Where neither the constitutionality of the state statute nor the
interpretation thereof by the state court is assailed, but the
contention is that negroes were excluded from the juries because of
their race or color, the question is one of fact, and the decision
of the state court is not reviewable by this Court under 709,
Rev.Stat., in the absence of such gross abuse as to amount to
denial of due process of law.
Discrimination against the accused in the selection of the grand
or petit jury cannot be presumed from the mere fact that none of
the jurors were negroes or of African decent, and here it appears
that a negro was on the grand jury finding the indictment and
negroes were on the venire from which the trial jury was drawn, and
nothing in the record indicates discrimination.
95 S.W. 1069 affirmed.
Thomas was convicted of the murder of John Blair, and his
punishment fixed at death. Before arraignment and trial, he filed
his separate motions to quash the indictment and special venire
drawn in this cause, which motions were sworn to, and alleged
that,
"because of the race prejudice and ill feeling against the
negroes in Harris County and against this defendant in particular
on account of his color and race, and because of the sentiment
against placing negroes or persons of color or of African descent
upon the grand juries and petit juries in said county . . . , the
grand jury finding and returning the bill of indictment against him
herein was composed almost exclusively of white persons, there
being not to exceed one negro or person of African descent and of
the same race and color of this defendant upon said grand
jury."
It was also alleged that,
"because of the race prejudice and ill feeling existing
against
Page 212 U. S. 279
the negroes or persons of African descent in Harris County, and
against this defendant in particular, on account of his color and
race, there were no negroes or persons of African descent upon the
venire list of persons drawn to serve as jurors in this cause, and
that the list of jurors drawn was composed exclusively of white
persons, all negroes or persons of African descent having been
intentionally excluded and left off of the special venire or list
of jurors drawn in this cause by the jury commission, because of
their race and color."
It was further alleged that one-fourth of the qualified jurors
of Harris County were negroes or persons of African descent. By
agreement and consent of the court, evidence was heard upon the two
motions at the same time, and considered by the court upon each,
the same as if said motions had been heard separately.
Upon considering the evidence on the hearing of said motions,
the same were each overruled by the court.
The case was taken on writ of error to the court of criminal
appeals, the highest court of Texas for criminal cases, and the
conviction affirmed. The action of the trial court in overruling
the motions to quash was reviewed by the court of criminal, appeals
and the rulings sustained. 95 S.W. 1069. It was then brought here
on writ of error.
Page 212 U. S. 280
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
It is not contended that the laws of Texas under which grand and
petit juries are selected are in themselves discriminating and in
violation of the Constitution of the United States. It is admitted
by plaintiff in error that neither the Constitution nor statutes of
Texas prescribed any rule for, or mode of procedure
Page 212 U. S. 281
in, the trial of criminal cases which is not equally applicable
to all citizens of the United States and to all persons within the
jurisdiction of the state without regard to race, color or previous
condition of servitude. Nor is it contended that the Constitution
and laws of the state had, at the time this prosecution was
instituted, been so interpreted by the courts of Texas as to
prevent the enforcement of rights secured equally to all citizens
of the United States without regard to race or color. The only
contention was that the jury commissioners, in the selection of the
grand and petit juries who returned the indictment and tried
plaintiff in error, did in fact exclude therefrom negroes or
persons of African descent because of their race and color. This
was a question of fact, and the ordinary rule is that questions of
fact will not be reviewed by this Court on writs of error to state
courts.
In the case of
In re Kemmler, 136 U.
S. 436,
136 U. S. 449,
it was intimated that, if the highest court of a state
"had committed an error so gross as to amount in law to a denial
by the State of due process of law to one accused of crime, or of
some right secured to him by the Constitution of the United
States,"
this Court might take jurisdiction, but the occurrence of such
an instance was not suggested as probable.
In
Barrington v. Missouri, 205
U. S. 484, the plaintiff in error, before the trial of
the cause commenced, applied for a change of venue on the ground of
local prejudice. Upon the hearing of the application, many
witnesses were examined and testified, and the trial court decided
that prejudice justifying a change of venue had not been made out,
and denied the application. In dismissing the writ of error in the
above case, we said:
"It is now contended that the refusal to grant the change of
venue deprived plaintiff in error of a fair and impartial trial, to
which, under the federal Constitution, he was entitled. The state
supreme court held it to be a well settled rule of law in Missouri
that the granting of a change of venue in a criminal case rested
largely in the discretion of the trial court, and that,
Page 212 U. S. 282
where the trial court has heard the evidence in favor of and
against the application, and a conclusion reached adversely to
granting the change, such ruling will not be disturbed by this
Court, and should not be unless there are circumstances of such a
nature as indicates an abuse of the discretion lodged in such
court."
And the supreme court, after a full review of all the testimony,
decided that the trial court had acted properly in overruling the
application for a change of venue. In our judgment, no federal
question was involved. Were this otherwise it would follow that we
could decide in any case that the trial court had abused its
discretion under the laws of the State of Missouri although the
Supreme Court of that state had held to the contrary.
It was ruled in
Martin v. Texas, 200 U.
S. 316, as in other cases, that discrimination in
organizing a grand jury and empaneling a petit jury cannot be
established by merely proving that no one of the defendant's race
was on either of the juries, and that an accused person cannot of
right demand a mixed jury some of which shall be of his race, nor
is a jury of that kind guaranteed by the Fourteenth Amendment to
any race. And it was said:
"What an accused is entitled to demand under the Constitution of
the United States is that, in organizing the grand jury, as well as
in the empaneling of the petit jury, there shall be no exclusion of
his race, and no discrimination against them, because of their race
or color."
As before remarked, whether such discrimination was practiced in
this case was a question of fact, and the determination of that
question adversely to plaintiff in error by the trial court and by
the court of criminal appeals was decisive so far as this Court is
concerned unless it could be held that these decisions constitute
such abuse as amounted to an infraction of the federal
Constitution, which cannot be presumed, and which there is no
reason to hold on the record before us. On the contrary, the
careful opinion of the court of criminal appeals, setting forth the
evidence, justifies the conclusion of that court that the negro
race was not intentionally or otherwise discriminated
Page 212 U. S. 283
against in the selection of the grand and petit jurors. Indeed,
there was a negro juror on the grand jury which indicted plaintiff
in error, and there were negroes on the venire from which the jury
which tried the case was drawn, although it happened that none of
them were drawn out of the jury box. The Court said:
"It may by that the jury commissioners did not give the negro
race a full
pro rata with the white race in the selection
of the grand and petit jurors in this case; still this would not be
evidence of discrimination. If they fairly and honestly endeavored
to discharge their duty, and did not in fact discriminate against
the negro race in the selection of the jury lists, then the
Constitution of the United States has not been violated. We
understand the rule to be that mere error in administering the
criminal law of the state, or in the conduct of a criminal trial,
no federal right being invaded or denied, is beyond the revisory
power of the Supreme Court of the United States under the
Constitution and the statutes regulating its jurisdiction."
No other point requiring consideration, the result is
Judgment affirmed.
