Tillman v. State

• Decision Date: 13 December 1915
• Docket Number: 41
• Citation: 181 S.W. 890,121 Ark. 322
• Parties: TILLMAN v. STATE
• Court: Arkansas Supreme Court

181 S.W. 890

121 Ark. 322

TILLMAN v. STATE

No. 41

Supreme Court of Arkansas

December 13, 1915

Appeal from Desha Circuit Court; James C. Knox, Special Judge affirmed.

Judgment affirmed.

X. O Pindall, for appellant.

1. The motion to quash the indictment should have been granted because the jury commissioners excluded negroes from service on the grand jury. 177 U.S. 442; 69 Ark. 346; Ib. 194; 100 U.S. 339; 140 Id. 278; 100 Id. 313.

2. The petition for removal should have been granted. 69 Ark. 193; 103 U.S. 370; 162 Id. 596-601.

3. The change of venue should have been granted. 91 Ark. 411; 98 Id. 139.

4. The impeachment of the witness, Williams, should have been permitted as attempted by defendant. Kirby's Digest, §§ 3138, 2208.

Wallace Davis, Attorney General and John P. Streepey, Assistant, for appellee.

Under the ruling in 69 Ark. 346, offer to confess error.

OPINION

MCCULLOCH, C. J.

Appellant was indicted by the grand jury of Desha County for unlawful sale of intoxicating liquor, and on the trial of the case he was convicted. Before the trial he presented a motion to quash the indictment on the ground that he is "a colored man of the African race and is a citizen of the United States and a citizen of the State of Arkansas," and that the jury commissioners in selecting the grand jury for that term of the court had excluded negroes from service on the grand jury. It is further stated in the motion that "in the deliberations of the accusing body in this court the same evidence introduced against this defendant was introduced against one Jesse Dougan, a white man residing in the same vicinity and in the same town as this defendant, and that the white man was not indicted, although the proof was exactly the same as in this case, and this defendant was indicted." Appellant offered evidence in support of his allegation that the jury commissioners had excluded negroes from the grand jury on account of their race, but the court refused to hear said testimony and overruled the motion. That ruling of the court is the first and principal assignment of error insisted upon here.

Counsel for appellant relies principally on the decision of the Supreme Court of the United States in Carter v. Texas, 177 U.S. 442, 44 L.Ed. 839, 20 S.Ct. 687, and the decision of this court in Castleberry v. State, 69 Ark. 346, 63 S.W. 670. In each of those cases it was decided that where a person of the African race was indicted for a criminal offense committed subsequent to the impaneling of the grand jury, and if before such person pleaded to the indictment he presented a motion to quash, alleging that all persons of the African race were excluded because of their race or color from the grand jury which found the indictment, and offered to introduce witnesses to prove that allegation and the court overruled the motion and refused to hear testimony in support of the allegations thereof, that such ruling constituted a denial to the accused of "a right duly set up and claimed by him under the Constitution of the United States," and called for a reversal of the judgment rendered on said indictment.

Without going any further into the discussion of appellant's contention, it is sufficient in this case to say that the motion fails to set forth all the material facts necessary to bring it within the scope of those two decisions in that it is not alleged that the offense was committed, if committed at all, subsequent to the impaneling of the grand jury. Emphasis is laid on that point in both of the decisions referred to. The policy of our statutes regulating procedure in the criminal courts is not to permit objections to the qualifications of those who sit on the grand jury in avoidance of an indictment. Section 2245 of Kirby's Digest, reads as follows: "No indictment shall be void or voidable because any of the grand jury fail to possess any of the qualifications required by law." Any exceptions apparent on the face of the record may be taken advantage of subsequent to the return of the indictment, but objections to the qualifications of jurors can not be made except by the challenge to the array. The Supreme Court of the United States, however, held, in the case referred to above, that where the offense was alleged to have been committed subsequent to the impaneling of the grand jury, an opportunity must then be given to raise the question of the exclusion of negroes from the grand jury in order to satisfy the provision of the Constitution guaranteeing to every person due process of law. This court in the Castleberry case, supra, merely followed the decision of the Supreme Court of the United States under a similar state of facts.

It should always be borne in mind that the indictment by the grand jury is a mere accusation and that no person accused of crime is entitled to have the accusation made by any particular grand jurors or class of grand jurors. When a negro is accused of crime, if he has the right to object at all that negroes are excluded from the grand jury on account of their race he should do so at the time of the formation of the grand jury, and not thereafter. Grand juries are publicly impaneled under fixed regulations prescribed by statutes, and have...