Swain v. Alabama Brief for Petitioner

    i ’uprme GImtrt at %  lutttb BUUb
October T erm, 1964 

No. 64

In the

Robert Swain,
Petitioner,

A labama.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA

BRIEF FOR PETITIONER

Jack Greenberg 
Constance Baker M otley 
James M. N abrit, III 

Suite 2030 
10 Columbus Circle 
New York, New York, 10019

Orzell B illingsley, Jr.
Peter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Petitioner

M ichael M eltsner 
H enry M. di Suvero 
F rank H. H effron 

Of Counsel



I N D E X

PAGE

Opinion Below ....................................................................  1

Jurisdiction ..........................................................................  1

Question Presented ............................................................  2

Constitutional and Statutory Provisions Involved .....  2

Statement ..............................................................................  3

Summary of Argument ....................................................  10

A rgument :

Negroes Have Been Excluded From Jury Service 
in Talladega County in Violation of Petitioner’s 
Rights Under the Due Process and Equal Protec­
tion Clauses of the Fourteenth Amendment .......  11

A. Negroes Are Unconstitutionally Excluded
From Jury Service in That the State Always 
Strikes the Token Number of Negroes on the 
Trial Venires With the Result That Negroes 
Never Serve on Trial Juries .................. -.......  11

B. Negroes Have Been Summoned for Jury Ser­
vice in Only Token Numbers and the State 
Has Offered No Explanation of the Small 
Proportion Called............................................... 18

Conclusion....................................................................................  24

A ppendix (Statutes Involved) ........................................... la



Table of Cases:
page

Ballard v. United States, 329 U. S. 187...........................  16
Berger v. United States, 295 U. S. 78 ...........................  12
Bynum v. State, 35 Ala. App. 297, 47 So. 2d 245 .......  17

Carter v. Texas, 177 U. S. 442 .......................................  12
Cassell v. Texas, 339 U. S. 282 ....................................... 21, 23

Eubanks v. Louisiana, 356 U. S. 584 ...........................  12

Fay v. New York, 332 U. S. 261 ............. .....................  14

Hall v. United States, 168 F. 2d 161 (D. C. Cir. 1948),
cert, denied 334 U. S. 853 ............................................. 14,15

Hamilton v. Alabama, 376 U. S. 650 ............................... 12,16
Hayes v. Missouri, 120 U. S. 580 ...................................  16
Hernandez v. Texas, 347 U. S. 475 ...................................  14
Hill v. Texas, 316 U. S. 400 ...........................................21, 23

Johnson v. State, 23 Ala. App. 493, 127 So. 681 ...........  17

Napue v. Illinois, 360 U. S. 204 .......................................  12
Norris v. Alabama, 294 U. S. 587 ........................... 12,14,23

Patton v. Mississippi, 332 U. S. 463 ...............................  23
People v. Boxborough, 307 Mich. 575, 12 N. W. 2d 446 .. 12 
Pierre v. Louisiana, 306 U. S. 354 ...............................13, 23

Smith v. Texas, 311 U. S. 128 .................................12,16,21
Speller v. Allen, 344 U. S. 443 ...............................19, 22, 23
Strauder v. West Virginia, 100 U. S. 303 .......................  16

Taylor v. State, 22 Ala. App. 428, 116 So. 415 .......  17
Thiel v. Southern P. Co., 328 U. S. 217 ....................... 16

11



I l l

S tatutes I nvolved:
page

18 U. S. C. §243 .................................................................... 2, la

28 U. S. C. §1257(3) .......................................................... 1,14

Ala. Const., Art. I, §6 .................................................2,17, la

Ala. Code, tit. 13, §229 ......................................................  14

Ala. Code, tit. 30, §3 ..................................................... 2, 5, 2a

Ala. Code, tit. 30, §10 ................................................... 2,3, 2a

Ala. Code, tit. 30, §12 ...................................................2, 3 ,3a

Ala. Code, tit. 30, §18 ........................................................ 2 ,3a

Ala. Code, tit. 30, §20 ...............................................2,4, 5, 3a

Ala. Code, tit. 30, §21 .......................................2,4,21,22,4a

Ala. Code, tit. 30, §24 .............................................. 2,20, 5a

Ala. Code, tit. 30, §52 ..............................................2,17, 6a

Ala. Code, tit. 30, §58 ............................................... 2,17, 6a

Ala. Code, tit. 30, § 6 0 .........................................2, 8,14,15, 6a

