Evans v. Abney Brief for Petitioners

    §>uprme (Eourt o f tljp Initrii States
October T erm 1941

Odell W aller, 

against
Petitioner,

R ice M. Y ouell, Superintendent of the 
State Penitentiary, Richmond,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR W RIT  
OF CERTIORARI TO THE SUPREME COURT 

OF APPEALS OF THE STATE OF VIRGINIA

John  F . F inerty, 
Counsel for Petitioner.

T homas H. Stone,
M orris Shapiro,
M artin A. M artin,

Of Counsel.



INDEX.
PAGE

Opinions B elow ................................................................... 1
Grounds Upon which the Jurisdiction of this Court 

is Invoked ....................................................................... 2
Statement of the Case .....................................................  2
Specifications of Assigned Errors Intended to be Urged 2
Summary of Argument .................................................  3
Argument .................   4
I.—Numerous opinions of this Court make it clear

that the prohibitions of the 14th Amendment against 
denial by a State of equal protection of the laws 
are not limited to denials on account of race or 
color, but extend to denials by reason of economic 
status, politics, or religion, or other general class 
discriminations ...............................................................  4

II. —While the Constitution and laws of the State of
Virginia, as construed by the Supreme Court of 
Appeals of Virginia, in Waller v. Commonwealth, 
supra, do not expressly make the payment of poll 
taxes, nor thereby the right to vote, a qualification 
in law for either grand or petit jurors, such Con­
stitution and laws have been expressly designed to 
permit them to be administered, and they are 
administered, so as to make the payment of poll 
taxes a qualification in fact for jury service, and 
thereby systematically to exclude from jury service 
non-payers of poll taxes, otherwise eligible for such 
service ............................................................................  14

III. —On this record no valid contention can be made 
that certiorari should not issue because of any 
formal defects in petitioner’s respective motions 
upon trial before the Circuit Court of Pittsylvania 
County, Virginia, to quash the indictment and to 
quash the venire facias, or because petitioner offered
no evidence in support of those motions...................  23

Conclusion ..........................................................................  32



11 INDEX

A ppendix.
page

Act of Congress, January 26, 1870 (16 Stat. 62) .......  ii
Title 8, U. S. C., Section 4 4 ............................................ m
Constitution of Virginia of 1902 as Amended............. iii
Pollards Virginia Code 1904 ............................................  v
Virginia Code of 1936 ................................................... xi
Tax Code (Virginia Code, 1904) ..................................  xvi
Tax Code (Virginia Code, 1936) ..................................  xvii

T able of Cases Cited.

Agnew v. U. S., 165 U. S. 36, 44 ..................................  12
American Sugar Refining Co. v. Louisiana, 179 U. S.

89 .........................................................................................  9
Brownfield v. South Carolina, 189 U. S. 426 ............... 28
Carter v. Texas, 177 U. S. 442, 447 ..........................  12, 27
Civil Rights Cases, 109 U. S. 3, 11 ................................  7, 8
Crowley v. United States, 194 U. S. 461, 474 ............... 12
Dreher v. State of Louisiana, 278 U. S. 641 ................. 13
Ex Parte Virginia, 100 U. S. 313 ..................................  17
Franklin v. South Carolina, 218 U. S. 161 ................... 28
Johnson v. Zerbst, 304 U. S. 465 ......................................  27
Juarez v. State, 277 S. W . (Texas) 1091, 1094 ........... 9
Kentucky v. Powers, 201 U. S. 1 ..................................  10
Mamaux v. United States, 264 Fed. 816 ......................  11
Martin v. Texas, 200 U. S. 316 ..............................  9,12, 28
Mooney v. Holohan, 294 U. S. 103 ..............................  27
Pierre v. Louisiana, 306 IT. S. 354 ..................................  13
Rogers v. Alabama, 192 U. S. 229 ................................  22



PAGE

Ruthenberg v. U. S., 245 U. S. 480 ................................  9
Slaughter-House Cases, 83 U. S. (16 Wall) 36, 81 .... 4, 5, 7
Smith v. Mississippi, 161 U. S. 592 ..................................  27
Smith v. Texas, 311 U. S. 128 ........................................ 13
Strauder v. West Virginia, 100 U. S. 303, 310 ........... 4, 6, 7
Tarrance v. Florida, 188 U. S. 519 ..................................  27
Thomas v. Texas, 212 U. S. 278, 283 ..........................  9,12
United States v. Wong Kim Ark, 169 U. S. 649, 677 .... 5
Waller v. Commonwealth, 178 Va. 294 ........... 1, 3,14, 23, 26
Welosky v. Commonwealth, 284 U. S. 684 ..................  13
Whitten v. Tomlinson, 160 U. S. 231..............................  29

T able of Statutes Cited.

(See Index to Appendix)

in d e x  iii



S’upmttP (Court of %  luttrb States
October T erm 1941

Odell W aller,

Petitioner,
against

R ice M. Y ouell, Superintendent of the 
State Penitentiary, Richmond,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR WRIT  
OF CERTIORARI TO THE SUPREME COURT 

OF APPEALS OF THE STATE OF VIRGINIA

Opinions Below

The opinion of the Supreme Court of Appeals of Vir­
ginia, dismissing the petition for a writ of habeas corpus, 
is unreported, but is appended to the petition for certiorari.

The opinion of that Court, affirming upon writ of error 
the judgment of the Circuit Court of Appeals of Virginia, 
which judgment found petitioner guilty of murder in the 
first degree and sentenced him to death, is reported in 
Waller v. Commonwealth, 178 Va. 294.



2

Grounds Upon Which the Jurisdiction of 
This Court is Invoked

It is respectfully submitted that under Title 28, See. 
344(b), (Judicial Code, Sec. 237 amended) this Court has 
jurisdiction of this petition for certiorari, such petition 
being one to review a final judgment and decree of the 
Supreme Court of Virginia, the highest court of that 
State in which a decision could be had, which judgment 
and decree dismissed a petition for habeas corpus in 
which petitioner especially set up and claimed, under the 
Constitution of the United States, the right, privilege, and 
immunity against being deprived by the State of Virginia 
of his life and liberty without due process of law, and 
against being denied by that State the equal protection of 
the laws.

Statement of the Case

A concise statement of the case, containing all that is 
material to the consideration of the questions presented, 
with appropriate page references to the certified transcript 
of record from the Supreme Court of Appeals of Virginia, 
is contained under the heading “ Summary of M atters I n ­
v o l v e d  ” , pp. 1-9 of the petition for writ of certiorari, in 
support of which this brief is filed. In the interest of 
brevity, this Court is respectfully referred to such state­
ment of the case in the petition for certiorari.

Specifications of Assigned Errors 
Intended to be Urged

Petitioner will urge as assigned errors:

1. That the Supreme Court of Appeals of Virginia 
erred in failing to hold that the State of Virginia had 
denied petitioner equal protection of the laws and due 
process of law within the meaning of the 14th Amend­



3

ment to the Constitution of the United States, by reason 
of the systematic exclusion by said State of non-payers 
of poll taxes from grand and petit juries of Pittsylvania 
County, Virginia, and by reason of such exclusion from 
the grand jury indicting petitioner and from the petit jury 
convicting him.

2. That said Court, therefore, erred in dismissing the 
petition for habeas corpus, and in refusing to issue said 
writ of habeas corpus as prayed.

Summary of Argument

I. Numerous opinions of this Court make it clear that 
the prohibitions of the 14th Amendment against denial 
by a State of equal protection of the laws are not limited 
to denials on account of race or color, but extend to denials 
by reason of economic status, politics, or religion, or other 
general class discriminations.

II. While the Constitution and laws of the State of 
Virginia, as construed by the Supreme Court of Appeals 
of Virginia, in Waller v. Commonwealth, supra, do not 
expressly make the payment of poll taxes, nor thereby 
the right to vote, a qualification in law for either grand 
or petit jurors, such Constitution and laws have been 
expressly designed to permit them to be administered, and 
they are administered, so as to make the payment of poll 
taxes a qualification in fact for jury service, and thereby 
systematically to exclude from jury service non-payers 
of poll taxes, otherwise eligible for such service.

III. On this record no valid contention can be made 
that certiorari should not issue because of any formal 
defects in petitioner’s respective motions upon trial before 
the Circuit Court of Pittsylvania County, Virginia, to 
quash the indictment and to quash the venire facias, or 
because petitioner offered no evidence in support of those 
motions.



4

A R G U M E N T

I .

Numerous opinions of this Court make it clear that 
the prohibitions of the 14th Amendment against denial 
by any State of equal protection of the laws are not 
limited to denials on account of race or color, but ex­
tend to denials by reason of economic status, politics, 
or religion, or other general class discriminations.

Reference has already been made in the petition for 
certiorari, p. 12 et seq., to the fact it may be contended 
that a denial of equal protection of the laws, to come 
within the prohibitions of the 14th Amendment, must be 
a denial because of race or color, and that the basis for 
any such contention is to be found in certain dicta of this 
Court in Strauder v. West Virginia, 100 U. S. 303, 310, 
and in the Slaughter-House Cases, 83 IT. S. (16 Wall) 36, 
81.

It has there likewise been noted that in both cases this 
Court expressly refused to hold that denials of equal pro­
tection of the laws prohibited by the 14th Amendment are 
so limited, and that, indeed, in both cases there is dicta 
to the contrary.

In the Strauder case, supra, this Court said, page 310:

“ We do not say that, within the limits from which 
it is not excluded by the Amendment, a State may not 
prescribe the qualifications of its jurors, and in so 
doing make discriminations. It may confine the selec­
tion to males, to freeholders, to citizens, to persons 
within certain ages, or to persons having educational 
qualifications. We do not believe the 14th Amendment



5

was ever intended to prohibit this. Looking at its 
history, it is clear that it had no such purpose. Its
aim was against discrimination because of race or 
color.”

# # # # #
“ We are not now called upon to affirm or deny that 

it had other purposes.”

