Ware v. State

• Decision Date: 06 December 1920
• Docket Number: (No. 34.)
• Citation: 146 Ark. 321,225 S.W. 626
• Parties: WARE et al. v. STATE.
• Court: Arkansas Supreme Court

225 S.W. 626

146 Ark. 321

WARE et al. v. STATE.

(No. 34.)

Supreme Court of Arkansas.

December 6, 1920.

Appeal from Circuit Court, Phillips County; J. M. Jackson, Judge.

Ed Ware, Will Wordlow, Albert Giles, Joe Fox, John Martin, and Alf Banks, Jr., were convicted of murder, and appeal. Reversed and remanded for new trials.

Scipio A. Jones and Murphy, McHaney & Dunaway, all of Little Rock, for appellants.

WOOD, J.

These cases are separate appeals from judgments of the Phillips county circuit court. The cases have been consolidated here for the purpose of briefing, and they can be disposed of in one opinion. This is the second appeal. Banks et al. v. State, 219 S. W. 1015.

On the second trial each of the defendants was convicted of murder in the first degree and by the judgment of the court sentenced to death. When each case was called for trial in the lower court, each defendant filed a petition for removal to the federal court, in which, among other things, it was alleged that the defendant was a negro and that both the grand and petit juries were made up exclusively of white men; that negroes were excluded from the juries solely on account of their color; that this was pursuant to a custom and practice which had been sanctioned by the circuit and Supreme Courts, by which the defendant was deprived of his right under the Constitution and laws of the United States. The court refused to remove the causes to the federal court. Each of the defendants then filed a petition for a change of venue, duly verified by them and supported by the affidavits of four negro men, who testified in substance that their belief that the defendants could not obtain a fair and impartial trial in Phillips county was predicated upon the sentiment they had heard expressed principally in the vicinity where they resided and from reading an article appearing in the Helena World. It was shown that the Helena World was a daily newspaper published in Helena; that it had a general circulation over Phillips county among the whites and also among the negroes; that on the 7th day of October, 1919, an article was published in that paper headed, "Inward Facts About the Negro Insurrection." That article was the report of a committee of seven consisting of the president of the Business Men's League of Helena, the sheriff, the county judge, the mayor of the city of Helena, and other prominent citizens, who were chosen to conduct the investigations with a view of punishing the guilty. Among other things, the article stated that the present trouble with the negroes in Phillips county is not a race riot. "It is a deliberately planned insurrection of the negroes against the whites, directed by an organization known as the Progressive Farmers' and Household Union of America, established for the purpose of banding negroes together for the killing of white people." The article was quite lengthy and entered into detail showing how the organization of the negroes was brought about, the purpose for which it was organized, and the plans adopted for carrying out such purpose. Among other things, it was stated that Robert L. Hill, who organized the union, told the members that it was necessary for them "to arm themselves in preparation of the day when they should be called upon to attack their white oppressors." He told them that the government had called the organization into existence, and it would be supported by the government in defense of the negroes against the white people; that those of the union who were not able to buy munitions would be supplied by the union from the government storehouse at Winchester, "where arms, munitions, and trained soldiers would be ready for instant use." The article stated that "every negro who joined these lodges was given to understand that ultimately he would be called upon to kill white people," that the time for the attack had been set, but plans had not been entirely perfected, and the shooting of the officers brought on the insurrection ahead of schedule. The usual expression of Hill to the members of the union was, "Get your racks filled for the day to come." The court denied the petitions for change of venue, and the defendants duly excepted to the ruling.

The defendants in each case filed a motion asking that they be allowed to withdraw their former pleas of not guilty. They set up that when these pleas were entered they had been given no opportunity to procure counsel of their own choice and knew nothing of their rights. They also asked in these motions that the indictments be quashed because the grand jury that indicted them was composed wholly of white men, negroes being excluded therefrom solely because of their race. The defendants in each case filed a motion which is entitled "Motion to Quash the Indictment." In this motion it is alleged that the grand jury which found the indictment was composed of white men selected by the jury commissioners, who were also white men, negroes being excluded therefrom on account of their color; that the jury commissioners selected the grand jury and also excluded all colored men therefrom solely on account of their color, in violation of their rights under the Fourteenth Amendment and the laws of Congress. Included in this motion was the further allegation:

"That the present petit jury to serve at the present term was selected in the same way, colored men being excluded by the jury commissioners on account of their color."

