State v. Wright, 68SC70

• Decision Date: 10 July 1968
• Docket Number: No. 68SC70,68SC70
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Bertha Mae WRIGHT, Madeline Pearsoll, Sarah Midgette, Phoebe Pearsoll andFrances Marshall, Cases #504 and #513.

Page 56

162 S.E.2d 56

1 N.C.App. 479

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

No. 68SC70.

Court of Appeals of North Carolina.

July 10, 1968.

T. W. Bruton, Atty. Gen., and Ralph Moody, Deputy Atty. Gen., for the State.

John H. Harmon, New Bern, J. LeVonne Chambers, Charlotte, Romallus O. Murphy, Raleigh, and James Lanning, Charlotte, for defendants appellants.

PARKER, Judge.

Defendants' first assignment of error is to the action of the trial court in denying their motions to quash the bills of indictment against them because of racial discrimination in the composition of the Grand Jury which indicted them. A similar question was considered by the Supreme Court of North Carolina in the recent case of State v. Yoes, 271 N.C. 616, 157 S.E.2d 386. In that case Justice Lake, speaking for the Court in a thorough and scholarly opinion, said:

'A Negro, moving to quash a bill of indictment on the ground that the grand jury, which returned it was unlawful, because of discrimination against Negroes in its selection, must prove affirmatively that qualified Negroes were intentionally excluded from the grand jury because of their race. (Citing cases.) This, however, may be shown by circumstantial evidence. Neither a showing that, over a substantial period, in a county with a relatively large Negro population only a few Negroes had served on juries, nor a showing that the race of the persons whose names appeared on scrolls in the jury box was designated on such scrolls, is conclusive proof of arbitrary and systematic exclusion of Negroes from the grand jury which indicted the defendant. A showing of these circumstances does, however, constitute a Prima facie showing of the discrimination forbidden by the law of this State. Such Prima facie showing casts upon the State the burden to go forward with evidence sufficient to overcome it. (Citing cases.)'

In the cases before us, defendants contend they have carried the burden of showing a systematic exclusion of qualified Negroes from the Grand Jury which indicted them by presenting evidence of a statistical disparity between the ratio of the races in the adult population of Pamlico County as compared with the ratio of the races in the list of persons serving on grand juries in said county over the past ten years. They point to the evidence that approximately 30 percent of the adult population (according to the 1960 census), approximately 24 percent of the listed taxpayers (according to 1965 tax records), and approximately 20 percent of registered voters of Pamlico County, were colored. They compare these ratios with the ratios of Negroes serving on grand juries in Pamlico County over the past ten years which was 16.6 percent when three Negroes served, ranging down to .055 percent when only one Negro served, and zero on the two occasions, one in 1957 and one in 1960, when no Negro served. They contend that this statistical disparity, when coupled with the fact that the list of prospective jurors was prepared from the taxpayer lists which were kept segregated by races and from the voter registration lists on which the race of each voter was indicated, established a Prima facie case of unlawful discrimination in the selection of jurors which shifted the burden of proof to the State to rebut. Without deciding the question of whether the showing here made by defendants was sufficient to establish a Prima facie case (compare Jones v. State of Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25, Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599), we hold that even should this be conceded there was here sufficient evidence produced by defendants' own witnesses that Negroes were not systematically excluded from the Grand Jury which indicted the defendants to rebut a Prima facie showing to the contrary and to support the trial court's finding of fact that member of the Negro race were not so excluded.

It is well established that the mere denial by the officials charged with the duty of listing, selecting and summoning jurors that there was any intentional, arbitrary or systematic discrimination because of race, is not sufficient to overcome a Prima facie case to the contrary. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109. Nor is such a Prima facie case rebutted by reliance upon a presumption that public officers are presumed to have discharged their sworn official duties. Jones v. State of Georgia, supra. 'To overcome such Prima facie case, there must be a showing by competent evidence that the institution and management of the jury system of the county is not in fact discriminatory. And if there is contradictory and conflicting evidence, the trial judge must make findings as to all material facts.' State v. Wilson, supra. In the cases before us the trial judge has made full findings as to all material facts. These findings are supported by competent evidence introduced by the defendants themselves. Included in this evidence was the testimony of Mrs. Lennie Whorton, one of the clerks who participated in the preparation of the list of names to be submitted to the county commissioners to be used as jurors. For this purpose the tax records and the registration books were used. Mrs. Whorton testified:

'I would say we made an attempt to include from the list we were preparing approximately one-fourth Negro persons, because I am sure we got that many, if not more. I don't know the number, we didn't keep any record. We just tried to get equal as best we knew how. I would say there was approximately three hundred names of Negro persons on the list we prepared. That would be roughly one-fourth of twelve hundred.'

Other testimony submitted by defendants showed that the list prepared in 1966 contained approximately 1200 names, that there was no indication on this list as to color or race, that from this list the Board of County Commissioners selected 1,014 names which were placed in the jury box as jurors of Pamlico County. The chairman of the Board of County Commissioners testified:

'From the larger list, the list that was handed to me, we did exclude from that list people that we knew were dead. We also excluded from that list of people, persons who were not of good moral character. We also excluded from that list people whom we felt did not have sufficient intelligence to serve as jurors. That was the only ones that we laid aside. From the list that was handed to me and on the chosen names of the 1,014, there was not a way to tell or no the least degree!' the least degree?'

Other members of the Board of County Commissioners also called as...