In so stating, this Court referred to its previous deci­
sion in the Slaughter-House Cases, supra, where this Court 
had said, p. 81, with particular reference to the 14th 
Amendment:

“ We doubt very much whether any action of a state 
not directed by way of discrimination against the 
negroes as a class, or on account of their race, will 
ever be held to come within the purview of this pro­
vision. It is so clearly a provision for that race and 
that emergency, that a strong case would be necessary 
for its application to any other.”

This Court, however, neglected to quote its immediately 
succeeding language in the Slaughter-House Cases, where 
it had said, on the same page:

“ But as it is a state that is to be dealt with, and 
not alone the validity of its laws, we may safely leave 
that matter until Congress shall have exercised its 
power, or some case of state oppression, by denial 
of equal justice in its courts, shall have claimed a 
decision at our hands. We find no such case in the 
one before us * *

It also is to be noted that this Court, in the Strander 
case, omitted all reference to the following language which 
this Court had also used in the Slaughter-House Cases, 
p. 72, and which this Court later quoted in its opinion in 
V. S. v. Wong Kim Ark, 169 U. S. 649, 677:



6

“ We do not say that no one else but the negro can 
share in this protection. Both the language and 
spirit of these articles are to have their fair and 
just weight in any question of construction * # *
And so if other rights are assailed by the states, which 
properly and necessarily fall within the protection of 
these articles, that protection will apply though the 
party interested may not be of African descent.”

Moreover, this Court, in the Strauder case, in addition 
to refusing to hold specifically that the prohibitions of 
the 14th Amendment against denial of equal protection 
of the laws are limited to denials on account of race and 
color, used language in that very decision arguing against 
such limited construction. At pp. 308-309 of the Strauder 
case, this Court said:

“ The right to a trial by jury is guaranteed to every 
citizen of West Virginia by the Constitution of that 
State, and the constitution of juries is a very essential 
part of the protection such a mode of trial is intended 
to secure. The very idea of a jury is a body of men 
composed of the peers or equals of the person whose 
rights it is selected or summoned to determine; that 
is, of his neighbors, fellows, associates, persons having 
the same legal status in society as that which he holds. 
Blackstone, in his Commentaries, says: ‘ The right of 
trial by jury, or the country, is a trial by the peers 
of every Englishman, and is the grand bulwark of 
his liberties, and is secured to him by the Great Char­
ter’ . It is also guarded by statutory enactments in­
tended to make impossible, what Mr. Bentham called 
‘ packing juries’. It is well known that prejudices 
often exist against particular classes in the commu­
nity, which sway the judgment of jurors, and which, 
therefore, operate in some cases to deny to persons 
of those classes the full enjoyment of that protection 
which others enjoy” .



7

Furthermore this Court said, p. 310, of that same opin­
ion :

“ The 14th Amendment makes no attempt to enumer­
ate the rights it designed to protect. It speaks in gen­
eral terms, and those are as comprehensive as possible. 
Its language is prohibitory; but every prohibition im­
plies the existence of rights and immunities, prominent 
among which is the immunity from inequality of legal 
protection, either for life, liberty or property’

It is certainly justifiable to conclude, therefore, that 
even the dicta of this Court in the Slaughter-House Cases 
and the Strauder case, taken as a whole, do not commit 
this Court to a construction of the 14th Amendment limit­
ing the prohibitions of the equal protection clause to 
denials solely because of race and color. On the con­
trary, it has been seen that, in both decisions, the Court 
expressly protected itself from any such commitment.

Furthermore, this Court, in numerous opinions, has 
consistently recognized that the prohibitions of the 14th 
Amendment against denial by a state of equal protection 
of the laws cannot be limited to denials solely because of 
race or color.

In the Civil Rights Cases, 109 U. S. 3, this Court said,
p. 11:

“ The 1st section of the 14th Amendment, which 
is the one relied on, after declaring who shall be citizens 
of the United States, and of the several States, is 
prohibitory in its character, and prohibitory upon the 
States. It declares that ‘ No State shall make or en­
force any law which shall abridge the privileges or 
immunities of citizens of the United States; nor shall 
any State deprive any person of life, liberty or prop­
erty without due process of law; nor deny to any per­
son within its jurisdiction the equal protection of



8

the laws’. It is state action of a particular character 
that is prohibited. Individual invasion of the indi­
vidual rights is not the subject matter of the Amend­
ment. It has a deeper and broader scope. It nullifies 
and makes void all state legislation, and state action 
of every kind, which impairs the privileges and immu­
nities of citizens of the United States, or which injures 
them in life, liberty or property without due process 
of law, or which denies to any of them the equal pro­
tection of the laws” .

This Court further said, p. 13:
“ It is absurd to affirm that, because the rights of life, 
liberty and property, which include all civil rights 
that men have, are, by the Amendment, sought to be 
protected against invasion on the part of the State 
without due process of law, Congress may, therefore, 
provide due process of law for their vindication in 
every case; and that, because the denial by a State 
to any persons, of the equal protection of the laws is 
prohibited by the Amend?nent, therefore Congress may 
establish laws for their equal protection.”

Certainly, in the language thus used by this Court in 
the Civil Rights Cases, there is no suggestion that the 
constitutional protection afforded by the 14th Amendment, 
either under the due process clause or the equal protection 
clause, is limited to protection on account of race or color, 
nor were the provisions of Sections 1 and 2 of the Civil 
Eights Act of March 1, 1875, there specifically under con­
sideration, themselves so limited, though obviously prim­
arily intended for the protection of negroes.

But it is not necessary to rely on these somewhat general 
expressions of the opinion of this Court in this respect. 
This Court has in several instances expressed its direct 
opinion that the prohibitions of the equal protection clause 
extend to denials of equal protection of the laws, based not



9

only on race or color, but on politics, nativity, religion, or 
other class discriminations “ having no possible connection 
with the duties of citizens” .

in American Sugar Refining Co. v. Louisiana, 179 U. S. 
89, p. 92, this Court said, in construing the equal protection 
clause of the 14th Amendment, in its application to tax­
ation :

“ The act in question does undoubtedly discriminate 
in favor of a certain class of refiners, but this discrimi­
nation, if founded upon a reasonable distinction in 
principle, is valid. Of course, if such discrimination 
were purely arbitrary, oppressive, or capricious, and 
made to depend upon differences of color, race, na­
tivity, religious opinions, political affiliations, or 
other consideration having no possible connection with 
the duties of citizens as taxpayers, such exemption 
would be pure favoritism, and a denial of the equal 
protection of the laws to the less favored classes'’ .*

* This language of this Court was quoted and applied by the 
Supreme Court of Texas in holding that the systematic exclusion 
of Catholics from a jury convicting a Catholic o f the illegal sale 
of liquor was a denial of equal protection of the laws under the 
14th Amendment, Juarez v. State, 277 S. W . (Texas) 1091, 1094.

The decision of this Court in Ruthenberg v. U. S., 245 U. S. 480. 
481, 482, is in no way inconsistent with the expressions above quoted 
from its opinion in the American Sugar Refining case, supra. In 
the Ruthenberg case, so far as appears from the opinion of this 
Court, there was no contention or evidence of systematic exclusion 
of Socialists from grand and petit juries in the Northern District 
of Ohio. The only contention was that the indictment and convic­
tion were unconstitutional because there were no Socialists on either 
the particular grand jury or the particular petit jury there in­
volved. In denying this contention this Court merely cited its 
decisions in Martin v. Texas, 200 U. S. 316. 320, 321, and Thomas v. 
Texas, 212 U. S. 278, 282, in which this Court had held that where 
state laws did not exclude negroes from jury service there must be 
proof of exclusion in fact.



10

In Kentucky v. Powers, 201 U. S. 1, this Court, referring 
to cases construing the Federal Removal Statute, U. S. 
Rev. Stat., Sec. 641, said, pp. 32-33:

“ The cases to which we have adverted had refer­
ence, it is true, to alleged discrimination against ne­
groes because of their race. But the rules announced in 
them equally apply where the accused is of the white 
race. Section 641, as well as the 14th Amendment of 
the Constitution, is for the benefit of all of every race 
whose cases are embraced by its provisions, and not 
alone for the benefit of the African race

Moreover, this Court specifically used this language in 
referring to the opinion of Judge B arker, of the Court of 
Appeals of Kentucky, where, as quoted by this Court, 
p. 33, Judge B arker had said:

“ It is clear that the trial judge ivas of opinion that it 
was not an offense against the 14th Amendment or a 
denial of the equal protection of the laws to the defend­
ant to exclude Republicans (the accused being a Repub­
lican in politics) from the jury, solely because they 
were Republicans, provided the selected Democrats 
(the deceased Goebel being a Democrat in politics) 
were possessed of the statutory qualifications required 
for jury service” .

It is true that this Court held that the Removal Statute 
did not apply in the Powers case even though it was con­
tended that the Court of Appeals of Kentucky, under the 
laws of that State, could not review the action of the trial 
court in refusing to quash the indictment and the petit jury 
panel, though based on such Federal grounds. This Court, 
however, held that, if such were the case, this Court, on writ 
of error, could directly review such refusal of the trial 
court, and could protect the Federal right, which this Court



11

there implicitly recognizes, against the exclusion of jurors 
because of the same political party as the accused. This 
Court said, p. 37:

“ Under this holding, the accused is not deprived 
of opportunity to have his rights, of whatever nature, 
which are secured or guaranteed to him by the Con­
stitution or laws of the United States, fully protected 
by a Federal court. But, it is said that the action 
of the trial court in refusing to quash the indictment 
or the panel of petit jurors, although the motion to 
quash was based on Federal grounds, cannot, under 
the laws of Kentucky, be reviewed by the court of 
appeals, the highest court of that commonwealth. If 
such be the law of Kentucky, as declared by the stat­
utes and by the court of appeals of that commonwealth, 
then, after the case is disposed of in that court by 
final judgment, in respect of the matters of which, 
under the local law, it may take cognizance, a writ of 
error can run from this court to the trial court as the 
highest court of Kentucky in which a decision of the 
Federal question could be had; and this court in that 
event, upon writ of error, reviewing the final judgment 
of the trial court, can exercise such jurisdiction in the 
case as may be necessary to vindicate any right, privi­
lege, or immunity specially set up or claimed under 
the Constitution and laws of the United States, and 
in respect of which the decision of the trial court is 
made final by the local law; that is, it may ex-examine 
the final judgment of the trial court so far as it in­
volved and denied the Federal right, privilege, or 
immunity asserted” .

