State v. Waitus, 16767

Decision Date28 July 1953
Docket NumberNo. 16767,16767
CourtSouth Carolina Supreme Court
PartiesSTATE v. WAITUS.

J. Shepherd Thompson, C. C. Grimes, Jr., and Meyer Rosen, Georgetown, for appellant.

J. Reuben Long, Solicitor, Conway, J. Ralph Gasque, Marion, for respondent.

OXNER, Justice.

At the june, 1951, term of the Court of General Sessions for Georgetown County, appellant, a Negro about thirty-three years of age, was indicted for murder. Upon arraignment, he stated that he was without counsel. The Court thereupon appointed three members of the Georgetown Bar to represent him. They promptly made a motion for a change of venue which, after a full hearing, was granted and the place of trial changed to Marion County. At a special term of court in that county, held in August, 1951, the case was called for trial. Counsel for appellant made a motion for a continuance. This was refused. They then made a motion to quash the indictment upon the ground that there had been a long-continued, systematic, and arbitrary exclusion of Negroes from grand jury service in Georgetown County where the indictment was found. Appellant also challenged the array of petit jurors in Marion County upon the same ground. It was urged that the exclusion of Negroes in each instance denied appellant the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. Both motions to quash were refused. The case proceeded to trial and resulted in a verdict of guilty and a sentence of death by electrocution.

There are numerous exceptions. We shall first dispose of those relating to the claim of discrimination against Negroes in the selection of the grand jury in Georgetown County and in the selection of the trial venire in Marion County. Before entering into a discussion of this question, it might not be amiss to briefly review the constitutional and statutory law of this State relating to the qualifications of jurors and the method of selecting them.

The Constitution of this State, Article 5, § 22, requires each juror to be a qualified elector between the ages of 21 and 65, and of good moral character. Article 2 prescribes the qualification of electors and provides for their registration. The term 'qualified elector' means a 'registered elector', and each grand and petit juror must be a registered elector. State v. Rector, 158 S.C. 212, 155 S.E. 385; State v. Grant, 199 S.C. 412, 19 S.E.2d 638. The constitutional requirements as to electors are set out and discussed in State v. Middleton, 207 S.C. 478, 36 S.E.2d 742. As there pointed out, every registered male elector is a potential and duly qualified juror, and his name may be taken from the registration books by the jury commissioners. The fact that he fails to vote does not make him ineligible for jury duty. (Women cannot serve on the jury in South Carolina.)

The jury commissioners of each county consist of the auditor, the treasurer and the clerk of court of such county. During December of each year, they are required to prepare from the official enrollment books of qualified electors a list of male electors of their county, between the required ages, which they deem qualified to serve as jurors. In most of the counties such list must include not less than two-thirds of the electors qualified for jury duty, but in some counties not less than one-third of such qualified electors. The jury commissioners must place the name of each person on said list on a separate paper and after folding, insert same in a container or capsule. These capsules are then placed in what is known as a 'jury box'. Each capsule or container placed in the jury box must be so made up as to be indistinguishable from the others. See Sections 38-51 to 38-56, inclusive, of the 1952 Code. At the same time they are also required to place a certain specified number of names in the 'tales box'. The names placed in this box must consist of electors residing within five miles of the court house. Section 38-60 of the 1952 Code.

The grand jury consists of eighteen men. At the end of each year six are drawn by lot to hold over from another year. The remaining twelve necessary to constitute the grand jury for the ensuing year are drawn by the jury commissioners from the jury box. Sections 38-401 to 38-405 of the 1952 Code. At a certain prescribed time before each term of court, the jury commissioners are required to draw from the jury box thirty-six petit jurors to serve for each week the court is in session. Section 38-61 of the 1952 Code. In 1953 this section was amended so as to increase this number to forty in some counties. If there is any deficiency in the required number of grand or petit jurors, such deficiency is supplied from names drawn from the tales box. Section 38-72 of the 1952 Code.

There is certainly no denial of the equal protection of the laws in any of the foregoing constitutional or statutory provisions. Franklin v. South Carolina, 218 U.S. 161, 30 S.Ct. 640, 54 L.Ed. 980; State v. Middleton, supra, 207 S.C. 478, 36 S.E.2d 742. Indeed, appellant does not assail the validity of any of them. His contention is that they were so administered by the jury commissioners of Georgetown and Marion Counties as to result in the arbitrary and systematic exclusion of Negroes. We now turn to the facts upon which this contention is based.

