STATE
v.
Bertha Mae WRIGHT, Madeline Pearsoll, Sarah Midgette, Phoebe Pearsoll and Frances Marshall, Cases #504 and #513.
No. 84.
Supreme Court of North Carolina.
October 30, 1968.*903 Atty. Gen., I. Wade Bruton and Deputy Atty. Gen., Ralph Moody, for the State.
J. LeVonne Chambers, James E. Ferguson II and James E. Lanning, Charlotte, for defendant appellants.
LAKE, Justice.
The two questions for this Court are: (1) Did the trial court err in denying the motions to quash the bills of indictment made on the ground that members of the Negro race were systematically excluded from the jury list from which were selected the grand juries which indicted these defendants? (2) Did the trial judge err in denying the defendants' request "to go into the jury box," at the hearing on the motion to quash, to determine "the numerical breakdown as the names appear in the jury box"? Assignments of error presented to the Court of Appeals relative to rulings made by the trial judge at the trial on the merits were not brought forward to this Court and are, therefore, deemed abandoned. State v. Williams, 274 N.C. 328, 163 S.E.2d 353.
With reference to the first question, we note that we are not concerned here with the procedure now required by statute, and presumably followed in Pamlico County, in compiling the jury list and selecting names to go into the jury box. The General Assembly, at its 1967 Session, completely revised Chapter 9 of the General Statutes and established a new statewide procedure *904 for the compilation of the jury list and the selection of grand and petit jurors. That Act took effect after the drawing of the grand juries which returned these indictments and after the indictments were returned.
It is undisputed that in 1966 a completely new jury list and jury box were compiled and prepared in Pamlico County and the grand juries in question were selected from such then new jury box. The procedure followed in compiling the 1966 jury list was materially different from the procedures used in earlier years. The full extent of the difference does not appear in this record since the procedures formerly used are not set forth in detail. One substantial difference was that in 1966 names were taken from the voter registration books as well as from the tax booksa procedure suggested by this Court in State v. Lowry and Mallory, 263 N.C. 536, 139 S.E.2d 870.
We are, therefore, dealing here neither with the present, the future nor the remote past methods of selecting grand juries in Pamlico County. We have before us for determination the validity of the method of selecting grand juries in use in a narrowly limited period from mid-1966 to early 1967.
If the grand juries which indicted these defendants were properly constituted, the judgments before us must be affirmed, irrespective of the validity or invalidity of grand juries selected in years prior to the return of these indictments. Conversely, if the grand juries which indicted these defendants were not properly constituted, it is immaterial that the constitutional and statutory requirements were met in the selection of former or subsequent grand juries. Cassell v. State of Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839; State v. Yoes, 271 N.C. 616, 157 S.E.2d 386. In Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469, the Supreme Court of the United States said, "Assuming that before the Brunson [v. State of North Carolina] case, 333 U.S. 851, [68 S. Ct. 634, 92 L. Ed. 1132] there were unconstitutional exclusions of Negroes in this North Carolina county [Forsyth], the present record does not show such exclusions in this case." See also, Cassell v. Texas, supra. Evidence of past practices, and of the racial composition of grand juries selected when those practices prevailed, is material only insofar as such evidence tends to establish the presence or absence of unconstitutional discrimination in the selection of the grand jury which indicted the defendant on trial. The probative value of such evidence is greatly diminished or entirely dissipated by proof of a subsequent material change in the selective processes.
