US SUPREME COURT DECISIONS

An affidavit to a petition for removal filed under section 641 of the Revised Statutes to the effect that the facts therein stated are true to the best of the knowledge and belief of the accused is not evidence in support of a motion to quash the indictment unless the prosecutor agrees that it may be so used or unless by the order of the trial court it is treated as evidence.

A motion to quash an indictment against a person of African descent upon the ground that it was found by a grand jury from which were excluded because of their race persons of the race to which the accused belongs can be sustained only by evidence independently of the facts stated in the motion to quash. chanrobles.com-red

Page 162 U. S. 593

The plaintiff in error, Charley Smith, was charged by indictment in the Circuit Court of Bolivar County, Mississippi, with having on the 14th day of May, 1894, in that county, willfully, feloniously, and of malice aforethought, killed and murdered one Wiley Nesby.

Before arraignment, the accused moved, upon grounds stated in writing, to quash the indictment. One of those grounds was that the grand jurors who presented the indictment were not impartial, "as guarantied by the constitution of the state aforesaid and of the United States, of which the defendant is a citizen of color, black;" another

"because of the prejudice against him and his race on account of their color, the grand jury aforesaid was purposely selected of the white race, to the exclusion of the colored persons of the county competent for jury service, by the officers charged therewith, under the state law, on account of their color, for the purpose of procuring this indictment against defendant in violation of his constitutional right to be tried for his life upon the charge of murder herein in the circuit [court] of Bolivar County, state aforesaid;"

still another, that the grand jury

"was not a duly elected and legally impaneled grand jury, as contemplated in the guaranties of the Constitution of the State of Mississippi and the Constitution of the United States."

The motion to quash the indictment was overruled. The record shows that the defendant duly excepted to the action of the court, but does not show that any evidence was introduced in support of the motion.

The accused was then arraigned, and pleaded not guilty. He demanded a special venire. Thereupon fifty names were drawn from the jury box in open court and process was issued for those persons.

The case having been continued, the accused at the next term made an application by petition for the removal of the cause for trial into the Circuit Court of the United States for the Western Division of the Southern District of Mississippi. The petition is here given in full:

"This petition respectfully shows that Charley Smith, a citizen of the United States, is in custody of the Sheriff of

Page 162 U. S. 594

Bolivar County, Mississippi, by virtue of an indictment presented by what purports to have been a regular grand jury for the May term of said circuit court, 1894, upon a charge of murder. Relator states that he is a citizen of the State of Mississippi, and that under the constitution of said state, section 14 thereof, he is guarantied that for such an offense he shall first be presented and tried by an impartial jury. Further, that he shall not be deprived of his liberty or of his life in the state aforesaid except by due process of law, and that said state constitution, as shown and prescribed in section 264 thereof, which qualifications shall be required of jurors, grand and petit, in the said state, and that the statute of 1892 of said state, styled the 'Annotated Code of Mississippi,' adopted by the state legislature on ___ day of April, 1892, prescribes new and separate requirements for jurors, different, separate, and distinct from those requirements fixed by the Constitution of said state, to-wit, the constitution of the state prescribes, section 264, that all qualified electors able to read and write shall be competent to serve as jurors in the courts of the state. The statute of said state, viz., the Annotated Code of 1892, section __ thereof, provides that the board of supervisors of said county shall use as a guide (in selecting names of persons to serve as jurors for the two terms of the circuit court next, respectively, to be holden after the then list being prepared by them, the said board of supervisors) the registration roll of legal voters of the county, and that they shall select as jurors to serve as aforesaid, persons of 'good intelligence, fair character and sound judgment,' and such of said statute is in conflict with the Constitution of said state. Further, the record of the board of supervisors of said county shows that the list of jurors averred to have been drawn by them for the term then next to follow, being the said May term, 1894, was prepared under an order of said board of said county, which is as follows: 'Ordered by the board that the following named persons be and are hereby selected to serve as petit jurors for the next term of the circuit court,' which said order of said board fails to show upon its face that the list so selected for the purpose aforesaid was selected from

