State v. Lowry

Annotate this Case

139 S.E.2d 870 (1965)

263 N.C. 536

STATE v. John C. LOWRY. STATE v. May MALLORY, Richard Crowder, Harold Reep and John Cyril Lowry, Defendants.

Nos. 437 and 438.

Supreme Court of North Carolina.

January 29, 1965.

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

Kunstler, Kunstler & Kinoy, New York City, Walter B. Nivens, Charlotte, and Richard J. Scupi, Washington, D. C., for defendant John C. Lowry.

Samuel S. Mitchell, Raleigh, and Walter S. Haffner, Good & Haffner, Cleveland, Ohio, for other defendants.

MOORE, Justice.

Defendant Lowry filed a different statement of the case on appeal from that filed by the other defendants, and a separate brief. To avoid needless repetition we discuss the appeals in one opinion. There are many assignments of error; we find it necessary to discuss only three.

I.

The defendants assert and contend that G.S. § 14-39 will not support an indictment and conviction, for that its terms are vague, uncertain, ambiguous, and indefinite "so as to deprive appellants of due process of law as protected by the Fourteenth Amendment of the Federal Constitution" and Article I, section 17, of the Constitution of North Carolina.

In support of this contention appellants quote at length from 14 Am.Jur., Criminal Law, sec. 19, pp. 773-4, as follows: "The Legislature in the exercise of its power to declare what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct and *873 know what acts it is his duty to avoid. * * * If a statute uses words of no determinative meaning and the language is so general and indefinite as to embrace not only acts properly and legally punishable, but others not punishable, it will be declared void for uncertainty. It is axiomatic that statutes creating and defining crimes cannot be extended by intendment. * * * A statute that either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law." This is unquestionably a statement of sound principles. State v. Hales, 256 N.C. 27, 122 S.E.2d 768, 90 A.L.R.2d 804; State v. Morrison, 210 N.C. 117, 185 S.E. 674; State v. Partlow, 91 N.C. 550; Drake v. Drake, 15 N.C. 10. But from the text cited by appellants we find the following (pp. 774-5): "A statute is not necessarily void for uncertainty because in creating a crime it does not define the offense, for if the offense is known to the common law, the common law definition may be adopted, even in jurisdictions where there are no common law crimes."

"As a general rule, when an offense is declared by statute in the general terms of the common law, without more particular definition, resort may be had to the common law for the particular acts constituting the offense. In other words, regardless whether the common law has been abrogated, when a statute punishes an act giving it a name known to the common law, without otherwise defining it, the statute is construed according to the common-law definition." 22 C.J.S. Criminal Law § 21, p. 59; McAdams v. State, 226 Ind. 403, 81 N.E.2d 671 (Ind.1948); State v. Pratt, 151 Me. 236, 116 A.2d 924 (1955); State v. Quatro, 31 N.J.Super. 51, 105 A.2d 913 (1954); State v. Johnson, 293 S.W.2d 907 (Mo.1956). While all federal crimes are created by statute, common-law words used in the statute may take their intended meaning from the common law. United States v. Turley, 352 U.S. 407, 77 S. Ct. 397, 1 L. Ed. 2d 430 (1957).

Kidnapping was a criminal offense at common law. In North Carolina "[a]ll such parts of the common law as were heretofore in force and use * * *, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force." G.S. § 4-1. The statutes of this jurisdiction relating to kidnapping, insofar as applicable to the instant case, did not originate the offense, they make kidnapping a felony and provide the limit of punishment. Kidnapping was a misdemeanor at common law. 1 Am.Jur., 2d, Abduction and Kidnapping, s. 3, p. 161. C.S. 4221 (P.L.1901, c. 699, § 1) provided that "If any person shall forcibly or fraudulently kidnap any person he shall be guilty of a felony, and upon conviction may be punished in the discretion of the court, not exceeding 20 years in the State's prison." This statute did not define "kidnap"; the common-law definition applied. The common-law definition is stated and explained in State v. Harrison (1907), 145 N.C. 408, 59 S.E. 867, as follows:

"Blackstone and some other English authorities define kidnapping to be the `forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another.' In East, Pleas of the Crown, vol. 1, p. 429, it is described as `the most aggravated species of false imprisonment,' and defined to be `the stealing and carrying away or secreting of any person.' `The Supreme Court of New Hampshire,' says Bishop, `more reasonably, and apparently not in conflict with actual decisions, held that transportation to a foreign country is not a necessary part of this *874 offense.' Bish. New Crim.Law, vol. 2, § 750. The case referred to is State v. Rollins, 8 N.H. 550, and sustains the author's text. Bishop states the better definition of kidnapping to be `false imprisonment, aggravated by conveying the imprisoned person to some other place.'"

