MILLER
v.
STATE.
No. 1.
Supreme Court of North Carolina.
January 30, 1953. Writ of Certiorari Denied April 6, 1953.*523 Taylor & Mitchell, Raleigh and Frank Brower, Durham, for the petitioner.
Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.
Writ of Certiorari Denied April 6, 1953. See 73 S. Ct. 792.
ERVIN, Justice.
This is the first proceeding under the North Carolina Post-Conviction Hearing Act to come before the North Carolina Supreme Court.
The trial of the proceeding in the Superior Court was accordant with the procedure established by the act. G.S. § 15-221. After hearing the testimony, the presiding judge made findings of fact in commendable detail, declared his conclusions of law upon them, and entered final judgment adverse to the petitioner.
The findings of fact of the judge are binding upon the petitioner on this review if they are supported by evidence. State v. Brown, supra; State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613; State v. Henderson, 216 N.C. 99, 3 S.E.2d 357; State v. Bell, supra; State v. Walls, 211 N.C. 487, 191 S.E. 232; State v. Cooper, 205 N.C. 657, 172 S.E. 199; State v. Daniels, 134 N.C. 641, 46 S.E. 743.
The petitioner undertakes to challenge the sufficiency of the evidence to support the findings of fact of the judge by excepting in general terms "to each of the findings of fact * * * set out by the court," and by asserting without specification in his first assignment of error that "the court committed prejudicial error in finding the facts as he did." This exception and this assignment of error fall short of the requirement that "When it is claimed that findings of fact, so made by the trial judge, are not supported by the evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged errors." Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, 353. Since the petitioner's life hangs in the balance, we have nevertheless examined and weighed the evidence in this proceeding with the same meticulous and painstaking care we would have employed had he noted appropriate exceptions and assignments of error to all of the findings of fact adverse to him.
The evidence supports the findings of fact. Yea, it necessitates them. It appears, in substance, in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 30, and 31 of the statement of facts, which contains a complete history of the original criminal action resulting in the petitioner's conviction *524 and this proceeding as such history is revealed by the record proper in State v. Miller, supra, the application of the petitioner for the writ of certiorari for the review of this proceeding, the answer of the State to that application, and the transcript of the record in this proceeding.
We digress at this point to make some incidental observations. In reaching the conclusion that the evidence compels the findings of fact made by the presiding judge, we have not disregarded the arithmetical arguments advanced by the petitioner on the basis of the testimony of his witnesses D. E. Redditt, the Tax Collector of Beaufort County, and Bryan Marslender, the Clerk of the Superior Court of Beaufort County. The petitioner's assertion that "only 15 Negroes * * * sat as grand jurors" in Beaufort County during the five years next preceding the trial of this proceeding rests solely upon a bit of evidence given by Redditt on his third and final appearance on the witness stand. On a proper analysis this testimony is destitute of probative value. Redditt had nothing to do with the selecting, drawing, or summoning of persons for jury service in Beaufort County. He had, moreover, no connection with the administration of justice in Beaufort County, or with the keeping of any records relating to that endeavor. He did not, in fact, possess any knowledge whatever of the racial composition of Beaufort County grand juries, and his own evidence on his prior appearances on the witness stand positively negatives any implication that he did. Redditt merely testified on his last visit to the stand that he had made an examination in some unexplained way of 23 unauthenticated writings purporting to be grand jury lists of Beaufort County covering in part the five years next preceding the trial of this proceeding, and that he had "identified 15" of the 414 persons whose names appeared in such writings "to be Negroes." Manifestly this testimony leaves to speculation the racial identities of the other 399 persons listed.