Page 162 U. S. 595

the registration roll of said county; said order fails to show that the persons so named in the list were citizens of said county, or were selected according to the laws of the state, or that they were qualified voters, duly registered according to law, and further fails to show that they, the persons so selected, were so selected to serve in Bolivar County, state aforesaid. Relator further states that the certificate of the circuit clerk of the said county, the sheriff of said county, and the chancery clerk of said county, which is attached to the list of names drawn from the jury box, constituting the petit jurors for the first week of said May term of circuit court of said county and copied in the minutes of the first day's proceedings of the said court is void: First, because the circuit clerk, J. E. Ousley, did not personally attend the drawing of said list, but said certificate shows that he was represented in said drawing by deputy clerk. The statute prescribes that the circuit clerk shall officiate at said drawing, which must not be more than fifteen days before first day of said term. Second, because the said officers charged with the drawing of said jurors failed to certify, as the law directs, 'whether the envelopes containing the names appeared to have been opened or disfigured,' and this list of names contained the names of the persons who were selected by the circuit court on the first day of said May term, 1894, as grand jurors, which grand jury presented relator on said indictment."

"Relator charges that the said officers charged with the selection, listing, and drawing said jury list preparatory to the holding of the said May term of said circuit court willfully and intentionally excluded all colored men from the said list of jurors on account of the fact of their color, and that relator is a colored man charged with murder, and that at the time the said jury list was selected, listed, and drawn as aforesaid, there were in the County of Bolivar 1,300 or more duly registered colored voters in said county, and 300 white voters upon the registration roll of said county; the white voters registered did not outnumber the colored voters, and that had the registration roll been used as their guide, as the law directs, they would have drawn some

Page 162 U. S. 596

colored voters' names, but to the prejudice of defendant in the indictment and relator therein, said colored voters were, on account of their color, purposely excluded, and no black person has been summoned to serve as such juror in said county since the adoption of the new constitution on account of the great prejudice against the black race by those in authority, and of the white race, and relator asks subpoenas for said officers to prove same. Relator charges that his right to equal protection by the laws of the state, as guarantied in Article XIV of the amendments to the Constitution of the United States, was purposely ignored on account of his color and race by the officers charged with the selection of said jury at said term. This he is ready to prove, and prays subpoenas for said officers. That he is not indicted according to the due course of the law of the said state, and therefore prays that his trial under said indictment be removed from this court to the United States Circuit Court for the Western Division of the Southern District of the State of Mississippi, and that the record bear evidence of such an order of this Court, and that said removal of said case be granted by this court upon such terms and conditions as the law directs."

The petition to remove the cause was verified by the oath of the accused to the effect that the facts set out in it were "true to the best of his knowledge and information and belief."

The application to remove the cause into the circuit court of the United States for trial was denied, and the accused excepted to this action of the state court.

The defendant then moved that the trial be postponed to a future day of the term on account of the absence of certain witnesses without whose testimony, he alleged, he could not safely go to trial. Evidence was heard upon this motion, and the application to postpone the trial was denied.

The accused moved to quash the venire of jurors summoned for the second week of the term upon the following grounds:

"Because they have not been regularly drawn from the jury box by the officers of the county whose duty it is under the law to draw the venire for the second week of said term,

Page 162 U. S. 597

to-wit, the chancery and circuit clerks and sheriff of the county, and that said list of the venire, as appears in the record of the first day's proceedings of the term, is not certified to by the officers of the county charged with the selection of the jury as the law directs, but said jury as now answers to their call as said venire for said week is an illegal venire, and a trial by said jurors, or any of them, as such venire will be contrary to his rights under the Constitution of the State of Mississippi and his rights under the Constitution of the United States, and that defendant being a citizen of the State of Mississippi and of the United States, he insists upon his right to be tried for this offense by due course of law."

The motion was denied, and the defendant excepted. It does not appear from the record that any evidence was introduced in support of this motion.