Ala. Code, tit. 30, § 6 4 .............................................. 3, 8 ,15 ,7a

Ala. Code, tit. 30, §89 .................................................. 3,18, 7a

Acts of Ala. Special Regular Session of 1955, Act No.
475, vol. 2, p. 1081.................................................. 3,4, 5, 8a

33 Edward I, Statute 4 ....................................................  16

Other A uthorities:

Canon 5, Canons of Professional Ethics of the Ameri­
can Bar Association ......................................................  14

1961 Commission on Civil Rights Report, Vol. 5 .......  14



I n  the

g>ttprm£ ©Hurt of tljp T&mtib States
October T erm, 1964 

No. 64

Robert Swain,
Petitioner,

A labama.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA

BRIEF FOR PETITIONER

Opinion Below

The opinion of the Supreme Court of Alabama (R. 219) 
is reported at 275 Ala. 508, 156 So. 2d 368.

Jurisdiction

The judgment of the Supreme Court of Alabama was 
entered on September 5, 1963 (R. 236) and application for 
rehearing was overruled on September 26, 1963 (R. 238). 
On December 19, 1963, Mr. Justice Douglas extended the 
time for filing petition for writ of certiorari to and includ­
ing February 22, 1964 (R. 239). The petition was filed Feb­
ruary 22, 1964 and granted April 27, 1964 (R. 239).

The jurisdiction of this Court is invoked pursuant to 
28 U. S. C. §1257(3), petitioner having asserted below and 
here the deprivation of rights secured by the Fourteenth 
Amendment to the Constitution of the United States.



2

Question Presented

Whether petitioner was denied due process of law and 
the equal protection of the laws in violation of the 
Fourteenth Amendment when indicted, convicted and sen­
tenced by grand and petit juries in a county where

A) The State always strikes the token number of Negroes 
on the trial venires, with the result that Negroes never 
serve on trial juries, and

B) Negroes have been summoned for jury service in 
only token numbers and the state has offered no explana­
tion for the small proportion called.

Constitutional and Statutory 
Provisions Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

This case also involves the following statutes which are 
set forth in the appendix:

18 U. S. C. §243.
Ala. Const., Art. I, §6.
Ala. Code, tit. 30, §3.
Ala. Code, tit. 30, §10.
Ala. Code, tit. 30, §12.
Ala. Code, tit. 30, §18.
Ala. Code, tit. 30, §20.
Ala. Code, tit. 30, §21.
Ala. Code, tit. 30, §24.
Ala. Code, tit. 30, §52.
Ala. Code, tit. 30, §58.
Ala. Code, tit. 30, §60.



3

Ala. Code, tit. 30, §64.
Ala. Code, tit. 30, §89.
Acts of Ala., Special Regular Session of 1955, Act No. 

475, vol. 2, p. 1081.

Statement

The petitioner, a Negro, was indicted for rape (R. 2) and 
convicted in the Circuit Court of Talladega County, Ala­
bama.1 The jury fixed his punishment at death by electrocu­
tion (R. 213, 214). At the hearing conducted before trial 
on petitioner’s motion to quash the indictment (R. 3), the 
following matters were brought out with respect to the 
selection of grand and petit juries.

Census Figures

The Circuit Court judicially noticed that according to 
the United States Census of 1960 the total population of 
Talladega County was 65,495. The white population was 
44,425 or 68 per cent, and the nonwhite population was 
20,970 or 32 per cent. The total male population over 21 
was 16,406, including 12,125 whites (74 per cent) and 4,281 
nonwhites (26 per cent) (R. 71).

Compilation of the Jury Roll

In Talladega County, the jury box from which grand and 
petit jury panels are drawn is filled every two years (R. 
91) by three Jury Commissioners who are appointed by the 
Governor2 and paid a nominal amount.3 Each of the Com­
missioners in 1961 was self-employed (R. 50, 86, 109) and

1 The evidence presented at trial is summarized in the opinion of 
the Supreme Court of Alabama (R. 220-22).

2 Ala. Code, tit. 30, §10 (1958).
3 Ala. Code, tit. 30, §12 (1958).



4

performed his duties in his spare time or in conjunction 
with his work. The Commissioners are assisted by a clerk 
who is regularly employed as a Chief Deputy Circuit Clerk 
(R. 74).

