Where a motion to quash the indictment and challenge to the array of traverse jurors is filed by any person, regardless of his race, and alleges facts showing the systematic exclusion of Negroes from service upon the grand and traverse juries of the county because of race, it is error for the trial court to overrule the motion as a matter of law, the defendant being entitled to present evidence in support of the motion to show that: a. The defendant has been denied equal protection of the law contrary to the Fourteenth Amendment of the United States Constitution. b. The defendant has been denied due process of law contrary to the Fourteenth Amendment of the United States Constitution. c. The manner of selecting grand and traverse jurors was in violation of the laws of Georgia and thereby per se injurious to the defendant.
The defendant at the November 1963 term of the Sumter County Superior Court was indicted for assault with intent to murder a police officer in that while the officer was in the performance of his duties the defendant made an assault upon and wounded him with a brick or rock, a weapon likely to produce death, with malice aforethought and with the intent to kill. The defendant was arraigned, pleaded not guilty, and made a motion to quash the indictment and a challenge to the array of the traverse jurors for the current term of the superior court, on the ground that from the panel of grand jurors that returned the indictment against him and the panel of traverse jurors put upon him for trial members of the Negro race had been systematically, arbitrarily, and deliberately excluded from seizing as grand jurors and traverse jurors, in violation of the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. The motion alleged figures showing that, according to the United States census for 1960, 46.42 percent of the population 21 years of age and over residing in Sumter County were Negroes; that in the years 1959 through 1963, of the total number of taxpayers listed on the cumulative tax digest of the county approximately 27 percent (yearly average) were Negroes, and this was the percentage in 1962. It alleged that the active grand and traverse jury lists, from which the November 1963 grand jury was drawn and from which the current panel of traverse jurors was drawn, were drawn on or about August 1962; that all names on said jury lists were of members of the white race; that the tax returns from which the county's tax digest was compiled were segregated on the basis of race in that tax returns of Negroes and white persons were filed in separate volumes, all tax returns of Negroes being on yellow sheets designated "Colored" and all tax returns of white persons being on white sheets designated "White"; that the tax digest from which the names of prospective grand and traverse jurors were drawn was segregated in that the names of Negroes were grouped separately from the names of white persons on sheets headed by the racial designation of the persons listed on each sheet; and that the jury commissioners of the county had for over 40 years failed to select any Negroes from the tax digest for the grand jury list or for the traverse jury list, and no member of the Negro race had been called for either grand jury duty or traverse jury service in the county.
The writ of error shows that it was stipulated before the trial court that the defendant was a member of the Caucasian race, and it appeared that the defendant was engaged in voter registration among Negroes, and that counsel for the defendant argued that the defendant's rights under the Fourteenth Amendment to the United States Constitution would be denied whether the defendant were ethnically identifiable as black or white; and argued further that this defendant would have the same reason as a Negro for challenging a jury from which Negroes are systematically excluded because of race, because of his activities in voter registration among Negroes and his identification with Negroes in the minds of the jurors of the Sumter County community.
Upon this motion to quash the indictment and challenge to the array of traverse jurors the trial court ruled: ". . . assuming every allegation in this motion to be true, it sets forth no legal basis for such motion and therefore the motion is denied and overruled and ordered dismissed by the court." The defendant assigned error on this judgment in the Georgia Supreme Court, and the Supreme Court transferred the case to this court. Allen v. State, 219 Ga. 777 (135 SE2d 885)
1. The facts stated in the motion to quash the indictment and challenge to the array of traverse jurors show systematic exclusion of Negroes from jury service because of race. Norris v. Alabama, 294 U.S. 587 (55 SC 579, 79 LE 1074); Pierre v. Louisiana, 306 U.S. 354 (59 SC 536, 83 LE 757); Hill v. Texas, 316 U.S. 400 (62 SC 1159, 86 LE 1559); Patton v. Mississippi, 332 U.S. 463 (68 SC 184, 92 LE 76, 1 ALR2d 1286); Crumb v. State, 205 Ga. 547 (54 SE2d 639). Since 1879 such systematic exclusion has been recognized to be a denial of equal protection of the laws to a Negro defendant and to be prohibited by the Fourteenth Amendment to the United States Constitution. Strauder v. West Virginia, 100 U.S. 303, 310 (25 LE 664); Neal v. Delaware, 103 U.S. 370 (26 LE 567); Martin v. Texas, 200 U.S. 316 (26 SC 338, 50 LE 497); Carter v. Texas, 177 U.S. 442 (20 SC 687, 44 LE 839); Smith v. Texas, 311 U.S. 128, 129 (61 SC 164, 85 LE 84); Brunson v. North Carolina, 333 U.S. 851 (68 SC 634, 92 LE 1132); Cassell v. Texas, 339 U.S. 282 (70 SC 629, 94 LE 839); Brown v. Allen, 344 U.S. 443, 470 (73 SC 397, 97 LE 469); Eubanks v. Louisiana, 356 U.S. 584 (78 SC 970, 2 LE2d 991); Arnold v. North Carolina, 376 U.S. 773 (84 SC 1032, 12 LE2d 77). In this case we are presented with a question that has not been decided by the United States Supreme Court, whether a defendant's not being a member of a race excluded from jury service "would alone defeat an otherwise well-established case under the [Fourteenth] Amendment." Fay v. New York, 332 U.S. 261, 287 (67 SC 1613, 91 LE 2043); Thiel v. Southern Pacific Co., 328 U.S. 217, 225 (66 SC 984, 90 LE 1181).
