LDFA-13_4585.pdf

    Ark. 395WILLIAMS v. STATE
Cite as 490 S.\V.2d 395

I'ri-State Insurance Company v.
D/B/A O & M Lumber Compa- 

Ark. 1259, 483 S.W.2d 212, we fur- 
i;lictl that a property damage limita- 
,f liability is valid and that recovery 
C,„jcnt upon the terms of the con-

■ r.ithcr than on the difference in the 
. . anc] after value of the vehicle. If
• ..'lire had been equal to or less than 
•launt necessary to repair the car, ap-
conld have recovered the difference 

the before and after value. But 
;5 not the case. The estimated cost 
pairs was only $961.73A Of course,

• aiding would be different if the testi-
re fleeted the Wish automobile to 

, |,ecu a total loss. But there is no evi- 
•f to that effect in the record. The 

evidence on this point by appellee’s
■ vsses was that a wrecked automobile 
;h had been repaired was never as val- 
'c for resale purposes as one which had 
: been wrecked. Not a single person

:icd that the car was a total loss.

t follows from what has been said, that
■ trial court erred in its conclusions, and 
• judgment is reversed with directions to 
vr a judgment for appellee in the 
•miit of $861.73.

It is so ordered. 

i'.VRD, J., dissents.

the purport of Ills holding when he de- 
hiroil to them in the course of the instruc-

■ ..«ns: ‘The Court has permitted the in- 
'reduction of evidence as to what the fair 
market value iof the plaintiff’s ear was 
Mint'd lately before the collision and ns to 
viiat the fair market value was immedi- 
itely after the collision. The Court per­
mitted the introduction of that evidence 
' tily for the jury’s consideration in deter­
mining the company’s liability under the 
Provisions of the policy, as you have been 
■nstrueted by other instructions herein. 
Such is not the measure of the defend­
ant's liability.’ ”

James WILLIAMS, Appellant,
v.

STATE of Arkansas', Appellee.
No. 5742.

Supreme Court of Arkansas.
July 2, KITH.

Proceeding for. postconviction relief. 
Relief was denied by the Circuit Court, 
Ashley County, G. B. Colvin, Jr., J., and 
petitioner appealed. The Supreme Court, 
Jones, J., held that where jury commission­
ers simply went down the list of qualified 
electors of the county and selected a jury 
panel from among individuals with whom 
they were personally acquainted, and the 
commissioners were not as widely ac­
quainted with Negroes as with whites in 
the involved area and the result was a dis­
parity between the races in jury selection, 
the jury which tried defendant was not a 
legally constituted jury.

Judgment reversed and case remanded 
for new trial.

I. Jury €=>120
When prima facie case of purposeful 

limitation in selection of jurors is proven 
by defendant, burden shifts to state to 
prove otherwise. Rules of Criminal Proce­
dure, rule 1; Ark.Stats. §§ 3-107, 3-118, 
39-206 to 39-208, 39-225.

4. The original estimate by Dean Chevrolet 
was in the amount of $1,366.73 and there 
is a dispute as to whether the adjuster 
ever approved this figure. This estimate 
included a new frame and the labor to in­
stall same, but apparently after settlement 
negotiations between the company and 
appellee failed and Arendall said that the 
frame could be repaired, the cost of re­
pairs was reduced by the amount neces­
sary for a new frame and the labor, to 
the cost of repairing the frame on the 
car. Of course, even if this figure had 
been allowed by the court, the court's 
judgment would still have been erroneous.



396 Ark. 496 SOUTH WESTERN REPORTER, 2cl SERIES

2. Ju ry  <2=120
Where individuals are selected for 

jury service from tax lists, or from any 
source, where separate race is indicated, 
and where there is large percentage of Ne­
groes as compared with whites who are 
presumed to have legal qualifications to 
serve as jurors, prima facie case of racial 
discrimination is presented when jury com­
missioners select those to serve.on juries 
only from among the individuals with 
whom they are acquainted and such proce­
dure results in small percentage of Ne­
groes as compared with whites being se­
lected for jury service. Ark.Stats. §§ 3- 
107, 3-118, 39-206 to 39-208, 39-225. U. 
S.C.A.Const Amend, 14.

3. Ju ry  O l 20

Prior or systematic exclusion of Ne­
groes from jury service is admissible in ev­
idence in support of claim of intentional 
exclusion because of race in given case. 
Rules of Criminal Procedure, rule 1 ; Ark. 
Stats. §§ 3-107, 3-118, 39-206 to 39-208, 
39-225.

4. Jury 0=33(1)
Defendant in homicide case had no 

constitutional right to have Negroes on 
jury before whom he was tried and no 
constitutional right to have Negroes on 
panel from which jury was selected but 
was entitled to be tried before legally con­
stituted jury, excluding any jury from 
which members of any race were excluded 
simply because of their race. Ark.Stats. 
§§ 3-107, 3-118, 39-206 to 39-208, 39-225; 
U.S.C.A.Const. Amend. 14.

