Carter v. State , 39 Tex. Crim. 345 ( 1898 )

Appellant was convicted of murder in the first degree, with the death penalty affixed, and prosecuted an appeal to this court. The judgment of the lower court was affirmed at the last Austin term, 1898, and now comes before us on motion for rehearing.

The points relied on in the motion for rehearing are (1) the action of the court below in overruling appellant's motion to quash the indictment on account of the method pursued in impaneling the grand jury; and (2) the refusal of the court to entertain appellant's motion to quash the panel of petit jurors selected to try the case. Both questions were presented on the submission of the case, and we decided against appellant, in accordance with the provisions of our statute. While our attention was called to the Federal Constitution on this subject, it was not discussed by us. Our attention is again called to this matter, and it is ungently insisted that the impanelment of both the grand and petit juries was in violation of that provision of the fourteenth amendment to the Constitution of the United States, and the Federal statutes passed in pursuance thereto, which guaranty to all persons, regardless of race, color, or previous condition of servitude, the equal protection of the laws.

We will quote so much of the bills of exception as it is contended present the Federal questions:

"Bill No. 1. Be it remembered, that on the 17th day of March, 1898, the above entitled and numbered cause was called for trial, and defendant in open court, before he was arraigned, and before pleading to the indictment, presented and read to the court the following motion to quash said indictment, to wit: 'And now comes the said defendant, in his own proper person, and moves the court to set aside and quash the indictment herein against him, because the jury commissioners appointed to select the grand jury which found and presented said indictment selected no person or persons of color or of African descent, known as "negroes," to serve on said grand jury, but, on the contrary, did exclude from the list of persons to serve as such grand jurors all colored persons or persons of African descent, known as "negroes," because of their race and color; and that said grand jury were composed exclusively of persons of the white race, while all persons of the colored race, or persons of African descent, known as "negroes," although consisting of and constituting about one-fourth of the population and of the registered voters in said city and county of Galveston, and although otherwise qualified to serve as such grand jurors, were excluded therefrom on the ground of their race and color, and have been so excluded from serving on any jury in said Criminal District Court for a great many years, which is a discrimination against the defendant, since he is a person of color, and of African descent, known as a "negro;" and that such discrimination is a denial to him of the equal protection of the laws, and of his civil rights guarantied by the Constitution and laws of the United States. All of which the defendant is ready to verify. [Signed] Seth Carter. Sworn to and subscribed before me this 13th day of January, 1898. Florence D. Atkins, Notary Public in and for Galveston County, Texas. [Seal.]' After reading the said motion the defendant asked leave of the court to introduce witnesses, and offered to introduce witnesses, to prove and sustain the allegations therein made; but the court refused to hear any evidence in support of the said motion, and thereupon overruled the same, without investigating into the truth or falsity of the allegations of said motion, — to which action of the court the defendant then and there excepted, and tenders this, his first bill of exceptions," etc.

"Bill No. 2. Be it remembered, that on the 17th day of March, 1898, at the trial of the above entitled case, after the jury had been selected, duly accepted by both parties, and impaneled and sworn according to law to try said cause, but before the introduction of any evidence in the case, the defendant presented and read to the court the following motion to quash the panel of petit jurors selected to try said case to wit: 'And now comes the said defendant, in his own proper person, and moves the court to set aside and quash the panel of petit jurors selected and summoned to try him in the case herein, because the jury commissioners appointed to select the list of petit jurors from which the present panel were drawn selected no persons of color or of African descent, known as "negroes," so that they might be drawn on said panel, but that said jury commissioners excluded from the list of persons selected to serve as petit jurors for this term of this court all persons of color or or African descent, known as "negroes," because of their race and color; and that said panel, as well as the list of jurors, selected for the entire term of this court, is composed exclusively of persons of the white race, while all persons of the colored race, or persons of African descent, known as "negroes," although constituting about one-fourth of the population, and of the registered voters in said city and county, and although otherwise qualified to serve as jurors, were excluded therefrom, on the ground of their race and color, and that they have been so excluded from serving on any jury in this court for a great many years, which is a discrimination against the defendant, since he is a person of color and of African descent, known as a "negro;" and that such discrimination is a denial to him of the equal protection of the laws, and of his civil rights guarantied by the Constitution and laws of the United States. All of which the defendant is ready to verify. [Signed] Seth Carter. Sworn to and subscribed before me this 13th day of January, 1898. Florence T. Atkins, Notary Public in and for Galveston County.' After reading the said motion, the defendant asked leave of the court to introduce witnesses, and offered to introduce witnesses, to prove and sustain the allegations therein made; but the court refused to hear any evidence in support of the said motion, and thereupon overruled the same, without investigating the truth or falsity of the allegations of the said motion, — to which action of the court the defendant then and there excepted, and tenders this, his second bill of exceptions," etc.

