Washington v. State

• Decision Date: 05 April 1948
• Docket Number: 4482
• Citation: 210 S.W.2d 307,213 Ark. 218
• Parties: Washington v. State
• Court: Arkansas Supreme Court

210 S.W.2d 307

213 Ark. 218

Washington v. State

No. 4482

Supreme Court of Arkansas

April 5, 1948

Rehearing Denied May 3, 1948.

Appeal from Jefferson Circuit Court, T. G. Parham, Judge.

Affirmed.

W Harold Flowers, for appellant.

Guy E. Williams, Attorney General and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Ed. F. McFaddin, Justice.

Appellant was tried on an information charging him with the crime of manslaughter (§ 2980, et seq., Pope's Digest). He was convicted of involuntary manslaughter ^[1] (§ 2982, Pope's Digest as amended by Act 169 of 1947), and sentenced to three years in the penitentiary. By timely exceptions, and by proper assignments in his motion for new trial, he makes the contentions hereinafter discussed.

I. Motion to Quash the Information. This is assignment No. 4 in the motion for new trial. Appellant was tried on an information filed by the prosecuting attorney, rather than on an indictment returned by a grand jury; and appellant claims that prosecuting him by information is violative of his rights under both the State and Federal Constitutions. Amendment 21 of the State Constitution reads:

"That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the prosecuting attorney."

This amendment has been upheld by this court against such attack as is here made, in numerous cases, some of which are: Penton v. State, 194 Ark. 503, 109 S.W.2d 131 and Smith et al. v. State, 194 Ark. 1041, 110 S.W.2d 24. The United States Supreme Court has repeatedly held that a State can -- if it so desires -- provide for a prosecution by information instead of by indictment. Some of these cases are: Hurtado v. California, 110 U.S. 516, 28 L.Ed. 232, 4 S.Ct. 111; Bolln v. Nebraska, 176 U.S. 83, 44 L.Ed. 382, 20 S.Ct. 287; and Gaines v. Washington, 277 U.S. 81, 72 L.Ed. 793, 48 S.Ct. 468. Appellant quotes from, and relies on, the dissenting opinion of Mr. Justice Black in Adamson v. California (decided June 23, 1947), 332 U.S. 46, 91 L.Ed. 1903, 67 S.Ct. 1672. But we must follow the majority in that case, rather than the minority. We therefore conclude that the trial court was correct in refusing to quash the information.

II. Motion to Quash the Panel of Petit Jurors. This topic embraces assignments Nos. 5 and 6 in the motion for new trial. Appellant filed a motion of eight numbered paragraphs seeking to quash the entire panel of petit jurors. The prayer of that motion was:

"Wherefore, the petitioner further states that while white electors are regularly selected to serve as regular members of the Petit Jury Panel at each term of the Jefferson Circuit Court, no Negroes have been selected and that said Negro electors have been systematically excluded from serving as regular members of the Petit Jury Panel in said Jefferson County Circuit Court for a half century solely because they are Negroes. The defendant charges that this constitutes a discrimination against him, a Negro, and such discrimination is a denial to him of equal protection of the laws of the United States of America as guaranteed by Section One of the Fourteenth Amendment to the Constitution of the United States of America. Petitioner further alleges that due process of law is being denied him by the State of Arkansas, through its Administrative Officers, and prays that present Petit Jury Panel be quashed."

We group and discuss appellant's arguments under this assignment:

A. Systematic Exclusion. In support of his motion, appellant introduced United States census figures of 1940, ^[2] which showed the population of Jefferson county in that year to have been a total of 65,101, classified by the Census Bureau as follows:

Native-born white

28,696

Foreign-born white

383

Negroes

35,980

Other races

42

Total

65,101

It was testified that there were 11,400 qualified electors in Jefferson county in 1947, of which approximately 3,000 were Negroes; and it was shown that there had been no Negroes on trial juries in Jefferson county for a period of 30 years prior to the March, 1947, adjourned term.

Under this evidence appellant urges that there was a systematic exclusion of Negroes from jury service at the time of the trial of this case (which was on October 10 1947, a regular day of the regular October, 1947, term). The evidence offered by appellant was obviously in anticipation of the holding of the U.S. Supreme Court in the case of Patton v. Mississippi, decided December 8, 1947, 332 U.S. 463, 92 L. Ed., ^[*] 68 S.Ct. 184. In that case the U. S. L.Ed. headnote summarizes the opinion in this language:

"Where, in a county the adult population of which is more than 35% Negro, no Negro has served on a grand or petit criminal court jury for 30 years, the inference of systematic exclusion is not sufficiently repelled by showing that a relatively small number of Negroes meets a requirement that a juror must be a qualified elector."