The motion concluded with a prayer that—

"The jury commissioners who selected the juries be summoned to testify to the matters set up in the motion and that the indictments be quashed and the present panel of the petit jury be set aside."

The court overruled the motion to quash the indictment, and the record shows that, to the action of the court in overruling the motion to quash the indictment and refusing to hear evidence upon said motion, the defendants duly and properly excepted. Each of the defendants was then arraigned and entered a plea of not guilty.

The regular panel of the petit jury was composed wholly of white men. The jury in each case was completed after the exhaustion by the defendants of their peremptory challenges and only white men were returned by the sheriff as talesmen, or jurors, on the special venire facias ordered by the court. All the defendants, except Martin, moved to quash and set aside the sheriff's return of talesmen under the special venire facias ordered by the court on the ground that—

"They were colored men, of African descent, and that the sheriff in summoning the talesmen for the completion of the jury had discriminated against them on account of their race and color, by rejecting and refusing to summon any colored man, of whom there were many qualified to serve on the jury, solely because of their color, thereby denying to them the equal protection of the law, and due process of law, in violation of the rights guaranteed to them under the first section of the Fourteenth Amendment to the Constitution of the United States."

The prayer of these motions was that—

"The court hear evidence hereon and that the sheriff's return to said order be quashed and the talesman discharged."

The record shows that—

"The motion to quash the sheriff's return to the special venire was by the court overruled, and that to the ruling, order and action of the court in overruling said motion and in failing and refusing to hear evidence thereon, the defendants at the time duly and properly excepted."

I. The court did not err in refusing to move the causes to the federal court. There is nothing in our Constitution or statutes, or in the interpretation thereof by this court, to show that jurors of the African race are excluded from jury service in this state solely on account of their color. There has been no interpretation of our Constitution and laws by this court to show that in advance of a trial negroes could not enforce in the judicial tribunals of this state all the rights belonging to them in common with their fellow citizens of the white race. Castleberry v. State, 69 Ark. 346, 63 S. W. 670, 86 Am. St. Rep. 197. Such is not the law nor the public policy of this state or in any portion of it. The fact, therefore, that negroes had been excluded because of their race from previous grand juries and the grand jury which indicted the defendants, even if such were the fact, would not authorize a removal of the causes to the federal court. Gibson v. Mississippi, 162 U. S. 560, 16 Sup. Ct. 904, 40 L. Ed. 1075; Smith v. Mississippi, 162 U. S. 592, 16 Sup. Ct. 900, 40 L. Ed. 1082; Tillman v. State, 121 Ark. 322, 181 S. W. 890.

II. A majority of the court is of the opinion that the lower court did not err in denying the appellants' petition for a change of venue. The affiants to the supporting affidavits were examined at length. Their examination showed that they had no general acquaintance throughout the county, had not visited various portions of the county since the indictments were returned, and therefore had no opportunity to hear an expression of the general sentiment of those qualified to serve as jurors throughout the county. They therefore had no knowledge or information, except of a very limited and local character, of any prejudice existing in the minds of the inhabitants of the county. They based their belief mainly upon reading the report of the committee in the Helena World concerning the "Insurrection of the Negroes" against the whites, and we cannot say, as a matter of law, that this inflammatory article was sufficient foundation to justify the affiants in swearing that they believed that the minds of the inhabitants of the county were so prejudiced against the appellants that they could not obtain a fair and impartial trial. Tillman v. State, supra, at pages 326, 327, of 121 Ark., 181 S. W. 890, 892; Wolfe v. State, 107 Ark. 29, 153 S. W. 1100; Williams v. State, 103 Ark. 70, 146 S. W. 471; Id., 100 Ark. 218, ...