 17, of the State Constitution. On the day the bill of indictment was found, the trial court ordered a special venire of 50 persons from Anson County to appear in court on 30 October 1957, from which a trial jury was to be selected in the case. On 30 October 1957, the State announced it was ready to proceed with the trial. Whereupon, counsel for the defendant requested that they be given time and opportunity to inquire into the alleged systematic exclusion of Negroes from grand jury service in Union County, and in support of their request and motion to quash the bill of indictment filed an affidavit by one of defendant's counsel. The material parts of said affidavit are summarized in our opinion on the former appeal, and need not be repeated here. The trial court then found as a fact that the defendant had offered no evidence on his motion to quash the bill of indictment, except this affidavit, and denied the motion. To such denial the defendant excepted. The defendant then pleaded Not Guilty. He was convicted by the jury, and sentenced to a term of imprisonment by the court. From such sentence he appealed to the Supreme Court.

The Court on the former appeal reversed the verdict and judgment of imprisonment, and closed its opinion with this language:

'Whether a defendant has been given by the court a reasonable time and opportunity to investigate and produce evidence, if he can, of racial discrimination in the drawing and selection of a grand jury panel must be determined from the facts in each particular case. After a careful examination of all the facts in the instant case, it is our opinion that the trial court denied the defendant a reasonable opportunity and time to investigate and produce evidence, if such exists, in respect to the allegations of racial discrimination as to the grand jury set forth in the motion to quash and in the supporting affidavit of Samuel S. Mitchell. Whether the defendant can establish the alleged racial discrimination or not, due process of law demands that he have his day in court on this matter, and such day he does not have, unless he has a reasonable opportunity and time to investigate and produce his evidence, if he has any.

'The judgment and verdict below are reversed, and the case is remanded for further proceedings. In the Superior Court the defendant will have the opportunity to present the evidence, if any, that he may have as to the alleged racial discrimination in the grand jury panel. If the trial court at such hearing then finds there was no racial discrimination, the trial will proceed on the present indictment. If the trial judge then finds there was racial discrimination in the grand jury panel, and quashes the indictment, the defendant is not to be discharged. He will be held until an indictment against him can be found by an unexceptionable grand jury. State v. Speller [229 N.C. 67, 47 S.E.2d 537].'

Our opinion on the former appeal was filed 7 May 1958. At the 25 August Term 1958 of the Superior Court of Union County, the defendant, pursuant to N.C.G.S. § 1-84, made a motion for removal of his case for trial to some adjacent county, and supported the motion by an affidavit suggesting that there are probable grounds to believe that a fair and impartial trial of the case cannot be had in Union County. Judge Olive presiding granted the motion, and entered an order decreeing that the case be removed to the Superior Court of Stanly County for trial at the 24 November 1958 Term, or at a later term.

At the 24 November Term 1958 of Stanly Superior Court, the defendant, again in apt time, before pleading to the bill of indictment, moved to quash the bill of indictment on the identical grounds that he did at his former trial at the October 1957, Mixed Term of Union County, as above stated. In his motion to quash the defendant requested that the trial court issue subpoenas and subpoenas duces tecum requiring the presence in court of the Clerk of the Superior Court of Union County, the County Commissioners of Union County, the Sheriff of Union County, the Tax Collector of Union County, and the County Accountant of Union County as witnesses to be examined by him in respect to his contention that members of the Negro race were purposely excluded by reason of their race from the grand jury of Union County which indicted him, and that such officials bring with them 'certain records, documents and papers pertaining to Union County Grand Jury Compositions since 1936 through the present year.'

When the motion to quash the bill of indictment came on to be heard, the defendant placed on the stand and examined J. Hampton Price, Clerk of the Superior Court of Union County; B. F. Niven, the Tax Collector of Union County; Roy J. Moore, Tax Accountant and Tax Supervisor of Union County, and also Clerk to the Board of County Commissioners of Union County; James R. Braswell, Chairman of the Board of County Commissioners of Union County; and Shelly Griffin, a Deputy Sheriff of Union County for eight years, and in charge of the courtroom when court is in session. Ben Wolfe, Sheriff of Union County, did not appear, but sent a statement by a reputable physician to the effect that he is receiving treatment for severe high blood pressure, has frequent blackout attacks, and has been advised by his physician not to appear in court for any reason because of his health. The Record shows that these witnesses brought with them many and voluminous records, documents and papers pertaining to the composition of Union County Grand Juries for many years and up to the time of the hearing of defendant's motion to quash the bill of indictment. Defendant offered no other witnesses than those named above.

Judge Olive having heard all the evidence and arguments of counsel made the following finding of facts:

'1. That the said Grand Jury at the October 1957 Term of Union County Superior Court was regularly drawn and constituted as provided by the North Carolina Statute and there was no systematic, purposeful, intentional or arbitrary exclusion of any qualified person from said jury by reason of race, or otherwise.

'2. That adult negroes constitute approximately 12 1/2% of the total adult population of Union County, North Carolina.

'3. That, although there was no member of the colored race on the Grand Jury of Union County in 1957 (the Grand Jury of said County was chosen for a period of one year as provided by law), members of the colored race served on the Grand Jury at various times before and subsequent to 1957; and members of the colored race have served on the trial panel of said court regularly before, including and subsequent to 1957.

'4. That no evidence was offered by movant that any qualified person to serve as a juror was wrongfully excluded from serving on the Grand and Petit juries of Union County at any time.

'5. That the Bill of Indictment in this case was regularly and legally found and returned by a duly and legally constituted Grand Jury of Union County, North Carolina, at the October 1957 Term of Superior Court of said County.

'6. That none of the movant's constitutional rights were violated or abridged in the selection of the Grand Jury which found and returned the Bill of Indictment in this case.'

Whereupon Judge Olive denied the motion to quash the bill of indictment.

Defendant assigns as errors Judge Olive's findings of fact Numbers 1, 3, 4, 5 and 6, for the reason that these findings of fact are contrary to the evidence offered by the defendant, and to all the competent evidence offered during the hearing of the motion to quash the bill of indictment. Defendant neither excepts to, nor assigns as error, the finding of fact Number 2 'that adult negroes constitute approximately 12 1/2% of the total adult population of Union County, North Carolina.'

The findings of fact of Judge Olive are conclusive on appeal, if supported by competent evidence, 'in the absence of some pronounced ill consideration' of the evidence by Judge Olive. State v. Koritz, 227 N.C. 552, 43 S.E.2d 77, 80, certiorari denied 332 U.S. 768, 68 S.Ct. 80, 92 L.Ed. 354; State v. Speller, ...