Woods v. Munns, 8053.

• Decision Date: 25 June 1965
• Docket Number: No. 8053.,8053.
• Citation: 347 F.2d 948
• Parties: Gerald L. WOODS, Appellant, v. John D. MUNNS, Superintendent, Kansas State Industrial Reformatory, Hutchinson, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

347 F.2d 948 (1965)

Gerald L. WOODS, Appellant, v. John D. MUNNS, Superintendent, Kansas State Industrial Reformatory, Hutchinson, Kansas, Appellee.

No. 8053.

United States Court of Appeals Tenth Circuit.

June 25, 1965.

Chester I. Lewis, Wichita, Kan. (Jack Greenberg and James M. Nabrit, III, New York City, with him on the brief), for appellant.

Richard H. Seaton, Asst. Atty. Gen., of Kansas (Robert C. Londerholm, Atty. Gen. of Kansas, with him on the brief), for appellee.

Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.

PICKETT, Circuit Judge.

The appellant Woods, a negro, was convicted of first degree kidnapping and forcible rape in the State Court of Bourbon County, Kansas, where he was sentenced to life imprisonment on the kidnapping charge, and from five to twenty-one years for forcible rape. Prior to trial the court denied a motion for change of venue which alleged that community hostility toward the defendant was such that a fair trial could not be had in Bourbon County. After a jury had been empaneled, Woods moved to dismiss the jury and to quash the jury panel for the reason that negroes had been systematically and purposely excluded therefrom. It was also alleged that the court submitted to the jury for its verdict an offense with which Woods was not charged. On appeal these questions were considered by the Supreme Court of Kansas, which affirmed his conviction. State v. Woods, 191 Kan. 433, 381 P.2d 533, cert. denied sub. nom. Woods v. Kansas, 376 U.S. 919, 84 S.Ct. 676, 11 L.Ed.2d 615. It is stipulated that state remedies have been exhausted.

Woods is now serving his sentences in the Kansas State Industrial Reformatory at Hutchinson, Kansas, and brings this habeas corpus proceeding alleging that he did not have a constitutional trial for the reasons hereinabove set forth. By agreement, the matter was submitted to the United States District Court for the District of Kansas on the record of the trial conducted in the state court. After consideration of this record, the district court entered findings of fact and conclusions of law, and dismissed the petition.

The rule requiring a jury panel to be truly representative of a cross-section of the community in which a defendant is to be tried for a criminal offense is so firmly established that it needs little discussion. The cases considering the question were recently reviewed in Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. When a state, through its legislature, its courts, or administrative officers, systematically excludes from jury service qualified groups because of race or color, it is a violation of the equal protection clause of the Constitution, and a verdict by such a jury cannot stand. McManaman v. United States, 10 Cir., 327 F.2d 21, cert. denied Jenkins v. United States, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307, and cases cited. However, as stated in Swain v. State of Alabama, supra, a negro defendant in a criminal case is not constitutionally entitled to be tried by a jury upon which there is a member, or members, of his race, and he is entitled to relief only upon proof submitted by him which discloses a "purposeful discrimination" to exclude members of a class from the jury panel.¹ In seeking to apply these principles, it is contended that the evidence establishes that over a long period of years preceding the trial of Woods, no negroes were selected on any jury panel in Bourbon County, Kansas, and that under the rule announced in Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991, and Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, this is sufficient to show the invidious discrimination. We are satisfied, however, that the record does not establish that this case is within the rule. The total population of Bourbon County, Kansas in 1962 was between 16,000 and 17,000. Negroes constituted 3.7% of this total population, and all resided in the city of Ft. Scott, in that county. No attempt was made to show how many of these negro residents were qualified for jury service. Under the Kansas Statute, prospective jurors were selected from those assessed on the assessment roll, by the Trustee of the several Townships and by the Mayor of each city in the county. The names of those selected were then delivered to the County Clerk. Jury panels were made up from this list after the names had been placed in the jury box. Kan.Stat. Anno. 43-101, 43-107.² There was evidence that for a number of years preceding Woods' trial, no negro had been selected on a jury panel. However, it is undisputed that when the case was set for trial, the cases of five companions charged with the same offense were to be tried. Consequently, the court found it necessary that a large number of jurors be drawn from the jury box to be available for these trials. Four of the 160 names drawn were negroes. Furthermore, there is no evidence that there was any racial discrimination against negroes in Bourbon County.³ The trial Judge stated that he had instructed the county clerks within his district "to comply strictly with the law and to draw jurors without question as to race, creed or color, and that there should be no arbitrary exclusion of anyone from jury service * * *." We conclude that it has not been established that negroes were systematically and purposefully excluded from the jury panel.

There is no merit in...