State v. Wright

162 S.E.2d 56 (1968)

1 N.C. App. 479

STATE of North Carolina v. Bertha Mae WRIGHT, Madeline Pearsoll, Sarah Midgette, Phoebe Pearsoll and Frances Marshall, Cases #504 and #513.

No. 68SC70.

Court of Appeals of North Carolina.

July 10, 1968.

*59 T. W. Bruton, Atty. Gen., and Ralph Moody, Deputy Atty. Gen., for the State.

John H. Harmon, New Bern, J. LeVonne Chambers, Charlotte, Romallus O. Murphy, Raleigh, and James Lanning, Charlotte, for defendants appellants.

PARKER, Judge.

Defendants' first assignment of error is to the action of the trial court in denying their motions to quash the bills of indictment against them because of racial discrimination in the composition of the Grand Jury which indicted them. A similar question was considered by the Supreme Court of North Carolina in the recent case of State v. Yoes, 271 N.C. 616, 157 S.E.2d 386. In that case Justice Lake, speaking for the Court in a thorough and scholarly opinion, said:

"A Negro, moving to quash a bill of indictment on the ground that the grand jury, which returned it was unlawful, because of discrimination against Negroes in its selection, must prove affirmatively that qualified Negroes were intentionally excluded from the grand jury because of their race. (Citing cases.) This, however, may be shown by circumstantial evidence. Neither a showing that, over a substantial period, in a county with a relatively large Negro population only a few Negroes had served on juries, nor a showing that the race of the persons whose names appeared on scrolls in the jury box was designated on such scrolls, is conclusive proof of arbitrary and systematic exclusion of Negroes from the *60 grand jury which indicted the defendant. A showing of these circumstances does, however, constitute a prima facie showing of the discrimination forbidden by the law of this State. Such prima facie showing casts upon the State the burden to go forward with evidence sufficient to overcome it. (Citing cases.)"

In the cases before us, defendants contend they have carried the burden of showing a systematic exclusion of qualified Negroes from the Grand Jury which indicted them by presenting evidence of a statistical disparity between the ratio of the races in the adult population of Pamlico County as compared with the ratio of the races in the list of persons serving on grand juries in said county over the past ten years. They point to the evidence that approximately 30 percent of the adult population (according to the 1960 census), approximately 24 percent of the listed taxpayers (according to 1965 tax records), and approximately 20 percent of registered voters of Pamlico County, were colored. They compare these ratios with the ratios of Negroes serving on grand juries in Pamlico County over the past ten years, which was 16.6 percent when three Negroes served, ranging down to .055 percent when only one Negro served, and zero on the two occasions, one in 1957 and one in 1960, when no Negro served. They contend that this statistical disparity, when coupled with the fact that the list of prospective jurors was prepared from the taxpayer lists which were kept segregated by races and from the voter registration lists on which the race of each voter was indicated, established a prima facie case of unlawful discrimination in the selection of jurors which shifted the burden of proof to the State to rebut. Without deciding the question of whether the showing here made by defendants was sufficient to establish a prima facie case (compare Jones v. State of Georgia, 389 U.S. 24, 88 S. Ct. 4, 19 L. Ed. 2d 25, Whitus v. State of Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L.Ed.2d 599), we hold that even should this be conceded there was here sufficient evidence produced by defendants' own witnesses that Negroes were not systematically excluded from the Grand Jury which indicted the defendants to rebut a prima facie showing to the contrary and to support the trial court's finding of fact that members of the Negro race were not so excluded.

It is well established that the mere denial by the officials charged with the duty of listing, selecting and summoning jurors that there was any intentional, arbitrary or systematic discrimination because of race, is not sufficient to overcome a prima facie case to the contrary. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109. Nor is such a prima facie case rebutted by reliance upon a presumption that public officers are presumed to have discharged their sworn official duties. Jones v. State of Georgia, supra. "To overcome such prima facie case, there must be a showing by competent evidence that the institution and management of the jury system of the county is not in fact discriminatory. And if there is contradictory and conflicting evidence, the trial judge must make findings as to all material facts." State v. Wilson, supra. In the cases before us the trial judge has made full findings as to all material facts. These findings are supported by competent evidence introduced by the defendants themselves. Included in this evidence was the testimony of Mrs. Lennie Whorton, one of the clerks who participated in the preparation of the list of names to be submitted to the county commissioners to be used as jurors. For this purpose the tax records and the registration books were used. Mrs. Whorton testified:

"I would say we made an attempt to include from the list we were preparing approximately one-fourth Negro persons, because I am sure we got that many, if not more. I don't know the number, we didn't keep any record. We just tried to get equal as best we knew how. I would say there was approximately three hundred names of Negro persons on the *61 list we prepared. That would be roughly one-fourth of twelve hundred."

Other testimony submitted by defendants showed that the list prepared in 1966 contained approximately 1200 names, that there was no indication on this list as to color or race, that from this list the Board of County Commissioners selected 1,014 names which were placed in the jury box as jurors of Pamlico County. The chairman of the Board of County Commissioners testified:

"From the larger list, the list that was handed to me, we did exclude from that list people that we knew were dead. We also excluded from that list of people, persons who were not of good moral character. We also excluded from that list people whom we felt did not have sufficient intelligence to serve as jurors. That was the only ones that we laid aside. From the list that was handed to me and on the chosen names of the 1,014, there was not a way to tell or no designation as to color or race. Not in the least degree!"

