Washington v. State, 4482.

CourtSupreme Court of Arkansas
Writing for the CourtMcFaddin
Citation210 S.W.2d 307
Docket NumberNo. 4482.,4482.
Decision Date05 April 1948
210 S.W.2d 307
No. 4482.
Supreme Court of Arkansas.
April 5, 1948.
Rehearing Denied May 3, 1948.

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

James Washington was convicted of involuntary manslaughter and he appeals.


W. Harold Flowers, of Pine Bluff, for appellant.

Guy E. Williams, Atty. Gen., and Oscar E. Ellis, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

Appellant was tried on an information charging him with the crime of manslaughter, Section 2980 et seq., Pope's Digest. He was convicted of involuntary manslaughter,1 Section 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. 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, 4 S.Ct. 111, 28 L.Ed. 232; Bolln v. Nebraska, 176 U.S.

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83, 20 S.Ct. 287, 44 L.Ed. 382; and Gaines v. Washington, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793. Appellant quotes from, and relies on, the dissenting opinion of Mr. Justice Black in Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 171 A.L.R. 1223, 91 L.Ed. 1903. 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, 1947, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. ___. In that case the U. S. Law Edition 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, 62 S.Ct. 1159, 86 L.Ed. 1559. That case

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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...

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