RUFUS MARTIN, Plff. in Err., v.

STATE OF TEXAS.

(See S. C. Reporter’s ed. 316-321.)

Constitutional law— equal protection of the laws — negroes as jnrors — A dis¬ crimination against negroes because of their race, in the selection of grand or petit jurors, forbidden by U. S. Const., 14th Amend., Is not shown by verified written motions to quash respectively the indictment and the panel of petit jurors, charging such discrimi¬ nation, where no evidence was either intro¬ duced or offered to establish the facts stated in the motions.

[No. 170.]

N0TE. — on negroes as grand jurors — see notes to State v. Russell, 28 L.R.A. 204, and Carter v. Texas, 44 L. ed. U. S. 839.

On the rights of negroes generally — see note to Civil Rights Cases, 27 L. ed. U. S. 835.

As to the validity of class legislation — see notes to State v. Goodwill, 6 L.R.A. 621, and State v. Loomis, 21 L.R.A. 789.

As to constitutional equality of privileges, immunities, and protection — see note to Louis¬ ville Safety Vault & T. Co. v. Louisville & N.

R. Co. 14 L.R.A. 579.

497

318-320

Supreme Court of the United States.

Oct. Term,

Submitted January 25, 1906. Decided Feb¬ ruary 19, 1906.

IN ERROR to the Court of Criminal Ap¬ peals of the State of Texas to review a judgment affirming a conviction of murder in the District Court of Tarrant County, in that state. Affirmed.

See same case below (Tex. Crim. App. ) 83 S. W. 390; on rehearing, 83 S. W. 391.

The facts are stated in the opinion.

Mr. Watson E. Coleman submitted the cause for plaintiff in error. Messrs. 0. P. Easterwood and 0. E. Smith were with him on the brief.

Mr. C. K. Bell submitted the cause for defendant in error. Messrs. Robert Vance Davidson and Claude Pollard were with him on the brief.

*Mr. Justice Harlan delivered the opinion of the court :

By an indictment returned in the district court of Tarrant county, Texas, the' plaintiff in error was charged with the crime of mur¬ der. Having been duly arraigned and pleaded not guilty, the accused (who is a negro) moved to quash the indictment, on the ground, stated in writing under oath, that all persons of the African race had been ex¬ cluded from the grand jury, because of their race, although about one fourth of the inhab¬ itants of the county, competent under the law to act as grand jurors, were of that race. The facts upon which the motion was based were set out, and the accused, in the written motion, prayed that testimony be heard in •support of its grounds. The state’s attorney, in writing, denied such discrimination, and offered to prove that only about one hundred and fifty persons of the African race in the county, as compared with twelve thousand whites, were competent under the law to act as grand jurors.

The accused then moved in writing, verified by his oath, to quash the panel of petit ju¬ rors, upon the ground that from the panel had been excluded all persons of the African • race, because of their race, although about one fourth of the persons in the county com¬ petent under the law to serve as jurors were of that race. The facts set out in that mo¬ tion were also denied in writing by the state’s attorney.

Both motions were overruled by the court, the accused excepting. There was a verdict of guilty of murder in the first degree, and the accused was sentenced to suffer death. The judgment of conviction was affirmed in the court of criminal appeals, the highest court of the state in which a decision of the case could be had. One of the assignments of error in that court was the overruling of the motion to quash the indictment; but no 498

error wTas there assigned in respect of the overruling of the motion to quash the panel of petit jurors.

It is not contended that the Constitution or laws of Texas authorized any discrimina¬ tion, on account of race merely, in the selec¬ tion of grand or petit jurprs. Nor is it con¬ tended that * the prescribed qualifications for

jurors were not appropriate in order to se¬ cure an impartial jury for the trial of an ac¬ cused. Nevertheless, if, upon the hearing of the written motion to quash the indictment, the facts stated in the motion had been established by affirmative proof, or if the trial court had refused to admit evidence to prove them, we should not hesitate to reverse the judgment. For it is the settled doctrine of this court that “whenever, by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded solely because of their race or' color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the 14th Amendment of the Constitution of the United States.” Carter v. Texas, 177 U. S. 442, 447, 44 L. ed. 839, 841, 20 Sup. Ct. Rep. 687 ; Strau- der v. West Virginia, 100 U. S. 303, 25 L. ed. 664; Neal v. Delaware, 103 U. S. 370,

397, 26 L. ed. 567, 574; Gibson v. Mississippi,

162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct.

