Dixon v. State , 74 Miss. 271 ( 1896 )

Cooper, C. J.,

delivered the opinion of the court.

• The appellant has been indicted, convicted, and sentenced to imprisonment for life for the murder of one Nancy Miner. In the court below the defendant made a motion to quash the indictment, and when the motion was overruled he moved for a transfer of the cause from the state to the federal court. This motion was also denied. The action of the court in refusing to quash the indictment, and in denying the petition for a transfer of the cause, constitute the principal errors assigned. The motion and the petition set out, in effect, the same facts,. and affidavits of several persons were filed that the matters therein stated were, as affiants believed, true. The purpose of the motion seems to have been primarily to assail the validity of all the laws passed since the adoption of our recent constitution, and of that constitution itself, on the ground that said constitution and laws are obnoxious to the fourteenth amendment to the constitution of the United States. The motion is too long to be inserted in this opinion. It states some facts, many inferences and deductions, and an argument to show that the conditions resulting from the adoption of the constitution are incompatible with the rights guaranteed to the colored race by the fourteenth amendment. Compressed within reasonable limits, the substance of the motion is that the constitutional convention was composed of 134 members, of which 133 were whites and one only a negro; that the purpose and object of said constitution was to disqualify, by reason of their color, race, and previous condition of servitude, 190,000 negro voters; that the constitution was not submitted to a vote of the people, and that the representation of the state in congress has not been reduced, as it should have been, upon the disqualification of so great a number of voters; that sections 241, 242, and 244 of the constitution of this state are in conflict with the fourteenth amendment to the constitution of the United States, because they vest in administrative oflicers the power to discriminate against citizens by reason of their color; and, that the purpose of so investing such officers with such power was intended by the framers of the state constitution, to the end that it should be used to discriminate against the negroes of the state.

We will recur to the contents of the motion hereafter, for the purpose of considering such averments as seem more nearly related to the subject under investigation, viz.., the competency and legality of the grand jury by which the indictment against appellant was returned. At this point in the investigation it is sufficient to say that we have no power to investigate or decide upon the private, individual purposes of those who framed the constitution, the political or racial complexion of the body of the convention, and have no concern with the representation of the state in congress. We can deal only with the perfected work — the written constitution adopted and put in operation by the convention. We have heretofore decided that it was competent for the convention to put the constitution' in operation without submitting it for ratification by a vote of the people. Sproule v. Fredericks, 69 Miss., 898.

We find nothing in the constitutional provisions challenged by the appellant which discriminates against any citizen by reason of his race, color or previous condition of servitude. Section 241 declares who are qualified electors, sec. 242 makes it the duty of the legislature to provide for the registration of persons entitled to vote, and sec. 244 declares that ‘‘ on and after the first day of January, A.D. 1892, every elector shall, in addition to the foregoing qualification, be able to read any section of the constitution of this state; or he shall be able to understand the same when read to him, or give a reasonable interpretation thereof. A new registration shall be made before the next ensuing election after January the first, A.D. 1892.” All these provisions, if fairly and impartially administered, apply with equal force to the individual white and negro citizen. It may be, and unquestionably is, true that, so administered, their operation will be to exclude from the exercise of the elective franchise a greater proportionate number of colored than of white persons. But this is not because one is white and the other is colored, but, because of superior advantages and circumstances possessed by the one race over the other, a greater number of the more fortunate race is found to possess the qualifications which the framers of the constitution deemed essential for the exercise of the elective franchise.

We have searched the record in vain to discover any averment that the officers of the state charged with the duty of selecting jurors in any manner exercised the power devolved upon them to the prejudice of the appellant, by excluding from the jury list members of the race to which he belongs. The motion contains much irrelevant matter, set up with great prolixity, and in involved and obscure language. But repeated and careful examination conducts us to the conclusion that much of its seeming obscurity vanishes when we read the motion in the light of the opinion entertained by counsel as to how the supposed discrimination has been made. He did not intend to charge, by the motion, that the officers by whom the grand jury was selected violated the law, but that they were, by the law under which they acted, required to select jurors from certain lists furnished to them by the officers charged with the duty of holding elections in the state, and that these election officers, in making such lists, discriminated against the race of appellant. In this view, the motion was properly denied, for the reason that jurors are not selected from or with reference to any lists furnished by such election officers. No such list is required to be made for use in selecting jurors, nor does the motion distinctly charge that any such was returned to the officers charged with the duty of selecting jurors, and by them used. The motion is based on the assumption that such list was essential to the selection of the grand jury, and without it no jury could be drawn, and that the list was made by discriminating against the negro race.

