US SUPREME COURT DECISIONS

Congress has not, by Rev.Stat. § 641, authorized a removal of a prosecution from a state court upon an allegation that jury commissioners or other subordinate officers had, without authority derived from the Constitution and laws of the state, excluded colored citizens from juries because of their race. Said section does not embrace a case in which a right is denied by judicial action during a trial, or in the sentence, or in the mode of executing the sentence. For such denials arising from judicial action after a trial commenced, the remedy lies in the revisory power of the higher courts of the state, and ultimately in the power of review which this Court may exercise over their judgments whenever rights, privileges, or immunities claimed under the Constitution or laws of the United States are withheld or violated. The denial of, or inability to enforce in the judicial tribunals of a state, rights secured by any law providing for the equal civil rights of citizens of the United States, to which section 641 refers, and on account of which a criminal prosecution may be removed from a state court, is primarily, if not exclusively, a denial of such rights or an inability to enforce them resulting from the Constitution or laws of the state, rather than a denial first made manifest at and during the trial of a case.

Neal v. Delaware, 103 U. S. 370, and Gibson v. Mississippi, 162 U. S. 666, affirmed to the above points.

Rulings of the court below refusing writs of subpoena duces tecum held to work no injury to defendant.

The state court, on the trial of the plaintiff in error for murder, permitted to be read in evidence the evidence of a witness taken in the presence of the accused at a preliminary hearing, read to and signed by the witness, the prosecuting officer alleging that the witness was beyond the jurisdiction of the court, and his attendance could not be procured. The bill of exceptions to its allowance was not presented to the trial judge for signature until two weeks after sentence, after refusal of a new trial, and after appeal. The record does not disclose the nature or effect of the chanrobles.com-red

Page 163 U. S. 102

testimony so admitted. Held that there is nothing in this record which would authorize this Court to convict the Supreme Court of Louisiana of error in that behalf.

In October, 1894, in the Criminal District Court for the Parish of Orleans, State of Louisiana, an indictment for murder was found against one Jim Murray, alias Greasy Jim. On December 13, 1894, the accused was arraigned, pleaded not guilty, and was remanded for further proceedings.

On January 10, 1895, Thomas F. Maher, as attorney for the accused, challenged the grand jury on the ground that it was not a legally constituted body because the jury commissioner had discriminated against the prisoner on account of his race and color by having excluded from the venire from which the grand jury was selected all colored men or negroes, which action was charged to be in conflict with the Constitution and laws of Louisiana and with the Constitution of the United States.

To procure evidence to sustain his said challenge, the accused, by his counsel, asked for a subpoena duces tecum, directed to Francis C. Zachaire, registrar of the voters of the Parish of Orleans, calling on him to furnish the total number of voters registered in the parish; the total number of white voters registered; the total number of colored voters; the total number of white and of colored voters who could sign their names at the closing of the registration office of the parish previous to the last congressional election held on November 6, 1894; also, for a subpoena duces tecum, addressed to the jury commissioners of the parish, commanding them to furnish the court, on the trial of the challenge to the grand jury, the names and residences of 3,500 citizens who appeared before them in the month of September, 1894, for qualification as jurors, and the names and residences of the one thousand citizens whom they qualified and placed in the jury wheel from which the grand jury which found the indictment in the present case was drawn. These motions for subpoenas were endorsed by the minute clerk as follows: "Filed subject to orders." chanrobles.com-red

Page 163 U. S. 103

On February 2, 1895, the challenge to the grand jury came on to be heard.

Apparently to save time, the state's attorney offered in evidence and as part of the present record the evidence taken before another section of the court in the case of State of Louisiana v. George Heard on a challenge to the grand jury in which similar grounds of challenge had been made. The counsel for the accused, who had also acted as counsel for George Heard, made no objection to the filing of this evidence, but himself filed, as part of the present record, the assignments of error and the bills of exceptions filed by him in the other case.

Among other things, there appeared in this evidence in the case of Heard, and was read to the court in the present case, the return of the registry clerk showing a statement of registered voters of the Parish of Orleans after the general election of November, 1892, viz.: total number of voters, 59,262, of whom there were native white who sign, 35,382; native born who make their mark, 4,571; foreign white who sign, 8,283, and who make their mark, 1,672; colored who sign, 5,431, and who make their mark, 4,223. This admitted record contained the testimony of several deputy sheriffs, who served jury summons, and which went to show that few persons of color were so summoned; also, the testimony of the three jury commissioners, who testified that colored persons were summoned to appear before the commissioners to qualify as jurors, and that there were names of colored persons in the jury wheel from which this grand jury was drawn. They testified that in taking names from the registration list, the commissioners selected them with reference to their qualifications as jurors, without regard to color; that a great many colored men were summoned, and there was no discrimination against colored men.

The court held that the plaintiff's challenge was not sustained by the evidence; that while it was undeniable that the exclusion from the general service of all people of the African race on account of their color would be an unlawful abridgment of the rights of such citizens, yet that the evidence did chanrobles.com-red

Page 163 U. S. 104

not disclose such a case, but showed that the general service was not exclusively made up of the names of white persons, and that it was clearly established that colored people were not excluded on account of their race or color. The challenge was overruled, to which action of the court the accused, by his counsel, took several exceptions, which were duly allowed and signed.

The defendant then, by his attorney, made a motion to quash the indictment, upon the allegation that Act No. 170 of the Acts of 1894, under the provisions of which the grand jury which indicted the accused was organized, was unconstitutional because it did not conform to the provisions of the state and federal constitutions, which provide that there shall be no discrimination on account of race, color, or previous condition of servitude. The motion to quash was overruled, and thereupon the accused filed an application for the removal of the cause to the circuit court of the United States. The allegations of the petition to remove stated the action of the court in overruling the challenge of the grand jury, and that there was a local prejudice against the accused as a colored man charged with having murdered a white man, which would prevent a fair and impartial trial in any state court. This petition was filed in the state court on February 19, 1895. On February 28, 1895, the trial was commenced, and was so proceeded in that on March 1, 1895, the jury found a verdict of guilty.

On March 7, 1895, a motion for a new trial and a motion in arrest of judgment were filed. In a petition accompanying these motions, it was made to appear that on February 26, 1895, the accused had filed in the circuit court of the United States a petition for a writ of habeas corpus and for an injunction forbidding the state court to proceed. No action in the matter appears to have been taken by the United States circuit court.

The motion for a new trial and the motion in arrest of judgment were refused, and on March 7, 1895, sentence of death was pronounced against the accused. Certain bills of exceptions to the charge and rulings of the court were chanrobles.com-red

Page 163 U. S. 105

signed and an appeal to the Supreme Court of Louisiana was allowed. On June 3, 1895, the supreme court affirmed the judgment of the trial court, and, by a writ of error, that judgment of the Supreme Court of Louisiana was brought to this Court.