127 Ky. 387 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
The appellant, Andrew Miller, was indicted in the Hardin circuit court for the crime of murder. The trial resulted in a verdict at the hands of the jury-finding him guilty and fixing his punishment at confinement in the penitentiary for life. Judgment was entered upon the verdict, and sentence pronounced in the usual manner. The appellant having been refused a new trial, complains of the judgment, and by this appeal asks its reversal, upon the sole ground .that
The plea and motion were entered upon the calling of the case for trial and before appellant was required to plead to the indictment, and were based upon his affidavit, which declared him to be a negro, and that he and his race had on account of their race and color, and in violation of the fourteenth amendment of the Constitution of the United States, been discriminated against by the jury commissioners .charged with the duty of selecting the grand jury that found and returned the indictment under which he was convicted, in that “they selected no person or persons of color, or of African descent, known as negroes, to serve on said grand jury," hut, 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 of persons exclusively 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-fifth of the total number of persons qualified for jury service, were excluded therefrom on account of their race and color, and have been so excluded therefrom on account of their race and color, and have been so excluded from serving on any jury in this court for a great many years. * * *” The order of the court .recites, in substance, that appellant offered to introduce evidence to sustain the foregoing statements of the affidavit, but that the court refused to hear such evidence, and overruled the plea and motion without doing so. It will he observed, however, that neither the affidavit or order mentions the names of the witnesses by whom the evidence in question would
This court, recognizing the binding force of section 1 of the fourteenth amendment of the Constitution of the United States, which forbids any state to “deny to any person within the United States the equal protection of the laws,” as far back as the year 1880, declared the then existing statute prescribing the qualifications of jurors unconstitutional in so far as it excluded from the jury service persons of the negro race (Commonwealth v. Johnson, 78 Ky. 509; Commonwealth v. Wright, 79 Ky. 22, 1 Ky. Law Rep. 258, 42 Am. Rep. 203; Haggard v. Commonwealth, 79 Ky. 366, 2 Ky. Law Rep. 356), and shortly thereafter the statute was so amended by the Legislature as to conform to the requirements of the fourteenth amendment of the federal Constitution.. It is not declared by the fourteenth amendment, nor has any court, federal or state, ever held, that a negro cannot lawfully be indicted and tried unless- the jury is composed in part of persons of his own race, or that a white person cannot lawfully be indicted and
As said by this court in Redmon v. Commonwealth, 82 Ky. 333, 6 Ky. Law Rep. 225: “From these provisions of the Code the jurisdiction of this court to try and determine felony cases is derived. The Constitution confers no jurisdiction upon this court in such easels, but authorizes the Legislature to grant such jurisdiction as it may think proper. We have no right to depart from or to enlarge the limits of the jurisdiction, as prescribed by the statute, than we would have to assume jurisdiction in case the
For the reasons indicated, the judgment is affirmed.