State v. PerkinsState v. Perkins
- Reporters:
- , ,
- Before:
- McCaleb, O’Niell
Lead Opinion
McCALEB, Justice.
Jessie Perkins, a negro, was indicted, tried and convicted for the crime of aggravated rape upon a white woman and was sentenced to death by electrocution. He has appealed.
The record reveals that, during the course of the proceeding below, Perkins reserved two bills of exception. One of these bills, which was taken to the refusal of the judge to grant a new trial on the allegation that the verdict of the jury was contrary to the law and the evidence, has been abandoned inasmuch as it presents nothing for review. The other bill was taken to the action of the trial judge in denying a motion to quash the indictment, the general venire and the grand and petit jury panels on the ground that members of the negro race had been arbitrarily and systematically excluded from jury service solely because of their race and color. This claim of discrimination is founded upon an alleged violation of
A legion of cases involving alleged racial discrimination in selection of grand and petit juries are to be found in the jurisprudence of the Supreme Court of the United States and this court. These adjudications have settled all legal problems here presented and they have been many times cited and discussed by us in kindred matters. State v. Gill, 186 La., 339, 172 So. 412; State v. White, 193 La. 775, 192 So. 345; State v. Dorsey, 207 La. 928, 22 So.2d 273. Hence a comprehensive review of the authorities would be superfluous. Suffice it to say that the Supreme Court of the United States has declared, in substance, that equal protection of the law requires that a colored person shall be afforded an opportunity to have members of his race serve upon the grand and petit jury in cases involving his life or liberty and, therefore, any denial of this guarantee, either by a law which does not provide a fair mode of selection or by officers who systematically administer a valid law so as to accomplish gross inequalities, cannot be countenanced. See Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 and our comparatively recent decision in State v. Anderson, 205 La. 710, 18 So.2d 33, where a lengthy review of much of the jurisprudence is set forth. In every case, the basic question for determination is whether there has been a discrimination, either by statute or by practice of the officers charged with administration of the law. And, as said by the Supreme Court
In the matter at hand, counsel for appellant concede that our statutes, relative to the qualification of persons for jury service and the procedure for the selection of juries, are fair and that no racial discrimination will occur if they are administered properly.1 But counsel contend that the Jury Commission for the Parish of East Baton Rouge has not administered the laws fairly and impartially.
The pertinent allegations of the motion to quash the indictment are that the general jury venire was illegally drawn for the reason that the Jury Commission deliberately and systematically excluded the names of negroes therefrom solely because of their race; that the jury Commissioners have indulged in this practice over a period of years, it being their policy and custom to select one negro from each drawing of petit jurors as a sham to make it appear that they complied with constitutional and lawful mandates; that said Commission devised a system of employing two jury boxes, one containing the names of white persons qualified for jury duty and the other containing the names of a few negroes and that, when the petit juries were drawn, 29 names
The foregoing charges are of a most serious nature and, if true, would exhibit unconscionable acts practiced by the Jury Commissioners emanating solely from racial prejudice. However, an examination of the record reveals that appellant did not offer a word of proof to sustain the specific allegations of wrongdoing on the part of the Jury Commissioners set forth in the motion to quash. His counsel acknowledge that he had the burden of proving the charges of discrimination as it is well settled that, in the absence of evidence to the contrary, it will be presumed that the list selected by the Jury Commission has been compiled fairly and not with any view of discrimination on account of race or color. See State v. Gill, supra and State v. Pierre, 198 La. 619, 3 So.2d 895.
Since appellant utterly failed to offer any proof of the specific allegations of fact contained in the motion to quash, we examine the evidence tendered by him to sustain his general charge that negroes have actually been excluded from jury service in the Parish of East Baton Rouge on account of their race and color. In support of this contention, appellant placed three members of the jury commission, viz., Mr. J. M. Cadwallader, Mr. St.
Mr. Cadwallader stated that he has been a member of the Jury Commission for approximately two years; that, during his tenure, the general venire list has been made up of persons selected from the Parish registration list of voters; that he was sure that the names of negroes were placed on each general venire list but that he, personally, could not recall that he had ever submitted the name of a colored man. He denied that there was any discrimination in the selection of negroes for jury service maintaining that each list contained the names of negroes.
The testimony of Mr. Hines is that he has been a Jury Commissioner for about two years; that, during that period, he has personally submitted the names of negroes for jury service but is unable to state the number submitted by him; that there has been no discrimination whatever by the Jury Commissioners and that it has been the policy of the Commission to select negroes as well as whites for both grand jury and petit jury service. To the same effect is the testimony of Mr. J. D. Reynolds.
While it is difficult to see that the statements of the above named Jury Commissioners can be regarded as proof supporting appellant‘s general charge of exclusion of negroes from jury service, the evidence tendered by the State makes it apparent that the allegations of discrimination was
The evidence of Mr. Watson is corroborated, in large measure, by the testimony of Mr. Jodie R. Smith, the Registrar of Voters, who recalled the names of several negroes who had served at various times on both grand and petit juries. Indeed, the record shows that one of the members of the grand jury which returned the indictment against the appellant was a negro and that Paul A. Le Blanc, a negro, was on the petit jury panel for the week during which the appellant was tried.
In the face of the foregoing proof, counsel for appellant argue that the evidence offered on behalf of their client is of such probative value as to overcome the presumption that the Jury Commissioners performed their duties in a non-discriminatory
Albeit, we experience difficulty in ascertaining the factual basis upon which the argument of counsel for appellant is predicated. They seem to eke out of the testimony of the Jury Commissioners, (to quote from their brief) “a subtle policy of discrimination and exclusion of Negroes from jury services because of race and color“. This contention is not founded upon fact but rather expresses a suspicion existing in the minds of counsel — based either upon the premise that the testimony is false2 or upon the notion that, since appellant is a negro, racial discrimination follows as a matter of course.
It is stated in the appellant‘s brief (although counsel conceded in oral argument
Counsel cites the 1930 census as a basis for the determination of percentages of white and negroes, literate and illiterate, residing in East Baton Rouge Parish. It is obvious that the 1940 census would be more appropriate to the case. That census shows that there are 88,415 persons residing in East Baton Rouge Parish of which 54,774, or 62%, are white and 33,634, or 38%, are colored. It does not set forth the number or percentages of illiterates among the whites and negroes and appellant has not submitted any data on this score. Consequently, we find it impossible to say that the literate negro population of East Baton Rouge Parish eligible for jury service is so far out of proportion to the negro electors appearing on the registration roll that discrimination results from using the registration roll as a basis for selection for jury service as a matter of course. The evidence certainly does not authorize such a conclusion. Conversely, it reveals that the Jury Commission has faithfully and impartially performed its duty.
Finally, counsel for appellant maintain that the Jury Commission, in its use of the registration roll as a basis for compilation of the general venire lists, has actually practiced discrimination because
We find no substance in this proposition. In the first place, the evidence shows that the general venire lists complained of were supplemented so that there were five negroes thereon. Moreover, we do not understand that a person charged with crime is entitled to have an exact percentage of persons of his race, in comparison to other races, placed on the general venire. The Constitution forbids discrimination; it does not deal with percentages. Percentages may be of value in cases where no representation exists or where token representation has been given in keeping with a scheme to deny the equal protection of the laws. But, here, substantial representation has been shown and no plan to avoid the letter or spirit of the equal protection clause has been proven. Compare Hill v. State of Texas and Smith v. State of Texas, supra.
The conviction and sentence are affirmed.
O‘NIELL, C. J., dissents, being of the opinion that the selecting of the general venire list entirely from the roll of registered voters is not, in the circumstances of this case, a correct method of selection.