. . . It becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class . . . It is likewise immaterial that the jury which actually decided the factual issue in the case was found to contain at least five members of the laboring class. The evil lies in the admitted wholesale exclusion of a large class of wage earners in disregard of the high standards of jury selection. To reassert those standards, to guard against the subtle undermining of the jury system, requires a new trial by a jury drawn from a panel properly and fairly chosen." Thus the Supreme Court held that "the general principles underlying proper jury selection outlaw" a practice designed by a Federal court to relieve the economically least secure from the financial burden which jury service involves. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 224, supra. While in this and other decisions involving selection of Federal juries the Supreme Court exercised its power over the administration of justice in the Federal courts, the principles discussed in those opinions are applicable to the issue of the citizen's rights in State courts to the protections of the Fourteenth Amendment. ". . . Whatever limitations were inherent in the historical common law concept of the jury as a body of one's peers do not prevail in this country. Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government." Glasser v. United States, 315 U.S. 60, 85 (62 SC 457, 86 LE 680). "It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it, but is at war with our basic concepts of a democratic society and a representative government." Smith v. Texas, 311 U.S. 128, 130, supra. "The injury is not limited to the defendant--there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts." Ballard v. United States, 329 U.S. 187, 195 (67 SC 261, 91 LE 181); Glasser v. United States, 315 U.S. 60, 85, 86, supra; Hill v. Texas, 316 U.S. 400, 406, supra. "Historically, it is not demonstrable that, either now or in the era of post-rebellion reconstruction in the states which produced the decisions, the plight of a Negro before a grand jury where unanimity is not required, would be preferable if it included one or more but less than a predominant number, of the members of his race, instead of being selected entirely from the white race. Cold, practical realism rather denies the advantage. The surer ground of decision in addition to the explicit constitutional and statutory mandates would seem to be the purposeful denial of that degree of detachment and impartiality which the law contemplates in the selection of juries; whereby injury actually results to the state, to the law as an institution, and to the individual both as a member of society and as a defendant immediately under the scrutiny of the jury." United States v. Roemig, 52 FSupp. 857, 862.
It has been held, and is sound reasoning, that when the impaneling of a jury is not in compliance with law, the jury as a body is not competent to act, and its action is invalid. Georgia R. v. Cole, 73 Ga. 713
, 715; Thompkins v. State, 138 Ga. 465
, 469 (75 SE 594
); Glass v. State, 109 Ga. App. 353
, 354 (136 SE2d 199
); Ludden v. State, 109 Ga. App. 745 (137 SE2d 402)
; Collins v. Walker, 329 F2d 100, 105 (5th Cir. 1964); Hammers v. State, (Okla.), 337 P2d 1097, 1105.
In 1937 the Georgia Supreme Court affirmed a trial court judgment finding against a white defendant's "challenge to the array of jurors because Negroes who were citizens and taxpayers of the county, and qualified to serve on juries therein, had been systematically excluded from jury service solely on account of their race and color, in violation of the Fourteenth Amendment to the Federal Constitution." The court stated: "The defendant was a male white citizen. He does not show how he was harmed or prejudiced by the systematic exclusion of women and Negroes from traverse juries, or how this exclusion violated any right of his." Griffin v. State, 183 Ga. 775, 777 (190 SE 2). But see Finnegan v. State, 57 Ga. 427; Tompkins v. State, 138 Ga. 465, 469, supra. The Griffin decision, however, was prior to Crumb v. State, 205 Ga. 547, supra, and prior to the cases discussed above decided by the United States Supreme Court, and cannot be considered a binding precedent in the present case.