5. J u ry  0=33 (1 )

Where jury commissioners simply 
went down list of qualified electors of 
county and selected jury panel from among 
individuals with whom they were pcrsonal-

I. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822 
9 Ij.kM.2d 837; Townsend v. Sain, a i-  
U.S. 293, S3 S.Ct. 745, 9 Tj.Ed.2d 770 and 
Sanders v. United States, 373 U.S. 1, 83 
S.Ct. 1068, 10 L.Ed.2d 148. See also ar-

ly acquainted, and commissioners v. 
as widely acquainted with Negro, , 
whites in the area and result was < 
between races in jury selection, jut 
tried defendant was not legally 
jury. Ark.Stats. §§ 3—107, 3—1 IS, 
39-208, 39-225; U.S.C.A.Const. Ai

Walker, Kaplan & Mays, P.A. 
Rock, and Jack Greenberg, No; 
Chachkin, New York City, for app<4

Ray Thornton, Atty. Gen., by : 
Ginger, Deputy Atty. Gen., Little lb- 
appellee.

)ONES, Justice.
James Williams wras charged wit", 

degree murder committed in the pr 
tion of rape. He was found gu 
charged at a jury trial in the Ashley 
ty Circuit Court and on December » 
he was sentenced to death by electro 
His conviction and sentence were at; 
by this court on appeal, Williams v. 
239 Ark. 1109, 396 S.W.2d 834, and 1 
ecution date was set by the Govcr: 
July 22, 1966. Execution was stayed 
order of this court entered on Ju 
1966, to permit Williams to seek po 
viction relief under Criminal Fro: 
Rule No. 1 promulgated and adopt, 
cause of the tremendous increase in 
corpus petitions being filed in the sb>' 
federal courts by convicted felons / ' 
authorized and permitted under 1 
States Supreme Court decisions.1

Following the Rule No. 1 hearing 
Ashley County Circuit Court on Nov 
9, 1967, the petition was denied by f" 
tier filed on May 25, 1971, and W 
now appeals from the trial court ord 
nying relief on his petition to vaca 
former judgment of conviction. In

tide “Accommodating State Criin 
Procedure and Federal Post Con\i‘ 
Review” by Daniel J. Meador in Amcr 
Bar Association Journal, October, 
vol. 50, p. 1928.



:e s

immissioners w<~ 
with Negroes : 

id result was d 
y selection, jure 
not legally cor. 
5-107, 3-118, 3'i 
C.A.Const. Am.

& Mays, P.A., I 
reenberg, Norm 
: City, for appetU

itty. Gen., by 1! 
. Gen., Little Roc.

vas charged with ' 
nitted in the peri.
was found guilt; 

ial in the Ashley 1 
i on December 9, 
death by electro.' 

sentence were aff. 
peal, Williams v. .v 
s.W.2d 834, and hi 
:t by the Governor 
;ution was stayed 1 
t entered on July 
iliams to seek post . 
:r 1 Criminal Procc 
Igated and adoptee 
.dous increase in li­
ng filed in the state 
invicted felons pro ' 
irmitted under l 
irt decisions.1

tie No. 1 hearing if ' 
;uit Court on Novo 
was denied by fit'1 
25, 1971, and Will- 
the trial court ordi't 
5 petition to vacate 
f conviction. In ’

ating State Crii"': 
cdcral Post Convii'1
l J. Meador in Anr'U' 
Journal, October, 1 ‘

WILLIAMS
C ite as 49G S

eight years since Williams was 
. lr|ed and convicted, his death sen- 

was commuted to life imprisonment 
executive clemency. The appellant now 
. .,„|s that the trial court erred in deny- 
•„js petition for post-conviction relief 

reasons stated as fo llow s:

\u'iellant’s unrebutted evidence that 
•x'r'roes were systematically excluded 

or included in token numbers only 
,.Kin the jury venires of Ashley County, 
Arkansas established a denial of his 
• mirtccnth Amendment rights.

Appellant’s trial was conducted under 
i,lCh intimidating conditions and after 
„.fh adverse, hostile and prejudicial pub­
licity as to deny him a fundamentally 
i ,ir hearing, and thus his rights under 
:u. due process clause of the Fourteenth 
\mendment were denied him.”

j be appellant’s second assignment was 
, vented, argued and considered on lus 

4 appeal and we do not reach it here 
.uise we find we must reverse his convic- 
n under the first assignment.

j 11 The constitutional prohibition 
mist exclusion of members of any race 
:a jury service because of race has nev- 

' been questioned in Arkansas. Williams 
State, 229 Ark. 1022, 322 S.W.2d 86; 
,:sey v. State, 219 Ark. 101, 240 S.W.2d 
; Green v. Stale, 222 Ark. 222, 258 S. 
-M 56; Maxwell v. State, 217 Ark. 691,
’ S.\V.2d 982; Bailey v. State, 227 Ark. 