The accused, having received the panel of jurors, moved that the same be quashed upon the following grounds:

"Because the said jury is made up of persons whose names are upon the record as jurors for the second week of the said term of the court, and said list of jurors, constituting the venire for the second week of said term, and so summoned by the sheriff of the county, was not drawn from the jury box of the county by the chancery clerk and circuit clerk and sheriff of the said county, which the law directs. Nor do the officers of the said county charged with the drawing of said venire under the law, to-wit, as aforesaid, certify to said list so appearing on the minutes of the first day of the said term, and there is no record that such list as does appear, purporting to be said venire for said week, was drawn from the jury box of the county, and said panel is void because composed of persons named being exclusively white jurors chosen on account of their color, as such jurors so illegally summoned to serve, and now tendered defendant, he being a negro, of the black race, and persons of his race and color were purposely, on account of their color, excluded by said officers of the law. Defendant is a citizen of the State of Mississippi and of the United States, and insists upon his right to be tried by due course of law, as guarantied him under the rights incorporated in the

Page 162 U. S. 598

Constitution of the State of Mississippi and the Constitution of the United States, and the panel now tendered him, from which members of his race are purposely excluded by the officers charged therewith, for no other reason than their color, and that 1,500 colored men duly qualified to serve as jurors being in the county, to 500 whites, is an abridgment of his rights under the federal Constitution."

It does not appear that any evidence was introduced or offered in support of this motion to quash, and the motion was overruled, the defendant excepting.

During the examination of jurors on their voir dire, the accused excepted to certain jurors, but not upon any grounds that involved rights secured by the Constitution of the United States.

The trial of the case was then entered upon, and the defendant was found guilty of murder and sentenced to suffer the punishment of death.

The record contained the following minute:

"On the 6th day of December, 1894, being a day of the said criminal term of said court, the defendant having informed the court on the day of his conviction, before sentence was pronounced on him by the court, that he wished to be allowed to prepare a motion in arrest of judgment, the court held that the motion in arrest of judgment and the motion for a new trial could be made in one motion, but on said 5th day aforesaid the court ordered counsel to present both motions in one; that it would fine defendant's counsel for contempt unless he combined the motion in arrest of judgment and the motion for a new trial; that both might be heard as one motion; to which action the defendant then and there excepted."

A motion for a new trial was made and denied. Among the grounds of that motion were that the court erred in overruling 1. the defendant's motion to quash the indictment; 2. his application for a removal of the cause to the United States circuit court; 3. the motion to quash the weekly venire; 4. the motion to quash the panel. Other grounds were that the defendant was not tried by a jury fairly and chanrobles.com-red

Page 162 U. S. 599

impartially selected according to the laws of Mississippi and the Constitution of the United States, and was not convicted by due process of law, but was denied equal protection under the laws of the state on account of his race.

The case was carried, upon writ of error, to the Supreme Court of Mississippi, one of the errors assigned being that the application for the removal of the cause into the circuit court of the United States for trial was improperly overruled.

The judgment of conviction was affirmed by that court. Its opinion was as follows:

"The action of the court below in overruling the application for removal was not error. See Gibson v. State, decided at the present term of this Court. The motion to quash the indictment was properly denied. There was either no evidence offered in support of the motion, or, if offered, it does not appear in the record, and in this case we can do nothing but affirm the action of the court in denying this motion. The affidavit appended to the motion, in its terms, affords no sort of evidence (even if it had been agreed to be considered as such, as was the case in Neal v. Delaware, 103 U. S. 370) that the affiant had any personal knowledge touching any of the facts relied upon as grounds for upholding the motion. It was made 'as to the affiant's knowledge and belief,' and yet the affiant may have no personal knowledge whatever as to any of the material facts. The affidavit was not evidence to support the motion. In Neal v. Delaware, supra, the verified petition for removal was treated by the court as evidence for the motion to quash, because of the agreement of the Attorney General of Delaware with the prisoner's counsel to that effect, as the same was construed by the majority of the court. "

Page 162 U. S. 600