The Jury Commission meets twice yearly (R. 69, 100). 
Each Commissioner presents a list of names for approval 
by the Commission (R. 87-88, 111). The clerk then types 
a card for each person approved, listing his name, address, 
and occupation (R. 63, 74, 177). The clerk also has on tile 
similar cards for persons who have served on previous 
juries (R. 68-69). These cards, except for persons who 
have become exempt or have been called for jury service 
within the past two years (R. 91-92), are placed with the 
cards made from lists presented by the Commission and are 
arranged in alphabetical order according to political dis­
trict, or “beat”  (R. 73, 177). Once every two years, the jury 
roll is typed up from the cards of eligible jurors, and the 
cards are placed in the jury box, which is first emptied 
(R. 174). All grand and petit jurors for the next two years 
are drawn from this box.4 *

Those eligible for jury service are males aged 21 or over 
“who are generally reputed to be honest and intelligent men 
and are esteemed in the community for their integrity, good 
character and sound judgment . . . ” 3 Habitual drunkards, 
disabled persons, those convicted of offenses “ involving 
moral turpitude,” and illiterates who are not freeholders 
or householders are disqualified.6 Persons over 657 and

4 The procedures described above correspond substantially with 
the requirements of Alabama’s general statute, see Ala. Code, 
tit. 30, §20 (1958) and the special statute governing Talladega 
County, see Acts of Alabama. Special Regular Session of 1955. 
Aet No. 475, vol. 2, p. 1081 (infra Appendix).

* Ala. Code. tit. 30. §21 (1958).
•Ibid.

T Ibid.



5

those engaged in certain occupations8 may choose not to 
serve.

The Jury Commissioners in Talladega County make no 
attempt to place the names of all eligible jurors on the roll 
(R. 89, 117).9 Of the 16,406 males over 21 in the County 
(R. 71), approximately 2500 (R. 68, 91, 177) are on the 
current jury roll. The Commissioners divide the County 
three ways, and each gathers names in his designated area 
(R. 106).

The Chairman of the Jury Commission testified that he 
obtained names of prospective jurors by going out “ into 
the community with a list of names or roll” and checking 
on them (R. 52). He did not canvass from house to house 
but asked persons he knew in each area for suggestions 
(R. 106). However, he did not call on Negroes (R. 54) and 
his association with Negroes was generally restricted to 
customers in his paint store (R. 54), of whom there were “ a 
few” Negroes (R. 102).

The Chairman testified that he had placed some Negroes 
on the roll (R. 58) and had talked with “ just plenty of 
them” about the qualifications of certain persons, but could 
not name a single Negro on the jury roll without examining 
it (R. 62). The Chairman underestimated the County’s 
Negro population stating that in his best judgment Negroes 
comprised 10 per cent of the population (R. 105).

A  second Jury Commissioner testified that the jury roll 
did not include all the qualified male citizens in the County 
because it “ would be almost impossible to get all” (R. 89). 
He stated that he used “ the same method” for selecting

8 Ala. Code, tit. 30, §3 (1958).
9 But both the general and special statutes require that the names 

of all eligible persons be placed on the jury roll. See Ala. Code, 
tit. 30, §20 (1958); Acts of Alabama, Special Regular Session of 
1955, Act No. 475, vol. 2, p. 1081.



6

whites as he did Negroes (R. 92), and that whether an 
individual met the statutory qualifications was a matter 
of opinion (R. 90).

He compiled lists of qualified persons by working through 
clubs and “ different people in the community and . . . lists 
that they recommended” (R. 87); however, he later testified 
he did not go to clubs (R. 96). For Talladega City, he used 
the City Directory (R. 87). He also called on people in 
their homes and businesses and had “ personal knowledge” 
of qualified persons (R. 90). In addition, he used REA and 
Farm Bureau lists (R. 93-94) and testified the Farm Bu­
reau list contained names of whites and Negroes (R. 94). 
However, he subsequently stated he did not know if any 
Negroes were members of the Farm Bureau (R. 94). Al­
though he was “ well acquainted” with both whites and 
Negroes in the northern end of the County, he found it 
“ impossible” to state in either absolute or relative terms 
how many Negroes he knew (R. 97).

