1. A question as to the constitutionality of a law cannot be raised for the first time in a motion for new trial but must be made at the first opportunity, either in pleadings, objections to evidence, or in some other appropriate way pending the trial.
Boyers v. State,
2. Since the law at the time of the trial of this defendant required that separate tax digests be kept of white and colored taxpayers, the selection of persons for jury duty to be made from such lists, no proof of same would be required, and the
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exclusion of testimony in that regard on the hearing of the motion for new trial would not be harmful to the defendant. Further, since in the cases of Smith v. Texas,
3. The mere fact that no Negro has ever been appointed as a jury commissioner of this county does not show a discriminatory practice to systematically exclude Negroes from such duty which would be violative of the Fourteenth Amendment of the Federal Constitution. Nor was it positively shown that Negroes have never served as jury commissioners. To consider the color of the skin in the appointment of jury commissioners would itself be basing selection on color, which would be unconstitutional. None of the specifications of error on this question are meritorious.
4. No facts are shown that the grand jury which indicted the accused was illegally constituted; nor was it shown that members of the Negro race were systematically and arbitrarily excluded from the grand and petit juries in this case, there being evidence that Negroes served on the jury which convicted the accused; nor would a letter from the State Superintendent of Schools showing the number of white and colored students in said county have any bearing on the alleged discriminatory practices (Atkins v. Texas,
5. The defendant failed to show'that he was denied the benefit of counsel by his white appointed counsel, and the allegations that these attorneys failed to argue and raise certain constitutional questions and object to certain procedures and evidence during the trial show no denial of counsel as guaranteed by the Constitution. Trial counsel during the trial had the discretion of considering how they would proceed, and the following specified conduct of counsel during the trial in the exercise of their judgment is no showing that any of the rights of the accused were violated thereby (see
Sims v. Balkcom,
None of the above illustrations shows negligence, irresponsibility, unfaithfulness or incompetence of counsel for the defendant which would amount to a complete lack of counsel.
6. The judgment of life imprisonment, based on the verdict of guilty with a recommendation of mercy, is not excessive, inhumane and cruel and unusual punishment for murder.
Harrison v. Young,
7. The evidence was conflicting on the hearing of the motion for new trial as to whether the defendant was represented at the time by counsel and elected to waive a preliminary hearing and be released on bond. No clear showing was made as to this ground, hence it is not meritorious.
8. The hearing of the motion for new trial being a chambers matter, the trial judge did not abuse his discretion in excluding the public from the hearing, since this was not a public trial.
9. On the hearing of the motion for new trial the trial judge did not testify for the State in stating to counsel and into the record that he had allowed the defendant to make bond upon request of his counsel, and that he had appointed counsel for the defendant when this counsel withdrew from the case.
10. Whether or not the witness, trial judge, solicitor, or defense counsel could properly pronounce the words “Negro” or “Negroes” during the hearing of the motion for new trial in chambers, provides no basis for granting or denying the motion for new trial and does not show or evidence racial discrimination. We know that Negroes use the pronounciation objected to, and whites do likewise, with no intended offense.
11. Since the defense had insisted in the hearing that the accused was without counsel, evidence that he had had counsel who withdrew before the later appointment of counsel by the court was admissible to refute the grounds of the motion complaining of the lack of counsel.
12. The allegations of the movant that he was indicted and tried in a segregated or racially exclusionary system of justice where Negroes are systematically excluded from employment or participation in the administration of justice are *325 mere conclusions of the pleader- and refuted as to the selection of the grand and petit juries of this county in this instance. Further employment of Negroes in other positions of government would have no bearing on proving the denial of any rights this defendant might have under the Constitution.
13. Whether the statement or admission of the accused to a deputy sheriff while being carried to another hospital in another county that “that beer had really messed him up, that it had never done him like that before,” was incriminatory, was a question for the jury to decide, and the admission of this testimony was not violative of the Fifth and Sixth Amendments of the Federal Constitution since there was no evidence that it was not freely and voluntarily made. Indeed the officer testified that it was freely and voluntarily made. See
Sims v. State,
14. The evidence was sufficient to support the verdict of guilty of murder in that the accused did “with malice aforethought and with reckless disregard of human life,” by driving an automobile under the influence of intoxicants, exceeding the speed limit, and driving in a reckless manner by violating certain traffic laws of this State, kill the deceased by giving him a mortal wound as a consequence of striking him with said automobile, from which wound he died. None of the general and special grounds of the motion for new trial or the specifications of error enumerated which attack the sufficiency of the evidence are meritorious, and
Code
§ 26-1004 which gives rise to a presumption of malice on the unlawful killing of an individual is not violative of the Fifth, Sixth and Fourteenth Amendments of the Federal Constitution. The probative fact, that is, the unlawful killing of the deceased in the manner alleged in the indictment is sufficient to raise the presumption of malice, and this does not deprive the defendant of his rights under the Fourteenth Amendment of the Federal Constitution. See
Butler v. State,
15. Every specification of error, both in the motion for new trial as amended and in the enumerations of error filed in *326 this court has been read and considered and no merit has been found in any of them.
Judgment affirmed.