The transcript of the record reveals that 64 weeks of court were held in Beaufort County in the five years preceding the hearing in this proceeding, and that 2,211 persons were drawn for jury service during 43 of these weeks. It does not expressly appear how many persons were drawn for such service during the other 21 weeks because the number drawn for the first week of the May Term, 1949, was not proved at the trial, and the exhibit showing the numbers drawn for the remaining 20 weeks was omitted from the transcript of the record when its evidential contents were settled by stipulation between counsel for the petitioner and the solicitor of the judicial district embracing Beaufort County. Since it was customary to draw no fewer than 36 persons for service as petit jurors during each week of civil court and no fewer than 54 persons for service as grand and petit jurors during each week of criminal court as authorized by G.S. § 9-3, it can be inferred with complete assurance that at least 900 persons were drawn for jury service in Beaufort County during the 13 weeks of civil court and the 8 weeks of criminal court included in the 21 weeks set forth above. This being true, at least 3,111 persons were drawn for service as grand and petit jurors in Beaufort County during the 64 weeks of court held in the five years next preceding the trial of this proceeding.
The petitioner undertook to have Marslender classify the 3,111 persons as to race by merely inspecting their bare names as they were recorded on minute dockets, which contained no indication of the race of any of them. Marslender stated that he did "not know too many colored people in Beaufort County personally," and that his mere perusal of the bare names on the minute dockets enabled him to identify only 28 of the 3,111 persons in question as Negroes. He testified further, however, that he did "not mean to testify" these 28 persons comprised "all the Negroes on these panels"; that he was able to classify only 815 of the 3,111 persons in question as members of the white race; and that he was totally unable to testify as to the racial identities of the remaining 2,268 persons whose names appeared on the minute dockets. These things being true, the intimation *525 that only 28 Negroes were called for jury service in Beaufort County during the five years prior to the hearing in this proceeding finds no support in Marslender's evidence. Indeed, such intimation flies in the face of Marslender's positive statement: "I know there have been but a very few terms of court when there haven't been colored people on the grand jury, or the petit jury, or both." The 36 members of the regular panel and the 27 special veniremen mentioned in paragraphs 16 and 22 of the statement of facts are included in the 815 persons classified by Marslender as members of the white race. We close these incidental observations by noting that Lonnie Dennis, the only Negro witness, testified he did not know any Negroes qualified to serve on a jury who had been excluded from so doing by officials of Beaufort County.
Apart from the North Carolina Post-Conviction Hearing Act, the law bearing on the questions arising on this review is well settled. It is set forth in the numbered paragraphs which follow:
1. A state denies to a Negro citizen charged with crime the equal protection of the laws contrary to the Fourteenth Amendment to the United States Constitution whenever its legislators, or its courts, or its administrative officers intentionally exclude Negro citizens from service upon the grand jury that indicts him or the petit jury which tries him solely because of their race or color. Shepherd v. State of Florida, 341 U.S. 50, 71 S. Ct. 549, 95 L. Ed. 740; Moore v. People of State of New York, 333 U.S. 565, 68 S. Ct. 705, 92 L. Ed. 881; Brunson v. State of North Carolina, 332 U.S. 851, 68 S. Ct. 634, 92 L. Ed. 1132; Patton v. State of Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L. Ed. 76, 1 A.L.R. 2d 1286; Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559; Smith v. State of Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84; Pierre v. State of Louisiana, 306 U.S. 354, 59 S. Ct. 536, 83 L. Ed. 757; Hale v. Commonwealth of Kentucky, 303 U.S. 613, 58 S. Ct. 753, 82 L. Ed. 1050; Hollins v. State of Oklahoma, 295 U.S. 394, 55 S. Ct. 784, 79 L. Ed. 1500; Norris v. State of Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074; Rogers v. State of Alabama, 192 U.S. 226, 24 S. Ct. 257, 48 L. Ed. 417; Neal v. State of Delaware, 103 U.S. 370, 26 L. Ed. 567; Ex Parte State of Virginia, 100 U.S. 339, 25 L. Ed. 676; Strauder v. State of West Virginia, 100 U.S. 303, 25 L. Ed. 664; State v. Peoples, 131 N.C. 784, 42 S.E. 814. A similar conclusion is reached in North Carolina under the law of the land clause embodied in Article I, Section 17, of the State Constitution. State v. Speller, 229 N.C. 67, 47 S.E.2d 537.