A third Jury Commissioner testified that in securing 
names of qualified persons he did not “watch the color line” 
(R. 116). He said that the Jury Commission had not con­
ducted a survey of the County to obtain the names of quali­
fied persons (R. 117), and that he did not “ really canvass 
the community” (R. 114), but went to “ some leading citi­
zen out there or some merchant that knows the people” to 
obtain names of qualified persons (R. 112). He also testi­
fied that the leading citizens were both white and Negro, 
but he could not recall any one by name (R. 112, 113). Al­
though he claimed that he had placed a few of his Negro 
customers on the jury roll, he could not identify the name 
of one Negro customer (R. 113) or any Negro (R. 116) on 
the roll.

The Clerk of the Jury Commission testified that she did 
not go out into the County to check on the qualifications of



7

prospective jurors (R. 64), but she did supply names of 
prospective jurors to the Commission members “merely as 
a help” (R. 64). She compiled lists of names by using 
church rolls, civic club rolls, poll lists, the city directory, 
and the telephone directory (R. 64-65). She also contacted 
the managers of various plants requesting them to send 
her lists of names (R. 66) and she requested names from 
some Negroes (R. 71). She also stated that she did not 
solicit the use of any Negro church rolls nor did she request 
names from any Negro clubs (R. 66). As far as she knew, 
Negroes did not own any plants and all the plant managers 
were white (R. 66). She admitted that her acquaintance 
was “ more or less confine [d] to the whites of Talladega” 
(R. 72).

Composition of Venires and Juries

Three or four grand juries are organized each year (R. 
9). The grand jury venire of 50 or 60 names is drawn from 
the jury box by the Circuit Judge in open court (R. 11, 12, 
16). These persons are summoned and approximately 35 
qualified jurors without excuses appear in court (R. 11, 12, 
19). Of these 35, 18 names are drawn from a hat for ser­
vice on the grand jury (R. 8, 36).

The usual representation of Negroes on a grand jury 
venire is 10, 12, or 15 per cent (R. 10), as estimated by the 
Solicitor who was present during the empaneling of all 
grand juries since 1953 (R. 8). One or more Negroes served 
on 80 per cent of the grand juries drawn between 1953 and 
1962 (R. 21), but no more than three Negroes ever served 
(R. 9, 36). In petitioner’s case four or five Negroes were 
on the grand jury venire of 33 names and two Negroes 
served (R. 8, 125-26).

The petit jury venire is drawn from the jury box during 
the week prior to trial (R. 16). The number of names



8

drawn varies between 75 and 100, with large venires of 90 
to 100 drawn for capital cases (R. 17, 41, 202). Approxi­
mately 10 to 15 per cent of this group fail to appear; in 
capital cases a rough average of 75 do appear (R. 17, 41). 
Some of those who appear are excused for various reasons, 
including challenges for cause (R. 17-18, 20). The jury is 
then struck from those who remain (R. 20). Alternating 
turns, the prosecutor strikes one name and the defense 
strikes two until only 12 persons remain (R. 20).10

The Solicitor estimated that 10 or 12 or 15 per cent of 
the persons on the petit jury venire are Negroes (R. 10). 
He has seen as few as four per cent and as many as 23 per 
cent (R. 10, 19).11 He stated that the usual number of 
Negroes present when the striking begins is seven or eight 
(R. 18). The Circuit Clerk said that the number of Negroes 
on the venire was “ usually two or three or six or seven. 
One time it was eleven” (R. 126). One witness said he saw 
seven or eight Negroes on a venire of 50 or 60 persons 
(R. 160), and another testified that there were usually six 
or seven Negroes on a petit jury venire of 35 to 40 persons 
(R. 40). A judge of the Intermediate Court testified that 
he had seen no more than six or seven Negroes on a venire, 
but as few as two (R. 44).

In this case, there were eight Negroes on the petit jury 
venire list of 100 (R. 202). Six of them were available for 
service but were stricken by the State (R. 202, 205, 229).

All who testified stated that no Negro had ever served 
on a petit jury of either a criminal or civil case in Talladega

10 Ala. Code, tit. 30, §§60, 64 (1958).
11 The occasion when 23 per cent were Negroes was a case prior

to 1955 in which a Negro defendant accused of killing a Negro was 
offered an all-Negro jury. Thirteen Negroes were on the petit jury 
venire and the prosecution offered to allow him to strike any one 
and use the others as the jury. The offer was declined (R. 10 
19, 23). ’



9

County. This included the Circuit Solicitor (R. 13, 14, 21), 
five attorneys (R. 29, 35, 39, 40, 46), an Intermediate Court 
Judge (R. 44), the Chief Deputy Circuit Clerk (R. 76), the 
Chairman of the Jury Commission (R. 58), eight Negro 
witnesses (R. 130, 136, 150, 153, 156, 161, 165, 166) and the 
Circuit Clerk who had held his office for sixteen years 
(R. 124). The State did not contest the fact that no Negro 
had ever served on a petit jury (R. 183).