In the Patton case it was shown that Negroes were not called for jury service at the time of Patton's trial; but in the case at bar the record reflects that Negroes were selected for jury service at a special term of the Jefferson Circuit Court in March, 1947, and again at the regular term of the court in October, 1947, from which last-mentioned term comes this appeal. Thus, at the two most recent terms, including the one in which appellant's trial occurred, Negroes were selected for jury service. So, any alleged systematic exclusion of previous years certainly had been abandoned at the time of the trial of this case -- and this abandonment was no doubt in keeping with the holding of the U.S. Supreme Court in Hill v. Texas, 316 U.S. 400, 86 L.Ed. 1559, 62 S.Ct. 1159. That case referred to grand juries, but -- a fortiori -- is also germane to petit juries. So, we hold that the evidence here sufficiently repels any inference of present systematic exclusion, since Negroes are now called for jury service.

B. Studied Evasion. Appellant insists that only three Negroes were selected on the panel of petit jurors at the October, 1947, term; and insists that this was a studied evasion. He says:

"Appellant believes that the mere placing of three Negroes on the panel as alternates is proof enough of a method or common understanding of administrative officers (and) constitutes a would-be legalized manner in which to continue the systematic exclusion of Negroes from jury service."

But the proof in this record shows that the three Negroes were members of the regular panel of petit jurors called in the present case. They were V. T. Price, R. D. Doggett and Prince Swaizer. They were members of the regular panel, and numbered 7, 10 and 12 in the examination of jurors for trial in this case. There is no evidence even tending to show that the jury commissioners selected these three Negroes or any other members of the jury panel for any purpose other than to truly comply with the law of the land.

The fact that the jury commissioners selected Negroes for the panel satisfies the burden placed on the State under the holding in Patton v. Mississippi, supra: and the burden then devolved on the appellant to show that the jury commissioners practiced "evasion." There is no such proof in the record. The jury commissioners were not called to testify, yet it was shown that they had selected other lists from which some of the additional jurors were called after the regular panel had been exhausted.

Appellant says in his brief:

"Appellant prays the earnest consideration of this court for an announcement of policy as to what constitutes compliance with the constitutional provision that a person has a right to trial by an impartial jury. Does the mere presence of three Negroes on the panel constitute due process where they have been designated by the jury commissioners as alternates?"

The language of the U.S. Supreme Court in the case of Akins v. Texas, 325 U.S. 398, 89 L.Ed. 1692, 65 S.Ct. 1276, is an answer to appellant's question. This is the language:

"Petitioner's sole objection to the grand jury is that 'the commissioners deliberately, intentionally and purposely limited the number of the Negro race that should be selected on said grand jury panel to one member.' Fairness in selection has never been held to require proportional representation of races upon a jury. Virginia v. Rives, 100 U.S. 313, 25 L.Ed 667; Thomas v. Texas, 212 U.S. 278, 53 L.Ed. 512, 29 S.Ct. 393. Purposeful discrimination is not sustained by a showing that on a single grand jury the number of members of one race is less than that race's proportion of the eligibile individuals. The number of our races and nationalities stands in the way of evolution of such a conception of due process or equal protection. Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried. But such defendants are entitled to require that those who are trusted with jury selection shall not pursue a course of conduct which results in discrimination 'in the selection of jurors on racial grounds.' Hill v. Texas, supra, (316 U.S. 404, 86 L.Ed. 1562, 62 S.Ct. 1159). Our directions that indictments be quashed when Negroes, although numerous in the community, were excluded from grand jury lists have been based on the theory that their continual exclusion indicated discrimination and not on the theory that racial groups must be recognized. Norris v. Alabama, 294 U.S. 587, 79 L.Ed. 1074, 55 S.Ct. 579; Hill v. Texas, 316 U.S. 400, 86 L.Ed. 1559, 62 S.Ct. 1159, and Smith v. Texas, 311 U.S. 128, 85 L.Ed. 84, 61 S.Ct. 164, 211 supra. The mere fact of inequality in the number selected does not in...