JONES
v.
GEORGIA.
No. 174, Misc.
Supreme Court of United States.
Decided October 16, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA.Wilbur D. Owens, Jr., for petitioner.
Arthur K. Bolton, Attorney General of Georgia, G. Ernest Tidwell, Executive Assistant Attorney General, and Marion O. Gordon, Assistant Attorney General, for respondent.
PER CURIAM.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
Petitioner appealed his conviction for murder to the Georgia Supreme Court where he sought reversal on the ground, among others, that the evidence relevant to his claim of systematic exclusion of Negroes from the grand and petit juries drawn in the county established a prima facie case of the denial of equal protection within our *25 decision in Whitus v. Georgia, 385 U.S. 545.[*] The Georgia Supreme Court affirmed the conviction stating that Whitus was distinguishable because "public officers are presumed to have discharged their sworn official duties. . . . Under the testimony in this case we can not assume that the jury commissioners did not eliminate prospective jurors on the basis of their competency to serve, rather than because of racial discrimination." 223 Ga. 157, 162, 154 S.E.2d 228, 232.
We hold that the burden upon the State to explain "the disparity between the percentage of Negroes on the tax digest and those on the venires," Whitus, supra, at 552, was not met by the Georgia Supreme Court's reliance on the stated presumptions. See Arnold v. North Carolina, 376 U.S. 773; Eubanks v. Louisiana, 356 U.S. 584; Williams v. Georgia, 349 U.S. 375; Avery v. Georgia, 345 U.S. 559; Cassell v. Texas, 339 U.S. 282; Norris v. Alabama, 294 U.S. 587. We therefore reverse the judgment of the Georgia Supreme Court and remand for further proceedings not inconsistent with our opinion.
It is so ordered.
NOTES
[*] The record supports the following comparison of the salient facts in Whitus and in petitioner's case:
Whitus Petitioner's case
Over 21 population 42.6% Negro men 30.7% Negro
Jury Commissioners White (apparently) White
Source of juror Tax Digests separated 3 Tax Digests, two
names and identified of which separated
as to race and identified
as to race
Taxpayers 27.1% Negro 19.7% Negro
Negro jurors 9.1% grand jury 5.0% of jury list
venire and box (1 Negro
7.8% petit jury was on the grand
venire jury which indicted
petitioner)
Rebuttal evidence
by State None None