State v. Tant , 16 N.C. App. 113 ( 1972 )

191 S.E.2d 387 (1972) 16 N.C. App. 113

STATE of North Carolina
v.
Larry TANT.

No. 727SC570.

Court of Appeals of North Carolina.

September 20, 1972. Certiorari Denied December 5, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Henry T. Rosser, for the State.

Biggs, Meadows & Batts by Charles B. Winberry, Rocky Mount, for defendant appellant.

Certiorari Denied by Supreme Court December 5, 1972.

HEDRICK, Judge.

Defendant challenges the validity of the jury selection procedure employed by the jury commission of Nash County in compiling the list of prospective jurors for 1970 and 1971. It is defendant's contention that the system utilized discriminated against female jurors, thus depriving him of his right to indictment and trial by juries which represent a true cross-section of the community. We have carefully reviewed these contentions and find them to be without merit.

The list of prospective jurors for Nash County for the years 1970 and 1971 was compiled in the fall of 1969. The procedure employed by the jury commission in compiling this list is prescribed by G.S. § 9-2, ". . . In preparing the list, the jury commission shall use the tax lists of the county and voter registration records." Names of prospective jurors were selected from the tax lists by taking every other name and from the voter registration lists by selecting every tenth name.

G.S. § 105-301(a), in effect when taxes were listed in 1969, provided, "Except as hereinafter specified, real property shall be listed in the name of its owner; and it shall be the duty of the owner to list the same." Mr. Justice Lake, writing for the court in Duplin County v. Jones, 267 N.C. 68, 73, 147 S.E.2d 603, 606 (1966) stated:

"The wife is the ``taxpayer' with reference to taxes levied on account of property owned by her alone. The husband is the ``taxpayer' with reference to taxes levied on account of property owned by him alone. The husband and wife are, in contemplation of the law, a separate person from either with reference to land owned by them as tenants by the entirety."

In his brief defendant asserts:

"The failure of the . . . Tax Supervisor's Office to comply with the holding of Duplin County v. Jones, supra, by failing to list property owned by a husband and wife as tenants by the entirety in the name of both the husband and wife . . . resulted in men's names being on the tax lists . . . more than should have been the case had the law been complied with."

The burden of establishing a prima facie case of discrimination against prospective jurors rests with defendant. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972). In support of his contention that prospective female jurors were excluded from jury service in Nash County, defendant introduced evidence tending to show that the tax list for Nash County was improperly composed in that property held in tenancy by the entirety was frequently listed in the name of the husband alone. This resulted in a significant reduction in the number of females available for jury service in proportion to the total female population eligible for jury service in Nash County. Defendant has failed, however, to produce evidence that the jury commission intentionally, systematically or arbitrarily discriminated against females when it utilized the tax records in compiling the list of prospective jurors. To hold that a jury commission must ascertain the validity of the procedures used by independent bodies in compiling tax and voter registration lists before using such lists as sources of names of prospective jurors would be to impose an impossible burden. Any disparity in representation of the sexes on juries in Nash County did not result from discrimination in compilation of the jury list. The tax lists were compiled for purposes of taxation and were not maintained for the purpose of providing a source of names of prospective jurors. Thus, even if the tax lists contained a disproportionate male-female ratio, clearly such disproportion did not result from a systematic, arbitrary and intentionally discriminatory process on the part of the jury commission of Nash County.

To constitute unlawful discrimination, defendant must establish that the mode of jury selection is arbitrarily, systematically and intentionally discriminatory. State v. Cornell, supra; State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964); Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1945). It has been held that mere irregularity on the part of the jury commissioners in preparing the jury list, unless obviously, designedly or intentionally discriminatory, will not vitiate the list or afford a basis for a challenge to the array. State v. Koritz, 227 N.C. 552, 43 S.E.2d 77 (1947); State v. Daniels, 134 N.C. 641, 46 S.E. 743 (1904).

Defendant has not satisfied his burden of establishing a prima facie case of intentional, arbitrary and systematic discrimination in compilation of the jury list for Nash County for the years 1970-1971. Accordingly, the court did not commit error in denying the defendant's motions to quash the bill of indictment and to quash the venire of petit jurors.

We hold the defendant had a fair trial free from prejudicial error.

No error.

BROCK and MORRIS, JJ., concur.