State v. . Koritz
43 S.E.2d 77
N.C.
1947
Check Treatment
Stacy, C. J.

The defendants have abandoned all their exceptions, save the first four, which go to the competency of the petit jurors selected to try the consolidated cases. When all is said and done in respect of these exceptions, we are met with the paramount fact that the jury as finally selected was satisfactory to the defendants, and they were not required to take any juror over оbjection. They announced their contentment with the jury without exhausting all their peremptory challenges. It was composed of 7 white mеn and 5 Negroes.

In respect of special veniremen summoned to serve as petit jurors, a challenge to the array may be intеrposed for cause; and, if this be overruled, challenges to the polls are still available. S. v. Kirksey, ante, 445; S. v. Levy, 187 N. C., 581, 122 S. E., 386. To present an exception on rulings to challenges to the polls, the appellant is required to exhaust his peremptory challenges and then undertake to challenge another juror. Oliphant v. R. R., 171 N. C., 303, 88 S. E., 425. The court’s action in the matter must be hurtful and its effect unavoidable before it will be held to vitiate the trial. S. v. Cockman, 60 N. C., 484; S. v. Benton, 19 N. C., 196.

The trial сourt was at pains to see that every opportunity was afforded for the selection of a fair and impartial ‍​​​‌‌‌​​‌​​‌​​‌‌​‌‌‌‌​‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‍jury. The defendants would be entitled to no more on a new trial, and this they have already had. S. v. Levy, 187 N. C., 581, 122 S. E., 386; S. v. Sultan, 142 N. C., 569, 54 S. E., 841; S. v. English, 164 N. C., 497, 80 S. E., 72; S. v. Bohanon, 142 N. C., 695, 55 S. E., 797. Their right is not to select but to reject jurors. Having been tried by twelve jurors who were unobjectionable to them, the defendants have no valid ground to urge that they have been prejudiced by the compоsition of the jury. S. v. Pritchett, 106 N. C., 667, 11 S. E., 357; S. v. Hensley, 94 N. C., 1021. “The defendant did not exhaust his peremptory challenges. . . . When such is the case, the objection to a juror who could have been rejected peremptorily is not available.” S. v. Bohanon, supra; Oliphant v. R. R., 171 N. C., 303, 88 S. E., 425.

The trial court was obviously correct in holding that the composition of the grand jury could in no way affect the defendants. . They were *556 tried on warrants sworn out in tbe Municipal Court, and not on bills of indictment returned by tbe grаnd jury, as was tbe case in S. v. Peoples, 131 N. C., 784, 42 S. E., 814. No rights of tbeirs were passed upon by tbe grand jury. ‍​​​‌‌‌​​‌​​‌​​‌‌​‌‌‌‌​‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‍Tbe question is put aside as irrelevant. Tbe case of Smith v. Texas, 311 U. S., 128, 85 L. Ed., 84, strongly relied uрon by tbe defendants, dealt with tbe composition of a grand jury. It is inapplicable here.

Tbe principal point, argued by tbe defendants, is tbe manner in wbicb tbe petit jurors were selected. Six regular jurors wbo were summoned for tbe term did serve on tbe jury, and it is these jurors of wbicb tbe dеfendants now complain, albeit they might have been excused with or without cause. It has been held in a number of cases that mere irregulаrity on tbe part of tbe jury commissioners in preparing tbe jury list, unless obviously, designedly, or intentionally discriminatory, would not vitiate tbe list or afford a bаsis for a challenge to tbe array. S. v. Daniels, 134 N. C., 641, 46 S. E., 743; S. v. Kirksey, ante, 445. There is a finding on tbe present record, wbicb is supported by tbe evidence, that no' discrimination wаs intended or resulted from tbe manner in wbicb tbe jury list was prepared. This suffices to sustain tbe ruling below, in the absence of some pronounced ill consideration. S. v. Lord, 225 N. C., 354, 34 S. E. (2d), 205; S. v. Henderson, 216 N. C., 99, 3 S. E. (2d), 357; S. v. Bell, 212 N. C., 20, 192 S. E., 852; S. v. Walls, 211 N. C., 487, 191 S. E., 232; S. v. Cooper, 205 N. C., 657, 172 S. E., 199; Akins v. Texas, 325 U. S., 398, 89 L. Ed., 1692; Thomas v. Texas, 212 U. S., 278, 53 L. Ed., 512.

