Prior to the trial of the case the defendant filed a plea in abatement asserting that the indictment was returned by a grand jury selected from a jury list which had been comрiled in an illegal manner and in violation of the Fourteenth Amendment to the Constitution of the United States, in that the jury commissioners of Bibb County intentionally and systematically excluded eligible and qualified Negro citizens from the jury list. In the fourth assignment of the enumeration of errors it is contended that the trial court erred in the denial of this plea. In the fifth assignment it is asserted that it was error to deny the defendant’s challenge to the array, which challenged the composition of the traverse jury list.
Counsel for the State and the defendant stipulated that according to the 1960 United States census the total population of Bibb County was 141,249, of which 47,131 were persons of the Negro race. Of the total population of Bibb County, 81,133 persons were 21 years of age and over, and of these, 24,894 were nonwhite persons. On the tax digests of Bibb County for 1963 there were 34,312 white persons and 8,434 Negroes.
Counsel for the defendant has submitted a supplemental brief citing the recent decision by the Supreme Court of the United States in Whitus v. Georgia,
It is the view of this court that the present case is distinguishable from the Whitus case decided by the Supreme Court of the United States. The evidence in the present case showed that the percentage of Negroes on thе 1963 tax digests was approximately 20%. The only evidence as to the number of Negroes selected for the traverse jury list (which was used in selecting the grand jury list) was that the soliсitor knew approximately 285 of the 5,665 persons selected were Negroes, approximately 5%. The names were selected from three tax digests, two of which were separated as to Negro and white persons.
Testimony in regard to the selection of the jury lists was as follows: The jury commissioners selected the jurors from thе tax digests, and used the standard required by law in selecting jurors, that they be upright and intelligent citizens. No person was excluded from the jury list because of race. Every name on the tax commissioners’ records was called out before the jury commissioners, and each person was considered as a possible juror. In selecting the jurоrs, the commissioners used materials such as the previous jury book, the city directory, their personal knowledge, and questionnaires mailed to taxpayers. They cоnsidered such factors as the handwriting and spelling on the tax returns and on the questionnaires, and *162 whether taxpayer had been bankrupt, had a police record, оr had been convicted of a crime.
All public officers are presumed to have discharged their sworn official duties.
Kirk v. State,
The first two assignments of error pertain to the sufficiency of the evidence to sustain the verdict, and it has been strongly urged by counsel for the defendant that the evidеnce was insufficient to support the verdict. The defendant made a statement to the officers investigating the homicide in which he admitted that he killed the deceased, but claimed that the homicide occurred in a struggle over a pistol which the deceased had pointed at him.
It is the general rule that: “A jury in passing upon a confession or an incriminating admission may, if they see proper, accept a part thereof as true and reject a part thereof as false.”
Cook v. State,
There is little evidence to connect the defendant with the homicide apart from his incriminating admissions. His own
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admitted conduct is, perhaps, the strongest circumstance indicating his guilt of the crime of murder. In his statement he admitted that after he shot the deceаsed he carried her body to the rear of her home and buried it. This action might have been prompted by fear of the consequences of the homicide, but the jury wаs authorized to consider it as a circumstance indicating his consciousness of guilt of the crime of murder. See
Hixon v. State,
The evidence disclosed that the body of the deceased had three gunshot wounds. The bullet producing the fatal wound entered above the right ear, passed downward, and the'exit wound was left of the nostrils. The other two wounds were in the right hip and to the right side below the umbilicus. Both of these bullets passed slightly upward through the body. All of the bullet wounds had been distorted in some manner so that they had more thе appearance of stab wounds than bullet wounds, and it was only after an internal examination of the wounds that it was determined that they had been made by bullets. Since thе defendant admitted that he buried the body of the deceased, he must have distorted these wounds in some manner before the burial. The evidence of this distortion of the wounds and the evidence as to the position of the wounds could have been considered by the jury as circumstances to refute that part of the defendant’s statеment in which he asserted that the killing was accidental in a struggle over the gun. We can not say as a matter of law that there was not sufficient evidence to support the verdict of the jury.
The third assignment of error complains of a portion of the charge as follows: “Gentlemen, I charge you that ordinarily the jury in considering an admission which is partly inculpatory and partly exculpatory may believe it in part and disbelieve it in part and this rule by the very terms of the statute is especially appliсable to the statement of the defendant. However, where the State must rely upon the defendant’s admission alone for essential elements of the case, this rule does not apply to the extent that a verbal segregation of what the defendant said is to be permitted. If the main fact is admitted *164 with a qualifying exclusion of a neсessary ingredient of the crime charged, the crime is not confessed. The qualification is a part of the admission and both must be considered in interpreting the meaning оf the statement. It would be manifestly unfair to hold a person criminally bound by a statement which admits the commission of an act and in the same breath legally justifies or excuses the same.”
The language of this charge, with the exception of the first sentence, is almost identical with a part of the fourth division of the opinion by the Court of Appeals in
Wall v. State,
Judgment affirmed.