C.S. 4221 was repealed by G.S. § 14-39 (P.L.1933, c. 542), and the limit of punishment increased. The increase in the limit of punishment and enactment of other provisions (not pertinent here) were a direct result of the Lindbergh tragedy. G.S. § 14-39 does not define "kidnap," State v. Witherington, infra; it provides that "It shall be unlawful for any person * * * to kidnap or cause to be kidnapped any human being * * *. Any person * * * violating * * * any provisions of this section, * * * and upon conviction therefor, shall be punishable by imprisonment for life." This statute leaves the term of imprisonment in the discretion of the court, but increases the maximum term from 20 years to life. State v. Kelly, 206 N.C. 660, 175 S.E. 294.

The word "kidnap," in its application to the evidence in the case at bar, and as used in G.S. § 14-39, means the unlawful taking and carrying away of a person by force and against his will (the common-law definition). State v. Gough, 257 N.C. 348, 126 S.E.2d 118, 95 A.L.R.2d 441; State v. Dorsett, 245 N.C. 47, 95 S.E.2d 90; State v. Witherington, 226 N.C. 211, 37 S.E.2d 497; State v. Harrison, supra. It is the fact, not the distance of forcible removal of the victim that constitutes kidnapping. 1 Am.Jur., 2d, Abduction and Kidnapping, s. 18, p. 172; People v. Oganesoff, 81 Cal. App. 2d 709, 184 P.2d 953; People v. Wein, 50 Cal. 2d 383, 326 P.2d 457, cert. den. 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. den. 358 U.S. 896, 79 S. Ct. 153, 3 L. Ed. 2d 122.

The principles which appellants seek to apply are inapplicable. The word "kidnap" is known to the common law, and the statute is construed according to the common-law definition.

II.

Defendants Lowry, Crowder and Reep moved for their discharge and the dismissal of proceedings against them, on the ground that their right to a speedy trial had been violated.

The offenses were allegedly committed on 27 August 1961. True bills of indictment were found and returned 31 August 1961, and defendants were brought to trial at the February Session 1964. The above named defendants had moved for trial at the May 1962 term of superior court.

"It is generally the policy of the law that criminal cases be promptly disposed of, * * * and the sixth amendment to the Federal Constitution guarantees to accused in a criminal prosecution under the federal law the right to a speedy trial. While this provision does not apply to criminal prosecutions in the state courts under state laws, the right is generally guaranteed by state constitutional or statutory provisions." 22A C.J.S. Criminal Law § 467(2), p. 20.

Defendants urgently contend that the speedy-trial guarantee of the Sixth Amendment is applicable to state proceedings under the provisions of the Fourteenth Amendment. But the affirmative of this proposition is not essential to the maintenance of defendants' rights. The fundamental law of this state secures to them the right of speedy trial. In State v. Patton, 260 N.C. 359, 132 S.E.2d 891, this Court declared:

"The right of a person formally accused of crime to a speedy and impartial trial has been guaranteed to Englishmen since Magna Carta, and the principle is embodied in the Sixth Amendment to the Federal Constitution, and in some form is contained in our State Constitution and in that of most, if not all, of our sister states, or, if not, in statutory provisions. *875 State v. Webb, 155 N.C. 426, 70 S.E. 1064 * * *. "G.S. 15-10, entitled `Speedy trial or discharge on commitment for felony,' requires simply that under certain circumstances `the prisoner be discharged from custody and not that he go quit of further prosecution.' State v. Webb, supra. "The Court said in Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 576, 49 L. Ed. 950, 954: `The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' "The constitutional right to a speedy trial is designed to prohibit arbitrary and oppressive delays which might be caused by the fault of the prosecution. Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481, 1 L. Ed. 2d 393; State v. Hadley, Mo., 249 S.W.2d 857. The right to a speedy trial on the merits is not designed as a sword for defendant's escape, but as a shield for his protection."