■i. 302 SAV.2d 796. In Williams and 
<sey we pointed out that the burden of 

awing facts which permit an inference 
i purposeful limitation for jury service 
•'cause of race is on the defendant. It 

ly follows that when a prime facie case 
1 Purposeful limitation is proven by the 
tendant, the bttrden then shifts to the 

to prove otherwise. The state offered 
’ evidence whatever in the case at bar, so 

question before us is whether the ap- 
'•int made out a prima facie case of pur- 
efill exclusion of Negroes because of 
r race from the jury panel in this case.

v. STATE Ark- 397
\V.2d 395

[2] There can be no question that this 
court, as well as the trial courts of this 
state, is bound by the decisions of the 
United Slates Supreme Court concerning 
rights and prohibitions under the provi­
sions of the United States Constitution 
and, there is no question that the United 
States Supreme Court has spoken clearly, 
and more than once, on the question of 
racial discrimination in the selection of 
juries in criminal cases. We shall not 
attempt to cite all the Supreme Court de­
cisions bearing on the subject nor shall 
we quote extensively from any of them, 
but the substance of these decisions is 
simply this: Where individuals are se­
lected for jury service from tax lists, or 
from any source, where separate race is in­
dicated, and where there is a large percent­
age of Negroes as compared with whites 
who are presumed to have the legal quali­
fications to serve as jurors; a prima facie 
case of racial discrimination is presented 
when jury commissioners select those to 
serve on juries only from among the indi­
viduals with whom they arc acquainted and 
such procedure results in a small percent­
age of Negroes as compared with whites 
being selected for jury service. Such pri­
ma facie evidence may, of course, be rebut­
ted by evidence that the comparatively 
small percentage of Negroes selected was 
not because of their race. The burden of 
presenting'such evidence, however, rests on 
the state. -

Wc need only mention in some detail 
two United States Supreme Court decisions 
from which the above rule is extracted. 
They are Cassell v. Texas, 339 U.S. 282, 70 
S.Ct. 629, 94 L.Ed. 839; Whitus v. Geor­
gia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 
599. These decisions have been followed 
by the Federal Courts of Appeals in many 
cases but we deem it unnecessary to com­
ment on more than two or three of them 
including the case of Bailey v. Henslee, 8 
Cir., 287 F.2d 936, which arose from this 
state.

The background for the decision in Cas­
sell v. Texas, supra, arose in two prior cas-



398 Ark. 496 SOUTH WESTERN REPORTER, 2d SERIES

es, Hill v. Texas, 316 U.S. 400, 62 S.Ct.- 
1159, 86 L.Ed. 1559 and Akins v. Texas, 
325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692. 
In Hill no Negro had ever been selected 
for grand jury service in Dallas County, 
Texas, and the jury comissioners testified 
that they had summoned, for service on the 
grand jury which returned the indictment, 
members of the white race with 'whom they 
were acquainted and whom they knew to 
be qualified to serve. They said that they 
considered Negroes for selection but did 
not personally know a qualified Negro they 
thought would make a good grand juror. 
The Supreme Court held that the petitioner 
had made a prima facie case of racial dis­
crimination in the selection of jurors and 
after referring to Pierre v. Louisiana, 306 
U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, said:

“We thought, as we think here, that had 
there been evidence obtainable to contra­
dict the inference to be drawn from this 
testimony, the State would not have re­
frained from introducing it, and that the 
evidence which was introduced suffi­
ciently showed that there were colored 
citizens of the county qualified and 
available for service on the grand jury.

The Hill case was decided on June 1, 
1942, and on June 4, 1945, the United 
States Supreme Court handed down the 
opinion in Akins v. Texas, supra, wherein 
the Texas State Court, in attempting to 
comply with the decision in Hill, selected 
one Negro on a 16 men grand jury panel 
from which 12 were chosen as a grand 
jury. In upholding the jury selection in 
Akins, the Supreme Court said:

“Purposeful discrimination is not sus­
tained by a showing that on a single 
grand jury the number of members of 
one race is less than that race’s propor­
tion of the eligible individuals. . 
Defendants under our criminal statutes 
are not entitled to demand representa­
tives of their racial inheritance upon ju­
ries before whom they are tried. But 
such defendants arc entitled to require 
that those who are trusted with jury

selection shall not pursue a com 
conduct which results in discrimi: 
‘in the selection of jurors on 
grounds.’ Hill v. Texas, supra, ■ 
316 U.S., 62 S.Ct. 1159. Our din. 
that indictments be quashed \\Tie 
groes, although numerous in the u 
nity, were excluded from grand ju.
have been based on the theory thru 
continual exclusion indicated discr;. 
tion and not on the theory that : 
groups must be recognized. Nor; 
Alabama, supra, [294 U.S. 587, 55 
579, 79 L.Ed. 1074]; Hill v. Tex a* 
pra; Smith v. Texas, supra, [311 
128, 6r S.Ct. 164, 85 L.Ed. 84], Tin : 
fact of inequality in the number sc! 
does not in itself show discriminatio: 
purpose to discrimination mm: 
present which may be proven by st­
atic exclusion of eligible jurymen < 
prescribed race or by unequal applies 
of the law to such an extent as to 
intentional discrimination. Cf. Snov. 
v. Hughes, 321 U.S. 1, 8, 64 S.Ct. K
L.Ed. 497.”

