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Mr. Isaac L. Purcell for plaintiffs in error.
Mr. Wm. B. Lamar for defendant in error.
Mr. Justice Brewer delivered the opinion of the court:
Plaintiffs in error were convicted in the circuit court of Es- [188 U.S. 519, 520] cambia County, Florida, of the crime of murder, and sentenced to fifteen years in prison. The supreme court of the state having affirmed this sentence (30 So. 685), the case was brought here on writ of error.
The contention of plaintiffs in error is that they were denied the equal protection of the laws, by reason of an actual discrimination against their race. The law of the state is not challenged, but its administration is complained of. As said by their counsel:
Such an actual discrimination is as potential in creating a denial of equality of rights as a discrimination made by law. But such an actual discrimination is not presumed. It must be proved or admitted. The record discloses these facts: On December 3, 1900, a grand jury was impaneled, and on December 5 returned an indictment charging the defendants with the crime of murder. On December 5 they filed a motion to quash the venire and the panels of the grand and petit jurors. In the motion it was stated that there was in the county as many colored citizens of sound judgment, approved integrity, fair character, and fully qualified for jury duty, as white, and stated as grounds for the motion that 'the county commissioners, in selecting the lists of names for jury duty for and during the present year, discriminated against all colored men of African descent, on account of their race, color, and previous condition of servitude, and from said lists were drawn the grand jury which found the indictment against these defendants and the petit jury which is to try them.' And that 'for many years [188 U.S. 519, 521] all colored men of African descent have been discriminated against, and none have been selected or drawn or summoned as grand or petit jurors in this or in any of the courts of this county, although there are more than one thousand four hundred colored men in said county, a large number of whom are taxpayers, and of approved integrity, fair character, sound judgment, and intelligence, well known to the county commissioners to be such; and this discrimination is based entirely on race, color, and previous condition of servitude.'
On December 6 the state's attorney moved the court to strike out the defendants' motion, on the grounds that it was impertinent, submitted nothing for the court's determination or consideration, was not such a motion as the court could consider, and set up no state of facts which, if true, would justify the quashing of the venire. On the same day this motion of the state's attorney was sustained, and the motion of the defendants to quash was stricken out. On the same day they filed a motion to quash the indictment on substantially the same grounds. This motion was overruled. Special venires were issued before the trial jury was finally impaneled, and as one by one these venires were returned the defendants challenged the array of jurors on the ground that the sheriff, in the selection of jurors, knowingly discriminated against all colored men, and refused and failed to select any to serve on the jury, although knowing that there were more than five hundred colored men in the county fully qualified to serve. No evidence was received or offered in support of any of these several motions except an affidavit of the defendants attached to the motion to quash the indictment, stating that the facts set up in the motion were true 'to their best knowledge, information, and belief.'
In respect to all these motions, except the one to quash the venire and panels of the grand and petit jurors, it is sufficient to refer to Smith v. Mississippi, 162 U.S. 592, 600 , 40 S. L. ed. 1082, 1085, 16 Sup. Ct. Rep. 900; Carter v. Texas, 177 U.S. 442 , 44 L. ed. 839, 20 Sup. Ct. Rep. 687. In the first case the motion to quash was supported by an affidavit similar to the one here presented, and it was held no evidence of the facts stated, and that therefore the denial of the motion was not erroneous. In the second case the bill of exceptions showed that the defendant asked [188 U.S. 519, 522] leave to introduce witnesses, and offered to introduce witnesses, to prove the allegations in his motion, but that the court refused to hear any evidence in support of the motion, but overruled it without investigating into the truth or falsity of the allegations therein; and this was adjudged error.
We pass, therefore, to a consideration of the ruling on the first motion. No evidence was received or offered in its support, but the motion itself was stricken out, and it is contended that the motion to strike out was equivalent to a demurrer which admitted the truth of the allegations challenged thereby, and in support thereof Neal v. Delaware, 103 U.S. 370 , 26 L. ed. 567, and Mitchell v. Clark, 110 U.S. 633 , 28 L. ed. 279, 4 Sup. Ct. Rep. 170, 312, are cited. But in the former case the court held that an agreement by the attorney general, appearing for the state, was to be regarded as an admission of the truth of the facts stated in the motion and therefore waived the necessity for further evidence; and in the second case there was only a distinct ruling upon a demurrer to a plea.
In reference to the action of the trial court in this matter the supreme court of the state said:
... * *
The authorities cited in this opinion sustain the propositions laid down. In Kitrol v. State, 9 Fla. 9, 13, it was said:
In Gladden v. State, 13 Fla. 623, 630, the court uses this language:
In Burroughs v. State, 17 Fla. 643, 661, where the validity of the composition of the jury was sought to be challenged on a motion in arrest of judgment, the court said:
The force of this decision is not weakened by what was said by the same court in Potsdamer v. State, 17 Fla. 895, 897:
Neither is there anything in the cases referred to by counsel for plaintiff in error against this ruling. So we have not merely the declaration of the court in this particular case as to the practice to be observed, but a declaration supported by many prior decisions. Obviously, it is the settled rule in the state.
These are all the matters called to our attention by counsel, and in them appearing no error, the judgment of the Supreme Court of Florida is affirmed.
Mr Justice Harlan did not hear the argument or take part in the decision of this case.
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