No general principle fixes the exact time within which a trial must be had. Whether a speedy trial is afforded must be determined in the light of the circumstances of each particular case. In the absence of a statutory standard, what is a fair and reasonable time is within the discretion of the court. 22A C.J.S. Criminal Law § 467 (4), pp. 24, 25, 30. "Four factors are relevant to a consideration of whether denial of a speedy trial assumes due process proportions: the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant. See Note, 57 Colum.L.Rev. 846, 861-63 (1957). These factors are to be considered together because they are interrelated. For example, even a short delay might constitute a violation of the defendant's constitutional right where the defendant is held without bail, and there is no reason for the delay." United States v. Fay, 313 F.2d 620 (CCA 2C 1963).

G.S. § 15-10 is for the protection of persons held without bail; it does not apply in the instant case. The movants were released on bail in September or October 1961 and have been at large at all times since. They are indicted jointly with defendant Mallory. Mrs. Mallory departed the State before she could be apprehended, and became a fugitive from justice. She went to Ohio and resisted extradition. The State of Ohio and the State of North Carolina were engaged continuously over a period of about two years in attempting to effect her return to North Carolina. She carried the question of her extradition to the Supreme Court of the United States twice, having litigated the matter through the Ohio State courts and the Federal courts (See: No. 858, Misc., Supreme Court of the United States, October Term, 1962, Malory v. McGettrick, 372 U.S. 949, 83 S. Ct. 945, 9 L. Ed. 2d 974 and No. 324, Misc., Supreme Court of the United States, October Term, 1963, Malory v. McGettrick, 375 U.S. 935, 84 S. Ct. 335, 11 L.Ed.2d 267). The case came to trial in Union County Superior Court promptly after her return to North Carolina. The absence of defendant Mallory and her pending extradition were the basis of denial of the motion of her codefendants for trial in 1962. The court anticipated from term to term her early return, and had no way of knowing it would require two years. The desire of the prosecution to try defendants together at one trial does not seem unreasonable since they were jointly charged. We note that at the time these defendants were urging trial in 1962 they were also moving for a change of venue which, if allowed, would have required a continuance. There is no evidence in the record tending to show that the abilities of defendants to present their defenses were in any way impaired by the delay. It would seem that the delay constituted a cooling period, which, more likely than not, was a *876 benefit to them. The court committed no abuse of discretion in denial of the motion for discharge and to dismiss. The assignment of error is overruled.

III.

Defendants moved to quash the indictments on the ground that Negroes had been systematically excluded from service on the grand juries of Union County because of their race, and particularly from the grand jury in service at the time the indictments were found. The motion was made in apt time, before pleading to the indictments. State v. Covington, 258 N.C. 501, 128 S.E.2d 827. After hearing evidence and finding facts the court overruled the motion.

This Court has held in a long and unbroken line of cases beginning with State v. Peoples, 131 N.C. 784, 42 S.E. 814 (1902), that arbitrary exclusion of citizens from service on grand juries on account of race is a denial of due process to members of the excluded race charged with indictable offenses. The latest case is State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964). Ordinarily it is not deemed such denial if the defendant is not a member of the excluded race. In the instant case all of the defendants are Negroes except Lowry. Though he is white, he had lived and associated with Negroes in their homes and joined with them in their marches and demonstrations. Since he made common cause with them in their demonstrations and is cast jointly with them in the trial, we think he is entitled to raise the question also.

Defendants offered evidence in support of the motion and we summarize the evidence as follows: According to the 1960 census the population of Union County is 24,467 persons over 21 years of age. Of this number 4,423 or 18% are non-white. According to the 1961 tax ledger there were 12,577 white and 2,023 non-whites assessed for taxes. Non-whites are 14% of the total. Some persons listed on the ledger are nonresidents. About 10% of those listed are women. The jury list for the county is made biennially, in odd years. A new jury list was made in June 1961. The names of all persons, regardless of race or sex, appearing on the tax ledger or scroll were put on the list. Names of females were added by taking every seventh or eighth female name, regardless of race, from voter-registration books (in 1963 all the female names in the registration books were put on the listthere had been a new registration). The list thus made was delivered to the county commissioners; they examined the list and excluded those exempt by statute; they placed an "x" beside each name to be excluded. The names approved by the county commissioners were put on separate slips of paper, one name on each slip, and these slips were placed in compartment no. 1 of the jury box. Each slip had the name, age and township of a prospective juror. If the person was colored, the designation "col." appeared after his or her name. When it was necessary to draw a venire for a term of court the names were drawn from the box by a child under 10 years of age, in the presence of the officials designated by statute, and the names were placed on a list. This constituted the jury panel for the ensuing term; the persons constituting the panel were summoned by the sheriff. At each February term or session a grand jury of 18 persons was drawn, to serve for one year. At the February terms the jury panel consisted of 48 jurors. Their names were put in a hat and 18 names were drawn from the hat by a child under 10. These constituted the grand jury. Usually 36 jurors were drawn for regular criminal and civil terms other than the February terms; 30 for the second week of criminal terms. There was testimony that the names drawn from the jury box for jury service were placed on the jury lists regardless of race, none discarded. No copy of the original 1961 jury list, or of any lists prior thereto, was preserved. When a new list was made the slips in the box were destroyed. The *877 grand jury which returned the indictments in the instant case was from the 1959 list. It was prepared in the same manner as was the 1961 list. From 1955 to 1958 there were no Negroes on the grand jury. From 1959 to 1962 there was one Negro on each grand jury. From November 1959 to February 1964, 706 jurors were drawn for service, and of this number 37 were Negroes. A special venire of 75 jurors was drawn in open court at the February 1964 session, for the trial of the instant case; 6 were Negroes.