The opinion in Cassell v. Texas, St' 
was rendered on April 24, 1950. In 
case an all white grand jury panel 
been selected and the Negro populate : 
Dallas County was approximately 1: 
There were 21 grand juries during tie 
riod between the Hill decision and the 
sell indictment, and of the 252 name- 
the panels, 17, or 6.7%, were Negro, 
payment of a poll tax was a qualifier 
for jury service and 6.5% of the poll 
payers were Negro. It was determini' 
the court that as a matter of proport 
percentages, a prima facie showing ot 
cial discrimination had not been six 
But in Cassell, the petitioner also coin­
ed that subsequent to the decision in * 
the grand jury commissioners, for 21 • 
secutive lists, had consistently limited 
groes selected for grand jury service t1 
more than one on each grand jury, or 
theory that such limitation was perm 
under Akins provided the limitation r’ 
be approximately proportional to the



selection shall not pursue a course 
conduct which results in discriinin.i: 
‘in the selection of jurors on ra. 
grounds.’ Hill v. Texas, supra, 4 0 ; 
316 U.S., 62 S.Ct. 1159. Our dirccr 
that indictments he quashed when ‘ 
groes, although numerous in the conn, 
nity, were excluded from grand jury ; 
have been based on the theory that t! 
continual exclusion indicated discrin;-,: 
tion and not on the theory that r,., 
groups must be recognized. Norris . 
Alabama, supra, [294 U.S. 587, 55 S.i • 
579, 79 L.Ed. 1074]; Hill v. Texas, ... 
pra\ Smith v. Texas, supra, [311 V 
128, 61 S.Ct. 164, 85 L.Ed. 84], The me: 
fact of inequality in the number select 
does not in itself show discrimination, 
purpose to discrimination must 1 
present which may be proven by sysU; 
atic exclusion of eligible jurymen of t: 
prescribed race or by unequal applicant 
of the law to such an extent as to sho.

■ intentional discrimination. Cf. Snowdt 
v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, :• 
L.Ed. 497.”

The opinion in Cassell v. Texas, supra 
■vas rendered on April 24, 1950. In that 
:ase an all white grand jury panel ha.. 
>een selected and the Negro population i 
Dallas County was approximately 15.5' 
There were 21 grand juries during the pc 
"iod between the Hill decision and the Car 
'ell indictment, and of the 252 names or 
he panels, 17, or 6.7%, were Negro. The 
>ayment of a poll tax was a quali ficati. 
dr jury service and 6.5% of the poll t.v- 
>ayers were Negro. It was determined L 
he court that as a matter of proportion 
lercentages, a prima facie showing of n 
:ial discrimination had not been show: 
lut in Cassell, the petitioner also contend 
d that subsequent to the decision in Hi- 
he grand jury commissioners, for 21 con 
ecutive lists, had consistently limited Nc 
;roes selected for grand jury service to m 
lore than one on each grand jury', on tin 
heory that such limitation was permissil 
indcr Akins provided the limitation shoo' 
e approximately proportional to the nun

EPORTER, 2cl SERIES WILLIAMS
Cite as 49l> S

. „f Negroes eligible for grand jury 
,i,e. In Cassell the Supreme Court

. 1 :

\n accused is entitled to have charges 
.gainst him considered by a jury in the

Section of which there has been neither 
..elusion nor exclusion because of race.

, lur holding that there was discrimina- 
,c,n in the selection of grand jurors in 
.his case, however, is based on another 
,<round. In explaining the fact that no 
N'egroes appeared on this grand-jury list,
(he commissioners said that they knew 
u.r.o available who qualified; at the 
■ une time they said they chose jurymen 
only from those people with whom they 
were personally acquainted. It may be 
assumed that in ordinary activities in 
Dallas County, acquaintanceship between 
the races is not on a sufficiently familiar 
basis to give citizens eligible for appoint­
ment as jury' commissioners an opportu­
nity to know the qualifications for 
^rand-jury service of many members of 
another race. An individual’s qualifica­
tions for grand-jury service, however, 
are not hard to ascertain, and with no 
evidence to the contrary, we must as­
sume that a large proportion of the Ne­
groes of Dallas County rrjet the statutory 
requirements for jury service. When 
the commissioners were appointed as ju­
dicial administrative officials, it was 
their duty to familiarize themselves fair­
ly with the qualifications of the eligible 
jurors of the county without regard to 
race and color. They did not do so 
here, and the result has been racial dis­
crimination. We repeat the recent state­
ment of Chief Justice Stone in Hill v. 
Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 
1161, 86 L.Ed. 1559:

'Discrimination can arise from the action 
of commissioners who exclude all ne­
groes whom they do not know to be 
qualified and who neither know nor seek 
to learn whether there are in fact any 
qualified to serve. In such a case, dis­
crimination necessarily results where

v. STATE Ark. 399
,\V.2d 305

there are qualified negroes available for 
jury service. With the large number of 
colored male residents of the county who 
are literate, and in the absence of any 
countervailing testimony, there is no 
room for inference that there are not 
among them householders of good moral 
character, who can read and write, quali­
fied and available for grand jury serv­
ice.’

The existence of the kind of discrimina­
tion described in the Hill case does not 
depend upon systematic exclusion con­
tinuing over a long period and practiced 
by a succession of jury commissioners. 
Since the issue must be whether there 
has been discrimination in the selection 
of the jury that has indicted petitioner, 
it is enough to have direct evidence 
based on the statements of the jury com­
missioners in the very case. Discrimina­
tion may be proved in other ways than 
by evidence of long-continued unex­
plained absence of Negroes from many 
panels. The statements of the jury com­
missioners that they chose only whom 
they knew, and that they knew no eligi­
ble Negroes in an area where Negroes 
made up so large a proportion of the 
population, prove the intentional exclu­
sion that is discrimination in violation of 
petitioner’s constitutional rights.” (Our 
emphasis).

