This appeal is from the denial of federal habeas corpus relief to a prisoner, of the. white race, convicted in the Georgia courts of armed robbery. We affirm.
Three separate juries have found Salisbury guilty as charged. The first conviction was reversed by the Georgia Supreme Court for an error in the trial instruсtions and because the prosecutor, in effect, commented on the failure of the defendant to testify,
In Georgia, the punishment of convicted felons is fixed by the trial jury within the limits prescribed by law, Ga.Code Ann., § 27-2502. The first jury fixed the penalty at ten years imprisonment, the second at twenty years, and the third at thirteen years. In the imposition of the thirteen year sentence the trial judge expressly ordered that credit be given for time spent in jail pending appeal.
Salisbury then unsuccessfully resorted to habeas corpus in the state courts, Salisbury v. Grimes,
There, as hеre, he contended that his conviction and sentence violated the Four-tenth Amendment for two reasons:
First, that the grand jury (emphasis added) that returned the indictment against the рetitioner was drawn from a grand jury box illegally made up because of the use of a jury list from which Negro citizens had been systematically excluded or dispropоrtionately included, and completing said jury box by the use of tax returns wherein taxpayers were segregated by race. The jury box was in fact disproportionatе;
Second, that the thirteen year sentence was void because the imposition of a harsher sentence following a successful appeal, three years more than the ten imposed at the first trial, denies the equal protection of the law.
Upon full hearing, including the receipt of written briefs, the District Court deniеd relief, as stated, and the issues are now for us to decide. If nothing was done in contravention of the requirements of the Constitution of the United States then we are withоut the jurisdiction to interfere.
As to the attack on the grand jury, the allegation of systematic exclusion of Negroes and resulting disproportionateness, we must begin with the fact that the appellant is of the white race. This Court, therefore, has already decided the issue adversely to appellant, Woodruff v. Breazeаle,
A jury infected by racial bias or prejudice cannot be fair and impartial to one of another race. Therefore, as decided in cases so numerous as to negate necessity of citation, systematic exclusion of Negroes from jury panels in cases affecting the lives or liberty of Negro defendants is
per se
proof of Constitutional infirmity. Correspondingly, there can be no racial prejudice between members of the same race. In such cases there may bе prejudice for reasons innumerable but not racial prejudice. This may be the reason that the Supreme Court “has never entertained a defendant’s objections to exclusion from the jury except when he was a member of the excluded class”, Fay v. New York,
Bereft of the racial argument, the appellant hаs neither alleged nor shown any bias or prejudice in the grand jury which indicted him. He has thus failed to raise a question of Constitutional dimensions, Charles v. Maxwell, 6 Cir., 1965,
Able and diligent cоunsel for this appellant points out that the Georgia Court of Appeals held in Allen v. State,
Appellant strongly urges that the “broad cross section” requirements heretofore imposed by court decisions and Congressional еnactment upon the composition of juries in the federal courts are Constitutionally mandatory for the state courts. We do not think so.
There can be no doubt of the power of Congress to enforce the Fourteenth Amendment by appropriate legislation where such is considered necessary or advisablе.
*52 Writing for the Court in Fay, Mr. Justice Jackson pointed out:
“While this case does not involve any question as to exclusion of Negroes or any other race, the defendants rely largely upon a series of decisions in which this Court has set aside state court convictions of Negroes because Negroes were purposefully and completely excluded from the jury. Howеver, because of the long history of unhappy relations between the two races, Congress has put these cases in a class by themselves. The Fourteenth Amеndment, in addition to due process and equal protection clauses, declares that ‘The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’ So empowered, the Congress on March 1, 1875, enacted that ‘no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude;’ and made it a crime for any officer to exclude any citizen on those grounds. 18 Stat. 336-37, 8 U.S.C. § 44. For us the majestic generalities of the Fourteenth Amendment are thus reduced to a concrete statutory command when cases involve race or color which is wanting in every other case of alleged discrimination.”67 S.Ct. at 1624 .
Within the past year Congress has legislated as to the composition of juries in the federal courts, “The Jury Selection and Service Act of 1968”, Public Law 90-274, approved March 27, 1968. It has not seen fit to legislate as to state court juries beyond that described in Fay.
Our Court, too, has dealt with the question of longer sentences imposed after a successful appeal, Rice v. Simpson,
In the case now before us the trial jury did not know of the prior sentences. A design to punish the defendant for taking an appeal was therefore impossible. In fact, as above related, the second jury had increased Salisbury’s рenalty by ten years but this one reduced it by seven years. It is self evident that defendants may deliberately seek the chance that a new jury will reduce the sentence, as happened here. Moreover, the trial court ordered the sentence to be further reduced by credit for time spent in jail pending appeаl.
In our view, it would be wholly incongruous, and without Constitutional foundation, to hold that a state is forever bound by and may not increase a jury imposed sentence but that the dеfendant may nevertheless shoot for its reduction with a guarantee in advance that the next jury cannot increase the penalty, although acting on the evidеnce it has heard and entirely free of any knowledge from which it might impose punishment for taking the appeal. In recent years, defendants have been the beneficiaries of many unprecedented concessions, designed to protect their rights. We do not believe, however, that they are Constitutionally entitled to this kind of a “heads I win, tails you lose” rule. The inherent right of state courts to punish state offenders within the limits imposed by state law should not be interfered with by the federal courts except upon sound Constitutional considerations.
The Judgment of the District Court is
Affirmed.