2. The Fourteenth Amendment to the Constitution of the United States does not confer upon a Negro citizen charged with crime in a state court the right to demand that the grand or petit jury, which considers his case, shall be composed, either in whole or in part, of citizens of his own race. All he can demand is that he be indicted or tried by a jury from which Negroes have not been intentionally excluded because of their race or color. In consequence, there is no constitutional warrant for the proposition that a jury which indicts or tries a Negro must be composed of persons of each race in proportion to their respective numbers as citizens of the political unit from which the jury is summoned. Cassell v. State of Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839; Martin v. State of Texas, 200 U.S. 316, 26 S. Ct. 338, 50 L. Ed. 497; Carter v. State of Texas, 177 U.S. 442, 20 S. Ct. 687, 44 L. Ed. 839; Gibson v. State of Mississippi, 162 U.S. 565, 16 S. Ct. 904, 40 L. Ed. 1075; Jugiro v. Brush, 140 U.S. 291, 11 S. Ct. 770, 35 L. Ed. 510; Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S. Ct. 625, 27 L. Ed. 354; State of Virginia v. Rives, 100 U.S. 313, 25 L. Ed. 667; State v. Brown, supra; State v. Speller, 231 N. C. 549, 57 S.E.2d 759, and Id., 230 N.C. 345, 53 S.E.2d 294; State v. Koritz, 227 N.C. 552, 43 S.E.2d 77; State v. Sloan, 97 N.C. 499, 2 S.E. 666.
3. A state may prescribe such relevant qualifications as it deems proper for jurors without offending the Fourteenth Amendment to the United States Constitution as long as it takes care that no discrimination *526 in respect to jury service is made against any class of citizens solely because of their race. Hence, a state statute may restrict eligibility for jury service in a county to adult citizens and residents who are of good moral character and have sufficient intelligence to serve as members of grand and petit juries, and confer upon county commissioners the discretionary power to select for jury service in the county without regard to their race or color those adult citizens and residents who in their judgment possess these qualifications. Fay v. People of State of New York, 332 U.S. 261, 67 S. Ct. 1613, 91 L. Ed. 2043; Franklin v. State of South Carolina, 218 U.S. 161, 30 S. Ct. 640, 54 L. Ed. 980; Williams v. State of Mississippi, 170 U.S. 213, 18 S. Ct. 583, 42 L. Ed. 1012; Murray v. State of Louisiana, 163 U.S. 101, 16 S. Ct. 990, 41 L. Ed. 87; Gibson v. State of Mississippi, supra; Jugiro v. Brush, supra; Wood v. Brush, 140 U.S. 278, 11 S. Ct. 738, 35 L. Ed. 505. The North Carolina statute does not contravene the Fourteenth Amendment. It prescribes relevant qualifications for jurymen, and does not discriminate against any persons because of race or color. G.S. § 9-1.
4. A Negro objecting to a grand or petit jury because of alleged discrimination against Negroes in its selection must affirmatively prove that qualified Negroes were intentionally excluded from the jury because of their race or color. Fay v. New York, supra; Akins v. State of Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692; Martin v. Texas, supra; Brownfield v. State of South Carolina, 189 U.S. 426, 23 S. Ct. 513, 47 L. Ed. 882; Tarrance v. State of Florida, 188 U.S. 519, 23 S. Ct. 402, 47 L. Ed. 572; Williams v. Mississippi, supra; Smith v. State of Mississippi, 162 U.S. 592, 597, 16 S. Ct. 900, 40 L. Ed. 1082.