Rep. 904; Rogers v. Alabama, 192 U. S.

226, 231, 48 L. ed. 417, 419, 24 Sup. Ct. Rep.

motion to quash the panel of petit jurors, the facts stated in that motion had been proved, or if the opportunity to establish them by evidence had been denied to the accused, the judgment would be reversed.

But the record before us makes no such ease. Although the accused in each of his written motions prayed the court to hear evidence thereon, it does not appear that he introduced any evidence whatever to prove discrimination against his race because of their color, or made any actual offer of evi¬ dence in support of either motion. The rea¬ sonable inference from the record is that he did not offer any evidence on the charge of discrimination, but was content to rely sim¬ ply on his verified written motions, although the facts stated in them were controverted by the state. The trial court, it must be assumed from the record, had nothing before it, when deciding the motions to quash, ex¬ cept the written motions and the written answers thereto. In Smith v. Mississippi, 162 U. S. 592, 600, 601, 40 L. ed. 1082, 1085, 1086,

16 Sup. Ct. Rep. 900, — which was a prose¬ cution of a negro for the crime of *murder, [ 320] it appeared that the accused, upon grounds

200 U. S.

United States v. Detroit T. & L. Co.

320, 321

stated in writing, and similar to those as¬ signed in this case, moved to quash the in¬ dictment. He moved, also, upon similar grounds, in writing, to quash the panel of petit jurors. Each motion was overruled. This court said: “No evidence was offered in support of the motion by the accused to quash the indictment, unless the facts set out in the written motion to quash, veri¬ fied ‘to the best of his knowledge and belief,’ can be regarded as evidence in support of the motion. We are of opinion that it could not properly be so regarded. . . . The

facts stated in the written motion to quash, although that motion was verified by the affidavit of the accused, could not be used as evidence to establish those facts, except with the consent of the state prosecutor or by order of the trial court. No such consent was given. No such order was made. The grounds assigned for quashing the indict¬ ment should have been sustained by dis¬ tinct evidence introduced, or offered to be introduced, by the accused. He could not, of right, insist that the facts stated in the mo¬ tion to quash should be taken as true sim¬ ply because his motion was verified by his affidavit. The motion to quash was, there¬ fore, unsupported by any competent evi¬ dence; consequently, it cannot be held to have been erroneously denied.” To the same effect were Tarrance v. Florida, 188 U. S. 519, 521, 47 L. ed. 572, 573, 23 Sup. Ct. Rep. 402, and Brownfield v. South Carolina, 189 U. S. 426, 428, 47 L. ed. 882, 883, 23 Sup. Ct. Rep. 513. The present case cannot be dis¬ tinguished from the Smith Case ; and we are unable to hold, upon this record, that it was error to overrule the motions to quash; for, as already stated, it does not appear that the facts stated in those motions were es¬ tablished by evidence, or that the accused, after filing his motions, made any separate offer to prove them by witnesses, or was de¬ nied the opportunity to make such proof.

A different conclusion in this case would mean that, in a criminal prosecution of a negro for crime, an allegation of discrimi¬ nation against the African race because of their race could be established by simply proving that no one of that race was on the grand jury that returned the indictment, or

on the *petit jury that tried the accused; whereas, a mixed jury, some of which shall be of the same race with the accused, cannot be demanded, as of right, in any case; nor is a jury of tnat character guaranteed by the 14th Amendment. What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury as well as in the impaneling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color. Fir- 200 U. S.

ginia v. Rives [Ex parte Virginia ) 100 U. S. 313, 323, 25 L. ed. 667, 671; Re Wood, ( Wood v. Brush) 140 U. S. 278, 285, 35 L. ed. 505, 508, 11 bup. Ct. Rep. 738. Whether such discrimination was practised in this case could have been manifested only by proof overcoming the denial on the part of the state of the facts set out in the writ¬ ten motions to quash. The absence of any such proof from the record in this case is fatal to the charge of the accused that his rights under tne 14th Amendment were vio¬ lated.

Judgment affirmed.