In Whitus v. Georgia, supra, the Negro 
population was 45% of the total population 
in the area involved; 27.1% of the taxpay­
ers were Negro and 42% of the males over 
21 years of age were Negro. After the 
jury list was revised under court order in 
Whitus, only three of the 33 prospective 
jurors were Negro and none served on a 
19 member grand jury. The jury commis­
sioners in that case made up the jury ve­
nires from tax records which were kept on 
a segregated basis and the jury commis­
sioners selected prospective jurors on the 
basis of personal acquaintance. Only sev­
en of the 90 persons from which the petit 
jury was selected were Negro and none 
were accepted on the petit jury. While the



. i

400 Ark. 496 SOUTH WESTERN REPORTER, 2d SERIES

Whitus case contained elements not present 
in the case at bar, the Supreme Court in 
Whitus said:

“Under such a system the opportunity 
for discrimination was present and we 
cannot say on this record that it was not 
resorted to by the commissioners. In­
deed, the disparity between the' percent­
age of Negroes on the tax digest (27.- 
1%) and that of the grand jury venire 
(9.1%) and the petit jury venire (7.7%) 
strongly points to this conclusion. Al­
though the system of selection used here 
had been specifically condemned by the 
Court of Appeals, the State offered no 
testimony as to why it was continued on 
retrial. The State offered no explana­
tion for the disparity between the per­
centage of Negroes on the tax digest and 
those on the venires, although the digest 
must have included the names of large 
numbers of ‘upright and intelligent’ Ne­
groes as the statutory qualification re­
quired. In any event the State failed to 
offer any testimony indicating that the 
27.1% of Negroes on the tax digest were 
not fully qualified. The State, there­
fore, failed to meet the burden of rebut­
ting the petitioners’ prima facie case.” 
(Our emphasis).

In the case of Bailey v. Henslee, 287 F. 
2d 936, above referred to, the Eighth Cir­
cuit Court of Appeals in granting habeas 
corpus said:

“In avoiding racial discrimination in the 
selection of jurors it is not enough for 
the jury commissioners or any other se­
lecting agency to be content with persons 
of their personal acquaintance. Smith v. 
State of Texas, 311 U.S. 128, 132, 61 S. 
Ct. 164, 85 L.Ed. 84; Hill v. State of 
Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 
86 L.Ed. 1559. It is ‘their duty to fami­
liarize themselves fairly with the qualifi­
cations of the eligible jurors of the 
county without regard to race and color.’ 
Cassell v. State of Texas, supra, at page 
289 of 339.U.S., at page 633 of 70 S.Ct.”

In the 1940 case of Smith v. Tex:, 
U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, t;, 
preme Court said:

“Where jury commissioners limi: 
from whom grand juries are seic. 
their own personal acquaintance 
crimination can arise from comm: 
ers who know no negroes as \u- 
from commissioners who know but < 
nate them. If there has been discri: 
tion, whether accomplished ingem 
or ingenuously, the conviction r, 
stand.”

In Vanleeward v. Rutledge, 5 Cir. 
F.2d 584, the court citing from the 1 
Circuit case of Scott v. Walker, 358 
561, said:

“ ‘It is plain from the record here 
the commissioners put on the list 
those personally known to them. 1 
made no especial effort to ascer 
whether there were qualified Negm 
the parish for jury service. In faili. 
do so they violated the rule, annou 
by the Supreme Court through Mr, 
tice Reed in Cassell v. Texas, when 
was said, “When the commissioners v 
appointed as judicial administrative 
cials, it was their duty to farnil. - 
themselves fairly with the qualified 
of the eligible jurors of the county " 
out regard to race and color. The; 
not do so here, and the result has 
racial discrimination.” 339 U.S. 2̂  
289, [70 S.Ct. 629, 633, 94 L.Ed. 85

Returning now to the facts and evkk 
in the case at bar; at the time of 
liams’ trial, the payment of a poll tax 
necessary' under the statute (Ark.Stat 
§ 3-107 [Repl.1956]) to become a qua! 
elector in Arkansas. Under Ark.Stat. 
§ 3-118 (Repl.1956) the tax collector 
required to file with the county chr> 
list containing the correct names, alp! 
ically arranged (according to the p«‘ 
or voting townships, and according t(i 
or) of all persons who have up to am 
eluding October 1st of that year pa"1

<

t

I
4

<1

■' t



. .W * .

ic 1940 case of Smith v. Tex 
!8, 61 S.Ct. 164, 85 L.Ed. 84,
Court said:

ere jury commissioners limit 
whom grand juries are select 
own personal acquaintance 

:nation can arise from commi 
who know no negroes as « ,,- 
commissioners who know hut 

them. If there has been discn: 
whether accomplished ingei: 

lgenuously, the conviction c.v
If

anleeward v. Rutledge, 5 Car.,
>4, the court citing from the 1 
case of Scott v. Walker, 358 i 

d:

is plain from the record here : 
ommissioners put on the list i 
personally known to them, 'P 
no especial effort to ascer: 

ter there were qualified Negroc 
Irish for jury service. In failiu 
i they violated the rule annou:. 
e Supreme Court through Mr. i 
leed in Cassell v. Texas, where 
aid, “When the commissioners \\t 
nted as judicial administrative of 
it was their duty to familiar:, 

elves fairly with the qualificatu 
; eligible jurors of the county w ' 
;gard to race and color. They 
□ so here, and the result has h 

discrimination.” 339 U.S. 283 ■ 
70 S.Ct. 629, 633, 94 L.Ed. 839.]"

ning now to the facts and evide: 
case at bar; at the time of V, 
rial, the payment of a poll tax w 
y under the statute (Ark.Stat.A1 
[Repl.1956]) to become a qualii' 
n Arkansas. Under Ark.Stat.A: 
(Repl.1956) the tax collector v.

