Where, in a challenge to the array of traverse jurors by a Negro defendant in a criminal case, it is shown that in the county in which the case is called for trial, more than 50 percent of the population, approximately 50 percent of the males over 21 years of age, and approximately 33 percent of those upon the tax digest, are Negroes, and that no Negroes were on the jury list and none had served as jurors for 30 or 40 years, and where the State made no showing to justify such exclusion, this established a violation of his rights under the "equal protection of the law" clause of the Fourteenth Amendment of the Constitution of the United States.
No. 16710. JULY 12, 1949. John Crumb was indicted by the grand jury of Early County at the January term, 1948, for a misdemeanor, by unlawfully pointing a weapon at another as defined in the Code, § 26-5107. The case was transferred from the superior court to the City Court of Blakely for trial. He was tried in that court on February 22, 1949, and convicted. In the bill of exceptions certain constitutional questions are invoked which accounts for the jurisdiction of this court to review the rulings there made.
Upon the call of the case the accused filed a plea in abatement, a motion to quash the indictment, and a challenge to the array of jurors. In view of the decision to follow it becomes necessary to deal only with the challenge to the array of jurors.
Before pleading to the merits the accused filed a challenge to the array of the traverse jurors put upon him. In substance it alleged that the accused was a member of the Negro race; that the jury commissioners of the county for a period of thirty years had placed only members of the white race on the jury list, and that a large percent of the population, of the males over 21 years of age, and of the names on the tax digest were Negroes; that there were numerous Negro citizens of the county competent and qualified to serve as jurors but they had been systematically, purposely, and expressly excluded therefrom solely on account of their race. It was alleged that this was a violation of his rights under specified provisions of the State Constitution, certain provisions of the United States Code, and the "due process of law" clause and the "equal protection of the law" clauses of the Fourteenth Amendment of the Constitution of the United States. (Code, § 1-815.)
Evidence in support thereof showed that, by the 1940 census of Early County there were 9074 whites and 9614 Negroes, and as to those 21 years of age or older there were 2468 whites and 2250 Negroes; that upon the tax digest there were between 2600 and 2700 whites and at least 1000 Negroes. The clerk of the superior court testified that there were no Negroes on the jury list, either the grand-jury list or the traverse-jury list. That he had been clerk twelve years and had never seen a Negro serve as a juror. The chairman of the board of jury commissioners testified: "I take the names of persons whom I qualify and certify as jurors from the books of the Tax Digest of the county. . . *Page 549 We have looked through them, but as I understand our duty, we can qualify anyone that we think fit. . . We never thought any Negro citizen in the county qualified for the grand jury or petit jury. . . None of their names appear on the list made up in 1946 or 1948, neither on the grand jury or petit jury list. I have been a citizen here about forty years. I have been attending court on and off during that forty years. I have observed both grand jurors and petit jurors who have been here and have qualified to serve at that particular term. In my memory, I have never heard of a Negro being on the grand jury or petit jury in this county." The sheriff testified that he had been sheriff 16 years, that prior thereto he was deputy sheriff under his father for 13 years, that he had been in the court for 30 to 40 years; that as deputy or as sheriff he had never summoned a Negro for jury service, nor had he ever heard of one being summoned.
There was no counter-showing by the State. At the conclusion of the testimony the trial judge overruled the challenge, to which exceptions pendente lite were taken and error is assigned thereon in the bill of exceptions. The Code, § 59-106, makes provision for the selection of jurors. In substance it provides that the jury commissioners shall select from the books of the tax receiver "upright and intelligent" men to serve as jurors, and then select from these, not exceeding two-fifths, the most "experienced, intelligent, and upright" to serve as grand jurors.
The accused asserts that over a long period of time Negroes have been purposely and expressly excluded from the jury list solely on account of their race, and that by such systematic and purposeful exclusion he has been deprived of his rights under the "due process" and the "equal protection of the law" clauses in the Fourteenth Amendment of the Constitution of the United States (Code, § 1-815).