The Circuit Solicitor testified that the striking of a jury 
is done differently depending upon whether or not the de­
fendant was of the same race as the victim of the alleged 
crime (R. 20). He stated that on numerous occasions he has 
asked defendants whether they desired to have Negroes 
serve; if they did not, and if he “ did not see fit to use them, 
then we would take off. We would strike them first or take 
them off” (R. 20, 27). If the defendant wanted Negroes 
to serve, the Solicitor’s response “would depend on the cir­
cumstances . . . and what I thought justice demanded and 
what it was in that particular case” (R. 27). In one case 
in which a Negro defendant was charged with the murder of 
another Negro, the Solicitor offered to use an all-Negro 
jury, hut the offer was declined (R. 21, 26). The Supreme 
Court of Alabama found that “ the evidence discloses that 
Negroes are commonly on trial venires hut are always struck 
by attorneys in selecting the trial jury” (R. 229).

State’s Evidence

The State called two witnesses. The first was the Sec­
retary of the Talladega Health Department and Registrar 
of Vital Statistics. She testified that of the 214 illegitimate 
babies born in the county in 1961, 201 were Negro (R. 186- 
87); she also stated that of the 12 new cases of syphilis in 
the county in 1961, 11 were Negro (R. 188); and of the 
26 new cases of gonorrhea in 1961, 19 were Negro (R. 190).

The second witness for the State was the Director of 
the Department of Pensions and Securities in Talladega



10

County. She testified that as of April 30, 1962, there were 
3,316 male and female recipients of public assistance, of 
whom 44.6 per cent were Negro (R. 193-94). She stated 
that 2,205 of the recipients were “ old pensioners” (R. 194), 
43 were blind persons, 695 were families receiving aid to 
dependent children, 30 were neglected children and 342 were 
totally disabled persons (R. 196). It was also brought out 
that possession of a “ homestead”  or $3000 worth of prop­
erty did not disqualify a person from receiving assistance 
(R. 195).

Summary o f Argument

A. Negroes are consistently struck from trial jury panels 
by the prosecutor. Such racial exclusion by a representa­
tive of the state violates the Fourteenth Amendment, which 
prohibits systematic exclusion from jury service regard­
less of the manner in which it is accomplished. There is 
no justification for concluding that prohibition of racial 
strikes by the prosecutor would interfere with the useful­
ness of the peremptory challenge. No state can subvert the 
constitutional and statutory policy against racial discrim­
ination or ensure that juries will be unrepresentative of 
the community. The challenges of the state have never been 
considered absolute and, in fact, were conceived to assist in 
the selection of an impartial jury, an end which the state’s 
use of challenges makes impossible to achieve. Finally 
the state has not even used its strikes for an end legiti­
mately related to the litigation, but habitually strikes 
Negroes because they are Negroes and for no other reason.

B. Although Negroes comprise 26 per cent of the eli­
gible jurors, they play only a token role in the jury svstem 
of Talladega County. No Negro has ever served on a crim­
inal or civil jury in the county. Haphazard procedures



11

followed by the Jury Commissioners, some in violation of 
state statute, favor selection of whites. The state recog­
nized its duty to explain the relatively small number of 
Negroes on the venires but produced only irrelevant sta­
tistics and did not meet its burden of proof under the Four­
teenth Amendment. The holding of the Supreme Court of 
Alabama that petitioner must establish affirmatively that 
Negroes are as qualified as whites in order to make out a 
successful showing of exclusion conflicts with numerous 
decisions of this Court.

A R G U M E N T

Negroes Have Been Excluded From Jury Service in 
Talladega County in Violation of Petitioner’s Rights 
Under the Due Process and Equal Protection Clauses 
of the Fourteenth Amendment.

A. Negroes Are Unconstitutionally Excluded From Jury Ser­
vice in That the State Always Strikes the Token Number 
of Negroes on the Trial Venires With the Result That 
Negroes Never Serve on Trial Juries.