5. The Fourteenth Amendment to the United States Constitution requires a state to extend to a Negro charged with crime in its court a fair opportunity to have it determined by adequate and timely procedure whether Negroes legally qualified to serve as jurors have been intentionally excluded on account of their race or color from the grand jury returning an indictment against him or from the lists of those drawn or summoned to serve as petit jurors on his trial. Rogers v. Alabama, supra; Carter v. Texas, supra. North Carolina criminal procedure, which is set forth below in numbered paragraphs 7 and 8, grants to a Negro defendant a fair and full opportunity to assert and establish an objection of this nature at the trial of the original criminal action against him, and thus satisfies this requirement of the Fourteenth Amendment, Carter v. Texas, supra.
6. The accused in a criminal action may waive a constitutional right relating to a mere matter of practice or procedure. State v. Hartsfield, 188 N.C. 357, 124 S.E. 629; Jennings v. State of Illinois, 342 U.S. 104, 72 S. Ct. 123, 96 L. Ed. 119; Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834; Parker v. United States, 4 Cir., 184 F.2d 488; People v. Harris, 302 Ill. 590, 135 N.E. 75; 16 C. J.S., Constitutional Law, § 91; 22 C.J.S., Criminal Law, § 91. Hence, the constitutional right of a Negro defendant to be indicted or tried by a jury from which members of his race have not been intentionally excluded may be waived by him. State v. Kirksey, supra; Washington v. State, 95 Fla. 289, 116 So. 470; Merriweather v. Commonwealth. 118 Ky. 870, 82 S.W. 592, 4 Ann.Cas. 1039; Haggard v. Commonwealth, 79 Ky. 366; Keith v. State, 53 Ohio App. 58, 4 N.E.2d 220; Watts v. State, 75 Tex. Crim. 330, 171 S.W. 202. It is inherent in the judicial process that courts must deal with litigants as though they were acting in the persons of their attorneys. For this reason, the law confers upon the attorney for the defense in a criminal case the power to take such steps in matters of practice and procedure as he deems appropriate to protect the interests of the accused, and decrees that the accused is bound by his action as to those matters. Abney v. State, 47 Ga.App. 40, 169 S.E. 539; State v. Froah, 220 Iowa 840, 263 N.W. 525; State v. Dangelo, 182 Iowa 1253, 166 N.W. 587; Dewberry v. Commonwealth, 241 Ky. 726, 44 S.W.2d 1076; Sayre v. Commonwealth, 194 Ky. 338, 238 S.W. 737, 24 A.L.R. 1017; Bonar v. Commonwealth, 180 Ky. 338, 202 S.W. 676; *527 State v. Turlok, 76 Mont. 549, 248 P. 169; State v. Keller, 57 N.D. 645, 223 N.W. 698, 64 A.L.R. 434; Jacobs v. State, 85 Tex. Cr.R. 505, 213 S.W. 628. It necessarily follows that the attorney for the defense in a criminal action may waive a constitutional right of his client relating to a matter of practice or procedure. State v. Hartsfield, supra; James v. Commonwealth, 197 Ky. 577, 338, 247 S.W. 945. The right of a Negro defendant to object to a grand or petit jury upon the ground of discrimination against members of his race in the selection of such jury is waived by failing to pursue the proper remedy. State v. Kirksey, supra. See, also, in this connection the cases collected in the annotation in 52 A.L.R. 919. This statement of the Circuit Court of Appeals for the Eighth Circuit is pertinent: "Where parties, even in a criminal case, knowingly and deliberately adopt a course of procedure which at the time appears to be to their best interest, they cannot be permitted at a later time, after a decision has been rendered adverse to them, to obtain a retrial according to procedure which they have voluntarily discarded and waived. Johnson v. Zerbst, supra, syl. 2, [304 U.S.] page 458, 58 S.Ct. page 1019, [82 L. Ed. 1461]. Full opportunity having been afforded the appellants to apply to have the jury panel quashed and to have negroes summoned on a new jury panel, they could not deliberately withhold their application for such procedure and then be heard after conviction to assert on habeas corpus that their conviction was void. Such is not the function of the writ of habeas corpus. In the situation presented there was no denial of judicial remedy; therefore there was no denial of equal protection nor of due process of law. The decision of their counsel learned in the law, an attorney of judgment, experience and discretion, that their interests would not be furthered by filing the application, was binding upon the appellants and no inference can be drawn in view of the testimony on the trial that there was even a mistake of judgment chargeable to the attorney." Carruthers v. Reed, 102 F.2d 933, 938, certiorari denied in 307 U.S. 643, 59 S. Ct. 1047, 83 L. Ed. 1523.
