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162 U.S. 592
STATE OF MISSISSIPPI.
April 13, 1896. [162 U.S. 592, 593] The plaintiff in error, Charley Smith, was charged by indictment in the circuit court of Bolivar county, Miss., 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 50 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:
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, [162 U.S. 592, 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 bec use 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, exeluded 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 [162 U.S. 592, 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:
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 [162 U.S. 592, 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:
Cornelius J. Jones, for plaintiff in error.
Frank J. Johnston, for defendant in error. [162 U.S. 592, 600]
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.
1. For the reasons stated in the opinion of the court in Gibson v. State (just decided) 16 Sup. Ct. 904, it must be adjudged that the petition of the accused for the removal of the prosecution into the circuit court of the United States was properly denied. Neither the constitution nor the laws of Mississippi, by their language, reasonably interpreted, or as interpreted by the highest court of the state, show that the accused was denied, or could not enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, 'any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the United States.' Rev. St. U. S. 641.
2. No evidence was offered in support of the motion by the accused to quash the indictment, unless the facts set out in the written motion to quash, verified 'to the best of his knowledge and belief,' can be regarded as evidence in support of the motion. We are of opinion that it could not properly be so regarded. The case differs from Neal v. Delaware, 103 U.S. 370, 394 , 396 S.. In that case, upon the hearing of the motion to quash the indictment, based upon grounds similar to those here presented, it was agreed between the state, by its attorney general, and the prisoner, by his counsel, with the assent of the court, that the statements and allegations in the petition for removal should be taken and treated, and given the same force and effect, in the consideration and decision of the motions, 'as if said statements and allegations were made and verified by the defendant in a separate and distinct affidavit.' We said in that case: 'The only object which the prisoner's counsel could have had in filing the affidavit was to establish the grounds upon which the motions to quash were rested. It was in the discretion of the court to hear the motions upon affidavit. No counter affidavits were filed in behalf of the prosecution.' Again: 'We are of opinion that the motions to quash, sustained by the affidavit [162 U.S. 592, 601] of the accused,-which appears to have been filed in support of the motions, without objection as to its competency as evidence, and was uncontradicted by counter affidavits, or even by a formal denial of the grounds assigned,- should have been sustained. If, under the practice which obtains in the courts of the state, the affidavit of the prisoner could not, if objected to, be used as evidence in support of a motion to quash, the state could waive that objection, either expressly or by not making it at the proper time. No such objection appears to have been made by its attorney general. On the contrary, the agreement that the prisoner's verified petition should be treated as an affidavit 'in the consideration and decision' of the motions implied, as we think, that the state was willing to risk their determination upon the case as made by that affidavit, in connection, of course, with any facts of which the court might take judicial notice.' The case before us is presented, so far as the present question is concerned, in a different aspect. The facts stated in the written motion to quash, although that motion was verified by the affidavit of the accused, could not be used as evidence to establish those facts, except with the consent of the state prosecutor, or by order of the trial court. No such consent was given. No such order was made. The grounds assigned for quashing the indictment should have been sustained by distinct evidence introduced, or offered to be introduced, by the accused. He could not, of right, insist that the facts stated in the motion to quash should be taken as true simply because his motion was verified by his affidavit. The motion to quash was therefore unsupported by any competent evidence. Consequently, it cannot be held to have been erroneously denied.
3. It is assigned for error that the trial court refused to postpone the trial, to quash the weekly venire of jurors and the panel of jurors, or to sustain the exception of the accused to the qualifications of jurors tendered to him. None of these motions are so presented by the record as to raise any question as to the deprivation of rights secured to the accused by the constitution or laws of the United States.
4. The overruling of the motion for a new trial is not a [162 U.S. 592, 602] matter which this court can reexamine upon writ of error, the granting or refusing of such a motion being a matter within the discretion of the trial court.
5. In view of the order of the trial court directing the motion for a new trial and a motion to arrest the judgment to be embraced in one motion, we have, in our consideration of the case, treated the motion for new trial as having been intended to be also one to arrest the judgment. We are of opinion, for the reasons stated in Gibson v. State, as well as in this opinion, that no error of law was committed by the trial court in declining to arrest the judgment. As the application to remove the cause into the circuit court of the United States was properly overruled, and as the motion to quash the indictment was for the reasons above stated, also properly overruled, the order refusing to arrest the judgment cannot be held to be erroneous upon any ground of which this court can take cognizance, in its review of the proceedings of the supreme court of Mississippi.
It results that the judgment must be affirmed.