I respectfully dissent, because (1) the trial court erred in refusing to allow the appellant to introduce evidence on his motion to quash the venire; and (2) this error calls for a reversal. This case is ruled by our own cases of Ware v. State, 146 Ark. 321, 225 S.W. 626, and Bone v. State,198 Ark. 519, 129 S.W.2d 240, as well as by numerous cases decided by the Supreme Court of the United States, many of which are cited and discussed in the annotation in82 Law Ed. 1053, entitled "Violation of Constitutional Rights of Defendants in Criminal Cases by Unfair Practices in Selection of Grand or Petit Jurors."
In the case at bar the appellant filed his motion to quash the panel of petit jurors. The motion — copied in extenso in the majority opinion — alleged, inter alia, that the action of the jury commissioners denied the defendants their constitutional right of "trial by a jury of their peers," and that the inclusion of two Negroes on the jury panel was in a studied effort to deprive the defendants of a fair petit jury panel. It was not a question of whether the judge had correctly instructed the jury commissioners, but it was a question of whether the jury commissioners — after receiving the court's instructions — had, by their very method of procedure, circumvented the defendant's claimed constitutional rights. Here is a verbatim copy of the entire proceedings on this motion to quash:
"Court: I have before me your motion to quash the jury panel based on the allegation of discrimination against the Negro race. The Jury Commissioners were *Page 998 appointed by the Court in the usual and customary manner, and they were duly sworn in accordance with the Statute, and instructed by the court, — the jury commissioners were under specific instructions, and were admonished that there must be no discrimination shown in the selection of the jury, and that no person should be disqualified because of his race, creed or other such matters. The Jury Commissioners were advised that the Court was requiring them to select people of all races residing in Ouachita County so far as they were able to do so, and in accordance with the Court's instructions the jury commissioners selected the present panel, which includes two members of the Negro race — they are on the jury panel and present today. The motion will be overruled.
"Counsel for Defendant: We save our exceptions to the ruling of the court. I would like to present the Court with some proof in connection with that motion. I would like to say that it is a sincere effort made to determine this question from a standpoint of proportional representatives on juries. In a recent decision appealed from the Jefferson Circuit Court to the Supreme Court — in that case it appears from the opinion that we should have put in more proof from the jury commissioners with regard to the selection of the jurors. For the purpose of the record, I would like to ask the Court to permit me to examine the present Jury Commissioners, and the prior commissioners who are available, together with the examination of the Clerk of the Court and the Sheriff.
"Court: What do you want to do that for?
"Counsel for Defendant: I want to establish the manner in which the jury is selected; in other words, it is my contention that the placing of one member of the Negro race on the jury does not meet a substantial compliance with the constitutional provisions.
"Court: I think that the record speaks for itself the Jury Commissioners were instructed just exactly as the Court has stated, they were told to select this jury *Page 999 without discrimination of race, creed or anything else, those are the facts and the record speaks for itself. If there had not been Negroes on other juries in this county, and you disqualify this jury, it would seem to me that it would make it impossible to try one of these cases at all. The request will be denied.
"Counsel for Defendant: We save our exceptions to the ruling of the Court."
The Court's ruling, as reflected by the above, was tantamount to the trial court refusing to hear evidence, because — as the trial court said — the jury commissioners had been correctly instructed. Even so the appellant was entitled to introduce evidence in his effort to show that the jury commissioners had not complied with the law and the instructions of the court. It is not for us to speculate — as I think the majority has done — as to what the defendant would have been able to show by the proof that he wanted to offer. The point is that he was not allowed to offer any proof. In Ware v. State, 146 Ark. 321,225 S.W. 626, decided by this Court on December 6, 1920, the same point was made. There, the defendants filed a motion to quash the panel, and the motion was overruled without allowing the defendants to introduce testimony. This Court held that such proceeding was error. Here is a portion of that opinion:
"Did the court err in refusing to hear testimony on the motions? While no written pleas were required of the State in answer to the motions, yet it does not appear that the State, orally or otherwise, in any manner controverted the facts set forth in the motions. The prosecuting attorney did not ask that witnesses be called to disprove the allegations. But the appellants prayed that the `jury commissioners who selected the juries be summoned to testify upon this motion,' and that the indictments be quashed, and the present panel of the petit be set aside. The record thus shows an offer and attempt upon the part of the appellants to introduce evidence in support of their motions. Brownfield v. S. Car., 189 U.S. 427. Under these circumstances the ruling of the court in refusing the prayer of appellants to hear evidence on *Page 1000 the motions was but tantamount to disposing of the same as if on demurrer. Castleberry v. State, 69 Ark. 346. The ruling of the court was equivalent to saying that the facts, although properly pleaded and true, were in law not sufficient. In Castleberry v. State, supra, after quoting from Carter v. Texas, supra, (177 U.S. 442, 20 S. Ct. 687,44 L. Ed. 839), we held that it was error to overrule a similar motion, and concluded the opinion by saying: `The Court below erred in overruling the motion to quash without hearing the evidence. The appellant was entitled to introduce testimony to sustain the allegations in his motion.' This doctrine was also recognized in Franklin v. State,85 Ark. 534, 109 S.W. 298, 24 S. Ct. 257, but in that case the motion was overruled because the defendant did not offer to introduce evidence in support of it. See, also, Brownfield v. So. Carolina, supra; Rogers v. Alabama,192 U.S. 226. In the last case it is said: `It is a necessary and well settled rule that the exercise of jurisdiction by this court cannot be declined where it is plain that the fair result of a decision is to deny the rights.' In that case the State trial court had stricken from the files a motion similar to the ones under review here because of its length.