It has long been recognized by the courts of this State that an indictment of a defendant by a grand jury, from which persons of the defendant's race have been intentionally excluded solely because of their race, does not confer jurisdiction upon the superior court to try the defendant upon the charge named in the bill. State v. Yoes, 271 N.C. 616, 630, 157 S.E.2d 386; State v. Lowry and Mallory, supra; State v. Wilson, 262 N.C. 419, 137 S.E.2d 109; State v. Covington, 258 N.C. 501, 128 S.E.2d 827; State v. Perry, 250 N.C. 119, 108 S.E.2d 447; Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Speller, 231 N.C. 549, 57 S.E.2d 759; State v. Peoples, 131 N.C. 784, 42 S.E. 814. It is well established, by these and numerous other decisions of this Court, that this result is compelled by the Constitution of North Carolina, Art. I, § 17, as well as by the Fourteenth Amendment to the Constitution of the United States. So far as this State is concerned, the recognition of the right of a person to have criminal charges against him considered by a grand jury, from which members of his race are not excluded by intent and design because of their race, did not originate in decisions of the Supreme Court of the United States. Prior to the decision by that Court in Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664, this Court, in Capehart v. Stewart, 80 N.C. 101, *905 held that the selection of jurors on the basis of race was forbidden.
As Stacy, C. J., observed, in State v. Koritz, 227 N.C. 552, 43 S.E.2d 77, the controlling principles of both the State and the Federal law in this respect are clear. It is the application of these principles to the facts of the particular case which presents difficulty and causes occasional disagreement among the courts. As the founders of our State reminded us, "A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty." Constitution of North Carolina, Art. I, § 29. Consequently, in passing upon this and similar motions to quash bills of indictment, it is desirable to refresh our recollection concerning the basic rules governing the application of the broad constitutional principle invoked by these defendants, even though those rules have already been well established by the decisions of this Court and of the Supreme Court of the United States.
A defendant is not entitled to have the charge against him considered by a grand jury composed entirely of members of his own race, or even by a grand jury containing any member of his race. Cassell v. Texas, supra; State v. Wilson, supra. It follows that, for an indictment to be valid, it need not have been returned by a grand jury composed by members of the white and Negro races in proportion to the representation of these races in the population of the county, or upon the tax books or other source from which the names upon the jury list were taken. Brown v. Allen, supra; Akins v. State of Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692; State v. Wilson, supra; Miller v. State, supra; State v. Koritz, supra. That which is forbidden by the State and Federal Constitutions is the elimination of members of the defendant's race from, or a limitation upon the representation of his race on, the grand jury, which considers the charge against him, by intent and design on account of race. Hernandez v. State of Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866; Brown v. Allen, supra; State v. Wilson, supra; Miller v. State, supra. The burden rests upon the defendant to prove that there was such discrimination against the members of his race in the process by which the grand jury, which indicted him, was selected. Whitus v. State of Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599; Fay v. People of State of New York, 332 U.S. 261, 67 S. Ct. 1613, 91 L. Ed. 2043; Akins v. Texas, supra; State v. Wilson, supra; State v. Perry, supra; Miller v. State, supra.
Obviously, if there was intentional discrimination against members of the defendant's race in the compiling of the list of names from which was selected the names which went into the jury box, out of which came the names of the grand jury which indicted the defendant, the indictment is not saved by the purity of the processes used in transferring names from that jury list into the jury box or in drawing names from the jury box. However, the use of tax lists as a source of names to be placed upon the jury list, and then to be put into the jury box, does not render illegal a grand jury drawn from the box, even though the tax lists separated Negro and white taxpayers or otherwise designated their respective races. Brown v. Allen, supra; State v. Yoes, supra; State v. Lowry and Mallory, supra.
Thus, it is not enough for the defendant to show that the names which went into the jury box were taken originally from a source which disclosed the race of the persons named in such source material. Where, however, the defendant also shows that, throughout a substantial period of years, in which essentially the same procedures as those now in question were used in compiling jury lists, there was repeatedly a marked discrepancy between the number of Negroes drawn for grand jury service and the number of Negroes whose names appeared on the source material, such circumstances, in their *906 totality, make out a prima facie case of unconstitutional discrimination in the selection of the grand jury which indicted the defendant. Whitus v. Georgia, supra; State v. Wilson, supra. Upon such showing by the defendant, the burden rests upon the State to go forward with competent evidence to rebut the prima facie case, by explanation of the discrepancy or by other evidence showing no intentional and designed discrimination against the members of the defendant's race at any part of the processes culminating in the selection of the grand jury by which he was indicted. Whitus v. Georgia, supra; State v. Wilson, supra. Of course, a mere denial of the wrongful intent does not suffice to rebut such prima facie showing of the forbidden discrimination. Hernandez v. Texas, supra; State v. Wilson, supra.