Other members of the Board of County Commissioners also called as witnesses by defendants testified that they had not eliminated any name from the list of jurors because of race. When, as here, the defendants' own witnesses furnish evidence sufficient to rebut a prima facie showing of unlawful discrimination in the composition of the Grand Jury which had indicted them, it is not required that the State then go forward and reproduce independent evidence to the same effect. Here, the defendants had already called to the stand as their own witnesses practically all of the officials and clerical workers who had had any connection with the preparation of the lists and the selection of names of persons to be placed in the jury box. It would be ridiculous to require the State to recall to the stand these same witnesses simply for the purpose of testifying a second time to what had already been said. The findings of fact made by the trial court, when supported by competent evidence whether produced by the defendants or by the State, are conclusive on appeal and will not be disturbed unless so grossly wrong as to amount to an infraction of constitutional guaranties. State v. Wilson, supra. We find here no error in the trial court's denial of defendants' motions to quash the indictments against them.

Defendants' second assignment of error is directed to the trial court's action in denying defendants, during the hearing on their motion to quash by reason of racial discrimination, the right to inspect the jury box from which names of prospective jurors were drawn. In this connection, there was evidence before the court that the names as they appeared in the jury box were on slips of paper on which there was no designation of any kind which would indicate the color or race of the person whose name appeared thereon. The Register of Deeds, who also served as County Accountant and Tax Supervisor of Pamlico County and as Clerk to the Board of County Commissioners, testified:

"There was no designation of any kind whatsoever on those slips in the jury box which would indicate any color or any race. There was no designation on the list that was turned in to the Commissioners to indicate race or color. When the jury panel was drawn from the box, I was present. And the list was drawn by a child as the statute so required, under school age."

The defendants made no showing that, had they been permitted to examine the slips of paper with the names of jurors in the jury box, they would have been able to produce any witness who could readily determine the race of the persons whose names appeared thereon. Without such a witness, examination of the jury box would have availed defendants nothing. Even with such a witness or witnesses available, examination of the entire 1,014 names in the jury box and determination of the race of each would have consumed *62 days of time in the hearing on the motions to quash. Throughout the entire hearing the trial court was most meticulous in protecting defendants' right to develop and fully present their evidence. He ordered subpoenas issued for all witnesses and production of all pertinent records desired by them. The hearing on these motions had already consumed two days of the court's time. The granting or denial of defendants' motion to be permitted to examine the names in the jury box was within the discretion of the trial court, and there was no abuse of discretion in denying this motion, particularly since this would have protracted the hearing for many additional days.

Defendants' third assignment of error relates to the trial court's refusal to quash the capias which the Sheriff of Pamlico County was attempting to serve upon the defendant Bertha Mae Wright at the time she and the other defendants resisted him, giving rise to the present cases against them. This capias was issued by the Clerk of the Recorder's Court of Pamlico County, was issued in the name of the State of North Carolina, was directed to the Sheriff of Pamlico County, and commanded him to "take the body of Bertha Wright (if to be found in your county) and her safely keep, so that you have her before his Honor, the Judge of our Recorder's Court, at a court to be held for the County of Pamlico, at the courthouse in Bayboro, N.C, on the 9th day of December, 1966, next, then and there to answer the charge of the State against her on an indictment for failure to comply with a court order." Defendants contend that there was in fact no indictment then pending against Bertha Wright, no valid judgment or court order directed against her, and that the capias on its face is void since there is no such indictable offense in North Carolina as "failure to comply with a court order." But if after careful judicial inquiry it could be determined that the capias was void, this did not justify the defendants in resisting the officers when they attempted to serve it.

When an officer attempts to make an arrest without a warrant and in so doing exceeds his lawful authority, he may be resisted as in self-defense and in such case the person resisting cannot be convicted under G.S. § 14223 of the offense of resisting an officer engaged in the discharge of his duties. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100. But when an officer is acting under authority of process of a court, a different situation exists. In such case if the writ is sufficient on its face to show its purpose, even though it may be defective or irregular in some respect, yet the officer is protected. "It would be monstrous to lay down a different rule. It would put in jeopardy the life of every officer in the land. It never could be intended that they should determine, at their peril, the strict legal sufficiency of every precept placed in their hands." State v. Jones, 88 N.C. 671, 672, quoting from Judge Lumpkin in Boyd's case, 17 Ga. 194.

In the cases before us the capias was issued by the Clerk of the Recorder's Court of Pamlico County, a proper officer of a court having jurisdiction to issue such process. It was directed to the Sheriff of the county and commanded him to arrest the defendant, Bertha Wright. At the time the Sheriff attempted to carry out its mandate he had been Sheriff of the county for nearly 30 years and his identity and official position were known to defendants. There was evidence that he informed them that he had a capias in his possession for Bertha Mae Wright and that he intended to serve it. Even if it be shown that the capias was for some reason invalid, defendants mistook their remedy when they resorted to violence in resisting. The defendant Wright should have submitted to the arrest and raised the question of the validity of the process in an orderly way in a court having power to make a judicial determination of the matter. When defendants, *63 instead of following the orderly processes of the law, attempted to take matters into their own hands and to resolve the question by violence, they violated G.S. § 14223.

We have carefully reviewed defendants other assignments of error and find them to be without merit.

In the trial we find

No error.

MALLARD, C. J., and BROCK, J., concur.