Bonaparte v. State , 65 Fla. 287 ( 1913 )

Taylor,. J.

Harry Bonaparte seeks relief here from a conviction of the crime of embezzlement in the Criminal Court of Record of Duval County.

Prom the record in the case it appears that the regular panel of jurors in permanent attendance during the week in which the defendant’s trial was had was quashed on the challenge of the defendant to the array on -the ground of discrimination against the negro race in its selection. A special venire to be summoned from the body of the county at large was then issued to try the defendant’s' case, and none but white men were summoned or returned by the deputy sheriff in response to this special writ.

The defendant again interposed a challenge to the array of jurors so returned on said special venire on the ground that the sheriff in selecting said jurors discriminated against negroes on account of their race, color and previous condition of servitude, and summoned no negroes thereon because of such discrimination, although there were several thousand negroes in said county who were fully qualified for jury service. That it has been the custom for many years in this court, when special venires are issued and served for the sheriff to fail and refuse to select any names of persons of African descent to serve on the jury in this Honorable Coui’t.

To sustain this challenge to the array the defendant proved by undisputed testimony that according to the last official census there were more negroes residing in Duval County than there were white people. That a great many of them owned their own homes besides other property and that there were several schools supported by them exclusively, outside of the public schools supported by the county and State. That there are in the county at least one thousand negroes of sound judgment and discretion and fully qualified for jury service, but that during the past ten or fifteen years no negro has ever served or been summoned on a jury in any of the courts of the county.

The State to rebut this challenge put the deputy sheriff, who selected and summoned the panel challenged, on the stand as a witness, who was questioned and answered as follows:

“My name is Geo. W. Thames. I am deputy sheriff of Duval County, Florida. Q. Did you serve the venire this morning? A. I did. Q. In doing so, did you make any discrimination against negroes? A. I did not. Q. How did you get this jury? A. I went down to the corner of Forsyth and Main (Streets) and I did not see any colored faces at all in the crowd. Q. Did you make any difference in selecting this jury, on account of a man’s race, color or previous condition of servitude? A. I did not.”

On his cross-examination by the defendant’s counsel, after answering that he had been a deputy sheriff of the county for eight years, the following question was propounded to him: “You have stated that you have been deputy sheriff for eight years, now state whether or not you have selected any colored men as jurors in this court or any of the courts of the county during this time?”

But to the propounding of this question the State’s Attorney objected on the ground that the subject of the inquiry was whether or not he discriminated in the selection of the present jury. This objection the court sustained and refused to permit the question to be answered. This ruling is assigned as error. This was error. The question itself disclosed on its face the fact that it was sought thereby to elicit from the witness, viz.: whether or not during the eight years service of the witness as a deputy sheriff of the county, he had ever selected or summoned a negro for jury service in that or any other court of the county. The question tended to test the truth of the witness’ answers on the direct examination to the effect that in selecing this panel of jurors he had not discriminated against the negro race, which was the proper function of the cross-examination. If in answer to this question the witness had answered that during the whole of his eight years service as a deputy sheriff, he had never for this or any other court in the county selected or summoned a negro for jury service, it would have gone far towards impeaching the truthfulness of his answer that in selecting this jury he did not discriminate against negroes. Since it would be beyond the ken of the judicial or any other mind to appreciate how a deputy sheriff in a county containing more negroes than whites could through a series of eight years in selecting jurors for all the courts of the county abstain from selecting a single negro for jury service during all those years, and then come up afterwards and truthfully testify that he had not discriminated against the negro race in the selection of a panel of jurors all of whom still belonged to the white race.

We have held in effect that our statutes on the subject of the selection of jurors do not discriminate, and do not authorize discrimination against any person for jury service because of race or color. But that if the executive officers charged with the duty of executing such statutory provisions, deliberately, in the execution thereof, discriminated against negroes because of their race or color, it would be not only a violation of our statutes, but would violate the provisions of the 14th Amendment to the Federal Constitution, and would render their action null and void in any case in which.su.ch discrimination occurred. Montgomery v. State, 55 Fla. 97, 45 South. Rep. 879.

The question discarded by the trial court was legitimate cross-examination. Stewart v. State, 58 Fla. 97, 50 South. Rep. 642; Wallace v. State, 51 Fla. 547, 26 So. Rep. 713, and the court below committed reversible error in sustaining the objections of the State thereto, and the judgment below should be and is hereby reversed and a new trial ordered, at the cost of Duval County.

IIOCKER AND WHITFIELD, J. J., COnCUl’.