We are of the opinion that any system that results in the consistent selection of jurors from a group or portion only of those available for service in that office, rather than from those available without discrimination, does not accord to any defendant the type of jury to which the law entitles him. "The equal protection clause of the Fourteenth Amendment prohibits a state from convicting any person by use of a jury which is not impartially drawn from a cross-section of the community." Fay v. New York, 332 U.S. 261, supra (dissenting opinion); accord Beck v. Washington, 369 U.S. 541, 570 (82 SC 955, 8 LE2d 98). (Black, J., dissenting).
Furthermore, we cannot say as a matter of law that this defendant, who was active in voter registration among Negroes, was not a member of a group systematically excluded in selecting the grand and traverse juries. "Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written and applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated." The petitioner has the burden of establishing the existence of a class. "One method by which this may be demonstrated is by showing the attitude of the community." Hernandez v. Texas, 347 U.S. 475 (76 SC 667, 98 LE 866).
Were it necessary for the defendant to show prejudice, judicial notice might be taken that where prejudice exists against the advocacy of the Negro's full privileges and duties of citizenship, a white person active in promoting participation in government by Negroes would be the object of as strong adverse prejudice as would a Negro engaged in such activities, and perhaps stronger. Ingram v. State, 97 Ga. App. 468
, 487 (103 SE2d 666
The trial court erred in overruling the defendant's motion to quash the indictment and challenge to the array as a matter of law, for the reason that the facts showed a denial to the defendant of equal protection of law contrary to the Fourteenth Amendment of the United States Constitution.
L. Rev. 399 (1962). "It is procedure that spells much of the difference between rule by law and rule by whim or caprice." Anti-Fascist Refugee Commission v. McGrath, 341 U.S. 123, 179 (71 SC 624, 95 LE 817).
One of the objectives of the various procedural safeguards traditionally demanded in the name of due process "is the goal of insuring the reliability of the guilt-determining process--reducing to a minimum the possibility that any innocent individual will be punished . . . it is of critical concern that the integrity of the process of ascertaining guilt or innocence never be impaired . . . This consideration, often expressed in terms of 'fairness,' gives meaning to the great bulk of procedures that have become part of the due process of law: that the accused be put on fair notice of the nature of the prohibited acts; that he be given an adequate opportunity to present his side through counsel before a fair and impartial tribunal free from prejudicial influences; that he be entitled to be continuously present at the trial, and to confront and cross-examine his accusers; that he have the right to be free of the damaging and untrustworthy influence of coerced confessions and testimony knowingly perjured." Kadish, Methodology and Criteria in Due Process Adjudication--A Survey and Criticism, 66 Yale L. J. 319, 346.
"Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires . . . Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which comprise substantive law . . . Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty . . . Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice . . ." Shaughnessy v. Mezei, 345 U.S. 206, 224 (73 SC 625, 97 LE 956).
The Federal Constitution's Fourteenth Amendment due process clause does not require trial by jury. Walker v. Sauvinet, 92 U.S. 90 (23 LE 678); Maxwell v. Dow, 176 U.S., 581, 603 (20 SC 448, 44 LE 597). It does not require a State to use a grand jury to bring criminal charges against persons. Hurtado v. California, 110 U.S. 516, supra. But when a State uses a grand and trial jury the accused is entitled to those procedures which will insure, so far as possible, that the juries selected are fair and impartial. Beck v. Washington, 369 U.S. 541, 579, supra (dissenting opinion). The procedures which will insure, so far as possible, that juries selected are fair and impartial have been determined and are the law of the land in Georgia. Code Ann. 59-112; Wilson v. State, 69 Ga. 224, 237, supra; Crumb v. State, 205 Ga. 547, supra. They must be applied alike to all persons in the jurisdiction. Tompkins v. State, 138 Ga. 465, 468, supra; Maxwell v. Dow, 176 U.S. 581, supra. When these procedures are not used and the jury is not selected according to constitutional requirements, a part of the criminal proceeding is infected with unfairness, and due process is lacking. Beck v. Washington, 369 U.S. 541, 581, supra. "An allegation of discriminatory practices in selecting a grand jury panel challenges an essential element of proper judicial procedure--the requirement of fairness on the part of the judicial arm of government in dealing with persons charged with criminal offenses." Akins v. Texas, 325 U.S. 398, 400 (65 SC 1276, 89 LE 1692).
