State v. Wright, 84

• Decision Date: 30 October 1968
• Docket Number: No. 84,84
• Citation: 163 S.E.2d 897,274 N.C. 380
• Court: North Carolina Supreme Court
• Parties: STATE, v. Bertha Mae WRIGHT, Madeline Pearsoll, Sarah Midgette, Phoebe Pearsoll andFrances Marshall, Cases #504 and #513.

Page 897

163 S.E.2d 897

274 N.C. 380

STATE, v. Bertha Mae WRIGHT, Madeline Pearsoll, Sarah Midgette, Phoebe Pearsoll andFrances Marshall, Cases #504 and #513.

No. 84.

Supreme Court of North Carolina.

Oct. 30, 1968.

Atty. Gen., I. Wade Bruton and Deputy Atty. Gen., Ralph Moody, for the State.

J. LeVonne Chambers, James E. Ferguson II and James E. Lanning, Charlotte, for defendant appellants.

LAKE, Justice.

The two questions for this Court are: (1) Did the trial court err in denying the motions to quash the bills of indictment made on the ground that members of the Negro race were systematically excluded from the jury list from which were selected the grand juries which indicted these defendants? (2) Did the trial judge err in denying the defendants' request 'to go into the jury box,' at the hearing on the motion to quash, to determine 'the numerical breakdown as the names appear in the jury box'? Assignments of error presented to the Court of Appeals relative to rulings made by the trial judge at the trial on the merits were not brought forward to this Court and are, therefore, deemed abandoned. State v. Williams, 274 N.C. 328, 163 S.E.2d 353.

With reference to the first question, we note that we are not concerned here with the procedure now required by statute, and presumably followed in Pamlico County, in compiling the jury list and selecting names to go into the jury box. The General Assembly, at its 1967 Session, completely revised Chapter 9 of the General Statutes and established a new statewide procedure for the compilation of the jury list and the selection of grand and petit jurors. That Act took effect after the drawing of the grand juries which returned these indictments and after the indictments were returned. It is undisputed that in 1966 a completely new jury list and jury box were compiled and prepared in Pamlico County and the grand juries in question were selected from such then new jury box. The procedure followed in compiling the 1966 jury list was materially different from the procedures used in earlier years. The full extent of the difference does not appear in this record since the procedures formerly used are not set forth in detail. One substantial difference was that in 1966 names were taken from the voter registration books as well as from the tax books--a procedure suggested by this Court in State v. Lowry and Mallory, 263 N.C. 536, 139 S.E.2d 870.

We are, therefore, dealing here neither with the present, the future nor the remote past methods of selecting grand juries in Pamlico County. We have before us for determination the validity of the method of selecting grand juries in use in a narrowly limited period from mid-1966 to early 1967.

If the grand juries which indicted these defendants were properly constituted, the judgments before us must be affirmed, irrespective of the validity or invalidity of grand juries selected in years prior to the return of these indictments. Conversely, if the grand juries which indicted these defendants were not properly constituted, it is immaterial that the constitutional and statutory requirements were met in the selection of former or subsequent grand juries. Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; State v. Yoes, 271 N.C. 616, 157 S.E.2d 386. In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, the Supreme Court of the United States said, 'Assuming that before the Brunson (v. State of North Carolina) case, 333 U.S. 851, (68 S.Ct. 634, 92 L.Ed. 1132) there were unconstitutional exclusions of Negroes in this North Carolina county (Forsyth), the present record does not show such exclusions in this case.' See also, Cassell v. Texas, supra. Evidence of past practices, and of the racial composition of grand juries selected when those practices prevailed, is material only insofar as such evidence tends to establish the presence or absence of unconstitutional discrimination in the selection of the grand jury which indicted the defendant on trial. The probative value of such evidence is greatly diminished or entirely dissipated by proof of a subsequent material change in the selective processes.