Our laws in reference to elections, and in reference to the selection of grand and petit juries, are totally distinct. To be an elector, or to serve upon a jury, one must be registered as a voter. But the acts and doings of those charged with holding elections can exercise no influence upon those by whom juries are selected. One may be denied the right to vote by the election officers, and yet be permitted to sit upon juries, grand or petit; and one may be ineligible to sit upon a jury, and yet qualified and permitted to vote. By sec. 2él of the constitution, it is provided that ‘ ‘ every male inhabitant of this state, except idiots, insane persons and Indians not taxed, who is a citizen of the United States, twenty-one years old and upwards, who has resided in this state two years, and one year in the election district, or in the incorporated city or town, in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy,' and who has paid, on or before the first day of February of the year in which he shall offer to vote, all taxes which may have been legally demanded of him, and which he has had an opportunity of paying according to law, for the two preceding years, and who shall produce to the officer holding the election satisfactory evidence that he has paid said taxes, is declared to be a qualified elector; but any minister of the gospel in charge of an organized church shall be entitled to vote after six months’ residence in the election district, if otherwise qualified. ’ ’ Sec. 264 declares who shall be qualified as jurors. It is as follows: “No person shall be a.grand or petit juror unless a qualified elector and able to read and write; but the want of any such qualification in any juror shall not vitiate any indictment or verdict. The legislature shall provide by law for procuring a list of persons so qualified, and the drawing therefrom of grand and petit j urors for each term of the qircuit court. ’ ’ It is not necessary that one desiring to register shall have paid his taxes as prescribed by sec. 241. That has to do with voting, and not registration. Bew v. State, 71 Miss., 1. One who has registered, and has in fact paid his taxes, although he has not offered to vote, and therefore has not produced to the officers holding an election satisfactory evidence of such payment, and who can read the constitution (Mabry v. State, 71 Miss., 716) and write, is qualified, under the constitution, to sit as a juror. It is true that sec. 241, in declaring who are electors, seemingly imposes, as an essential qualification, that the elector not only shall have paid his taxes, but also shall have produced satisfactory evidence thereof to the officers holding an election. But the section must have a reasonable and sensible construction. Registration, and payment in fact of the taxes as prescribed, are the substantial things required to qualify one as an elector. Proof of the fact that taxes have been paid, to the satisfaction of the election officers, is also required when the elector comes to vote; but, when he is presented as a juror, such payment is proved before the court, and not by the fact that he has been permitted to vote. If in truth he has paid his taxes, and possesses the other requisite qualification, the fact that he has never offered to vote, and therefore has never “produced to the officers holding an election satisfactory evidence that he has paid said taxes, ’ ’ or if, offering to vote, has failed to satisfy the officers that he has paid taxes, does not render him ineligible as a juror.

Section 2358 of the code prescribes how the jury lists shall be made. It provides that “the board of supervisors at the first meeting in each year, or at a subsequent meeting if not done at the first, shall select and make a list of persons to serve as jurors in the circuit court for the next two terms to be held more than thirty days afterwards, and, as a guide in making the list, they shall use the registration books of voters, and it shall select and list the names of qualified persons of good intelligence, sound judgment, and fair character, and shall take them, as nearly as it conveniently can, from the several election districts, in proportion to the number of qualified persons in each, excluding all who have served on the regular panel within two years, if there be not a deficiency of jurors.” It is from the list thus made that grand and petit juries are drawn. The sections of the code under which the appellant claims that he was discriminated against, have relation, not to the selection of juries, but to the subject of registration and voting; and his contention is not that persons entitled to register were denied registration by the registrar, but that the managers of elections are, by the law, made judges of the qualifications of electors offering to vote, and have denied to persons qualified to vote the right so to do. Conceding this to be true, we fail to perceive in what manner the appellant has been injured. The managers are required to supervise the election, and .are authorized to examine, on oath, any person duly registered and offering to vote, touching his qualifications as an elector. They are the judges of the qualifications of such persons, and may deny the right to vote to one not entitled, though he be registered. But they-have no power to strike the name of such person from the books, nor to put any additional names thereon. The registration book of the county does not go into the possession of the managers of the election, but they are furnished with poll books which contain the names of the registered voters in the district, copied from, or made contemporaneously with, the registration book.