When a State law provides for indictment and trial by a jury, due process of law, in our opinion, includes indictment and trial by juries selected in accordance with the established law, from a list of citizens representing a cross section of the community. See Thiel v. Southern Pac. Co., 328 U.S. 217, supra; The Constitution of the United States of America, Analysis and Interpretation, Senate Doc. No. 170, 82d Congress 2d Sess. (1953), p. 1145; Note, 26 Texas L. Rev. 533, 535. Thus due process of law is denied in Georgia when a criminal defendant is not accused and tried by a jury selected from such a list, in accordance with the law of the land the law of this State regulating the procedure for criminal justice. Finnegan v. State,, 57 Ga. 427, supra; Hurtado v. California, 110 U.S. 516, 533, 535, supra; accord Walker v. Sauvinet, 92 U.S. 90, supra; Chambers v. Florida, 309 U.S. 227, 235 et seq. (60 SC 472, 84 LE 716); Jackson v. Denno, 378 U.S. 368 (84 SC 1774, 12 LE2d 908, dissenting opinion.)
The trial court erred in overruling the defendant's motion to quash the indictment and challenge to the array of the traverse jurors for the reason that the facts alleged in the motion showed a violation of the due process clause of the Fourteenth Amendment to the United States Constitution.
3. The manner of selecting and drawing grand and traverse jurors for the courts of this State is set out in Title 59 of the Code of Georgia. Code Ann. 59-112 exempts certain persons from all jury duty. The exemptions were upheld by the Supreme Court of the United States upon the ground that there is nothing in the Fourteenth Amendment which prevents a State from excluding and exempting from jury duty certain classes (lawyers, ministers of the Gospel, doctors, etc.) on the bona fide ground that it is for the good of the community that their regular work should not be interrupted; provided, the "exclusion was not the result of race or class prejudice." Rawlings v. Georgia, 201 U.S. 638, 640 (26 SC 560, 50 LE 899).
When an irregularity in criminal proceedings involving the constitutional rights of a defendant is shown, it is per se injurious to the defendant. Zugar v. State, 194 Ga. 285
, 291 (21 SE2d 647
); Montos v. State, 212 Ga. 764
, 766 (95 SE2d 792
); Bobo v. State, 103 Ga. App. 685
, 686 (120 SE2d 203
); Thiel v. Southern Pacific Co., 328 U.S. 217, 220, supra; Fay v. New York, 332 U.S. 261, 300, supra (dissenting opinion); United States v. Roemig, 52 FSupp. 857, 862, supra; People v. Medcoff, 344 Mich. 108 (73 NW2d 537); Zimmerman v. State, 191 Md. 240 (59 A2d 675).
The unlawful selection of juries is, of course, more than an irregularity. Rudd v. State, 231 Ind. 105 (107 NE2d 168). "Grand jurors who have not been lawfully impaneled or sworn have no more authority to find indictments than the same number of citizens outside of the courthouse--they are not a grand jury in law." Tompkins v. State, 138 Ga. 465
, 467, supra; accord Glass v. State, 109 Ga. App. 353
, 354, supra; Ludden v. State, 109 Ga. App. 745
"Whenever the State undertakes to deprive one of its citizens of his life or liberty, it is the duty of the courts to see that it is done in accordance with the laws of the land, and not otherwise." Finnegan v. State, 57 Ga. 427, 430, supra. If there is anything sacrosanct, it is that there cannot be a legal right to break the law under the law. "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All of the officers of the Government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government." United States v. Lee, 106 U.S. 196, 220 (1 SC 240, 27 LE 171). All of us, the public officer and the civil rights demonstrator, must accept the rule of law and abide by it in all areas of our lives, or no one will abide by it and we cannot be protected in our rights in any area. See Hurtado v. California, 110 U.S. 516, 536, supra. The law is the law--is the law--is the law.
The trial court erred in overruling the defendant's motion to quash the indictment and challenge to the array of traverse jurors as a matter of law. The defendant is entitled to present evidence in support of his motion and challenge to show that the manner of selecting the grand and traverse jurors was not in accordance with the law of Georgia.
Judgment reversed. Nichols, P. J., and Russell, J., concur.