Negroes have been placed on the jury venires of Talla­
dega County in such token numbers that they may be 
“ always struck by attorneys in selecting the trial jury” 
(R. 229). Using the strikes authorized by Ala. Code, tit. 30, 
§§60, 64 (1958), the Solicitor strikes one juror and the 
defendant strikes two from trial jury venires in all crim­
inal cases (if there are two or more defendants, each has 
one strike) until there are only twelve jurors remaining. 
These twelve constitute the trial jury. No Negro has ever 
served on a trial jury in a criminal or civil case in the 
county, and all the Negroes on petitioner’s jury venire 
were struck, because the Solicitor invariably exercises his 
strikes to remove Negroes summoned for jury service.



12

The state has, therefore, excluded Negroes contrary to 
the “ unbroken line of cases” in which this Court has held 
a criminal defendant’s Fourteenth Amendment rights vio­
lated “ if he is indicted by a grand jury or tried by a petit 
jury from which members of his race have been excluded 
because of their race” Eubanks v. Louisiana, 356 U. S. 584, 
595. For the rule is not qualified by the form or the per­
petrator of the exclusion, id. at 356 U. S. 587. The Consti­
tution is violated “ by any action of a state, whether 
through its legislature, through its courts, or through its 
executive or administrative officers,” which results in ex­
clusion of Negroes “from serving”  on juries. Carter v. 
Texas, 177 U. S. 442, 447 (emphasis supplied); Norris v. 
Alabama, 294 U. S. 587, 589. “ If there has been discrimina­
tion, whether accomplished ingeniously or ingenuously, 
the conviction cannot stand” Smith v. Texas, 311 U. S. 128, 
132.

Despite these principles and the intentional, systematic 
exclusion of Negroes from trial jury service because of 
race by a public official (accountable for his conduct under 
the Fourteenth Amendment, see, e.g., Napue v. Illinois, 360 
U. S. 204; Hamilton v. Alabama, 376 U. S. 650),12 the 
Supreme Court of Alabama approved the practice of the 
Circuit Solicitor of always striking Negroes. The court, 
adopting language from a Michigan case, People v. Rox- 
borough, 307 Mich. 575, 12 N. W. 2d 446 (1943), held that 
the utility of peremptory strikes would be impaired if any 
limitation were placed on the state’s challenge to prospec­
tive jurors (R. 230):

12 Cf. Berger v. United States, 295 U. S. 78, 89, where this Court 
reversed on the ground that “ the misconduct of the prosecuting 
attorney . . . was pronounced and persistent, with a probable 
cumulative effect upon the jury which cannot be disregarded as 
inconsequential.”



13

“ The reason counsel may have for exercising peremp­
tory challenges is immaterial. The right has been 
granted by law and it may he exercised in any manner 
deemed expedient and such action does not violate any 
of the constitutional rights of an accused. It would do 
away with the basic attribute of the peremptory chal­
lenge because if such argument is accepted in all cases 
involving defendants of the Negro race, the prosecutor, 
upon challenging prospective jurors of that race, would 
either have to assign a cause for such challenge or take 
the risk of a new trial being granted on the ground 
that he discriminated because of color; as a result no 
one could safely peremptorily challenge a juror where 
the defendant was of the same race as the juror. . . . ”

There is no reason to believe, however, that a prosecuting 
attorney, upon challenging prospective Negro jurors, would 
“have to assign a cause for such challenge” (R. 230) or be 
highly subject to reversal “ on the ground that he discrim­
inated because of color” (R. 230). It is one thing for a 
prosecutor to strike a Negro because he does not desire him 
as an individual to serve on a particular trial jury or 
juries, and quite another for an official of the state, as here, 
to strike all Negroes from trial juries pursuant to a notori­
ous practice of always excluding Negroes regardless of 
the character of the individual or the case. The Jury Com­
mission of Talladega County may not exclude Negroes from 
jury service, but the Commission does not “assign a cause” 
for failing to place Negroes on the jury rolls. No prosecu­
tor who does not engage in a systematic policy of striking 
jurors on account of race need fear reversal for striking 
the Negroes on particular panels. A prosecuting attorney 
will always be in a position to adduce proof that Negroes 
are not systematically struck without great difficulty. Cf. 
Pierre v. Louisiana, 306 U. S. 354, 361, 362. Such proof



14

would, of course, refute any “ logical inference to be drawn,” 
Hernandez v. Texas, 347 U. S. 475, 480, from evidence of a 
prosecutor’s conduct in any one case in the same manner as 
it would with respect to a Jury Commission. Ibid. See 
Norris v. Alabama, 294 U. S. 587, 590-92, 598-99. The fears 
of the Supreme Court of Alabama that “no one could safely 
peremptorily challenge a juror where the defendant was of 
the same race as the juror” (R. 230) are unfounded.