As votes are cast, one of the clerks of the election takes down on a list the names of the voters, while the other enters a check upon the poll book, opposite the name of such person, and, at the close of the election, the votes are counted and the result declared. And the statute provides that “the statement of the result of the election in their election district shall be certified and signed by the managers and clerks, and the poll books, tally lists, list of voters, ballot boxes and ballots shall all be delivered, as required, to the commissioners of election. ’ ’ Code, § 3670. This is the only list known to us that the law requires to be made by the officers. It does not show, or purport to show, who are qualified electors, but only who have voted; and it has no relation except to matters connected with the election, and performs no function in reference to the selection of jurors. The boards of supervisors, by which bodies jury lists are made, never see these lists. They are returned and dealt with by the election commissioners, a wholly different body. And so, if it be true that the managers of elections have discriminated against colored voters, and unlawfully denied them the right to vote, it does not appear how the appellant has been deprived of any advantage or protection afforded to him either by the constitution or laws of this state or by the constitution of the United States.

There is no suggestion in the motion that the jury commissioners were guilty of any fraud or discrimination in selecting the jurors. If in truth there was no registration book in the count}'' to guide them in their selection of the jurors, their action in making the jury list was irregular, and, upon objection made before the grand jury was impaneled, the panel would have been quashed. Purvis v. State, 71 Miss., 706. But our statute provides that “ before swearing any grand juror as such, he shall be examined by the court on oath touching his qualification, and after the grand jurors shall have been sworn and impaneled, no objection shall be raised, by plea or otherwise, to the grand jury, but the impaneling of the grand jury shall be conclusive evidence of its competency and qualification, but any party interested may challenge or except to the array for fraud.”' Head v. State, 44 Miss., 731; Durrah v. State, 44 Miss., 789.

In Neal v. Delaware, 103 U. S., 370, and Gibson v. Mississippi, 162 U. S., 565, the supreme court of the United States has thoroughly discussed the subject of the right of a negro to the impartial protection of the law, and has clearly expressed the circumstances under which, and the means by which, that right is to be vindicated. If, by the constitution or laws of the state, negroes are, by reason of their race, color, or previous condition of servitude, excluded from juries, or in such other manner discriminated against as that a fair and impartial trial cannot be had in the state courts, then a negro proceeded against in the courts of the state may have his cause removed to the courts of the United States for trial. If there is no discrimination by the law, but the complaint is that by the act of the officers of the state, charged with the administration of fair- and impartial laws, discrimination has been made against the race, the defendant may not have a removal of his cause, but must make his defense in the state courts, and appeal from the final judgment of the supreme court of the state to the supreme court of the United States.

In Gibson v. Mississippi, supra, the supreme court of the United States declared that neither the constitution nor laws of this state prescribed any rule for or mode of procedure in the trial of criminal cases which is not equally applicable to all citizens of the United States, and to all persons within the jurisdiction of the state, without regard to race, color, or previous condition of servitude. We can discover nothing in the record which shows that the appellant, either by the laws of this state or by their administration, has been denied the right of a fair and impartial trial. The motion to quash the indictment, and for removal of the case, were properly overruled. We have dealt with the case upon the assumption that the facts set out in the motion are true. No objection was made in the court below because the proof was made by affidavits instead of by witnesses, and it is common practice in our courts, in the absence of objection, to hear affidavits on motions.

The error assigned touching the action of the court in admitting evidence of the state of feeling of appellant towards the woman Lavinia, at whom the shot was fired that killed Nancy Miner, is not maintainable. The defendant himself, on cross-examination of the witness Eliza Miner, drew out this evidence. But, aside from this, the evidence was entirely competent as tending to show quo animo the fatal shot was fired.

The judgment is affirmed.