In no event could tbe defendant Horitz profit from, or be hurt by, tbe alleged discrimination against tbe Negro race, as bе is a member of tbe White race. S. v. Sims, 213 N. C., 590, 197 S. E., 176.

Moreover, an absolute numerical ratio or balance between tbe races is not required, nor ‍​​​‌‌‌​​‌​​‌​​‌‌​‌‌‌‌​‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‍even possible perhaps. “Some play must be allowed for tbe joints of tbe machine.” M. T. K. Ry. Co. v. May, 194 U. S., 267. Tbe problem involves more than merе mathematics or simple arithmetic. Equality can result from disparity in numbers, just as discrimination can result from equality among unequals. Character аnd intelligence are common to members of both races, with varying degrees of quality, dependent upon tbe individual, regardless of race. Nor can they be determined or measured by statute. Tbe standard of qualification is prescribed by law. Its application is the place of the rub. The rules of fair play are not difficult to understand. They are only difficult to practice. Tbe end in view is to get a fair cross-section of community judgment. Hеnce, as local officials are in better position than outsiders to weigh tbe imponderables, their determination of tbe matter will bе upheld unless too wide of tbe mark or “unless it is so lacking in support in tbe evidence that to give it effect would work that fundamental unfair *557 ness which is at war with due process.” Akins v. Texas, 325 U. S., 398, 89 L. Ed., 1692; Louisville Gas Co. v. Coleman, 277 U. S., 32.

It is the contention of the defendants, however, that our statutes on the subject contain inherent, constitutional infirmities, in that, the jury list is taken from the names of taxpayers of the county who are of good moral character and of sufficient intelligence. For this position they rely сhiefly upon the recent case of Thiel v. Southern Pacific Co., 328 U. S., 217, 90 L. Ed., 1181. The cited ease is hardly an authority for the position taken. There, the Supreme Court of thе United States was exercising a supervisory power over the administration of justice in the Federal Courts, and was not concerned with аny constitutional question. To like effect is the decision in McNabb v. United States, 318 U. S., 332, 87 L. Ed., 819.

Nor are the cases of Norris v. Alabama, 294 U. S., 587, 79 L. Ed., 1074; Smith v. Texas, 311 U. S., 128, 85 L. Ed., 84; Glasser v. United States, 315 U. S., 60, 86 L. Ed., 680, and others cited by the defendants, controlling on the instant record. The present case, ‍​​​‌‌‌​​‌​​‌​​‌‌​‌‌‌‌​‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‍in its factual situation, is strikingly similar to the one presented in the case of S. v. Walls, supra, where a like ruling was upheld, and, on appeal tо the Supreme Court of the United States, the decision was left undisturbed, the appeal being dismissed, 302 U. S., 635.

Of course, it is understood that the intentional, аrbitrary and systematic exclusion of any portion of the population from jury service, grand or petit, on account of racе, color or creed, is at variance with the Constitution and cannot stand. Akins v. Texas, 325 U. S., 398, 89 L. Ed., 1692. It is not the right of any party, however, to be tried by a jury of his own race, or to have a representative of any particular race on the jury.' It is his right to be tried by a competent jury from which members of his race have not been unlawfully excluded. Ballard v. United States, 67 S. C. Rep., 261, 91 L. Ed. (Adv. Op.), 195. “The law not only guarantees-the right of trial by jury, but also the right of trial by a proper jury; that is to say, a jury possessing the qualifications contemplated by law.” Hinton v. Hinton, 196 N. C., 341, 145 S. E., 615.

The broadside challenge to the State’s whole method of selecting jurors, regular, special and talesmen, calls for only a passing word. There is no mention of race, ‍​​​‌‌‌​​‌​​‌​​‌‌​‌‌‌‌​‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‍color or creed in аny of the statutes on the subject, and whatever limitations are to be found therein apply equally to ail races. It was said as early as Strauder v. West Virginia, 100 U. S., 303, 25 L. Ed., 664, that within constitutional bounds a state may confine the selection of its jurors “to males, to freeholders, to citizens, to persons within cеrtain ages, or to persons having educational qualifications.” 31 Am. Jur., 594. The defendants boldly assert that they are immune from trial in Forsyth County so long аs the present method of selecting *558 juries obtains therein. The conclusion is a non sequitur on the facts as revealed by tbe record. The challenge is not sustained.

A careful perusal of the record leaves us with the impression that no reversible error has been made to appear in respect of the matters of •which the defendants now complain. Hence, the verdict and judgments will be'upheld.

No error.