State v. Warner

• Decision Date: 26 November 1901
• Parties: THE STATE v. WARNER, Appellant
• Court: Missouri Supreme Court

65 S.W. 584

165 Mo. 399

THE STATE v. WARNER, Appellant

Supreme Court of Missouri, Second Division

November 26, 1901

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

E Rosenberger & Son for appellant.

(1) (a) The defendant should have been allowed to appear in person in court before the grand jury was impaneled, charged and sworn because he is specially given that right by statute. R. S 1899, sec. 2487. (b) "In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel." Art. 2, sec. 22, Constitution of Missouri; State v. Hoffman, 78 Mo. 256; State v. Smith, 90 Mo. 37. (2) Where a negro defendant files a motion, verified by affidavit, to quash the grand jury panel on the ground that negroes had been discriminated against and excluded from such jury on account of their race and color, it is error to overrule the motion to quash without first hearing evidence as to the facts alleged in the motion. Castleberry v. State of Ark., 63 S.W. 670; Carter v. Texas, 177 U.S. 442; Smith v. State, 162 U.S. 601. (3) (a) By overruling the defendant's motion to quash the grand jury panel without first inquiring into the truth or falsity of the allegations therein contained, the court admitted that the facts and allegations therein contained were true. Castleberry v. State of Ark., 63 S.W. 670. (b) Whenever, by any action of a State, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race and color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied him, contrary to the fourteenth amendment to the Constitution of the United States. Strauder v. West Virginia, 100 U.S. 303; Neal v. Delaware, 103 U.S. 397; Gibson v. Mississippi, 162 U.S. 565; Williams v. Mississippi, 170 U.S. 213; Ex parte Virginia, 100 U.S. 339; Virginia v. Rives, 100 U.S. 313; In re Wood, 140 U.S. 278; Carter v. Texas, 177 U.S. 442; Castleberry v. State of Ark., 63 S.W. 670. (4) Where a negro is indicted by a grand jury, and it appears in its organization that the negro race was discriminated against, the indictment would be violative of the fourteenth amendment to the Constitution of the United States granting equal protection of the laws to all citizens. Carter v. State of Texas, 48 S.W. 508, and cases cited supra.

Edward C. Crow, Attorney-General, for the State.