We turn now to the application of these established rules to the facts shown in this record. After showing that the source materials (the tax lists and the voter registration books) used in the compilation of the jury list designated the race of each person named therein, and thus afforded an opportunity for intentional discrimination against members of the defendants' race in the compilation of the 1966 jury list, the defendants called as their witness the sheriff of the county. Taking the court minute book, at the request of the defendants' counsel, the sheriff examined the names of the members of each grand jury selected in Pamlico County in the preceding ten years. In each instance, with the exception of two, he pointed out from one to three members of such grand jury who were known by him to be Negroes.
The defendants contend that this makes out a prima facie case of unconstitutional discrimination within the rule of Whitus v. Georgia, supra. On the contrary, this evidence, in its totality, presents a picture quite different from that drawn in the Whitus case. First, the sheriff's testimony clearly establishes that, in the preceding ten years, virtually every grand jury drawn in the county had one or more Negro members. Second, he was identifying, merely by reading lists of names from one to ten years old, persons on each such list known by him to be Negro. We do not understand his testimony to be that every other person on each such list was known by him to be white. Notwithstanding the sheriff's claim to have been well acquainted with the people of his county, which claim we have no doubt was well founded, it is obvious that even a well informed sheriff could not be expected to identify instantly every person whose name appeared on one of many lists compiled several years earlier. Third, it appears from the defendants' evidence, without dispute, that a complete recompilation of the jury list and jury box was ordered by the county commissioners and was accomplished in 1966 for the purpose of compiling a more representative jury list. In the Whitus case the evidence was that the jury list and jury box there in question were compiled, in part at least, from an old jury list and jury box previously adjudged illegal because of unconstitutional discrimination against Negroes. In the present case, on the contrary, the 1966 jury list and jury box were completely new and the procedures used in compiling them were described in detail by the defendants' own witnesses, there being no testimony as to the procedures used in former years.
Thus, in the present case, as contrasted with the Whitus case, the defendants have not shown repeated substantial discrepancies between the number of Negroes drawn for grand jury duty and the number to be anticipated in view of the number named in the source materials during the period when the selective processes which they attack were in use. Consequently, the defendants did not establish a prima facie case of unconstitutional discrimination against Negroes in the selection of the grand jury by which these defendants were indicted.
Even if it could be said that the defendants offered evidence of long continued discrepancies between the number of Negroes *907 drawn for grand jury duty and the number of Negroes in the county qualified for such duty, the evidence offered by the defendants themselves rebuts any inference of conscious, intentional, designed exclusion of Negroes from the 1966 jury list. The above mentioned rule that, upon the establishment of a prima facie case of unconstitutional discrimination, the burden of going forward with evidence to rebut such showing rests upon the State, does not mean that the State cannot rely for this purpose upon the testimony of witnesses called by the defendants, including the testimony of these witnesses upon cross-examination. If at the close of the defendants' evidence, including the cross-examination of their witnesses, the prima facie case has been rebutted, it is not necessary for the State to call witnesses of its own to gild the lily. This is especially true where, as here, the defendants themselves called as their own witnesses all of the county officials who participated in, or who reasonably could have had knowledge of the processes by which the selection of the grand jury was made. It would be absurd to require the State then to recall to the stand the same officials to give the same testimony, as witnesses for the State, which they had already given as witnesses for the defendants.
The processes used in compiling the jury list of 1966 were described in detail by the ladies who compiled that list from the tax and voter registration books. Their testimony is a far cry from a mere denial of intent to discriminate. They testified that, while they used no percentage and no arithmetical formula or system for the selection of names from the source materials, they endeavored to take the names of white and Negro persons in an approximate proportion to the number of each race on the tax books and that, in their opinion, at least one-fourth of the 1,200 names selected by them were names of Negro people. There is no contention that after this jury list was so compiled by these ladies any discriminatory elimination of names occurred. The trial judge observed the demeanor of these witnesses and heard their testimony. In any event, the defendants do not attack their credibility, and, having called them as their witnesses, are not in a position to do so. G.S. § 8-50(b); State v. Tilley, 239 N.C. 245, 79 S.E.2d 473; Stansbury, North Carolina Evidence, 2d Ed., § 40.