In this connection, it is interesting to note the decision 
of the Circuit Court of Appeals for the Sixth Circuit in 
Mamaux v. United States, 264 Fed. 816, dealing with the 
alleged exclusion of the laboring class from the grand jury 
indicting, and from the petit jury convicting the plaintiff



12

in error in that case. There, the Court of Appeals said,
pp. 818-819:

“ As to both the grand and petit juries: For the
purposes of this review we shall treat the motion to 
quash as unequivocally asserting that members of the 
wage-earning laboring class were purposely excluded 
from service on the grand jury which indicted defend­
ant, and from the petit jury which convicted him, and 
because they were of that class, notwithstanding the 
possible ambiguity in the statement that ‘ members 
of that class have been purposely excluded from said 
jury service’ etc., as well as the grave and unusual 
nature of the allegation made and the legal require­
ment that the defense offered must be pleaded with 
strict exactness. Agnew v. U. S., 165 U. S. 36, 44.
So treating the allegations, and conceding, for the pur­
poses at least of this opinion, that the purposeful ex­
clusion from either jury of members of the wage-earn­
ing laboring class ( otherwise legally qualified) merely 
because they belong to that class, constitutes unlawful 
discrimination of the same character as if on account 
of race or color, and further conceding that the motion 
to quash was seasonably made, (Carter v. Texas, 177 
U. S. 442, 447; Crowley v. United States, 194 U. S. 461, 
474) we find, upon the record before us, no error in 
denying the motion. The mere fact, if it were such, 
that there were no wage-earners on the jury, would 
not be enough to entitle plaintiff in error to complain.
It must at least appear that wage-earners were pur- /  
posely excluded because they were of that class. Mar­
tin v. Texas, 200 IT. S. 316, 318; Thomas v. Texas, 212 
U. S. 278, 283. As by the law of Ohio persons of the 
wage-earning class are not excluded from jury service, 
the question whether there was such purposeful exclu­
sion and discrimination became, on the filing of the ^  
motion, one of fact. Martin v. Texas, supra, 200 IT. S. /  
at pages 318-320).”



13

That the prohibitions of the 14th Amendment against 
denial of equal protection of the laws are not limited to 
denials because of race or color, but extend as well to 
denials based on politics, nativity, religion, economic status 
or any other class discrimination, is moreover, as pointed 
out in the petition for certiorari, consistent with the latest 
expressions by this Court as to the scope of those provi­
sions of the 14th Amendment.

In Smith v. Texas, 311 II. S. 128, this Court said, p. 130:

“ It is part of the established tradition in the use of 
juries as instruments of public justice that the jury 
be a body truly representative of the community. For 
racial discrimination to result in the exclusion from 
jury service of otherwise qualified groups not only 
violates our Constitution and the laws enacted under 
it but is at war with our basic concepts of a democratic 
society and a representative government.”

In Pierre v. Louisiana, 306 U. S. 354, this Court said, 
p. 358:

“ Indictment by Grand Jury and trial by jury cease 
to harmonize with our traditional concepts of justice 
at the very moment particidar groups, classes or races 
—otherwise qualified to serve as jurors in a commu­
nity—are excluded as such from jury service.”

There have been numerous decisions of state courts in­
volving the question of the exclusion of women from juries. 
Only two of these decisions appear to have reached this 
Court. In both, the state courts had sustained the exclusion 
of women, and in both, this Court denied certiorari, with­
out opinion. Welosky v. Commonwealth, 284 V. S. 684; 
Dreher v. State of Louisiana, 278 TJ. S. 641.

It would be impracticable within the proper limits of 
this brief in support of a petition for certiorari to discuss



14

adequately the decisions of the state courts which this 
Court refused to review. It must suffice to say that, in 
any event, the denial of certiorari cannot be taken as an 
affirmance of those decisions, and that it is more than 
doubtful whether, were the questions there involved directly 
presented to this Court, it would reach the same conclu­
sions as did the state courts in those cases.

It is respectfully submitted, therefore, that, so far as 
this Court has heretofore considered the question at all, 
its opinions clearly support the view that the prohibitions 
of the 14th Amendment against denial by any state of equal 
protection of the laws are not limited to denials based on 
race or color, but extend to denials, as here, based on 
economic status.

II.

While the Constitution and laws of the State of 
Virginia, as construed by the Supreme Court of Ap­
peals of Virginia, in Waller v. Commonwealth, supra, 
do not expressly make the payment of poll taxes, nor 
thereby the right to vote, a qualification in law for 
either grand or petit jurors, such Constitution and laws 
have been expressly designed to permit them to be 
administered, and they are administered, so as to make 
the payment of poll taxes a qualification in fact for 
jury service, and thereby systematically to exclude 
from jury service non-payers of poll taxes, other­
wise eligible for such service.*

The Supreme Court of Appeals of Virginia, in Waller 
v. Commonwealth, supra, in affirming on writ of error peti-

* The text of all provisions of the Constitution and Codes of 
Virginia, herein referred to but not quoted, will be found in the 
Appendix at the pages designated herein thus; (A pp..........).



15

tioner’s conviction, held that the Constitution and laws 
of Virginia do not make payment of poll taxes, nor thereby 
the right to vote, a qualification in law for either grand or 
petit jury service.

Both this Court and the petitioner are, of course, bound 
by the construction put by the Supreme Court of Appeals 
on the Constitution and laws of its state. Accepting that 
construction, petitioner will here undertake to show that 
such Constitution and laws have nevertheless been ex­
pressly designed to permit them to be administered, and 
they are administered, so as to make payment of poll 
taxes a qualification in fact for both grand and petit jury 
service in that state, and so as systematically to bar from 
grand and petit juries all non-payers of poll taxes.

Prior to the adoption of the Constitution of the State of 
Virginia of 1902 and the Code of 1904, the right to vote 
was expressly made a qualification for grand and petit 
juries. Article 3, Section 3, of the Constitution of Virginia, 
in effect prior to 1902, provided:

“ Sec. 3. All persons entitled to vote and hold office 
and no others shall be entitled to sit as jurors.”  
(Mumford’s Virginia Code, 1873, p. 71.)

The Virginia Code (1873), p. 1058, Ch. 158, Sec. 1, 
provided:

“ 1. All male citizens 21 years of age, and not over 
60, who are entitled to vote and hold office under the 
Constitution and laws of this state, shall be liable to 
serve as jurors, as hereinafter provided.”

The Virginia Code (1887), p. 750, Ch. 152, Sec. 139 con­
tained a similar provision.*

* Omitted from Appendix in interest of brevity.



16

Up to the adoption of the Constitution of 1902, neither 
the Constitution nor the Code of Virginia provided for any 
poll taxes.

In the Constitutional Convention which adopted the 
Constitution of 1902, provision for the first time was made 
for the payment of poll taxes.

That Constitution, by Article II, Sections 18, 19, 20, and 
21 (App. iii., iv.) not only provided for the payment of 
poll taxes, but made their payment an essential qualifica­
tion for registration and thereby for voting.

The Code of 1904, adopted pursuant to that Constitu­
tion, contains similar provisions (Secs. 62, 73, 86b., 86c., 
86d., and 86e., App. v-viii.)

Both the Constitution of 1902 and Code of 1904, how­
ever, eliminated the specific provisions of the former Con­
stitution and Codes making the right to vote a qualification 
for either grand or petit jury service.

It has already been shown in the petition for certiorari 
p. 6, that the Constitutional and Code provisions of 
Virginia for the payment of poll taxes are in direct con­
flict with the Act of Congress of January 26, 1870, re­
admitting the State of Virginia to representation in Con­
gress (App. ii).

It will now be shown that the provisions of the Consti­
tution and Codes of Virginia for the payment of poll 
taxes, and making such payment a qualification for vot­
ing, were not only avowedly adopted for the purpose of 
disenfranchising negroes, but for the unavowed purpose 
of barring the vast majority of negroes from grand and 
petit jury service. It will likewise be shown that the rea-



17

son the latter purpose was not openly avowed and the rea­
son that the payment of poll taxes, and thereby the right 
to vote, were not expressly made qualifications for jury 
service, was, as alleged in the petition for habeas corpus 
(Tr. pp. 14 and 15), to evade the provisions of the Act of 
March 1, 1875 (e. 114, sec. 4, 18 Stat. 336, now Title 8, Sec. 
44, U. S. C., App. iii.), penalizing exclusion from jury 
service on account of race or color or previous condition 
of servitude. The constitutionality of this Act was sus­
tained by this Court in Ex parte Virginia, 100 U. S. 313.

At the Constitutional Convention in 1902, Delegate Car­
ter Class openly avowed the purpose of the Convention 
to be the disenfranchisement of negroes. He stated:

“ The chief purpose of this Convention is to amend 
the suffrage clause of the existing Constitution. It 
does not require much prescience to foretell that the 
alterations which we shall make will not apply to ‘ all 
persons and classes without distinction’. We were 
sent here to make distinctions.”  (Proc. Const. 
Conv. p. 14) # # *

“ I declared then (referring to the beginning of the 
convention and the debate on the oath) that no body 
of Virginia gentlemen could frame a constitution so 
obnoxious to my sense of right and morality that 
I would be willing to submit its fate to 146,000 igno­
rant negro voters (great applause) whose capacity for 
self-government we have been challenging for thirty 
years past.”  (Idem. p. 3257)

Pursuant to this avowed purpose, not only did the Con­
vention enact a poll tax as a condition of the right to vote, 
but pursuant thereto, as well as to the unavowed purpose 
of making the payment of a poll tax, and therefore the



18

right to vote, a qualification for grand and petit jury serv­
ice, the Convention at the same time deleted Section 20 of 
the Bill of Rights of the then existing Constitution of Vir­
ginia. That section provided:

“ 20. That all citizens of the state are hereby de­
clared to possess equal civil and political rights and 
public privileges.”  (Mumford’s Code of Virginia, 
1873, p. 70)

In order, however, to evade the penal provisions of the 
Act of March 1, 1875, supra, the Convention also elimin­
ated the provisions of the former Constitution, making the 
right to vote an express qualification for grand and petit 
jury service, and such provisions were likewise eliminated 
from the Code of 1904.