(1) The court committed no error in refusing to quash the panel of grand jurors. Section 2487, Revised Statutes 1899, provides but two causes for challenging any one summoned as a grand juror, to-wit: first, that he is the prosecutor or complainant in any charge against such person; and, second, that he is a witness for the prosecution and has been summoned or bound in a recognizance as such. Section 2488 specifically provides that no challenge to the array of grand jurors, or any one summoned as a grand juror, shall be allowed for any other causes than such as are specified in the last section. State v. Hudspeth, 150 Mo. 12. (2) In view of the fact that the right of challenge, either to the array or to the poll, did not exist at common law on the part of the prosecution or the accused with reference to grand jurors, it plainly follows that challenges must be taken only for the causes specified in the statutes and by the persons therein named. In Missouri, under the provisions of the Code of Criminal Procedure, it is held that no objection to the body of grand jurors in the nature of a challenge to the array can be introduced in the form of a plea in abatement. State v. Bleekey, 18 Mo. 428; State v. Welch, 33 Mo. 33; State v. Connell, 49 Mo. 282. The indictment may be quashed for causes not appearing on the face of the record in this State, and the question as to the grand jury should be raised and was raised in the motion to quash. State v. Bachelor, 15 Mo. 208; Thompson and Merriam on Juries, sec. 543. The objection raised in the motion, before the grand jury was sworn, is substantially urged in the motion to quash the indictment and was heard by the court, and testimony allowed to be introduced, and if any error whatever should have been committed in refusing to hear testimony on the first motion, it was remedied by the hearing on the motion to quash. (3) Motion to quash was proper method. In 162 U.S. 584, the case of Gibson v. Mississippi, the Federal Supreme Court decided that the motion to quash the indictment by the accused upon the ground that negroes had been discriminated against in selecting the grand jury, was the proper way to raise this question. (4) The finding of the trial court as to the qualification of jurors will not be disturbed unless it appears that manifest error has been committed. State v. Williamson, 106 Mo. 163; State v. Bryant, 93 Mo. 273; State v. Brooks, 92 Mo. 542; State v. Greenway, 72 Mo. 298. Whether the juror stood indifferent between the State and the defendant was a fact which the court, under our laws, was required to determine, and his finding will not be disturbed unless manifest error occurs. State v. Bauerle, 145 Mo. 15. (5) No error was committed by the refusal to bring the defendant into court for the purpose of allowing him to challenge the grand jury. While it might not be an improper practice, where the right of challenge exists, to bring one into court who is awaiting the action of the grand jury in order that there might be no complaint upon this score, the accused has no remedy for the failure of the officers to do so. State v. Holcomb, 86 Mo. 376; Thomason v. State, 2 Texas App. 550; People v. Romeo, 18 Cal. 89. (6) It is not claimed by counsel for appellant that the Constitution or the statutes of Missouri on their face discriminate against the negro race. The only contention is that an executive officer of the State, to-wit, the sheriff, in summoning the jury, has discriminated. It is not enough under the fourteenth amendment to show that the evil of discrimination against the negro race is possible under the administration of the Constitution and statutes of the State, but it must be shown, and the burden is on the party assuming to so show, that the actual administration of the Constitution and statutes of the State was a discrimination against the negro race in order to violate the fourteenth amendment to the Federal Constitution. (7) The third proposition of defendant is: "Whenever by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race and color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied him, contrary to the fourteenth amendment of the Constitution of the United States." And counsel cite Strauder v. West Virginia, 100 U.S. 303; Neal v. Delaware, 103 U.S. 397; Gibson v. Mississippi, 102 U.S. 565; Williams v. Mississippi, 170 U.S. 213; Ex parte Virginia, 100 U.S. 339; Virginia v. Rives, 100 U.S. 313; In re Wood, U. S. 270; Carter v. State of Texas, 177 U.S. 442; Castleberry v. State of Ark., 63 S.W. 670. A brief glance at these cases cited by appellant will show that they are not applicable to the facts in the case at bar. The only contention of counsel for appellant is as set out in his argument that, "The only reasonable inference that could be drawn from these (meaning the facts) is that no negroes were put on the grand jury list on account of the general prejudice and bias against the negroes." In Virginia v. Rives, 100 U.S. 322, the court decided that it was not a privilege or a right of the negro that the venire for the jury should be composed partly of persons of the petitioner's own race, and that the denial of a request of that kind did not amount to any denial of the right secured to negroes by any law providing for the equal civil rights of citizens of the United States. And in the case at bar, the most that can be made out of the testimony introduced on the motion to quash is that no negroes were put upon the panel of grand or petit jurors, and never had been in Montgomery county. In the Rives case above cited the Federal Supreme Court expressly say this state of facts does not show that any civil right was denied the negro race. 3 N.Y. 325; 65 Vt. 339.

OPINION

GANTT, J.

At the May term of the circuit court of Montgomery county, the defendant was jointly indicted with his brother, John Warner, for a felonious assault, with malice aforethought. He was duly arraigned, pleaded not guilty, a severance was granted and he was tried and convicted and sentenced to the penitentiary for a term of nine years. The indictment is as follows:

"State of Missouri

"vs.

"Fred Warner and John Warner.

"Charge Assault with intent to kill.

"The grand jurors for the State of Missouri, within and for the body of the county of Montgomery, now here in court, duly impaneled, sworn and charged on their oaths, present and charge that Fred Warner and John Warner, late of the county of Montgomery and State aforesaid, on the twenty-fifth day of December, 1900, at and in the county of Montgomery, in the State of Missouri, with force and arms in and upon George Thurmon, Howell Windsor, Herman Limberg, Thomas G. Cullom, feloniously, willfully, on purpose and of their malice aforethought, did make an assault; and the said Fred Warner and John Warner with a certain deadly weapon, to-wit a double-barrel shotgun with gunpowder and leaden balls, which they, the said Fred Warner and John Warner, then and there had and held, did feloniously,...