The findings of fact by the trial judge are binding upon the appellate courts of this State if supported by evidence. State v. Wilson, supra; Miller v. State, supra; State v. Walls, 211 N.C. 487, 191 S.E. 232; State v. Cooper, 205 N.C. 657, 172 S.E. 199. The findings of fact by the superior court, set forth in the foregoing statement of facts, are fully supported by testimony of the defendants' own witnesses. Upon the facts so found, there was no error in the denial of the motion to quash the bills of indictment.
There remains for consideration the defendants' contention that they should have been permitted, in the course of the hearing upon their motion to quash, to "go into the jury box" and to examine the 1,014 scrolls contained therein to determine what proportion of these bore the names of Negroes; there being nothing on the scrolls, themselves, to indicate race.
It is well settled in this State that one who is indicted for a criminal offense must have "a fair opportunity to have it determined by adequate and timely procedure" whether members of his race, legally qualified to serve as jurors, have been intentionally excluded, on account of their race or color, from the grand jury returning the indictment. State v. Inman, 260 N.C. 311, 132 S.E.2d 613; Miller v. State, supra. The two indictments upon which these defendants were tried were returned by the respective grand juries in January and April 1967. The motions to quash were not filed until the cases were called for trial on 24 October 1967. Even then, it was not until after more than an entire day had been consumed in presentation of testimony by the defendants' witnesses, concerning the processes by *908 which the grand juries in question were selected, that the defendants requested the permission of the trial court to "go into the jury box" and have some citizen or citizens of the county take each of the 1,014 scrolls therein and determine, presumably from personal knowledge or comparison with the tax or voter registration books, the race of the persons whose names appeared thereon.
The trial judge correctly observed that to do what the defendants proposed would require many hours, if not days, of the time of the court. Obviously, if these defendants had such a right, so would every other person charged in Pamlico County with a criminal offense. A determination of the legality of the jury box in the case of one defendant would not be res judicata as against a defendant charged in another indictment. It is equally obvious that if these defendants had such a right so would a defendant in any other county of the State. Pamlico County is a small, rural county with 1,014 names in its jury box. Approximately 70,000 names are contained in the jury box of Guilford County. See State v. Yoes, supra. In Mecklenburg County the jury box may well contain in excess of 100,000 names. To hold that these defendants have a legal right, under the circumstances, to examine every scroll in the jury box and determine the race of the person named thereon, would put it in the power of persons charged with crimnial offenses to paralyze completely the entire system of criminal courts of this or any other state.
There is ample authority to the effect that the judge presiding at the trial of a law suit may, in his sound discretion, limit the examination and cross-examination of a witness so as to prevent needless waste of the time of the court. See State v. Stone, 226 N.C. 97, 36 S.E.2d 704. After stating that courts have like authority to limit the number of expert witnesses or of character witnesses, Professor Wigmore states:
"For witnesses upon any point whatever a similar rule of limitation may be enforced. * * * The reason for the rulenamely, that the disadvantage of confusion preponderates over the testimony of value, little or none, of the additional witnessesmay come to be applicable at any time * * *
"A Court occasionally declares the rule applicable only where the fact is not actually controverted. But this limitation is unsound, because the value of merely cumulative witnesses may become trifling even where the point is controverted, and the policy of the rule rests on the proportion between the probative value of the additional witnesses and the disadvantages they bring. * * *
"Sometimes a Court declares the qualification that the limiting of numbers is proper only upon collateral issues; though there is little authority for this * * * Moreover, there is no reason here for such a restriction of the rule; the exigency may equally arise upon any part of the issue * * *" Wigmore on Evidence, 3d Ed., § 1908.
