Hill v. State , 144 Tex. Crim. 415 ( 1941 )

Appellant in his motion, in the main, merely reiterates the contentions originally presented herein, which are treated in the original opinion. However, he is much exercised relative to the statement therein that if followed out to its necessary conclusion as to the presence on the grand jury of a person of the same nationality as that of appellant, that such a practice would result in endless confusion, and oftentimes in a discrimination against the State and in favor of the appellant. He arbitrarily classifies the nationalities that inhabit these states of ours under the color line into red, yellow, black and white, and overlooks the fact that these broad distinction of colors have many and varied subdivisions within themselves that are inimical to each other, not only in their habits and characteristics but in their creeds, beliefs and associations. We find nothing in the Fourteenth Amendment relative to color or race or creed. These words are not mentioned therein. The portion thereof herein contended to have been violated reads as follows:

"* * * Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

One of the latest definitions of what is a denial of "due process of law" is found in the case of Lisenba v. People of California, Vol. 86, L.Ed., p. 189, Adv. Sheets No. 3, in which the Supreme Court of the United States, speaking through Justice Roberts, said:

"As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trial."

Under this definition, let us see whether the failure to have a person of the negro race on the grand jury that indicted appellant could have had any influence or effect upon his trial, leaving for the time being the question of a discrimination in the selection of the grand jury. The grand jury that indicted appellant for this offense had been drawn and organized about sixty days prior to the date of the commission of the alleged offense. This offense herein complained of could not possibly have been known or been in contemplation at the time of the drawing of the grand jury by the commissioners, nor at the time of the grand jury being impaneled as such, and we are at a loss to see how such proceedings could have "unfairly infected this trial." True it is, there were no negroes on this grand jury, but it is also true that the jury commissioners stated in their testimony that they knew of no negroes that possessed the qualifications set forth in the statute relative to grand jurors, these statutorily demanded qualifications being set forth in the original opinion herein, and being Art. 339, C. C. P.

It should be evident from a perusal of this statute that of a necessity a jury commissioner should have some knowledge of the qualifications of a person selected as a grand juror in order to follow out the mandates thereof. They could not have fairly based their selection upon a grand juror with whose qualifications they had no acquaintance, and it is to be noted that they stated they did not know any negro who possessed such statutorily required qualifications.

There is also offered to us as a reason to show discrimination against appellant the fact that for many years there had been no negro selected by the jury commissioners of such county to serve on the grand jury in Dallas County, and therefore such failure alone was evidence of a discrimination in the present instance against appellant because of his color. We are not herein given the privilege of hearing from such prior jury commissioners; they were not utilized in this hearing; but we are in possession of the testimony of two present jury commissioners, and we are at a loss to perceive any error in the method that they pursued in the selection of the names of persons to be used as a grand jury. Shall it be said to be their duty to select persons with whose qualifications they are not familiar merely in order to see that some person of the negro race might have a representative in color upon a grand jury that might be called upon to return an indictment for an offense, possibly as in the instant case, not even as yet committed? If such be demanded, then what should the ratio be as between the white and colored races? If such be demanded of jury commissioners, would not such be a discrimination in appellant's favor, and surely such as is not required of such commissioners.

Again, we are unable to see how or in what manner the failure of commissioners to place negroes on previous grand juries throughout the years should raise so strong a presumption as to override the sworn statements of the jury commissioners who selected the grand jury in the present instance.

Reverting to Justice Roberts' definition of due process, we are interested in the proposition as to how the failure of the jury commissioners to place a negro on the grand jury in this instance could have "fatally infected the trial" of appellant. Could it be said with any degree of fairness that any grand jury, no matter what its complexion nor aggregate nationality, would have failed to be impressed with the testimony found in this record to such an extent as to say that this appellant should not have been presented in court for this alleged offense? If not, then the element of due process passes out of this case, there being no complaint relative to the petit jury that passed upon appellant's guilt. Unless their lack of due process affected the finding of the indictment to such an extent that one would not have been found, then there has been no failure of the due process of law. We think the proven facts clearly demonstrate the fact that the failure of the presence of negroes on the present grand jury was not the cause of the return of this indictment, but that a grand jury composed of any or all nationalities or colors would probably have acted in the same manner as was done in this instance.

Is it evident or even probable that the failure to present one or many negroes on the grand jury venire resulted in an unfair trial that culminated in this verdict of guilt? Had a negro been present on the grand jury, is it even probable that a different verdict than that of guilt would have ensued?

Under the laws of our State and those of the United States we think appellant has been accorded a fair trial, as the doctrine of fairness and justice appears to us.

We think the further questions presented to us in this motion have been properly decided in our original opinion, to which views we still adhere. Thus believing, the motion is overruled.

ORDER.