To achieve, nevertheless, the same practical result as 
would have followed the retention of the express language 
of the prior Constitution and Codes making the right to 
vote a qualification for grand and petit jury service, and 
at the same time to evade the penalties of the Federal stat­
ute, the Constitution of 1902 and the Code of 1904 adopted 
three patent devices. These have been retained in that 
Constitution, as now amended, and in the existing Code. 
These devices are:

First: Instead of expressly providing, as had the pre­
vious Constitution and Codes, already quoted, that

“ All persons entitled to vote * * * and no others 
shall be entitled to sit as jurors.”

the new Constitution and Code, in providing the qualifica­
tions of jurors, in addition to certain specific qualifications 
as to age and residence, substituted for the former specific 
words “ entitled to vote” , broad and vague terms such as,



19

“ competent in other respects” 1, “ qualified in all re­
spects” 2, “ suitable in all respects” 3, “ well qualified to 
serve as jurors” 4, or “ in other respects a qualified per­
son” 5.

Second: The new Constitution and Code, by failing to 
define the meaning of these broad and vague terms, thereby 
vested in the judges of the designated courts unlimited 
discretion as to their interpretation and application in the 
qualification, or more precisely, in the disqualification, of 
persons for grand and petit jury service. (See Code 1904, 
Secs. 3139, 3142, 3143, 3144, 3976, 3977, 4018; App. viii- 
xi.) The present Code continues to confer this unlimited 
discretion on judges in the selection of grand jurors, but 
transfers to jury commissioners the same unlimited discre­
tion in the selection of petit jurors. (See Code 1936, Secs. 
4852, 4853, 4895, 5984, 5988, 5989, 5990; App. xiii-xvi.)

Third: Most significant, however, is the fact that Sec­
tion 86 (b), of the Code of 1904, (App. v.) and Section 
109 of the present Code (1936), (App. xi.) requires the 
Treasurer to file such poll tax lists in the custody of the 
clerks of the circuit courts of the several counties. That 
section provides:

“ That the treasurer of each county shall (at stated 
intervals) * * * file with the clerk of the circuit court

1 Sec. 3139 Pollards Virginia Code 1904. (App. viii.) 
Sec. 5984 Virginia Code 1936. (App. xv.)

2 Sec. 4018 Pollards Virginia Code 1904. (App. x.) 
Sec. 4895 Virginia Code 1936. (App. xiv.)

3 Sec. 3976 Pollards Virginia Code 1904. (App. ix.) 
Sec. 4852 Virginia Code 19.36. (App. xiii.)

4 Sec. 3142 Pollards Virginia Code 1904. (App. viii.) 
Sec. 5988 Virginia Code 1936. (App. xv.)

5 Sec. 3977 Pollards Virginia Code 1904. (App. x.) 
Sec. 4853 Virginia Code 1936. (App. xiv.)



20

of his county, or the corporation counsel of his city, a 
list of all persons who have paid the poll taxes re­
quired by the constitution of this state during three 
years next preceding that in which such election is to 
be held, which list shall state the white and colored 
persons separately, * * (Italics supplied)

It may be urged, however,

First: That the use of general terms such as “ compe­
tent in other respects” , “ qualified in all respects” , etc. 
is not uncommon in the statutes of various states.

Second: That at least one purpose for requiring the 
Treasurer to deposit the poll tax lists in the custody of the 
clerks of the circuit courts is to make them available for 
correction in the judicial proceedings provided for by Sec­
tion 110 of the Virginia Code of 1936 (App. xii.)

As to the second contention, it would seem obvious that 
if necessity for judicial correction should arise, there 
would be no difficulty whatever in requiring the treasurer 
to furnish such lists direct to the court. For all purposes, 
the custody of the treasurer would seem to be the most 
appropriate and convenient, whether the lists be considered 
as relating purely to revenue taxes, or as lists to be fur­
nished to the judges of election as provided in Section 111 
(App. xii.)

As to both arguments, however, it can only be said that 
the best evidence of the purpose of these statutory provi­
sions is the practical application which has been made of 
them, and that practical application is not open to ques­
tion on this record.

The allegations of the petition for habeas corpus as to 
the manner in which these provisions of the laws of Vir­
ginia have been administered are supported by an affidavit



21

based on an examination of the records of the clerk of the 
Circuit Court of Pittsylvania County.

The petition and the supporting affidavit show:

As to petit juries:

That all persons on the petit jury before whom defend­
ant was tried and all persons on the venire facias from 
which said petit jury was drawn, and all persons on the 
jury list from which said venire facias was summoned, 
were persons appearing on the poll tax list of Pittsylvania 
County and no others (Tr. 7, 8, 22, 23). That such poll 
tax lists are the exclusive source from which the jury 
commissioners habitually draw the names appearing on 
the jury list (Tr. 8, 23), and that the jury lists of Pittsyl­
vania County are habitually so compiled, and thereby non­
payers of poll taxes are regularly and systematically ex­
cluded from juries in that county (Tr. 8, 23). Further­
more, that in Pittsylvania County, with a population for 
the year 1940 of approximately 30,000 persons over 20 
years of age, only approximately 6,000 were able to pay, 
and did pay, poll taxes and were thereby eligible in law 
to vote, and in fact to serve as grand and petit jurors (Tr. 
16, 23). That while negroes and share-croppers are not 
as such barred as grand and petit jurors, they, because of 
their similar economic status, constitute a large propor­
tion of the economic class so barred, and that petitioner 
himself is of such economic class (Tr. 15).

As to the grand jury:
That of the seven persons serving on the special grand 

jury by which petitioner was indicted, all had paid poll 
taxes, and all except one had paid such poll taxes for the 
years 1939 through 1940. Such one, though apparently in 
default for those years, had paid poll taxes for the year 
1937 (Tr. 7, 22).



22

That as to both juries:

That for the purpose of obtaining like information as to 
jury lists of Pittsylvania County for the year 1939, counsel 
for petitioner attempted to examine the lists for that 
year, which petitioner is informed and believes are in the 
custody of the clerk of the Circuit Court of Pittsylvania 
County; that the clerk of the court, however, refused 
counsel access to such lists, stating that he so refused 
by direction of the judge of said Circuit Court, being the 
same judge before whom petitioner was convicted (Tr. 8).

In the light of these sworn allegations of the petition for 
habeas corpus, the truth of which the State of Virginia 
has had ample opportunity to challenge, but which it has 
not challenged, there can be no reasonable doubt that the 
Constitution and laws of Virginia which are so adminis­
tered, are intended to be so administered, and intended to 
make the payment of poll taxes a qualification in fact, 
though not in law, for both grand and petit jury service. 
Under these circumstances, it is respectfully submitted 
that petitioner’s case comes substantially within the prin­
ciples underlying the decision of this Court in Rogers v. 
Alabama, 192 U. S. 229.



23

III.

On this record no valid contention can be made that 
certiorari should not issue because of any formal de­
fects in petitioner’s respective motions upon trial be­
fore the Circuit Court of Pittsylvania County, Virginia, 
to quash the indictment and to quash the venire facias, 
or because petitioner offered no evidence in support 
of those motions.

It may be contended that petitioner’s separate motions 
upon trial to quash his indictment and to quash the venire 
facias were insufficient in merely alleging that the mem­
bers of the special Grand Jury indicting him, and of the 
venire fascias from which was drawn the petit jury trying 
him, were

“ * * * selected from poll tax payers of Pittsylvania 
County” ,*

since it may be claimed that such motions thereby merely 
alleged inclusion of poll tax payers and not exclusion of 
non-poll tax payers.

It should suffice to say that in the opinion of the Supreme 
Court of Appeals of Virginia, upon writ of error, that 
Court specifically construed the motion to quash the indict­
ment as based on the exclusion of non-poll tax payers. In 
that opinion, Waller v. Commonwealth, supra, the Court 
said:

“ Upon the calling of the case for trial, counsel for 
accused filed a motion to quash the indictment, on the

* It should be noted that in the motions actually made the word 
“ exclusively” preceded the word “ selected” , but that in the bills of 
exceptions as signed by the trial court the word “ exclusively” was 
omitted. (Tr. pp. 18-19, Exhibit 1, p. 59 and pp. 31, 32).



24

ground that the indictment was returned by a grand 
jury from which non-poll tax payers had been ex­
cluded.”

It will also be noted that while in the succeeding para­
graph of that Court’s opinion it quoted petitioner’s motion 
to quash the venire facias in the terms in which it had liter­
ally been made, which were identical with the literal terms 
of the motion to quash the indictment, that Court made no 
distinction in this respect in the construction of the two 
motions, plainly treating both motions as based on the ex­
clusion of non-poll tax payers.

It, moreover, should be noted that no other construction 
of those motions could fairly be made in view of the inter­
pretation put on them by the trial court and by petitioner’s 
counsel at the time they were made. Reference in this re­
spect is made to page 60 of Exhibit 1 attached to the peti­
tion for habeas corpus to the Supreme Court of Appeals 
of Virginia (Tr. 18-19). There it appears Mr. Stone, coun­
sel for petitioner, stated:

“ Mr. Stone: As Your Honor knows, there is no
requirement that the accused have persons of the same 
economic or social category on either the grand or petit 
jury, but there is, in our opinion, a requirement that 
there be no exclusion of persons of the same general 
social status, and that is our contention.

The Court: Mr. Stone, what is the basis of your
motion in this case? What has the qualification or 
otherwise to do with this defendant?

Mr. Stone: Persons who are unable to pay their
poll tax are excluded and the accused is in the same 
general social and economic category.