Attorneys for defendants requested permission to count the names in the jury box and determine the number of whites and the number of Negroes, the sheriff to observe and assist. Upon objection by the solicitor, the request was not granted.

The judge found the following facts: The population of Union County is 83% white, 17% non-white. Three Negroes were drawn and reported for service on the panel of 48 jurors for the February Term 1961; the grand jury drawn from this panel had one Negro memberthis is the grand jury that returned the bills in the case at bar. "* * * it is a general practice in Union County that the jury list carries the designation `col.' behind the name of Negro jurors. * * * sometimes the designation `col.' is omitted and there is no definite way to distinguish white from Negro from a study of the list." Negroes have served on the grand jury and petit jury in Union County before and subsequent to August 1961.

The court concluded that there was no evidence of systematic exclusion of qualified Negroes from jury service, defendants' constitutional rights were not abridged or violated, and the indictments are valid and proper.

We are of the opinion, and so hold, that the indictments are invalid and the court erred in denying the motion to quash.

The court found as a fact that "it is the general practice in Union County that the jury list carries the designation `col.' behind the name of Negro jurors." It is obvious that "col." is an abbreviation of the word "colored" and is intended to designate race. This practice was in effect outlawed in State v. Speller, 229 N.C. 67, 47 S.E.2d 537. In that case the names of Negroes in the jury box were printed in red, while those of whites were printed in black. When the name of a Negro was drawn from the box it was discarded and the juror was not summoned. This Court ruled that these practices are discriminatory and arbitrary, and declared the following principle: "It has long been the holding in this jurisdiction that the law knows no distinction among those whose names are rightly in the jury box, and none should be recognized by the administrative officials. State v. Sloan, 97 N.C. 499, 2 S.E. 666; Capehart v. Stewart, 80 N.C. 101."

Statutory provisions in this state, respecting the qualifications, selection, listing, drawing and attendance of jurors is fair and nondiscriminatory and meets all constitutional tests. State v. Wilson, supra. A jury list is not discriminatory merely because it is made from the tax lists. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469. But it is better practice to supplement such lists by resort to voter registrations and other available lists. We have no statutory requirement that the names placed in the jury box be designated according to race, and we perceive no good reason why such practice should be indulged. The reason assigned therefor in the case at bar is that many persons in Union County, white and Negro, have the same name and the racial designations make it possible to positively identify a person so that notice may be mailed to the proper individual. Jurors are usually notified of their selection by mail, and accept service by mail; if service is not thus accepted they are summoned personally. We do not consider the reason assigned for racial designations a valid one. *878 If two white jurors have the same name, race designation would not furnish identification. The obvious solution of the identification problem would be to add the addresses where confusion might arise. Of course, the designation of race, just as sex or religious denomination, may in certain records serve a useful and necessary purpose, and the compilation of such information cannot be outlawed per se. But the promotion of a distinction purely on the basis of race is not justified. Hamm v. Virginia State Board of Elections, 230 F. Supp. 156 (ED, Va.1964), affd. 85 S. Ct. 157. It would be well for county commissioners and clerks of superior court to maintain for reference purposes statistical data with respect to the racial and sex composition of jury lists and juries which serve in the courts, so that the information may be readily available when motions such as the one under consideration are interposed. But this should not include racial designations in the jury box itself. Such practice lends itself to administrative abuses as in the Speller case, and casts doubt upon the administration of the jury system. As stated in Speller: "* * * the law knows no distinction among those whose names are rightly in the jury box."