. to file with the county clerk 
aining the correct names, alpha! 
■ranged (according to the polite 
g townships, and according to c 
ill persons who have up to and 1 
October 1st of that year paid t

TER, 2d SERIES WILLIAMS
Cite as 400 S

assessed against them respective- 
;he county clerk was then required 

d the list in a bound book and to 
. same to the county election com- 
, (.ri for use in ascertaining the qual- 
lectors as they appeared at polling 
(,,r casting ballots.

statutory qualifications for grand 
tit jurors under Ark.Stat.Ann. §§

,, 10 39-208 (Repl.1962) required that

[E] lectors of the county 
persons of good character, of 

•.■roved integrity, sound judgment and 
„aable information. . . . ”

circuit judge was required to select 
.: jury commissioners of statutory qual- 
uiotis whose duty it was to select the 

I and petit juror list. Ark.Stat.Ann. § 
V5 (Repl.1962) provided that any per- 

- who served on the regular panel of the 
: jury would be ineligible to serve on a 
rijuent panel for a period of two years, 
'cquently, the jury commissioners in 

at bar followed the usual and cus- 
>ry procedure of using the poll tax list 

:Sc most convenient and accurate aid in 
nmining who are “electors of the coun- 
m selecting jury veniremen and also 
i prior jury lists in determining who is 
. edified by recent prior service.

. i j Returning now to the selection of 
>uy panel in this case, it was stipulat­

'd the Rule No. 1 hearing that the 
-1 65 poll tax list used by the jury com­
biners in selecting the jury panel for 
i!,64 October term of the circuit court 

Ashley County, contained the names of 
6 qualified electors and that 25% of 
’ were Negro. The jury panel for the 

' her 1964 term of court here involved 
■:sted of 60 members. Four of the 
'diet's, or 6.67% of the panel, were Ne­

llie important, question then is 
'’her this disparity between the 25%
’ died Negro electors in Ashley' County 

’he 6.67% selected for jury service, 
’he result of excluding Negroes from 

S.W.2d—26

v. STATE Ark. 401
,W.2d 395

jury service because of their color or race. 
Of course, unexplained prior, or “systemat­
ic,” exclusion of Negroes from jury serv­
ice would leave the inference they were 
excluded because of their race if no other 
explanation is given; consequently, prior, 
or systematic, exclusion is admissible m ev­
idence in support of a claim of intentional 
exclusion because of race in a given case. 
Tire evidence on this point, in the case-at 
bar, includes the percentage of Negroes on 
the jury panels for a ten year period prior 
to the October 1964 term here involved. 
These percentages vary from none in two 
adjourned March 1960 terms to 24% in one 
adjourned March term, but they average 
only 9.42%.

The three jury commissioners who se­
lected the jury panel from which the jury 
was selected in this case were called by the 
appellant and testified at his Rule No. 1 
hearing. On direct examination all thi ec 
were questioned on collateral matters ap­
parently aimed at bringing to the surface 
any personal feeling that could be inter­
preted as racial prejudice, such as to their 
membership in the NAACP or any pre­
dominately Negro civic and social organi­
zations, and as to whether the membership 
of the churches to which they belong were 
predominately' black or white. As to the 
actual question involved on this appeal, we 
deem it unnecessary to set out the testimo­
ny of the commissioners in detail but, Mr. 
Charles Grassi, one of the commissioners, 
testified that in selecting the jury panel the 
commissioners were furnished a list of the 
jurors for the past several years which 
they used in determining who was eligible 
to serve. lie testified that they were also 
furnished with a county poll tax list and 
that as he recalls, the poll tax list did des­
ignate the race beside the name of each of 
the qualified electors. He then said:

“Of course, there was three of us. We 
went down the lists and if one or three 
of us knew -the man that was under dis­
cussion and knew who he was, we would 
see if he was qualified, a registered vot­
er.”



402 Ark. 496 SOUTH WESTERN REPORTER, 2d SERIES

Mr. Grassi testified that they tried to 
pick the members of the jury panel from 
different sections of the county, and that 
he was acquainted with Negroes who lived 
in and around Crossett. He said that he 
did not know them personally but knows 
them by name and when he sees them. He 
said he did not know them well enough, to 
know what occupation they were engaged 
in but did know 20 or 25 of them well 
enough to know their general character, 
lie said that the trial judge instructed the 
commissioners to select people of sound 
judgment, proven integrity and reasonable 
information, and that the jurors should be 
selected without regard of race, creed or 
color. He said that in determining the 
qualifications of the members of the jury 
panel he based his opinion mainly on his 
personal observations of the ones selected. 
He testified that he made no effort to 
familiarize himself with the character, 
judgment and integrity of the Negroes in 
the county with whom he was not already 
personally acquainted. He said he was 
personally acquainted with perhaps 20 or 
25 Negroes and perhaps 250 white people 
in and around Crossett well enough to ac­
curately estimate their character.