"In Whitney v. State, 42 Tex. Crim. 283,59 S.W. 895, the Supreme Court of Texas, after citing Carter v. Texas, supra, and other decisions of the Supreme court of the United States, says: `We understand the court to have held in Carter v. State, above, that wherever the Federal question is made it is the duty of the court to probe the matter in order to determine whether or not the Fourteenth Amendment had been violated in the formation of the jury.' We cannot escape the conclusion, therefore, that the court erred in refusing to hear evidence upon appellants' motions and in overruling such motions without hearing the evidence. In addition to the other authorities above cited, see Yick Wo v. Hopkins,118 U.S. 356, Brannon on the 14th Amendment, p. 336, et seq.; Bush v. Kentucky, 107 U.S. 110, Ex parte Virginia100 U.S. 339, Rogers v. Alabama, 192 U.S. 226 Collins on the 14th Amendment, p. 73, Collins v. State, *Page 1001 60 S.W. 42; Bullock v. State, 47 A. 62; see Taylor on Due Process of Law, p. 329, et seq."
The holding was summarized in this language: "A majority of the court is of the opinion that the trial court erred in refusing to hear evidence on the motions to set aside the regular panel of the petit jury and erred in overruling such motions without hearing the evidence. The above errors must cause a reversal in all the cases."
Bone v. State, 198 Ark. 519, 129 S.W.2d 240, was decided by this Court on June 5, 1939. In that case, the defendant had filed a motion to quash the panel because Negroes had been excluded. In an effort to remedy that situation, the trial court excused three white jurors, and summoned in lieu thereof three Negro jurors. Even that proceeding was held to be irregular, and the judgment of conviction was reversed. Mr. Justice BAKER, speaking for this Court, said:
"This is not a case of first impression on this subject in this state. A very similar matter was up for consideration and hearing nearly twenty years ago in the case of Ware v. State, 146 Ark. 321, 225 S.W. 626. In that case a similar question was presented to the trial court, as was before the circuit court of Pulaski County in this case. A motion was filed in that case alleging identical facts, with a similar prayer, that is to say, that Negroes had been excluded from jury service because of, and on account of their race or color, and that this was a denial of equal protection of the law under the provisions of the Fourteenth Amendment to the Constitution of the United States. In addition to the allegation of these facts, the pleader in the Ware case offered by a statement in the motion to make proof of the facts alleged, but in that case, as in this, the court, without hearing any evidence, overruled the motion and put the defendants to trial. It may be said that in neither case does the record disclose what the proof would have been had the court not promptly overruled the motion filed. In the Ware case, supra, the court held that the challenge to the petit jury, made when the jury was called for the trial, was in due time. *Page 1002
"One of the errors found in the Ware case was in the fact, as disclosed by the opinion, that it was error to overrule the motion without hearing evidence in support of its allegation. Of course, this implies that had the court heard this evidence, and if it had been sufficient to establish the fact of the systematic exclusion from jury service of members of the Negro race solely on account of race or color, it was the duty of the court, upon such finding, to quash the venire or jury panel so formed under such conditions and circumstances. The court so declared.
"The last statement finds conclusive authority and support in many decisions of the United States Supreme Court, some of which will be cited in our discussion."
It is not a question of whether the defendant in the case at bar had a fair trial, or whether he was guilty. The point is, that he raised a Federal question; and it was the duty of the trial court to allow him to introduce evidence in his effort to develop his proof on the Federal question. Because he was not accorded such right to introduce proof, I think the case should be reversed and the cause remanded for a development of the proof on the Federal question. I therefore respectfully dissent from the affirmance of this case; and I am authorized to state that Mr. Justice HOLT joins me in this dissent.