The Chairman of the Board of Registration of Georgetown County stated that there were between 5000 and 5200 registered electors in that county, of whom approximately 1200 were Negroes. The record shows that about four years prior to the indictment of appellant, there was a rather heavy registration of colored people. The Clerk of Court testified that she and the other jury commissioners had not discriminated against Negroes; and that she knew some were placed in the jury box but could not say how many, although she believed that the proportion of Negroes was about the same as the proportion in which they were registered. She further testified that Negroes had served as petit jurors and during the last few terms of court there had been one or more on almost every panel of the petit jury; but that since 1947, when she assumed the office of clerk of court, she did not recall a Negro ever having served on the grand jury in Georgetown County.

We next discuss the facts upon which the motion to quash the trial venire in Marion County was based. The evidence shows that in this county there are between five and six thousand registered electors, of whom about 600 are Negroes. Two of the jury commissioners, the County Treasurer and the Auditor, estimated there were between eleven and twelve hundred names placed in the jury box, of whom between 50 and 100 were Negroes. The Auditor stated that when they made up the jury box, they checked and found that it contained the names of about 55 Negroes, and that they 'went back and put some more Negroes in it.' He further testified:

'Q. Do you recall whether or not any negro has been drawn at the time you were drawing a jury for either the Grand Jury or Petit Jury? A. I believe we have drawn a few negroes in some cases.

'Q. And they were excluded from the jury? A. We considered them disqualified at the time they were drawn.

'Q. What disqualified them? A. Well, it could be several reasons that disqualified them, some had moved out of the County.

'Q. But any time a negro has been drawn, he has been disqualified? A. If we considered him disqualified.

'Q. But he has been disqualified in each case that any negro has ever been drawn--no negro has ever served? A. No, sir.'

While denying that they had discriminated against Negroes in the selection of jurors, both the County Treasurer, who had held office since 1939, and the Auditor, who had held office since 1941, admitted that no Negro had ever served on either the petit or grand jury of Marion County since they assumed office. The testimony of the Clerk of Court was to the same effect.

Do the foregoing facts show unconstitutional discrimination? This question must be answered in the light of the construction which the United States Supreme Court, the final arbiter in such matters, has placed on the equal protection clause of the Fourteenth Amendment. We are bound by its decisions construing the Federal Constitution, although our own views may not be in accord therewith. It has been consistently held by that Court that equal protection of the laws is denied to a Negro charged with a crime whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, Negroes are intentionally excluded, solely because of their race or color, from serving upon the grand jury that indicts the defendant or the petit jury which tries him. Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. 'When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.' Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 187, 92 L.Ed. 76, 1 A.L.R.2d 1286.

The Fourteenth Amendment does not give a Negro charged with a crime in a state court the right to demand that the grand or petit jury, which considers his case, shall be composed, either in whole or in part, of citizens of his own race. A mixed jury is not required. 'Fairness in selection has never been held to require proportional representation of races upon a jury.' Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692. 'Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race. * * * Proportional racial limitation is therefore forbidden. An accused...

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16 cases
  • State v. Kornahrens, 22618
    • United States
    • South Carolina Supreme Court
    • 16 Septiembre 1986
    ...should be excluded where the facts they are intended to show have been fully established by competent testimony. State v. Waitus, 224 S.C. 12, 77 S.E.2d 256 (1953). The purpose of the bifurcated proceeding in a capital case is to permit the introduction of evidence in the sentencing proceed......
  • State v. Worthy
    • United States
    • South Carolina Supreme Court
    • 30 Enero 1962
    ...on the ground that Negroes are systematically excluded from the jury panel because of their race or color. In the case of State v. Waitus, 224 S.C. 12, 77 S.E.2d 256, this Court reviewed the constitutional and statutory law of this State relating to the qualifications of jurors and the meth......
  • Bostick v. State
    • United States
    • South Carolina Supreme Court
    • 30 Noviembre 1965
    ...had been systematically excluded from the Grand and Petit Juries because of race, and this Court stated therin: 'In State v. Waitus, 224 S.C. 12, 77 S.E.2d 256, and State v. Middleton, 207 S.C. 478, 36 S.E.2d 742, this Court reviewed the constitutional and statutory law of this State relati......
  • State v. Goolsby
    • United States
    • South Carolina Supreme Court
    • 24 Junio 1980
    ...deceased showing the victim's face and neck, illustrating the band-like bruise across the victim's throat, was error. State v. Waitus, 224 S.C. 12, 77 S.E.2d 256 (1953) is cited for the proposition that a photograph of the victim is inadmissible if unnecessary to establish the facts, and of......
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