Mr. Allen Cameron, another one of the 
commissioners, testified that he had lived 
in Ashley County since 1953 and is person­
ally acquainted with 40 or 50 Negroes who 
live outside the city of Crossett, and that a 
majority of these individuals work for the 
same company he works for. He said he 
is acquainted with perhaps six or 12 Ne­
groes who live inside the city of Crossett. 
He said he is personally acquainted with 
150 or 200 white people living in Ashley 
County outside the city of Crossett and 
perhaps 1,000 living inside Crossett. He 
said he had no knowledge of the education 
or qualifications of the Negroes he knows 
in Crossett and does not know whether any 
of them have criminal records or not. He 
testified that he made no particular effort 
to ascertain the qualifications of Negroes 
or whites living in the community with 
whom he was not already acquainted.

Mr. Ray Phillips, the third coir 
testified that he is a general men 
ing in Fountain Hill, and had bee:, 
chant in Ashley County for 42 y< 
er being asked if the member 
church were all white or all N, 
Phillips readily admitted that he 
believe in white and black people . 
school or eating in cafes together, 
Mr. Phillips just as readily testifu 
lows:

“Q. So, you tell me whether y  
a negro man or a number of 
should be able to sit in judgm 
white man accused of a capita'

A. Well, if he is qualified, IV 
soon have him as some of the

The substance of the remainder 
Phillips’ testimony was to the ei‘ 
he knew the people in his comma: 
assumed that the other two comm 
knew the people in their respect: 
munities; that he recommended 
service the ones from his comm; 
knew to be high class citizens and 
the other commissioners did likeu

From the overall testimony of 
missioners there is no question 
procedure they followed in selc<' 
jury panel in this case. They s:t 
amined the list of qualified electoi 
lected the jury panel from among 
viduals on the list some membra 
commission knew. When they wc 
to a name of a person one of the 
sioners knew, that individual's 
tions (other than being a qualifier' 
would be discussed by the three 
sioners and he would either be 
for jury service or passed over, 
commissioners would then contm 
the list to the next person with " 
of them was acquainted.

Crossett precinct is by far the r 
ulated precinct in the county conic 
names of 4,420 qualified electors 1 
16.0% were Negro according to h" 
list in evidence. There were 2.i "



_____ __2______— _UfiM «___ A v t d M k

R, 2d SERIES

V Phillips, the third commi 
hat he is a general mere!', 
untain Ilill, and had been 
Ashley County for 42 yearv 
asked if the members , 

ere all white or all Meg? 
eadily admitted that he 4 
white and black people at! 
eating in cafes together, h 
ps just as readily testified

>, you tell me whether you ' 
i man or a number of n> 
be able to sit in judgment 
tan accused of a capital c-

ell, if he is qualified, I’d ji 
ve him as some of the oil

:ance of the remainder oi 
estimony was to the effect 
:he people in his communit;. 
hat the other two commissi 
people in their respective 
that he recommended for 

e ones from his communit 
e high class citizens and as* 
commissioners did likewise.

le overall testimony of the 
there is no question as t 
they followed in selecti:

1 in this case. They simpl;
5 list of qualified electors ar 
jury panel from among the 
i the list some member o: 
n knew. When they would 
of a person one of the cor 

tew, that individual’s qua! 
:r than being a qualified elc 
discussed by the three cor. 
id he would either be acc>; 
service or passed over, and 
tiers would then continue ! 
the next person with whom 
is acquainted.

precinct is by far the most 
:inct in the county container 
4,420 qualified electors of 
e Negro according to the v 
lence. There were 25 whin

WILLIAMS v. STATE
Cite as 498 S.W.2d 393

. , ,1 jurors selected from this town- 
going down the list” in selecting 

mors from this township, the com- 
i(!> started with R. L. Brooks, a 
,. and ended with Richard Ro- 

is Negro. From the name of R.
, ks as it alphabetically appears on 

list, to and including Richard 
there are 2,414 white and 475 Ne­

stors listed. Consequently, the num- 
electors the commissioners were 

• to have considered between the 
, t){ R. L. Brooks and Richard Rogers 
(td nf slightly less than 13% Negro 
:-iuly more than 87% white. Of the 

hviduals selected 25 were white and 
...u, Negro, making slightly less than 
Negro and slightly more than 96%

vviburg is the next largest voting pre-
• containing 1,720 qualified electors of 
; 11.3 were Negro. By the same proc-

■ ctween the first and last name select- 
tn this township, the commissioners

• iutind to have considered the names of 
- white and 180 Negro electors, making 
v.d of 1,555 individual names of whom 
vdy less than 12% were Negro and 
:iy more than 8S% were white. There
• 15 jurors selected from this precinct 
f whom were white.

here was a total of 322 qualified elec- 
> listed in Fountain Hill precinct of 
:n 44, or 13.7%, were Negro. There 
c 12 members of the jury panel selected 

'n this precinct, all of whom were 
;e. The remaining seven jurors were 

' ted from Wilmot, Boydell, Portland 
1’arkdale precincts, with two Negroes 
two whites being selected from Wilmot 
met which contains 143 listed white 
'ors and 122 Negro electors.