In 1880 in the case of Neal v. Delaware, 103 U.S. 370, 397 (26 L. ed. 567), the United States Supreme Court held that the exclusion of Negroes from juries solely because of their race denied a Negro defendant in a criminal case the equal protection *Page 550 of the law required by the Fourteenth Amendment to the Constitution of the United States. It was there said: (p. 394) "that in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them, because of their color. So that we need only inquire whether, upon the showing made by the accused, the court erred in overruling the motions to quash the indictment and the panels of jurors." And then added (p. 397), "The showing thus made, including, as it did, the fact . . that no colored citizen had ever been summoned as a juror, . . although its colored population . . exceeded twenty-six thousand, in a total population of less than one hundred and fifty thousand — presented a prima facie case of denial, by the officers charged with the selection of grand and petit jurors, of that equality of protection which has been assured by the Constitution and laws of the United States." The principle there stated has since been reiterated and applied in numerous cases, so many, in fact, that to cite all would be useless enumeration.
While each case must rest upon its particular facts, it might be well briefly to direct attention to some of the more recent cases. In Norris v. Alabama, 294 U.S. 587 (55 Sup. Ct. 579,79 L. ed. 1074), where, on a motion to quash the trial venire in Morgan County, it was shown that approximately 18 percent of the population were Negroes, that for a long period no Negroes were called for jury service, that there were Negroes qualified for jury service, the court held that a prima facie case was established, and was not overcome by testimony of the jury commissioners to the effect that they knew of no Negro who was qualified for jury service under the terms of the Alabama law. Another case in many respects similar is Pierre v. Louisiana,306 U.S. 354 (59 Sup. Ct. 536, 83 L. ed. 757). In Hill v. Texas, 316 U.S. 400 (62 Sup. Ct. 1159, 86 L. ed. 1559), upon a motion to quash the indictment because Negroes were, and had been for a long period of time, excluded from the grand jury, that approximately 17 percent of the population of Dallas County were Negroes, and where the accused showed there were a large number of Negroes who met some of the statutory requirements for jury service, but omitted to establish that they had all of the tests, the court held that this established a prima facie case, *Page 551 which was not overcome by testimony of the jury commissioners to the effect that they were not omitted by reason of being Negroes, but because they did not know any Negro qualified to serve, and made no investigation to ascertain whether there were any qualified for grand jury service. In the more recent case of Patton v. Mississippi, 332 U.S. 463 (68 Sup. Ct. 184,92 L.ed. 96), where it was shown that approximately 33 percent of the adult population of Lauderdale County were Negroes, and that no Negro had served on a grand or petit jury for a period of thirty years, created a strong showing that during that period Negroes were systematically excluded from jury service because of race, and where such a showing was made it became the duty of the State to justify such an exclusion as having been brought about for some reason other than racial discrimination. The State produced no evidence to show that there were no Negroes in the county qualified for jury service. The court said: "We hold that the State wholly failed to meet the very strong evidence of purposeful racial discrimination made out by the petitioner upon the uncontradicted showing that for thirty years or more no Negro had served as a juror in the criminal courts of Lauderdale County. When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand."
These rulings of the United States Supreme Court speak for themselves. The facts in the instant case show that more than 50 percent of the population of Early County are Negroes, that approximately 50 percent of the males over 21 years of age are Negroes, and that approximately 33 percent of those upon the tax digest, from which the jurors are selected, are Negroes. When considered in connection with the further testimony that no Negroes were on the jury list, and none had served for a period of thirty or forty years, and no showing by the State to justify such exclusion, it becomes apparent, under the foregoing decisions of the United States Supreme Court, that the accused has been denied his rights under the "equal protection of the law" clause of the Fourteenth Amendment of the Constitution of the United States. Code, § 1-815. A construction of a clause of the United *Page 552 States Constitution having been invoked, the interpretation given thereto by the United States Supreme Court becomes binding authority upon this court. Wrought Iron Co. v. Johnson,84 Ga. 754 (11 S.E. 233); Gernatt v. Huiet, 192 Ga. 729 (16 S.E.2d 587); Mason Dixon Lines Inc. v. Odom, 193 Ga. 471 (18 S.E.2d 841). And whatever may be the individual opinion of the members of this court as to the correctness, soundness, or wisdom of these decisions, it becomes our duty to yield thereto, just as the other courts of this State must accept and be controlled by the decisions and mandates of this court. This being a government by law and not by men, the jury commissioners in their official conduct are bound by the foregoing rulings of the Supreme Court of the United States, notwithstanding any personal opinion, hereditary instinct, natural impulse, or geographical tradition to the contrary.
Judgment reversed. All the Justices concur.