STATE
v.
Jay Vann COVINGTON.
No. 437.
Supreme Court of North Carolina.
January 11, 1963.*825 Samuel S. Mitchell, Raleigh, and Scupi & Witt, Washington, D. C., for defendant-appellant.
T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.
PARKER, Justice.
Defendant assigns as errors the denial of his motion to quash the indictments on the alleged ground that Negroes by reason of their race were intentionally excluded from service on the grand jury which returned the indictments against him here, the denial of his motion to set a time to hear his motion to quash the indictments, after his counsel had had a reasonable time to investigate the facts relative to the alleged intentional exclusion of Negroes by reason of their race from the grand jury which returned the indictments here, and to the denial of his motion to cause process to issue requiring certain named officials of Union County to appear and give evidence relative to the drawing of the jury panel and the drawing of the grand jury which returned the indictments here from the jury panel. Defendant further assigns as error the court's making findings without holding a hearing or giving him adequate opportunity to present evidence.
Defendant's motion to quash the indictments was made in apt time, before pleading to the indictments. G.S. § 9-26; State v. Perry, 248 N.C. 334, 103 S.E.2d 404; Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Gardner, 104 N.C. 739, 10 S.E. 146.
The Supreme Court of the United States in an unbroken line of cases stretching back for eighty years has held that the indictment of a Negro defendant by a grand jury in a state court from which members of his race have been intentionally excluded solely because of their race is a denial of his rights to the equal protection of the laws as guaranteed by the 14th Amendment to the United States Constitution. State v. Perry, 250 N.C. 119, 108 S.E.2d 447; Miller v. State, supra; Eubanks v. Louisiana, 356 U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991; Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 167, 100 L. Ed. 77.
A like conclusion is reached in North Carolina by virtue of our decisions on "the law of the land" clause embodied in the Declaration of Rights, Article I, section 17, of the North Carolina Constitution, and we have consistently so held since 1902. State v. Peoples, 131 N.C. 784, 42 S.E. 814; State v. Speller, 229 N.C. 67, 47 S.E.2d 537; Miller v. State, supra; State v. Perry, 248 N.C. 334, 103 S.E.2d 404; State v. Perry, 250 N.C. 119, 108 S.E.2d 447.
Due process of law is secured against state action by the words of the 14th Amendment to the United States Constitution. Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595.
The Court said in Holden v. Hardy, 169 U.S. 366, 389, 18 S. Ct. 383, 387, 42 L. Ed. 780, 790: "This court has never attempted to define with precision the words `due process of law,' nor is it necessary to do so in this case. It is sufficient to say that there are certain immutable principles of justice, which inhere in the very idea of free government, which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice, and an opportunity of being heard in his defense."
The burden of proof is upon the defendant to establish the racial discrimination *826 alleged in his motion to quash the indictments. State v. Perry, 248 N.C. 334, 103 S.E.2d 404; Miller v. State, supra; Akins v. Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692; Fay v. New York, 332 U.S. 261, 67 S. Ct. 1613, 91 L. Ed. 2043.
The court in its findings states "there has been no evidence offered as a basis to quash the Bills of Indictment in this case." When the court denied defendant's motion to require process to issue for certain named officials of Union County to appear and give evidence relative to the preparation of the jury list of Union County, and the drawing of a jury panel and grand jury for the February Term 1962, and denied his motion for a reasonable time to inquire into alleged facts in respect to the intentional exclusion of Negroes by reason of their race from the grand jury which returned the indictments here, it would seem that defendant was denied a reasonable opportunity to produce evidence, if any such evidence exists as he contends. It is true the court made findings relative to a Negro serving on the grand jury which returned the indictments here, and to two Negroes serving on the jury panel from which this grand jury was drawn, and to Negroes drawn on the jury panel for the May Term 1962, but even so, due process of law requires that "no man shall be condemned in his person or property without due notice and opportunity of being heard in his defense," and that opportunity has been denied defendant here. Whether he can establish his contention or not, he must have his day in court on his motion to quash the indictments.
What we said in State v. Perry, 248 N.C. 334, 103 S.E.2d 404, in a similar situation from Union County, is controlling here:
"Whether a defendant has been given by the court a reasonable time and opportunity to investigate and produce evidence, if he can, of racial discrimination in the drawing and selection of a grand jury panel must be determined from the facts in each particular case. After a careful examination of all the facts in the instant case, it is our opinion that the trial court denied the defendant a reasonable opportunity and time to investigate and produce evidence, if such exists, in respect to the allegations of racial discrimination as to the grand jury set forth in the motion to quash and in the supporting affidavit of Samuel S. Mitchell. Whether the defendant can establish the alleged racial discrimination or not, due process of law demands that he have his day in court on this matter, and such day he does not have, unless he has a reasonable opportunity and time to investigate and produce his evidence, if he has any."
The judgment and verdict below are reversed, and the case is remanded for further proceedings. In the superior court the defendant must be granted the right to have process to issue for such witnesses and documents as he desires, and to present evidence that he may have, if any, as to the alleged racial discrimination in the grand jury panel which found the indictments against him. If a trial court at such hearing then finds there was no racial discrimination, the court will proceed to trial on the present indictments. If the trial judge then finds there was racial discrimination in the grand jury panel, and quashes the indictments, the defendant is not to be discharged. He will be held until indictments against him can be found by an unexceptionable grand jury. State v. Perry, 248 N.C. 334, 103 S.E.2d 404; State v. Speller, supra; Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559; Eubanks v. Louisiana, supra.
Reversed.