It has long been recognized by the courts of this State that an indictment of a defendant by a grand jury, from which persons of the defendant's race have been intentionally excluded solely because of their race, does not confer jurisdiction upon the superior court to try the defendant upon the charge named in the bill. State v. Yoes, 271 N.C. 616, 630, 157 S.E.2d 386; State v. Lowry and Mallory, supra; State v. Wilson, 262 N.C. 419, 137 S.E.2d 109; State v. Covington, 258 N.C. 501, 128 S.E.2d 827; State v. Perry, 250 N.C. 119, 108 S.E.2d 447; Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Speller, 231 N.C. 549, 57 S.E.2d 759; State v. Peoples, 131 N.C. 784, 42 S.E. 814. It is well established, by these and numerous other decisions of this Court, that this result is compelled by the Constitution of North Carolina, Art. I, § 17, as well as by the Fourteenth Amendment to the Constitution of the United States. So far as this State is concerned, the recognition of the right of a person to have criminal charges against him considered by a grand jury, from which members of his race are not excluded by intent and design because of their race, did not originate in decisions of the Supreme Court of the United States. Prior to the decision by that Court in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, this Court, in Capehart v. Stewart, 80 N.C. 101 held that the selection of jurors on the basis of race was forbidden.

As Stacy, C.J., observed, in State v. Koritz, 227 N.C. 552, 43 S.E.2d 77, the controlling principles of both the State and the Federal law in this respect are clear. It is the application of these principles to the facts of the particular case which presents difficulty and causes occasional disagreement among the courts. As the founders of our State reminded us, 'A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.' Constitution of North Carolina, Art. I, § 29. Consequently, in passing upon this and similar motions to quash bills of indictment, it is desirable to refresh our recollection concerning the basic rules governing the application of the broad constitutional principle invoked by these defendants, even though those rules have already been well established by the decisions of this Court and of the Supreme Court of the United States.

A defendant is not entitled to have the charge against him considered by a grand jury composed entirely of members of his own race, or even by a grand jury containing any member of his race. Cassell v. Texas, supra; State v. Wilson, supra. It follows that, for an indictment to be valid, it need not have been returned by a grand jury composed by members of the white and Negro races in proportion to the representation of these races in the population of the county, or upon the tax books or other source from which the names upon the jury list were taken. Brown v. Allen, supra; Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; State v. Wilson, supra; Miller v. State, supra; State v. Koritz, supra. That which is forbidden by the State and Federal Constitutions is the elimination of members of the defendant's race from, or a limitation upon the representation of his race on, the grand jury, which considers the charge against him, by intent and design on account of race. Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Brown v. Allen, supra; State v. Wilson, supra; Miller v. State, supra. The burden rests upon the defendant to prove that there was such discrimination against the members of his race in the process by which the grand jury, which indicted him, was selected. Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Akins v. Texas, supra; State v. Wilson, supra; State v. Perry, supra; Miller v. State, supra.

Obviously, if there was intentional discrimination against members of the defendant's race in the compiling of the list of names from which was selected the names which went into the jury box, out of which came the names of the grand jury which indicted the defendant, the indictment is not saved by the purity of the processes used in transferring names from that jury list into the jury box or in drawing names from the jury box. However, the use of tax lists as a source of names to be placed upon the jury list, and then to be put into the jury box, does not render illegal a grand jury drawn from the box, even though the tax lists separated Negro and white taxpayers or otherwise designated their respective races. Brown v. Allen, supra; State v. Yoes, supra; State v. Lowry and Mallory, supra.

Thus, it is not enough for the defendant to show that the names which went into the jury box were taken originally from a source which disclosed the race of the persons named in such source material. Where, however, the defendant also shows that, throughout a substantial period of years, in which essentially the same procedures as those now in question were used in compiling jury lists, there was repeatedly a marked discrepancy between the number of Negroes drawn for grand jury service and the number of Negroes whose names appeared on the source material, such circumstances, in their totality, make out a prima facie case of unconstitutional discrimination in the selection of the grand jury which indicted the defendant. Whitus v. Georgia, supra; State v. Wilson, supra. Upon such showing by the defendant, the burden rests upon the State to go forward with competent evidence to rebut the prima facie case, by explanation of the discrepancy or by other evidence showing no intentional and designed discrimination against the members of the defendant's race at any part of...