In Hyatt, Trials, § 1,003, it is said:
"One of the most important parts of his [the trial judge's] duty is to expedite so far as he can do so, without interfering materially with the rights of the parties, the business of the court. In criminal cases the defendant has not only a constitutional right to a fair and impartial trial, but also to a speedy trial, but apart from this it is the duty of the court, not only in criminal but in civil cases, to so arrange and supervise the public business as to insure a reasonably speedy settlement of questions in which the life, liberty, or property of the litigants before it is involved. * * * The court may in its discretion limit the number of witnesses testifying to a particular fact in a case. * * *"
In Thompson on Trials, § 352, it is said:
"[I]t has been laid down, generally, that where, in the progress of a trial, it appears obvious that a party, either in the *909 examination of his witnesses or in his argument, is consuming time unnecessarily, the court may, in its discretion, arrest the examination; and the exercise of this discretion will not be reviewed unless its abuse manifestly appears. So it is the obvious duty of the judge to interpose his own motion, when a useless and irrelevant examination of the witnesses is going on, and prevent a waste of time and the distraction of the attention of the jury from the real issues."
In § 353 of the same treatise, it is said, "So, a reasonable limitation of the number of witnesses who shall testify to a particular fact is within the discretion of the trial court." To the same effect, see: Walker v. State, 240 Ark. 441, 399 S.W.2d 672; Gray v. St. John, 35 Ill. 222, 238; Dobbs v. State, 237 Ind. 119, 143 N.E.2d 99; Bays v. Herring, 51 Iowa 286, 1 N.W. 558; State v. Lee, 203 S.C. 536, 28 S.E.2d 402, 149 A.L.R. 1300; Shields v. State, 197 Tenn. 83, 270 S.W.2d 367; Meier v. Morgan, 82 Wis. 289, 52 N.W. 174; 53 Am. Jur. Trial, § 107; Annot., 21 A.L.R. 335.
Especially pertinent in the present case is State v. Whitton, 68 Mo. 91, in which the trial court limited the witnesses to be heard upon a motion for change of venue on account of local prejudice against the defendant. Sherwood, C. J., speaking for the Court in affirming the ruling, said:
"We regard such ruling clearly within the domain of judicial discretion, with which, unless arbitrarily and abusively exercised, we should refrain from interfering. * * * Any other theory of the law would permit, nay prompt, a crafty criminal to block the wheels of both punitive and remedial justice, by using the latest census returns of the county as a fecund source of limitless supply for countless subpoenas, thus securing a continuance under the pretense of securing a change of venue. And to those who, from long practice at the bar, are familiar with artifices of criminals, such an one will seem neither impossible nor improbable."
In Burgman v. United States, 88 U.S. App.D.C. 184, 188 F.2d 637, cert. den. 342 U.S. 838, 72 S. Ct. 64, 96 L. Ed. 634, the defendant, prosecuted for treason, pleaded insanity as a defense. Upon appeal, he asserted that the trial court had abused its discretion in failing to provide, at government expense, psychiatrists to examine the defendant and testify. Two psychiatrists, who had examined the defendant earlier, in the course of military service, had testified for the defendant and the prosecution had presented another. Speaking for the Court of Appeals for the District of Columbia, Prettyman, Cir. J., said:
"In the situation which then confronted the court, we think its decision was within its established discretion in such matters. A call of witnesses at Government expense is a matter for the trial court in its sound discretion. Moreover, numerous cases, stemming from Winans v. N. Y. & Erie R. Co. [21 How. 88, 16 L. Ed. 68], support the power of the court to limit reasonably the number of witnesses upon any single point; in other words, to curtail cumulative evidence."
We think it was clearly within the discretion of the trial court, having heard for more than an entire day the testimony of witnesses called by the defendants, and having concluded therefrom that there was no intentional, designed exclusion of Negroes from the grand jury which indicted these defendants, to refuse to permit the defendants to embark upon a fishing expedition which would, in all probability, be so extensive as to prevent the court from transacting any other business at that term.
Affirmed.