The Court: I selected the (special grand) jury my­
self. I don’t know whether they are qualified or not; 
1 am always glad to see a person pay his poll tax. I 
think people ought to qualify and take an interest in



25

their government, but I don’t know whether they are 
qualified. Motion overruled.

Mr. Stone: May I note an exception!
The Court: Any other motions?
Mr. Stone: That’s all. Your Honor overruled the 

motion also to quash the petit jury?
The Court: What was that?
Mr. Stone: Our motion to quash the venire facias

for the same reason.
The Court: Yes, I overruled that, certainly.
Mr. Stone: We also except to that, your Honor.

It may be contended, however, that the admitted failure 
of petitioner to offer any evidence of such exclusion in sup­
port of his respective motions to quash his indictment and 
the venire facias is a bar to the issuance by this Court of 
certiorari to review the judgment of the Supreme Court 
of Appeals of Virginia, dismissing the petition for a 
writ of habeas corpus. Such a contention could only be 
based on fundamental misconstruction, as applied to this 
record, of those decisions of this Court which hold that 
before application may be made to a federal court for a 
writ of habeas corpus, state remedies must have been ex­
hausted and state procedure must have been shown in­
adequate.

Without conceding the validity of those decisions, it 
will suffice to say here that they have no application to this 
record. As noted at page 2 of the petition for certiorari, 
the Supreme Court of Appeals of Virginia dismissed the 
petition for habeas corpus without requiring any return 
or answer by the respondent, its opinion merely stating 
that:

“ * * * the Court having maturely considered said 
petition and exhibits therewith, is of opinion that said 
writ of habeas corpus should not issue as prayed. It



2(3

is therefore considered that said petition be dis­
missed.”

In other words, that Court, with full opportunity to do 
so, did not purport to dismiss the petition for habeas 
corpus because of petitioner’s failure to offer evidence of 
the fact of exclusion of non-poll tax payers in support of 
his respective motions, although the petition for habeas 
corpus itself expressly alleged (Tr. pp. 3 and 4) that 
petitioner offered no evidence in support of either motion.

This is the more significant because, upon petitioner’s 
preceding writ of error to the Supreme Court of Appeals, 
that Court, upon the express ground that no evidence had 
been offered in support of such motions, as well as on the 
ground that non-payers of poll taxes were not in law ex­
cluded from either grand or petit jury service, affirmed 
the Circuit Court of Pittsylvania County in overruling 
those motions, Waller v. Commonwealth, supra.

Moreover, it is obvious that this was no mere inadvert­
ence, but was the result of the recognition by the Supreme 
Court of Appeals that the grounds upon which it had dis­
missed petitioner’s preceding writ or error could not war­
rant the dismissal of the petition for habeas corpus. Upon 
writ of error that court obviously was limited to the rec­
ord made below. Upon habeas corpus, on the other hand, 
that court not only could, but was required by the re­
peated decisions of this Court where a federal right is 
involved, to go behind the record below. In Johnson v. 
Zerhst, 304 U. S. 465, the Court said:

“ True, habeas corpus cannot be used as a means of 
reviewing errors of law and irregularities—not in­
volving the question of jurisdiction—occurring dur­
ing the course of trial; and the ‘ writ of habeas corpus 
cannot be used as a writ of error’. These principles, 
however, must be construed and applied so as to



27

preserve—not destroy—constitutional safeguards of 
human life and liberty. The scope of inquiry in 
habeas corpus proceedings has been broadened—not 
narrowed—since the adoption of the Sixth Amend­
ment. In such a proceeding ‘ it would be clearly erron­
eous to confine the inquiry to the proceedings and 
judgment of the trial court’ and the petitioned court 
has ‘ power to inquire with regard to the jurisdiction 
of the inferior court, either in respect to the subject 
matter or to the person, even if such inquiry involves 
an examination of facts outside of but not inconsistent 
with the record.’ ”

Moreover, in Mooney v. Holohan, 294 U. S. 103, this 
Court said (p. 113):

“ Upon the state courts, equally with the courts of 
the Union, rests the obligation to regard and enforce 
every right furnished by the Constitution.”

The soundness is obvious of the reasoning behind the 
holding of this Court in Johnson v. Zerbst, supra, and in 
other cases, that on habeas corpus a court must go behind 
the record in the lower court, if necessary to determine 
“ the very truth and substance” . To hold that a court 
to which application for habeas corpus is made is con­
fined to the record of the court below, and compelled to 
refuse competent proof upon habeas corpus of facts show­
ing a deprivation of constitutional rights, would defeat 
the very purpose of that writ.

Furthermore, it is to be noted that all the decisions 
involving alleged exclusion of negroes from grand and 
petit juries, in which this Court refused to pass upon the 
effect of such exclusion because of failure to prove or to 
offer proof of exclusion in the court below, were cases 
coming before this Court on writ of error and not on 
habeas corpus. Smith v. Mississippi, 161 U. S. 592; Carter 
v. Texas, 177 U. S. 442; Tarrance v. Florida, 188 U. S. 519;



28

Brownfield v. South Carolina, 189 U. S. 426; Martin v. 
Texas, 200 U. S. 316; Franklin v. South Carolina, 218 
U. S. 161.

In such cases coming before this Court on writ of error 
this Court, like the Supreme Court of Appeals of Virginia, 
upon petitioner’s writ of error, was limited to the record 
in the court below. Clearly, as has been shown, no such 
limitation applied to the Supreme Court of Virginia upon 
the petition to it for habeas corpus, and it is obvious no 
such limitation can apply to this Court upon certiorari to 
review the judgment dismissing that petition.

The petition to this Court for certiorari is a petition to 
review the judgment of the Supreme Court of Appeals 
dismissing the petition for habeas corpus, and is not a peti­
tion for certiorari to review the judgment of that Court 
in dismissing petitioner’s preceding writ of error. Peti­
tioner concedes that were this a petition for certiorari to 
review the dismissal of his writ of error, this Court would, 
of course, be limited to the record before the Supreme 
Court of Appeals upon such writ of error, on which record 
appeared no proof that non-payers of poll taxes were in 
fact excluded by the State of Virginia from grand and 
petit juries in Pittsylvania County.

The record before the Supreme Court of Appeals upon 
the petition for the habeas corpus, on the contrary, contains 
not only offer of proof, showing the systematic exclusion of 
non-payers of poll taxes from both grand and petit juries 
of Pittsylvania County, but such offer is supported by 
affidavits showing detailed evidence of such exclusion, 
obtained by an examination of the records of the Circuit 
Court of that County (Tr. pp. 7, 8, 22, 23). It is this record 
on habeas corpus which this Court is asked to review upon 
certiorari, and it is most respectfully submitted that, for 
the purpose of this petition for that writ, the facts alleged



29

in the petition for habeas corpus must be assumed to be 
true, since the petition for habeas corpus was dismissed 
by the Supreme Court of Appeals without requiring re­
turn or answer by respondent, and without opinion other 
than that the petition was insufficient on its face to war­
rant the writ. Cf. Whitten v. Tomlinson, 160 U. S. 231.

Indeed, it is submitted that here the reasons for the 
assumption of the truth of the facts alleged in a sworn 
petition for habeas corpus, dismissed without return or 
answer, are far stronger than in the ordinary case. Here, 
the facts alleged, showing systematic exclusion of non­
payers of poll taxes from both grand and petit juries, 
were, as shown by the affidavits attached to the petition, 
obtained from an examination of the records of the Circuit 
Court of Pittsylvania County. If the Supreme Court of 
Appeals had reason to believe that such allegations of the 
petition for habeas corpus were not true, or even had rea­
son to doubt their truth, that Court could readily have 
determined their truth by requiring a return or answer of 
that petition. Otherwise, as noted at page 4 of the peti­
tion for certiorari, it would be necessary to assume that 
that Court not only permitted, but compelled, the presenta­
tion of grave constitutional questions to this Court, upon 
a case which it had reason to believe might prove moot. 
Moreover, as there noted, the very nature of the facts 
alleged was such as to put a particular responsibility on 
the Supreme Court of Appeals in this respect, since those 
facts related to the administration of justice in its subordi­
nate courts, a subject peculiarly within its concern and 
knowledge. Since that Court required no such return 
or answer, the only reasonable construction of its judg­
ment, dismissing the petition for the writ, is that that 
Court recognized that the State of Virginia does in fact 
systematically exclude non-payers of poll taxes from grand 
and petit jury service in Pittsylvania County, but held,



30

nevertheless, that such exclusion does not constitute a 
denial either of equal protection of the laws or due process 
of law within the meaning of the 14th Amendment. It is 
this construction by the Supreme Court of Appeals of 
petitioner’s constitutional rights, based on facts, which, 
for the purpose of this petition for certiorari, there is 
every reason to assume are true, that this Court is asked 
to review.

Finally, it is frankly incredible that either the State 
of Virginia would contend, or that this Court would sus­
tain a contention, that the truth of the facts alleged in the 
petition cannot be established on habeas corpus, because 
the evidence of those facts was not offered in support of 
petitioner’s motions to quash the indictment and the venire 
facias. Counsel do not believe that such a contention 
would be made, or, if made, be sustained, were its neces­
sary implications understood.

Such a contention would mean that the petitioner must 
be electrocuted, in violation of his constitutional rights, be­
cause of the assumed mistake of his trial counsel as to 
the procedure necessary to establish such violation. Were 
such mistake clear, the proposition would be no less atro­
cious, but it is far from clear that, on this record, it should 
be held there was any mistake, procedural or otherwise, 
in this respect.

While it is undoubtedly the general rule that evi­
dence of the facts must be offered in support of a motion 
to quash an indictment or a venire facias, based on the 
alleged systematic exclusion of an accused’s racial, eco­
nomic, religious or political class, the validity of such a 
rule, as applied to petitioner’s case even in the trial court, 
may well be questioned. Where, as here, it must be as­
sumed that the State itself deliberately, knowinglv and 
systematically excluded all members of petitioner’s eco­



31

nomic class from grand and petit juries of the county in 
which petitioner was indicted and tried, the State itself is 
clearly chargeable with knowledge of such exclusion. 
Therefore, it would not be unreasonable to hold that a 
challenge asserting such exclusion should place upon the 
State the burden of disproving the charge, since the facts 
are peculiarly and readily within its knowledge and, there­
fore, the charge, if unfounded, may be readily disproved.

