Washington v. State
Decision Date | 05 April 1948 |
Docket Number | No. 4482.,4482. |
Citation | 210 S.W.2d 307 |
Parties | WASHINGTON v. STATE. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, Jefferson County; T. G. Parham, Judge.
James Washington was convicted of involuntary manslaughter and he appeals.
Affirmed.
W. Harold Flowers, of Pine Bluff, for appellant.
Guy E. Williams, Atty. Gen., and Oscar E. Ellis, Asst. Atty. Gen., for appellee.
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 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:
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 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:
The language of the U. S. Supreme Court in the case of Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 1277, 89 L.Ed. 1692, is an answer to appellant's question. This is the language:
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