State v. Perry

• Decision Date: 07 May 1958
• Docket Number: No. 435,435
• Parties: STATE, v. A. E. PERRY.
• Court: North Carolina Supreme Court

Page 404

103 S.E.2d 404

248 N.C. 334

STATE, v. A. E. PERRY.

No. 435

Supreme Court of North Carolina.

May 7, 1958

George B. Patton, 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.

The defendant is a Negro doctor. 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 due season, 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, and particularly from the grand jury that found the bill of indictment against him, is a violation of his rights guaranteed to him by the due process and equal protection clauses of the Federal Constitution, and by Art. I, Sec. 17, of the State Constitution. The motion to quash prayed that an inquiry be had in order that the defendant's rights may be adequately protected, and that the court cause process to be issued as necessary to permit the defendant to investigate the alleged violation of his constitutional rights.

On 28 October 1957, the day the bill of indictment was found, the trial court ordered a special venire of 50 persons from Anson County toappear 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 stated to the court, that before entering a plea to the indictment, they renewed the motion made on 28 October 1957 to quash the indictment for the reasons set forth in the motion, and requested that they be given time and opportunity to inquire into the alleged systematic exclusion of Negroes from grand jury service in Union County. In support of the motion to quash, counsel for the defendant presented to the court an affidavit made by Samuel S. Mitchell, a Negro lawyer of counsel for the defendant. This is a summary of the material parts of the affidavit: The defendant is a Negro. He has made inquiry, and is informed, and believes upon such information, that the grand jury which indicted the defendant was unlawfully donstituted for that Negroes solely because of their race have been systematically excluded from serving on grand juries of Union County for many years. All of counsel for the defendant are nonresidents of Union County, and need opportunity to inquire into the matter of such exclusion, and to gather evidence to present to the court on the matter. Counsel for the defendant then stated to the court that in order to substantiate their motion to quash it was necessary for the defendant to adduce evidence of such systematic exclusion of Negroes from grand jury service in Union County, and they requested that they be given an opportunity to present such evidence. The trial court inquired 'Is that all?' Counsel for defendant replied: 'That's all, yes, your Honor.' The trial court then found as a fact that no evidence had been offered on the motion to quash, except the affidavit of Samuel S. Mitchell, and denied the motion to quash. To such denial the defendant excepted. The court then asked the defendant how did he plead to the indictment. Counsel for defendant replied Not Guilty. The trial then proceeded. A jury was selected, sworn and empaneled from the special venire of Anson county. The trial jury found the defendant guilty, and from a sentence of imprisonment he appeals to this Court.

For over k0 years the United States Supreme Court has adhered to the view that valid grand jury selection is a constitutionally protected right. Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77.

The indictment of a Negro defendant by a grand jury in a state court from which members of his race have been systematically excluded solely because of their race is a denial of his right to the equal protection of the laws required by the Fourteenth Amendment to the United States Constitution. Reece v. State of Georgia, supra; Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740; Cassel v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664. See Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866--persons of Mexican descent.

A like conclusion is reached in North Carolina by virtue of our decisions on 'the law of the land' clause embodied in the Declaration of Rights, Art. I, Sec. 17, of the North Carolina Constitution. Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Speller, supra; State v. Peoples, 131 N.C. 784, 42 S.E. 814.

This Court held in State v. Peoples, supra, which was decided in 1902, that the exclusion of all Negroes from a grand jury solely by reason of their race, which finds an indictment against a Negro, denies him the equal protection of the laws in violation of his constitutional rights, and that a motion to quash the indictment would properly lie in such a case.

Art. I, Sec. 17, of the North Carolina Constitution states, 'no person ought to be * * * in any manner deprived of his * * * liberty * * *, but by the law of the land.' 'The law of the land and due process of law are interchangeable terms.' Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717, 721.

'The words of Webster, so often quoted, that by 'the law of the land' is intended 'a law which hears before it condemns,' have been repeated in varying forms of expression in a multitude of decisions.' Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 64, 77 L.Ed. 158, 84 A.L.R. 527.

Due process of law is secured against state action by the words of the Fourteenth Amendment to the United States Constitution. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595.

The Court said in Holden v. Hardy, 169 U.S. 366, 389, 18 S.Ct. 383, 387, 42 L.Ed. 780, 790: 'This court has never attempted to define with precision the words 'due process of law,' nor is it necessary to do so in this case. It is sufficient to say that there are certain immutable principles of justice, which inhere in the very idea of free government, which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice, and an opportunity of being heard in his defense.'

An objection to an indictment based on defects and irregularities in the drawing or organization of the grand jury must be taken 'before the jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not so taken, the same shall be deemed to be waived.' G.S. § 9-26; State v. Gales, 240 N.C. 319, 82 S.E.2d 80; Miller...