7. The North Carolina statute codified as G.S. § 9-26 provides that "All exceptions to grand jurors for and on account of their disqualifications shall be taken before the jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not so taken, the same shall be deemed to be waived." Under the statute, a motion to quash an indictment against a Negro is the proper remedy in a criminal case where Negroes were intentionally excluded from the grand jury returning the indictment solely on the ground of race or color. State v. Peoples, supra; State v. Haywood, 94 N.C. 847. The statute and related common law practice unite to create these three rules: (1) An accused may make the motion to quash the indictment as a matter of right up to the time when he is arraigned and enters his plea; (2) the presiding judge has the discretionary power to permit the accused to make the motion to quash the indictment as a matter of grace after his plea is entered and until the petit jury is sworn and impaneled to try the case on its merits; and (3) the presiding judge has no power to entertain a motion to quash the indictment at all after the petit jury is sworn and impaneled to try the case on its merits. State v. Banner, 149 N.C. 519, 63 S.E. 84; State v. Gardner, 104 N.C. 739, 10 S.E. 146. A Negro defendant waives any objection to the grand jury which indicts him on the ground that Negroes were intentionally excluded from such grand jury because of their race or color unless he takes the objection by a motion to quash the indictment before entering a plea to the merits. State v. Banner, supra. When a Negro defendant moves to quash an indictment on the racial exclusion theory either as a matter of right or as a matter of grace, he may offer evidence to sustain his motion.
8. The objection of a Negro charged with crime that qualified Negroes were excluded solely because of their race or color from the list of persons drawn or summoned to serve as petit jurors at his trial must be taken by a challenge to the array or a motion to quash the panel or venire before entering upon the trial. State v. *528 Parker, 132 N.C. 1014, 43 S.E. 830. If not so taken, the objection is waived. State v. Kirksey, supra.
The evidence showed, and the presiding judge found, in essence, that Hallet S. Ward and James B. McMullan, the petitioner's court appointed attorneys in the original criminal action, were competent lawyers; that they determined after deliberate consideration not to challenge the grand jury that indicted the petitioner or the petit jury that tried him on the theory that members of his race, to-wit, Negroes, were intentionally excluded from the jury on account of their race or color; that they knowingly and deliberately adopted this course of procedure because they deemed the racial exclusion theory to be without merit in fact, and because this course appeared to them at the time to be to the best interest of the petitioner; and that in consequence of these things the petitioner pleaded not guilty to the indictment against him and went to trial on the merits in the original criminal action without making any objection to either the grand or the petit jury.
The presiding judge concluded as a matter of law on the basis of this evidence and these findings of fact that the petitioner, acting through his attorneys in the original criminal action, effectually waived for all time his constitutional right to object to the grand and petit juries which indicted and convicted him upon the ground that qualified Negroes were intentionally excluded from such juries solely because of their race or color by pleading not guilty and going to trial on the merits without making any objections to such juries. This legal conclusion, standing alone, is sufficient to sustain the judgment in this proceeding, if it be valid. It is too evident to admit the dispute that this legal conclusion finds full support in the principles of law enunciated in numbered paragraphs 6, 7, and 8 set forth above, and is sound unless those principles of law have been abrogated as to the petitioner by the North Carolina Post-Conviction Hearing Act. The petitioner insists that those legal principles are made inapplicable to him by this statute because "there has been no prior adjudication" as to the constitutional rights he claims in this proceeding "by any court of competent jurisdiction."