However this may be, it would be Alice in Wonderland 
logic to contend that, upon this petition for certiorari to 
review the denial of habeas corpus, the petitioner, because 
he did not prove in the trial court facts, which under the 
sworn allegations of the petition for habeas corpus it 
must be assumed the State already knew, petitioner may 
not prove such facts to this Court, although the State, with 
full opportunity to do so, has not even challenged them. 
Indeed, under reasonable principles of procedure, it might 
well be held that the State should now be barred from any 
future challenge of such facts. As has been noted already, 
those facts were of a nature peculiarly within the concern 
and knowledge of the Supreme Court of Appeals. Had that 
Court any reasonable doubt of the truth of such facts 
presented to it under sworn allegations, it was not only 
it ’s right but it ’s duty to require proof of them before 
permitting the grave constitutional questions arising on 
them to come before this Court. To permit subsequent 
challenge of them would be to encourage the burdening of 
this Court with the possibly unnecessary consideration and 
determination of constitutional questions, and to impose on 
all parties unnecessarily circuitous procedure.

Waiving aside, however, all such considerations of rea­
sonable and proper procedure, and assuming that peti­
tioner’s trial counsel did make a mistake as to the pro­
cedure required to establish the facts of exclusion, the truth



32

of which is not open to question on this record, is the 
penalty for such a mistake to be petitioner’s electrocution, 
even though the violation of petitioner’s constitutional 
rights is otherwise clear? It is respectfully submitted that 
the legalistic detachment inherent in contentions of this 
nature would seldom be possible if those advancing them 
were compelled to assume the physical task, as well as the 
moral responsibility, of executing the victims of their 
legalism. In any event, it is respectfully submitted, there 
can be no warrant on this record for any such legalistic 
disregard of petitioner’s constitutional rights.

CONCLUSION.

In conclusion, it is respectfully submitted that the Su­
preme Court of Appeals of Virginia, in dismissing the 
petition to that Court, for habeas corpus has plainly de­
cided federal questions of wide public interest, not hereto­
fore determined by this Court and, it would appear, has 
decided them in a way not in accord with the applicable 
decisions of this Court. It is further respectfully sub­
mitted that, unless this Court shall issue its writ of 
certiorari as prayed, and shall thereupon require the issu­
ance of a writ of habeas corpus to petitioner and his dis­
charge upon such writ, petitioner will be deprived of his 
life in contravention of his rights under the 14th Amend­
ment to the Constitution of the United States.

Respectfully submitted,

J o h n  F .  F i n e r t y , 

Counsel for Petitioner.
T h o m a s  H. S t o n e ,

M o r r is  S h a p ir o ,

M a r t in  A. M a r t i n ,

Of Counsel.



APPENDIX

Relevant Parts of Constitutional and Statutory 
Provisions, State and Federal, Cited in 

Brief and Petition



11

ACT OF CONGRESS, JANUARY 26, 1870.
(16 Stat. 62)

Whereas the people of Virginia have framed and adopted 
a constitution of State government, which is republican; 
and whereas the legislature of Virginia, elected under said 
constitution, have ratified the fourteenth and fifteenth 
amendments to the Constitution of the United States; and 
whereas the performance of these several acts, in good 
faith, was a condition precedent to the representation of 
the state in congress:

Therefore,
Be it enacted by the Senate and House of Representatives 

of the United States of America in Congress assembled that 
the said State of Virginia is entitled to representation in 
the Congress of the United States: Provided,

* * * * #

And provided further, that the State of Virginia is ad­
mitted to representation in Congress as one of the States 
of the Union, upon the following fundamental conditions:

First. That the Constitution of Virginia shall never be 
so amended or changed as to deprive any citizen or class 
of citizens of the United States of the right to vote, who 
are entitled to vote by the Constitution herein recognized, 
except as a punishment for such crimes as are now felonies 
at common law, whereof they shall have been duly convicted 
under laws equally applicable to all the inhabitants of said 
state: Provided, that any alteration of said Constitution, 
prospective in its effects, may be made in regard to the 
time and place of residence of voters.

Second. That it shall never be lawful for the said State 
to deprive any citizen of the United States, on account of 
his race, color or previous condition of servitude, of the 
right to hold office under the constitution and laws of said 
State, or upon any such ground to require of him any other 
qualifications for office than such as are required of other 
citizens.



Ill

TITLE 8, U. S. C., SECTION 44.

“ Sec. 44. Exclusion of jurors on account of race or 
color. No citizen possessing all other qualifications which 
are or may be prescribed by law shall be disqualified for 
service as grand or petit juror in any court of the United 
States, or of any State, on account of race, color or pre­
vious condition of servitude; and any officer or other person 
charged with any duty in the selection or summoning of 
jurors who shall exclude or fail to summon any citizen for 
the cause aforesaid, shall, on conviction thereof, be deemed 
guilty of a misdemeanor, and be fined not more than $5,000. 
Mar. 1,1875, c. 114, sec. 4,18 Stat. 336) ” ,

CONSTITUTION OF VIRGINIA OF 1902 
AS AMENDED.*

§ 18. Qualification of voters.—Every citizen of the 
United States, twenty-one years of age, who has been a 
resident of the State one year, of the county, city, or town, 
six months, and of the precinct in which he offers to vote, 
thirty days next preceding the election in which he offers 
to vote, has been registered, and has paid his State poll 
taxes, as hereinafter required, shall be entitled to vote 
for members of the general assembly and all officers elec­
tive by the people; but removal from one precinct to an­
other, in the same county, city or town shall not deprive 
any person of his right to vote in the precinct from which 
he has moved until the expiration of thirty days after such 
removal.

§ 19. Registration of voters; those registered prior to 
nineteen hundred and four.—Persons registered under the 
general registration of voters during the years nineteen 
hundred and two and nineteen hundred and three, whose

* Text is that appended to Virginia Code of 1936. There are no 
substantial changes from text of Constitution of 1902 as originally 
enacted.



IV Constitution of Virginia of 1902 as Amended.

names were required to be certified by the officers of reg­
istration for filing, record and preservation in the clerks’ 
offices of the several circuit and corporation courts, shall 
not be required to register again, unless they shall have 
ceased to be residents of the State, or became disqualified 
by section twenty-three.

§20. Who may register.—Every citizen of the United 
States, having the qualifications of age and residence re­
quired in section eighteen, shall be entitled to register, pro­
vided :

First. That he has personally paid to the proper officer 
all State poll taxes legally assessed or assessable against 
him for the three years next preceding that in which he 
offers to register; or, if he come of age at such time that 
no poll tax shall have been assessable against him for the 
year preceding the year in which he offers to register, has 
paid one dollar and fifty cents, in satisfaction of the first 
year’s poll tax assessable against him; * * *

§ 21. Conditions for voting.—A person registered under 
the general registration of voters during the years nine­
teen hundred and two and nineteen hundred and three, or 
under the last section, shall have the right to vote for all 
officers elective by the people, subject to the following con­
ditions :

That unless exempted by section twenty-two, he shall, as 
a prerequisite to the right to vote, personally pay, at least 
six months prior to the election, all State poll taxes assessed 
or assessable against him, under this Constitution, during 
the three years next preceding that in which he offers to 
vote. * * *



V

POLLARDS VIRGINIA CODE 1904.

Sec. 62. Qualification of voters; disqualifications. Every 
male citizen of the United States twenty-one years old, who 
has been a resident of the State two years, of the county, 
city or town one year, and of the precinct in which he offers 
to vote thirty days next preceding the election, and who 
has been duly registered and has paid his State poll tax, 
as required by law, and is otherwise qualified under the 
Constitution and laws of this State, shall be entitled to 
vote for members of the general assembly and all officers 
elected by the people, and in any special election the local- 
option election in any county, district, city or town, except 
when otherwise provided by law; * * *

Sec. 73. Who to be registered. Each registrar shall, 
after the first day of January, nineteen hundred and four, 
register every male citizen of the United States, of his 
election district, who shall apply to be registered at the 
time and in the manner required by law, who shall be 
twenty-one years of age at the next election, who has been 
a resident of the State two years, of the county, city or 
town one year, and of the precinct in which he offers to 
register thirty days next preceding the election, who, at 
least six months prior to the election, had paid to the 
proper officer all State poll-taxes assessed or assessable 
against him under this or the former Constitution for 
three years next preceding that in which he offers to reg­
ister, or if he come of age at such time that no poll-tax 
shall be assessable against him for the year preceding the 
year in which he offers to register, has paid one dollar 
and fifty cents in satisfaction of the first year’s poll-tax 
assessable against him, * * *

*  #  *  *  *

Sec. 86b. Lists of all persons who have paid their poll 
taxes; posting the same; compensation therefor. (1) The
treasurer of each county and city shall, at least five months 
before each regular election, file with the circuit court of 
his county, or of the corporation court of his city, a list



VI Pollards Virginia Code 1904

of all persons in his county or city who have paid not later 
than six months prior to such election the State poll taxes 
required by the Constitution of this State during the three 
years next preceding that in which such election is held, 
which list shall be arranged alphabetically by magisterial 
districts or wards, shall state the white and colored per­
sons separately, and shall be verified by the oath of the 
treasurer. The clerk, within ten days from the receipt of 
the list, shall make and certify a sufficient number of copies 
thereof, and shall deliver one copy for each voting place 
in his county or city to the sheriff of the county or ser­
geant of the city, whose duty it shall be to post one copy, 
without delay, at each of the voting places, and, within ten 
days from the receipt thereof, to make return on oath to 
the clerk as to the places where and the dates at which 
said copies were respectively posted; which return the 
clerk shall record in a book kept in his office for the pur­
pose; and he shall keep in his office for public inspection, 
for at least sixty days after receiving the list, not less 
than ten certified copies thereof.