But whatever the risks of prohibiting racial strikes, 
they are preferable to permitting a high public official13 to 
undermine the constitutional requirement that no distinct 
group be excluded from jury service.14 Use of peremptory 
strikes by public officials is a common method of insuring 
exclusion of Negroes from jury service (1961 Commission 
on Civil Rights Report, Vol. 5, pp. 93, 99) which reduces 
the practical effect of the Fourteenth Amendment and 18 
U. S. C. §243,15 and principles enunciated by decisions of

13 The injury to constitutional administration of criminal justice 
is all the greater when the racial policy attacked is injected into 
the criminal process by an officer of the court with duties and 
responsibilities to the public. See, e.g., Canon 5, Canons of Pro­
fessional Ethics of the American Bar Association. The Circuit 
Solicitor is the official in Alabama who supervises the proceedings 
of grand juries, draws up indictments, and prosecutes indictable 
offenses. Code of Ala. tit. 13, §229 (1958). Solicitors devote their 
entire time to the discharge of the duties of the office and are 
prohibited from practicing law in any other manner. Ibid.

14 It is clear that, in Alabama, the Solicitor actively participates 
in the process of selecting the trial jury. Ala. Code tit. 30, §§60, 
64 (1958). The prosecutor is responsible for striking a large num­
ber of jurors whether or not he has any objection to them, for 
he is required to strike down to the number of 12 regardless of 
whether he objects to the jurors remaining on the venire.

15 Exclusion from jury service on account of race has been pro­
hibited by federal statute since the Civil Rights Act of 1875. 18 
U. S. C. §243 (formerly 8 U. S. C. §44) is written in broad terms 
which certainly apply to exclusion by use of strikes, see Fay v. New 
York, 332 U. S. 261, 282-4:

No citizen possessing all other qualifications which are or may 
be prescribed by law shall be disqualified for jury service as



15

this Court, to the ritual of placing Negroes on a venire 
without any possibility of actual jury service. “ The rule 
against excluding Negroes from the panel has no value if 
all who get on the panel may be systematically kept off the 
jury” (Edgerton, J., dissenting). Hall v. United States, 
168 F. 2d 161, 166 (D. C. Cir. 1948), cert, denied 334 U. S. 
853.16

The Supreme Court of Alabama (R. 230) and the State, 
in its Brief in Opposition to Certiorari, take the position 
that the right to strike granted by Ala. Code, tit. 30, §§60, 
64 (1958) is absolute and may, therefore, be employed by 
a prosecutor to exclude Negroes from jury service on ac­
count of race. This conclusion is at war with the history of

grand or petit juror in any court of the United States, or of any 
state on account of race, color, or previous condition of ser­
vitude; and whoever being an officer or other person charged 
with any duty in the selection or summoning of jurors excludes 
or fails to summon any citizen for such cause shall be fined 
not more than $5,000.

16 In Hall v. United States, 168 F. 2d 161 (D. C. Cir. 1948) cert, 
denied 334 U. S. 853, Negro defendants objected to the Govern­
ment’s peremptory challenge of all nineteen Negro members of 
the panel. There was no express finding that Negroes had been 
struck on account of race, no claim of systematic exclusion of 
Negroes from the venire, and no evidence of a practice of regularly 
striking Negroes from jury panels so that they would never serve. 
The court in Hall, 168 F. 2d at p. 164, found:

The due process clause of the Fifth Amendment would be 
invokable if the authorities charged with the duty of selecting 
jurors had systematically excluded Negroes from the panel. 
The requirements of due process were met when there was 
no racial discrimination in the selection of the veniremen. 
The government. . . was entitled to exercise twenty peremptory 
challenges . . . without assigning, or indeed without having 
any reason for doing so.