The answer to the problem posed by this contention necessarily lies in the provisions of the Post-Conviction Hearing Act. In construing this somewhat novel statute, we observe a strict judicial decorum and refrain from expressing an opinion upon any matters beyond those necessary to a determination of the proceeding now before us.
The Post-Conviction Hearing Act provides in express terms that "Any person imprisoned in the penitentiary, Central Prison, common jail of any county or imprisoned in the common jail of any county and assigned to work on the roads and highways of the State under the supervision of the State Highway and Public Works Commission, who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of North Carolina, or both, as to which there has been no prior adjudication by any court of competent jurisdiction", may apply by petition to the superior court for "an appropriate order with respect to the judgment or sentence in the former proceedings under which the petitioner was convicted". G.S. §§ 15-217, 15-221.
The North Carolina Post-Conviction Hearing Act is modeled on the Illinois Post-Conviction Hearing Act, which is set forth in full in People v. Dale, 406 Ill. 238, 92 N.E.2d 761. It is not designed to add to the law's delays by giving an accused two days in court where one is sufficient for the doing of substantial justice under fundamental law. It is not devised to confer upon an accused, who is defended by counsel of his own selection or competent counsel appointed by the court, a legal privilege, at his own election, to have his rights arising under the common law and the statutes adjudicated at a time of the State's choosing in the original criminal action, and his rights arising under the constitutions of his State and Nation adjudicated at a subsequent time of his own choosing in another proceeding. It is enacted to provide an adequate and available post-trial remedy for persons imprisoned under judicial decrees *529 who suffered substantial and unadjudicated deprivations of their constitutional rights in the original criminal actions resulting in their convictions because they were prevented from claiming such constitutional rights in the original criminal actions by factors beyond their control.
To this end, the North Carolina Post-Conviction Hearing Act establishes a new judicial proceeding by which the superior court may probe beneath the adjudication in the original criminal action in which an imprisoned petitioner was convicted and sentenced, and grant him appropriate relief in respect to his conviction and sentence in case it determines that two specified conditions concur. These conditions are as follows: (1) That there was a substantial denial of the constitutional rights of the petitioner in the original criminal action in which he was convicted and (2) that there has been no prior adjudication as to such constitutional rights by any court of competent jurisdiction.
When the instant proceeding is laid alongside the Post-Conviction Hearing Act as thus interpreted, it becomes plain that there was no substantial denial of the constitutional rights now claimed by the petitioner in the original criminal action which resulted in his conviction.
The petitioner was defended by competent counsel in the original criminal action. He was not prevented from laying claim to his alleged constitutional rights in that action by any factors beyond his control. On the contrary, he had a fair and full opportunity to assert his present claims in the original proceeding before a court, which was empowered by law to consider them and determine their validity. Acting through his counsel, he deliberately and knowingly refrained from presenting his present claims to the court for adjudication in that proceeding because he deemed them to be without merit in fact and believed their non-assertion to be to his best interest. A litigant does not suffer a denial of a supposed right when he intentionally and voluntarily relinquishes it.
It follows that the presiding judge rightlv ruled that the petitioner waived the claims which he now undertakes to assert. This conclusion is in accord with decisions of the United States Supreme Court and the Supreme Court of Illinois in a proceeding under the Illinois Post-Conviction Hearing Act. Jennings v. Illinois, supra; People v. Jennings, 411 Ill. 21, 102 N.E.2d 824.
The petitioner's plight would be the same even if he had not waived his claims. The evidence and the findings show that his constitutional rights were not violated in the proceeding culminating in his conviction.
The judicial orders staying the execution of the judgment of death automatically expires on the day of the filing of this opinion. See: G.S. § 15-194.
A criminal prosecution is likely to have a tragic ending for the accused if defense attorneys are compelled to make legal bricks without factual straw.
The judgment is affirmed.
PARKER, J., took no part in the consideration or decision of this case.