(2) Within thirty days after the list has been so posted 
any person who shall have paid his capitation tax, but 
whose name is omitted from the certified list, may, after 
five days’ written notice to the treasurer, apply to the 
circuit court of his county, or corporation court of his city, 
or to the judge thereof in vacation, to have the same cor­
rected and his name entered thereon, which application the 
court or judge shall promptly hear and decide.

(3) The clerk shall deliver, or cause to be delivered, with 
the poll books, at a reasonable time before every election, 
to one of the judges of election of each precinct in his 
county or city, a like certified copy of the list, which shall 
be conclusive evidence of the facts therein stated for the 
purpose of voting. The clerk shall also, within sixty days 
after the filing of the list by the treasurer, forward a cer­
tified copy thereof, with such corrections as may have been 
made by order of the court or judge, to the auditor of 
public accounts, who shall charge the amount of the poll



Pollards Virginia Code 1904 V l l

taxes stated therein to such treasurer, unless previously 
accounted for.

* * * * *

Sec. 86c. Furnishing by the county treasurers of list of 
those who are residents of or voters in the incorporated 
towns who have paid their State capitation taxes six 
months prior to a regular election to be held in the in­
corporated towns of which they are residents. The treas­
urer of every county in this Commonwealth in which any 
incorporated town is located, in which a regular election 
is to be held on the second Tuesday in June in any year 
in pursuance of law, shall furnish the clerk of the circuit 
court of his county with a list of the residents of said in­
corporated town who have paid the State capitation tax 
provided by law six months prior to the time of holding 
said election. The said lists shall be prepared and posted 
in all respects as is provided for in section thirty-eight 
of the Constitution. The said treasurers shall not for the 
purpose of this act be recjuired to furnish or post list of 
those voters of his county who have paid their capitation 
taxes six months prior to the second Tuesday in June un­
less they are voters in and residents of some incorporated 
town in which an election is to be held. * * *

Sec. 86d. Evidence of the prepayment of State poll taxes 
by voters transferred from one city or county to another 
city or county. In any case where a voter has been trans­
ferred from one city or county to another city or county, 
and has paid his State poll taxes for the three years next 
preceding that in which he offers to vote, or for any of 
said years, in any county or city in this State, such voter 
may exhibit to the judges of election the certificate of the 
treasurer of the city or county wherein the said taxes were 
paid, showing such payment, and that the same was made 
at least six months prior to the election, by the person 
offering to vote, such certificate shall be conclusive evi­
dence of the facts therein stated for the purpose of voting. 
The treasurer of any county or city, upon the application 
of any such voters, shall furnish the certificate herein re­
quired. * * *



V11J Pollards Virginia Code 1904

Sec. 86e. Manner in which a duly registered voter who 
has not been assessed with his State capitation tax may 
pay the same, penalties for failure on the part of clerks and 
treasurers to observe the law. If any duly registered voter 
in any city or county in this Commonwealth apply to the 
treasurer of such city or county to pay his State capitation 
tax, and such treasurer is prevented from receiving such 
tax because the same has not been assessed against such 
applicant, such duly registered voter may thereupon apply 
to the county clerk of his county, or the clerk of the cor­
poration or hustings court of his city, as the case may be, 
for a certificate that he is a duly registered voter. The 
clerk shall deliver such certificate to the applicant forth­
with and deliver a copy thereof to the commissioner of 
the revenue, and upon presentation of such certificate to 
the treasurer of the county or city the treasurer shall ac­
cept payment of such State capitation tax from such voter 
and give a receipt therefor. * * *

Sec. 3139. Who liable to serve as jurors.—“ All male 
citizens over twenty one years of age who shall have been 
residents of this State two years, and of the county, city, 
and town in which they reside one year next preceding 
their being summoned to serve as such, and competent 
in other respects, except as hereinafter provided, shall 
remain and be liable to serve as jurors. * * * ”

Sec. 3142. Judges of circuit and corporation courts 
to prepare annual lists of jurors.—The judge of the circuit 
court of each county and the judge of the circuit court 
of each city of the first class, and the judge of each city 
court shall annually, between the first day of January and 
the first day of July, prepare a list of such inhabitants 
in each county or corporation where their respective 
courts are to be held, as are not excluded or exempt by 
section thirty one hundred and forty, as are well quali­
fied to serve as jurors. Such list shall contain one for 
every one hundred inhabitants of each magisterial dis­
trict or ward, having regard to the population of the



Pollards Virginia Code 1904 IX

county or corporation, but the whole number of persons 
selected in the county or corporation shall not be less than 
one hundred nor more than three hundred, except in the 
courts for the cities of Richmond and Norfolk the number 
shall not exceed six hundred. (1870-71, P. 50; 1899-00, 
P. 997; 1902-3-4, P. 603.)

Sec. 3143. Lists to be delivered to clerks, and by them 
safely kept. The list so prepared shall be delivered to the 
clerk of the court, to be safely kept by him, subject only 
to the inspection of the judge, as hereinafter provided; and 
to such list the judge may, from time to time, add the names 
of any persons liable to serve, and strike therefrom the 
names of any who have become disqualified or exempt from 
such service: provided, that the number on the list shall 
not at any time exceed three hundred, except in the cities 
of Richmond and Norfolk, and in said cities shall not ex­
ceed six hundred. (1870-71, p. 51; 1902-3-4, p. 603.)

Sec. 3144. Names of jurors to be written on separate 
ballots; ballots to be folded and deposited with list in a 
box. When such list is made out, the judge shall cause all 
the names thereon to be fairly written, each on a sep­
arate paper or ballot, and shall so fold or roll up the bal­
lots that they will resemble each other as nearly as may 
be, and the names written thereon not be visible on the 
outside, and shall deposit the ballots with the said list in 
a secure box prepared for that purpose, and the said box 
shall be locked and safely kept by the clerk of such court 
and opened only by order of the judge thereof, as herein­
after provided. (i870-71, p. 51; 1899-00, p. 1012; 1902-3-4, 
p. 603.)

Sec. 3976. When and how grand jurors to be selected 
by judges of circuit courts of counties and corporation or 
hustings courts of cities; lists to be delivered to clerk; 
when and how jurors summoned.—The judges of the said„ 
courts shall annually, in the month of June, July, or Au­
gust, select from the male citizens of each county of their



X Pollards Virginia Code 1904

respective circuits and in their several cities forty eight 
persons twenty-one years of age and upwards, of honesty, 
intelligence, and good demeanor, and suitable in all re­
spects to serve as grand jurors, who shall be the grand 
jurors for the county or city from which they are selected 
for twelve months thereafter. Such jurors shall be selected 
in each county from the several magisterial districts of 
the county and from the several wards of the cities in 
proportion to the population thereof, and the judge making 
the selection shall at once furnish a list of those selected 
to the clerk of his court in each county of his circuit or 
in his city. The clerk, not more than twenty days before 
the commencement of each term of his court at which a 
regular grand jury is required, shall issue a venire facias 
to the sheriff of his county or sergeant of his city, com­
manding him to summon twelve of the persons selected as 
aforesaid to be named in the writ to appear on the first 
day of the court, to serve as grand jurors. * * *

Sec. 3977. Who are qualified; number of grand jury,
regular and special.—A regular grand jury shall consist of 
not less than nine nor more than twelve persons, and a 
special grand jury of not less than six nor more than nine 
persons. Each grand juror shall be a citizen of this state, 
twenty-one years of age, and shall have been a resident 
of this state two years, and of the county or corporation 
in which the court is to be held one year, and in other 
respects a qualified juror, and not a constable, ordinary 
keeper, overseer of a road, and not the owner or occupier 
of a grist-mill, and, when the grand juror is for a circuit 
court of a countv, not an inhabitant of a city. (1877-8, 
P. 331; 1889-90, P. 91; 1902-3-4, P. 878.)

Sec. 4018. The venire facias in case of felony: what to 
command; number of persons to be summoned, and how 
selected.—The writ of venire facias, in case of felony, shall 
command the officer to whom it is directed to summon six­
teen persons of his county or corporation, to be taken from 
a list furnished him by the clerk issuing the writ, who are



Pollards Virginia Code 1904 xi

qualified in all respects to serve as jurors, to attend the 
court wherein the accused is to be tried on the first day of 
next term thereof, or at such other time as the court or 
judge may direct. At one term of the court only one jury 
shall be summoned, unless the court or judge thereof 
otherwise direct; and the jury so summoned may be used 
for the trial of all the cases which may be tried at that 
term, both felonies or misdemeanors.

The list mentioned in this section shall contain the 
names of twenty persons drawn for that purpose by the 
clerk of the court or his deputy from the names and box 
provided for by sections thirty one hundred and forty two 
and thirty one hundred and forty four of the Code of 
Virginia. * * *

VIRGINIA CODE OF 1936.

§ 109. List of all persons who have paid their State poll 
taxes shall be made by treasurer; duties of clerk in refer­
ence thereto; posting thereof by the sheriff or sergeant.—
The treasurer of each county and city shall, at least five 
months before the second Tuesday in June in each year 
in which a regular June election is to be held in such county 
or city, and at least five months before each regular elec­
tion in November, file with the clerk of the circuit court 
of his county or the corporation court of his city a list of 
all persons in his county, or city, who have paid not later 
than six months prior to each of said dates the State poll 
taxes required by the Constitution of this State during 
three years next preceding that in which such election is 
to be held, which list shall state the white and colored per­
sons separately, and shall be verified by the oath of the 
treasurer. The clerk within ten days from the receipt of 
the list, shall make and certify a sufficient number of copies 
thereof, and shall deliver one copy for each voting place 
in his county or city to the sheriff of the county or sergeant 
of the city, whose duty it shall be to post one copy with­
out delay, at each of the voting places and within ten days



X ll Virginia Code of 1936

from the receipt thereof to make return on oath to the 
clerk as to the places where and dates at which said copies 
were respectively posted; which return the clerk shall re­
cord in a book kept in his office for the purpose; and he 
shall keep in his office for public inspection, for at least 
sixty days after receiving the list, not less than ten cer­
tified copies thereof. (1904, p. 131; 1908, p. 162; 1924, p. 
57; 1926, p. 525; 1928, pp. 713, 714; 1934, p. 73.)

