State v. Stallings, 18995

• Decision Date: 18 December 1969
• Docket Number: No. 18995,18995
• Citation: 253 S.C. 451,171 S.E.2d 588
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Joe STALLINGS, Appellant.

Page 588

171 S.E.2d 588

253 S.C. 451

The STATE, Respondent, v. Joe STALLINGS, Appellant.

No. 18995.

Supreme Court of South Carolina.

Dec. 18, 1969.

John H. Wrighten, F. Henderson Moore, and George A. Payton, Jr., Charleston, for appellant.

Solicitor Robert B. Wallace, Charleston, for respondent.

MOSS, Chief Justice.

Joe Stallings, the appellant herein, was tried upon an indictment containing two counts: (1) assault with intent to ravish, and (2) assault and battery of a high and aggravated nature upon a white female child fifteen years of age. The case came on for trial before The Honorable Clarence E. Singletary, Presiding Judge, and a jury, at the 1966 May Term of the Court of General Sessions for Charleston County. The jury found the appellant guilty of assault with intent to ravish, with a recommendation to mercy. The appellant made a motion for a new trial and such was refused. He was sentenced to serve a term of forty years. This appeal followed.

When the case was called for trial, the appellant moved to quash the indictment upon the ground that his constitutional rights had been violated, in that: (1) members of the Negro race had been systematically excluded or limited in number by reason of their race from the grand jury which returned the indictment and the petit jury before which he was tried and convicted; (2) women were not permitted to serve on the grand or petit jury; (3) the jury was not drawn in accordance with Section 38--52 of the Code, because two-thirds of the names of male electors, between the age of 21 and 65, were not in the jury box; and (4) that Section 16--72 of the Code, which requires the imposition of the death sentence upon a conviction of an assault with intent to ravish, permits the infliction of punishment which is cruel and inhuman.

The trial judge ruled that there was no violation of the constitutional rights of the appellant because women were not permitted to serve on the grand or petit jury. He also denied the motion that the death sentence in case of conviction of an assault with intent to ravish was unconstitutional. He reserved his ruling as to the other questions until after the trial. Upon the conviction of the appellant, testimony was then taken upon the questions of racial discrimination in the selection of the grand and petit juries and whether the jury box contained the necessary number of qualified male electors. After the appellant had offered testimony, the reserved questions were decided adverse to him.

Whether there has been systematic racial discrimination by the jury commissioners in the selection of jurors is a question to be determined from the facts in each particular case. Discrimination in the selection of a jury must be proved and it cannot be presumed. A defendant attacking his conviction of a crime on the ground that the State systematically excluded members of his race from the grand jury which indicted him or from the petit jury which convicted him has the burden of proving the existence of purposeful discrimination. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Moorer v. State, 244 S.C. 102, 135 S.E.2d 713.

The appellant produced as witnesses two jury commissioners. Each of them testified as to the manner in which the jury box was made up. It appears from the testimony that the names of all qualified electors in Charleston County are recorded on IBM cards by the Board of Registration. The IBM machines are in the computer-data office for Charleston County and these machines mechanically take the names of all males between the ages of 21 and 65 out of the qualified electors and print their names in alphabetical order on sheets which are furnished to the jury commissioners. The commissioners then take every other sheet of the list except in some letters of the alphabet in which all names are retained as a part of the list. The list so retained is then cut so that on each slip the name of the elector and his address is shown. These slips are then inserted in capsules and placed in the jury box. It was testified that more than 13,000 such names are placed in the jury box and this represents sixty to sixty-five per cent of the qualified male electors between the ages of 21 and 65. The testimny of both these witnesses is positive that there is no exclusion from the list on account of race and that there is no way to determine the race of the person whose name is in the capsule.

The Clerk of Court of Charleston County testified that the jury that tried the appellant was composed of ten white men and two Negroes. He further stated that he had witnessed trials in Charleston County where the jury was composed of seven Negroes and five whites.

The evidence in this case does not show there has been a systematic exclusion of members of the Negro race from jury duty so as to deny the appellant the equal protection of the law. The testimony of the jury commissioners affirmatively shows that there has been no discrimination by race in the selection of juries in Charleston County. It follows that the appellant has not met the burden of proof required of him. The exception of the appellant posing the foregoing question is...