There is in this record no direct evidence of administrative abuses or arbitrary exclusions so far as the conduct of the Union County officials is concerned. But there is a wide discrepancy in the ratio of the races in population and in jury service. Prior to 1963 there was never more than one Negro on any grand jury; during a period of 8 years, 1955 to 1962, inclusive, Negroes constituted about 5% of the petit juries. There is, of course, no requirement of law that Negro representation on jury panels be equivalent percentage-wise to population. Neither the small percentage of Negroes on the juries of Union County, nor the racial designation placed after the names of Negroes on the jury box, is conclusive proof of arbitrary and systematic exclusion of Negroes from the grand jury. But such circumstances do constitute a prima facie showing to that effect.

With respect to the grand jury the facts of the instant case are closely analagous to those in State v. Wilson, supra. There, "one Negro served on the grand jury that returned the bill of indictment in question. Another served a year earlier." Two or three Negroes served during a seven-year period. In the case at bar four of the eight grand juries, during the period 1955 to 1962, had a Negro in service. In Wilson we said: "When, at a hearing upon a motion to quash the bill of indictment, there is a showing that a substantial percentage of the population of the county from which the grand jury that returned the bill was drawn is of the Negro race and that no Negroes, or only a token number, have served on the grand juries of the county over a long period of time, such showing makes out a prima facie case of systematic exclusion of Negroes from service on the grand jury because of race. Arnold v. North Carolina, 376 U.S. 773, 84 S. Ct. 1032, 12 L. Ed. 2d 77; Eubanks v. Louisiana, 356 U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991; Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074. * * * 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." Further: "The burden of proving discriminatory jury practices is upon defendant. State v. Covington, 258 N.C. 495, 128 S.E.2d 822; Miller v. State, 237 N.C. 29, 74 S.E.2d 513; Akins v. Texas, supra (325 U.S. 398, 65 S. Ct. 1276, 89 L.Ed. 1692). But this does not relieve the prosecuting attorney of the duty of going forward with the evidence when the defendant has made out a prima facie case."

In the instant case the crucial findings of fact are either indefinite or based *879 on the absence of evidence. Defendants made out a prima facie case of systematic exclusion by showing the population ratio and that only a token number of Negroes had served on the grand jury, never more than one on any grand jury, sometimes none, and that such Negroes as were approved on the biennial list were designated "col." This was enough to cast the burden on the State to go forward with the evidence and show facts with respect to the management of the jury system sufficient to clearly overcome defendants' prima facie showing. But the State offered no evidence except such as it could elicit on cross-examination. The sheriff and the county commissioners were best qualified to give testimony relative to the administration of the jury system, since the law places upon them the primary responsibility therefor; they were not called and did not testify. Copies of jury lists, showing the names included and those excluded, were not kept; when a new jury list was made the old one was destroyed. The judge would not permit an examination of the current jury box or a determination of its racial composition. The court found that "there is no definite way to distinguish white from Negro from a study of the list," and Negroes have served on the grand jury and petit jury in Union County before and subsequent to August 1961," and "there is no evidence of systematic exclusion of qualified Negroes from jury service." These findings are negative in character, or so general in nature as to be indefinite and inconclusive. They fall far short of a positive, factual showing sufficient to overcome defendants' prima facie evidence.

It is suggested that State v. Perry, 250 N.C. 119, 108 S.E.2d 447, cert. den. 361 U.S. 833, 80 S. Ct. 83, 4 L. Ed. 2d 74, establishes as a matter of law that there is no systematic exclusion of Negroes from grand juries in Union County. This proposition is, of course, untenable. Each case must be decided according to the evidence adduced and the circumstances involved. There might be a different result in separate cases involving the same grand jury. Furthermore, the Perry case involved the 1957 grand jury, of which we have very little evidence in the instant case. Furthermore, the Perry case did not involve, so far as the opinion discloses, any racial designation of the names in the jury box.

Defendants made other assignments of error, but, if there were errors, they may not again arise in the event of another trial.

The indictments are quashed and the verdict and judgments are vacated for want of valid indictments to support them. It does not follow that defendants are entitled to discharge and dismissal of the charges. If the State so elects it may send new bills and if they are returned true bills by an unexceptionable grand jury, defendants may be tried thereon for the offenses alleged.

Reversed.