§ 110. Correction of lists.—Within thirty days after the 
list has been so posted any person who shall have paid his 
capitation tax, but whose name is omitted from the certified 
list, may, after five days’ written notice to the treasurer, 
apply to the circuit court of his county, or corporation 
court of his city, or to the judge thereof in vacation, to 
have the same corrected and his name entered thereon, 
which application the court or judge shall promptly hear 
and decide. If it be decided that the name was improperly 
omitted, the judge shall enter an order to that effect and 
the clerk of the court shall correct the list furnished him 
by the treasurer accordingly, and deliver a certified copy 
of such corrected list to the judges of election at the pre­
cinct at which such voter is registered. It shall be the duty 
of the treasurer to revise said list within ten days after 
it has been posted as aforesaid and to correct any omis­
sions or clerical or typographical errors. (1904, p. 131; 
1908, p. 162; 1926, p. 99.)

§ 111. Duty of clerk to deliver lists with poll books, and to 
forward copies to Auditor.—The clerk shall deliver, or 
cause to be delivered, with the poll books at a reasonable 
time before every election, to one of the judges of election 
of each precinct in his county or city, a like certified copy 
of the list, which shall be conclusive evidence of the facts 
therein stated for the purpose of voting. The clerk shall 
also, within sixty days after the filing of the list by the 
treasurer, forward a certified copy thereof, with such cor­
rections as may have been made by order of the court or 
judge, to the Auditor of Public Accounts, who shall charge 
the amount of the poll taxes stated therein to such treas­



Virginia Code of 1936 xm

urer, unless previously accounted for. (1904, p. 131; 1908,
p. 162.)

§ 4852. When and how grand jurors to be selected by 
judges of circuit courts of counties and corporation or hust­
ings courts of cities; lists to be delivered to clerk; when and 
how jurors summoned.—The judges of the said courts shall 
annually, in the month of June, July, or August, select 
from the male citizens of each county of their respective 
circuits and in their several cities forty-eight persons 
twenty-one years of age and upwards, of honesty, intelli­
gence, and good demeanor, and suitable in all respects to 
serve as grand jurors who shall be the grand jurors for 
the county or city from which they are selected for twelve 
months next thereafter. Such jurors shall be selected in 
each county from the several magisterial districts of the 
county, and in each city from the several wards of the 
cities in proportion to the population thereof, and the 
judge making the selection shall at once furnish to the 
clerk of his court in each county of his circuit or in his 
city a list of those selected for that county or city. The 
clerk, not more than twenty days before the commence­
ment of each terms of his court, at which a regular grand 
jury is required, shall issue a venire facias to the sheriff 
of liis county, or sergeant of his city, commanding him to 
summon not less than five nor more than seven of the per­
sons selected as aforesaid (the number to be designated 
by the judge of the court by an order entered of record) 
to be named in the writ, to appear on the first day of the 
court to serve as grand jurors. No such person shall be 
required to appear more than once until all the others 
have been summoned once, nor more than twice until the 
others have been twice summoned, and so on; provided, 
that no male citizen over sixty years of age shall be com­
pelled to serve as a grand juror. The clerk, in issuing 
the venire facias, shall apportion the grand jurors, as 
nearly as may he ratably among the magisterial districts 
or wards; but the circuit court of James City county, or 
the judge thereof in vacation, shall select the grand jurors 
for such court from said county and the city of Williams­



XIV Virginia Code of 1936

burg in such proportion from each as he may think proper. 
(Code 1887, § 3976; 1899-90, p. 90; 1902-3-4, pp. 22, 878; 
1932, p. 813; 1934, p. 80.)

§4853. Who are qualified; number of grand jurors, regu­
lar and special.—A regular grand jury shall consist of not 
less than five nor more than seven persons, and a special 
grand jury of not less than five nor more than seven per­
sons. Each grand juror shall be a citizen of this State, 
twenty-one years of age, and shall have been a resident 
of this State two years, and of the county or corporation 
in which the court is to be held one year, and in other re­
spects a qualified juror, and not a constable, or overseer 
of a road, and, when the grand juror is for a circuit court 
of a county, not an inhabitant of a city, except in those 
cases where the circuit court of the county has jurisdic­
tion in the city, in which case the city shall be considered 
as a magisterial district, or the equivalent of a magisterial 
district, of the county for the purpose of the jury lists. 
(Code 1887, § 3977; 1899-90, p. 91; 1902-3-4, p. 878; 1916, 
p. 764; 1920, p. 597; 1932, p. 814.)

§4895. Venire facias in case of felony; what to com­
mand; number of persons to be summoned, and how se­
lected; irregularities; venire, when persons jointly indicted 
for a felony elect to be tried separately.—The writ of venire 
facias in case of felony shall command the officer to whom 
it is directed to summon twenty persons of his county or 
corporation, to be taken from a list furnished him by the 
clerk issuing the writ, who are qualified in all respects to 
serve as jurors, to attend the court wherein the accused is 
to be tried on the first day of the next term thereof, or 
at such other time as the court or judge may direct. At 
one term of the court only one jury shall be summoned, 
unless the court or judge thereof otherwise direct; and 
the jury so summoned may be used for the trial of all 
the cases which may be tried at that term, including civil 
cases as well as felonies and misdemeanors.

The list mentioned in this section shall contain the names 
of twenty-four persons drawn for that purpose by the clerk



Virginia Code of 1936 xv

of the court or his deputy from the names and box pro­
vided for by sections fifty-nine hundred and eighty-eight 
and fifty-nine hundred and ninety of this code. * * *

§ 5984. Who liable to serve as jurors.—All male citizens 
over twenty-one years of age who shall have been resi­
dents of this State one year, and of the county, city or 
town in which they reside six months next preceding 
their being summoned to serve as such, and competent in 
other respects, except as hereinafter provided, shall re­
main and be liable to serve as jurors; but no officer, soldier, 
seaman, or marine of the United States army or navy 
shall be considered a resident of this State by reason of 
being stationed herein, nor shall an inmate of any 
charitable institution be qualified to serve as juror. The 
following persons shall be disqualified from serving as 
jurors; First, idiots and lunatics: second, persons con­
victed of bribery, perjury, embezzlement of public funds, 
treason, felony, or petit larceny. (Code 1887, §3139; 
1891-2, p. 209; 1895-6, p. 49; 1902-3-4, pp. 10, 288, 602; 1930, 
p. 624; 1936, p. 379.)

§ 5988. List of jurors to be prepared by the jury com­
missioners.—Such commissioner, shall as soon as may be 
after their appointment, prepare a list of such of the in­
habitants of that county or city as are well qualified to 
serve as jurors and are not excluded or exempt by sec­
tions fifty-nine hundred and eighty-four and fifty-nine hun­
dred and eighty-five of this Code. The whole number of 
persons selected in the county or city shall not be less than 
one hundred nor more than three hundred, except that for 
the city of Richmond and the city of Norfolk the number 
shall not exceed one thousand and the corporation court 
for the city of Roanoke, the number shall not exceed six 
hundred, and for the city of Newport News and the city 
of Petersburg the number shall not exceed five hundred. 
The same percentage of population shall be taken from 
each magisterial district or ward. The inhabitants of a 
city, however, which is situated in whole or in part within 
the bounds of a county shall not be placed on the lists for 
such county; except in those cases where the circuit court



XVI Virginia Code o f 1936

of the county has jurisdiction in the city in which cases 
the city shall be considered as a magisterial district, or 
the equivalent of a magisterial district, of the county for 
the purposes of the jury lists. (Code 1919, §5988; 1918, 
p. 505; 1920, pp. 3, 595; 1924, p. 129.)

§ 5989. Lists to be delivered to clerks, and by them safe­
ly kept.—The list so prepared shall be delivered to the 
clerk of the court, to be safely kept by him. To such list 
the commissioners may from time to time, add the names 
of any persons liable to serve, and strike therefrom the 
names of any who have become disqualified or exempt 
from such service, but the number on the list shall not at 
any time exceed the number prescribed by the preceding 
section.

§ 5990. Names of jurors to be written on separate bal­
lots; ballots to be folded and deposited with list in a box.—
When such list is made out, the commissioners shall cause 
all the names thereon to be fairly written, each on a sepa­
rate paper or ballot, and shall so fold or roll up the ballots 
that they will resemble each other as nearly as may be, 
and the names written thereon not be visible on the out­
side, and shall deposit the ballots with the said list in a 
secure box prepared for that purpose, and the said box 
shall be locked and safely kept by the clerk of such court 
and opened only by the direction of the judge thereof, as 
hereinafter provided.

TAX CODE (VIRGINIA CODE, 1904).

Sec. 4. The classification under Schedule A shall be as 
follows—to wit: first, the number of white male inhabi­
tants who have attained the age of twenty-one years, ex­
cept those pensioned by this State for military service; 
second, the number of colored male inhabitants who have 
attained the age of twenty-one years, except those pen- 
siond by this State for military service.

Sec. 5. Tax of persons. Upon every male person, classi­
fied in schedule A, there shall be a tax of $1.50, of which



Tax Code ( Virginia Code, 1904) xvn

$1.00 shall be for aid of the public free schools, and fifty 
cents shall be returned and paid into the treasury of the 
county or city in which it shall be collected.

TAX CODE (VIRGINIA CODE, 1936).

Sec. 22. Levy of state capitation tax. There is hereby 
levied a state capitation tax of one dollar and fifty cents 
per annum on every resident of the State not less than 
twenty-one years of age, except those pensioned by the 
State for military services; one dollar of which shall be 
applied exclusively in aid of the public free schools, in pro­
portion to the school population, and the residue shall be 
returned and paid by the State into the treasury of the 
county or city in which it was collected, to be appropri­
ated by the proper county or city authorities to such county 
or city purposes as they shall respectively determine; but 
said State capitation tax shall not be a lien upon nor col­
lected by legal process from, the personal property which 
may be exempt from levy or distress under the poor 
debtor’s law.



.

I