We will first discuss the questions involved in the impanelment of the grand jury. It is contended that the motion to quash the indictment on this account comes too late; that it should have been presented in a motion to challenge the array. As treated in the original opinion, we there intimated that this challenge should have been to the array, and not by motion to quash. However, our statute points out the grounds of the motion to challenge the array, and it does not include the grounds here urged. The fourteenth amendment to the Federal Constitution, and statutes passed thereunder, would seem to make race discrimination in the organization of a grand jury a ground of challenge to the array, and, where practicable, we believe the question should be raised by a motion to challenge the array of jurors. But in this particular case no opportunity was afforded appellant to challenge the array, because the grand jury which returned the bill against him had been impaneled prior to the commission of this offense. He did, after his arrest under the indictment and before his arraignment, move to quash the indictment on the ground that in the organization of the grand jury colored persons were discriminated against, in that none were selected by the jury commissioners. This was his first opportunity to test this question, and was proper practice, and timely, under the decisions of the Supreme Court of the United States. Neal v. Delaware, 103 U.S. 370; United States v. Gale, 109 U.S. 63, 3 Sup. Ct., 1. We think, under our statute, this question should have been raised in a motion to set aside the indictment or in the form of a special plea. True, this is not one of the causes stated in our Code of Criminal Procedure (articles 559, 561). It will be seen that the enumeration of causes by the Code is not exclusive of other fundamental constitutional grounds. We quote from Williams v. State, 20 Texas Criminal Appeals, 359, as follows: "There are two other pleas not specially mentioned or authorized in the Code, which are constitutional and inherent, to wit, jeopardy want of jurisdiction, and a special issue as to these may also be raised by a special plea, independently of any provisions of the statute." This special plea is required to be verified by the affidavit of the defendant. Code Crim. Proc., art. 562. And so we take it that a fundamental question arising under the Constitution of the United States can be made by special plea outside of our statute.

We do not understand appellant to make the contention that the laws of this State as to the impanelment of juries discriminate between the races, or in any manner violate the provisions of the fourteenth amendment to the Constitution of the United States, or the laws of Congress enacted thereunder. The fact is that our laws have made no such distinction since said fourteenth amendment became the law of the land. It is not necessary here to go into the details of our statute on the subject of the selection, organization, and impanelment of grand and petit juries; but a reference thereto will clearly show that the law is in perfect harmony with the Federal Constitution on this subject, excluding every idea of discrimination, and such has been the uniform holding by the courts of last resort in this State.

Appellant insists, while the law is all right, that in its administration there was discrimination in the selection by the jury commissioners of the grand jurors who found this bill of indictment. If this be true, it is a ground for invoking the revisory powers of this court; and, if we erroneously hold that there was no discrimination, it would afford the basis for a writ of error to the Supreme Court of the United States. Neal v. Delaware, 103 U.S. 370; Gibson v. Mississippi,162 U.S. 565, 16 Sup. Ct., 904; Williams v. Same, 170 U.S. 213, 18 Sup. Ct., 583. In the cases cited, especially in the case of Neal v. Delaware, the subject of race prejudice in regard to the impanelment of juries is thoroughly discussed pro and con; a majority of the court holding that if in the administration of the law, fair on its face and presenting no discrimination between the races, it was so administered in the impanelment of the grand jury as to entirely ignore and discriminate against colored citizens qualified to sit on the grand jury, it would be violative of that provision of the fourteenth amendment to the Constitution of the United States guarantying the equal protection of the laws to all citizens. We quote from that case as follows: "We repeat what was said in Virginia v. Rives,100 U.S. 322, 'that while a colored person, put to a trial involving his life, liberty, or property, can not claim as a matter of right that his race shall have a representation on the jury, and while a mixed jury in a particular case is not, within the meaning of the Constitution, always or absolutely necessary to the equal protection of the laws, it is a right to which he is entitled that, in the selection of juries to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them because of their color.' " Chief Justice Waite and Justice Field dissented from the view entertained by a majority of the court, and the latter expressed his views in a strong dissenting opinion, taking the ground that, if the grand jury was composed of legally qualified citizens under the law, the defendant would have no right to complain because some other legally qualified citizens were equally entitled to be impaneled; that it was the deprivation of a right of which said excluded citizens could alone complain. Whatever may be our views upon this question, so far as we are concerned, it being a Federal question, it is res adjudicata, and the decisions of the Supreme Court of the United States are the law on the subject. However, we would remark that, in the cases which have come under our observation, it was a controversy between the races; that is, a colored man was on trial for an injury to a person of the white race. If the injured parties in said cases were white persons, and the defendants colored persons, we can understand the application of the Federal decisions; but if both were colored persons (as in this ease) we fail to appreciate how race prejudice could have entered into the administration of the law in finding a bill of indictment by an exclusively white grand jury, unless it be assumed that race prejudice, on the part of the whites against the blacks, is so bitter and acute as that the law would not be fairly and impartially administered where the right of colored persons for injuring colored persons are alone in issue. Our courts have invariably recognized race prejudice where the controversy or issue on trial involved both white and black persons. As illustrative of this, where a negro is on trial for the homicide of a white man, it is permissible to test the juror as to his race prejudice, and, if he answer that he can not give the defendant as fair a trial as if the charge was against a white man for killing a white man, it affords a ground for challenge. Lester v. State, 2 Texas Crim. App., 432; Cavitt v. state, 15 Texas Crim. App., 190. Perhaps the same objection would hold good in the impanelment of a grand jury.