’■ is obvious that in selecting a jury ve- 
f of 60 from a list of 8,656 qualified ju- 
■' in a county, there are many times 
rt individuals eligible for jury service
• there are positions to be filled. It is, 
course, a matter of common knowledge

Ark. 4 0 3

that there are many reasons why many 
qualified electors would be passed up for 
jury service‘in preference to the ones se­
lected. It may be that jury commissioners 
would pass up some individuals for jury 
service for economic reasons in recognition 
of unusual hardships in individuals sacri­
ficing their daily wages for the amount 
paid for jury service. It is entirely possi­
ble that persons working in industry who 
have the qualifications for good juror 
would also be working at jobs on which 
other jobs depend and in many instances 
jobs not easily filled by temporary assign­
ment while the regular employee serves on 
a jury. It may be that jury commissioners 
take into consideration the handicap to the 
employer as well as to the employee in 
such cases in requiring the individual to 
leave his job and serve on juries. The 
same situation may apply in agricultural 
sections of the state in the so-called "busy 
season” of the year (planting and harvest 
time) and, of course, many legally quali­
fied electors may not possess the education, 
sound judgment, experience or tempera­
ment to sit as jurors and intelligently apply 
the law as given in instructions to intricate 
and complicated facts and render a fair 
and impartial verdict in a given case. Be 
that as it may, no such reasons were given 
for excluding anyone for jury service in 
the case at bar. As a matter of fact the 
substance of the commissioners’ testimony 
in the case at bar places them squarely 
within the prohibition announced in the 
cases above cited. They simply went down 
the list of the qualified electors of the 
county and selected the jury panel from 
among the individuals with whom they 
were personally acquainted. As already 
pointed out, this procedure has been con­
demned by the United States Supreme 
Court when it results in considerable dis­
parity between the races. Consequently, 
when jury commissioners select jury panels 
only from the people with whom they are 
acquainted, they should he prepared to 
show that they are as widely acquainted 
with one race as with the other in the in-



404 Ark. 496 SOUTH WESTERN REPORTER, 2d SERIES

volved area; and when they select a high 
percentage of white jurors from a list con­
taining the names of a high percentage of 
Negroes, the state must be prepared to ex­
plain the discrepancy and affirmatively 
show why the names of eligible Negroes 
were passed over in preference of eligible 
whites. I his was not done in the case at 
bar.

BEN M. HOGAN COMPANY, cy, 
Appellants,

v.

Will E. NICHOLS ct al., A ppr  

No. 5-GI68.

Supreme Court of Arkan .i 
July 2, 1973.

[4, Sj We regret that at this late date 
Ashley County must be put'to the expense, 
inconvenience and ordeal of again trying 
Williams for that county’s most brutal 
crime which occurred more than eight 
years ago. The question of whether Wil- 
Hams was guilty of the crime for which he 
was convicted, or whether he was tried by 
a fair and impartial jury, or whether his 
rights were prejudiced by a trial before an 
all white jury, is not involved on this ap­
peal. Williams Jiad no constitutional right 
to have Negroes on the jury before whom 
he was tried and he had no constitutional 
right to have Negroes on the panel from 
which the jury was selected for his trial. 
He was, however, entitled to be tried be­
fore a legally constituted jury and a jury 
from which members of any race have 
been excluded simply because of their race, 
is not a legally constituted jury.

It is clear that under the United States 
Supreme Court decisions, supra, a prima 
facie case of racial discrimination appears 
on the face of the record in this case and 
there was no evidence offered to rebut it. 
Therefore, it is also clear, that we have no 
other alternative, under the United States 
Supreme Court decisions, than to reverse 
the judgment in this case because of unre­
butted. evidence of racial discrimination in 
the selection of the panel notwithstanding 
the fact that the selection was made under 
a jury selection system that has now been 
abandoned by appropriate legislation in Ar­
kansas.

The judgment is reversed and this case 
remanded for a new trial.

Subcontractor’s'employee’s t: 
action against general contractor 
other. A judgment was entered 
defendants in the Franklin Circa 
Ozark District, David Partain, ].. 
defendants appealed. The Suprcnr 
Foglcman, J., held that where the 
plaintiff’s attorney had referred • 
to a medical expert, not for treatte 
the expert’s medical examination \ 
ducted in the presence of the j>\ 
wife and his attorney, and the ex; 
quiries were answered in part by :: 
and attorney, the expert’s opinion ! 
substantial part on such hearsay ,r 
serving information was inadmissf 
was specially prejudicial where the : 
physician did not testify. The Co.: 
held that admission of the terms 
general contractor’s liability policy 
ror.

Judgment reversed and cause r 
ed.

I. Evidence <2=128

Generally, statements by injur 
diseased person as to his current or 
and symptoms, or as to past condit: 
symptoms, made to physician cor. 
examination for purpose of qualify 
expert witness, and not for treatmc: 
inadmissible.

2. Evidence <2=550(2), 555

Medical expert may base his < 
as to prognosis of injury based up" 
mony given at trial by another physic