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 [212 U.S. 278, 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. 49 Tex. Crim. Rep. 633, 95 S. W. 1069. It was then brought here on writ of error.
Messrs. Noah Allen and Frederick S. Tyler for plaintiff in error. [212 U.S. 278, 280] Messrs. Robert Vance Davidson and James DuBose Walthall for defendant in error.
Statement by Mr. Chief Justice Fuller:
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 [212 U.S. 278, 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 Re Kemmler, 136 U.S. 436, 449 , 34 S. L. ed. 519, 524, 10 Sup. Ct. Rep. 930, 934, 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 , 51 L. ed. 893, 27 Sup. Ct. Rep. 583, 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 was ruled in Martin v. Texas, 200 U.S. 316 , 50 L. ed. 497, 26 Sup. Ct. Rep. 338, 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 14th 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 practised 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 dis- [212 U.S. 278, 283] criminated 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:
No other point requiring consideration, the result is, judgment affirmed.