As stated above, where the issue to be tried is exclusively between persons of the black race, we fail to perceive how race prejudice could operate on or actuate a white jury in finding a bill of indictment. The decisions of the Federal court referred to make no distinction of the character suggested, but are broad enough to cover every case where a negro is indicted by it grand jury, if it appears that in the selection of such grand jury the negro race has been discriminated against. We will therefore consider that the decisions of the Supreme Court of the United States construing the fourteenth amendment and the Federal enactments thereunder, include the character of case here presented; that is, an indictment of one negro for killing another negro. The bill of exceptions challenges the attention of this court, and involves the question whether or not the court below erred in refusing to quash the indictment, in the shape the question was presented to it by the bill of exceptions.

It will be noted that the motion to quash was based simply on the affidavit of appellant. There were no accompanying affidavits setting out the facts, nor was there any agreement as in Neal's Case, supra, not requiring a separate affidavit of the appellant in support of the motion; that is, the question was presented to the court without any evidence whatever in support of it. The general rule is that a motion to quash reaches only matters on the face of the record. In this case the motion to quash was not predicated on the record, but involved extraneous matters, and before the court would be authorized to act there must be some proof of the allegations contained in the motion. The motion was but a mere tender of the issue, unaccompanied by any supporting testimony. We think, as presented, it was not sufficient to come within the rule laid down in Smith v. Mississippi, 162 U.S. 592, 16 Sup. 900. But it is said that here appellant offered to prove the allegations of his motion, and the court refused to permit him. The language used in the Smith Case, supra, in the motion, also contains a proffer to prove the allegations of the motion by the officers selecting the jury, and prayed for subpoenas for said officers. But the court, in deciding the question, ignored this offer, presumably on the ground of its insufficiency as being too vague, and because the testimony of no witness was offered in support of the motion. The proposition contained in the motion here is still more vague and general. It names no witness or person by whom it was proposed to prove the allegations of the motion. Under the practice in our courts, and we believe under the practice of all courts, a bare proposition to prove certain facts, without tendering the witness or witnesses, or stating by whom it was proposed to prove them, would not be sufficient to invoke the action of the court. And the bare recitation that the court refused to hear evidence in support of said motion is without meaning, because in fact no testimony was tendered by appellant. Possibly appellant framed his offer to prove the allegations of his motion in general terms (without naming any witnesses by whom the facts could be proved) for the reason that he had no witness to support such allegations. That the propositions contained in his motion are difficult of proof is conceded by the Supreme Court. Gibson v. Mississippi,162 U.S. 565, 584, 16 Sup. Ct., 904. But this, instead of relieving him of the necessity of pointing out his means of proofs, it occurs to us would require a greater strictness in naming the witnesses by whom the allegations could be established. At any rate, the bill of exceptions on this subject, should be so framed as to include all matters sufficient to overcome the presumption of the correctness of the ruling complained of. We hold, therefore, that the court did not err in refusing to quash or set aside the indictment.

As to the motion to quash the special venire, a reference to the bill of exceptions shows that this motion was not presented to the court until after the jury had been selected, duly accepted by both parties, impaneled, and sworn according to law to try said case. This motion came too late. United States v. Gale, 109 U.S. 65, 3 Sup. Ct., 1. He had an opportunity to move to quash the panel on the grounds alleged, supporting his motion by accompanying affidavits, or tender named witnesses, when the list was brought in and before a single juror had been impaneled and sworn. But he did not avail himself of this; and it occurs to us that after engaging in the selection of a jury, passing on their qualifications, and accepting twelve qualified jurors as fair and impartial to try his case, it was then too late, under all the rules of practice announced by the courts, to move to quash the original panel or list of jurors summoned from whom the twelve jurors had been selected. We do not deem it necessary to do more than state the ease as presented in the bill of exceptions. See 12 Am. and Eng. Enc. of Law, pp. 424, 425, and notes for collated authorities.

We hold that the court below not err in overruling said motions. The motion for rehearing is accordingly overruled.

Motion overruled.