Judge Edgerton, dissenting, disagreed with the majority in that 
he found the government “ impliedly admits” , 168 F. 2d at 166, 
that Negroes were systematically excluded from the trial jury by 
use of strikes and concluded that the use of peremptory challenges 
violated a federal statute as well as the due process clause of the 
Fifth Amendment.



16

the peremptory strike and the values which have been given 
content by the constitutional prohibition against exclusion. 
The grant of peremptory challenges to the State, for ex­
ample, has always been subject to restriction “ by the neces­
sity of having an impartial jury” and “ the constitutional 
right of the accused” under the Fourteenth Amendment. 
Hayes v. Missouri, 120 U. S. 580. In England, the right of 
peremptory challenge in the Crown was abolished by stat­
ute in 1305, 33 Edward I, Statute 4, only to be reintroduced, 
on a modified basis, by rule of court. Hayes v. Missouri, 
supra.

The conduct of the Solicitor, approved by the Supreme 
Court of Alabama, alters the fundamental character of the 
jury system by ensuring that all trial juries are unrepre­
sentative of a cross-section of the community. So long as 
the State is totally unrestricted in its use of strikes, no 
minority is safe from complete exclusion from actual jury- 
service. But juries unrepresentative of the community dis­
tort “basic concepts of a democratic society and a repre­
sentative government.” Smith v. Texas, 311 U. S. 128, 130; 
Thiel v. Southern P. Co., 328 U. S. 217, 220; Ballard v. 
United States, 329 U. S. 187, 195.

Strauder v. West Virginia, 100 U. S. 303, recognized that 
exclusion of Xegroes from juries “ is practically a brand 
upon them, affixed by law ; an assertion of their inferiority, 
and a stimulant to that race prejudice which is an impedi­
ment to securing to individuals of the race that equal jus­
tice which the law aims to secure to all others” (100 U. S. 
at 308). Cf. Hamilton v. Alabama, 376 TJ. S. 650. By strik­
ing all Xegroes as a matter of course, the Solicitor places 
the authority of the State and his office17 behind racial

lr The Alabama Court of Appeals has often described the duties 
and responsibilities of the Circuit Solicitor as follows:

The offic-e of Solicitor is of the highest importance; he is the 
representative of the State and as a result of the important



17

prejudice in the presence of the tribunal which determines 
the guilt of and—in the case of petitioner— sentences a 
Negro defendant.

The Solicitor indicated that he frequently asks defen­
dants whether or not they want Negroes on the jury, and if 
not, the prosecutor and defense attorney “ take them off” or 
“ strike them first” (R. 20, 27). This evidence establishes 
that Negroes are set apart; treated differently; and by this 
pattern of treatment affixed with a brand of inferiority.

A  petit jury is duty bound to find the facts and apply 
the law in an impartial manner. Ala. Const., Art. I, §6 
(1901); Ala. Code, tit. 30, §§52, 58. Challenges are per­
mitted in order to obtain an unbiased jury. Challenges for 
cause are designed to allow the removal of persons with 
easily identifiable bias. Peremptory challenges are a means 
of allowing removal of persons suspected of bias, and a 
lawyer may rely on mere whim or intuition in the exercise 
of peremptory challenges. But in Talladega County the 
peremptory challenge has been badly perverted.

The record is clear that the striking of Negroes has noth­
ing to do with the strategy of particular litigation or an 
appraisal of the qualifications or interest of any individual 
Negro. Negroes are struck without exception because they 
are Negroes and for no other reason. It is not even pre­

functions devolving upon him as such officer necessarily holds 
and wields great power and influence, and as a consequence 
erroneous insistence and prejudicial conduct upon his part 
tend to unduly prejudice and bias the jury against the defen­
dant; this without reference to the restrictions of the court. 
The test in matters of this kind is not necessarily that the 
conduct of our Solicitor complained of did have such an effect 
upon the jury hut might it have done so? (Emphasis supplied.)

Taylor v. State, 22 Ala. App. 428,116 So. 415-416; Johnson v. State,
23 Ala. App. 493, 127 So. 681, 682; Bynum v. State, 35 Ala. App.
297, 47 So. 2d 245.



18

sumed by the State that all Negroes will vote to acquit a 
Negro, even if charged with a crime against a white per­
son. In this very case the Attorney-General argues that 
Negro defendants do not want to be tried by juries con­
taining Negroes because of a belief that they will be treated 
more harshly than by whites and that Negro jurors often 
vote to convict. Thus, the Supreme Court of Alabama has 
sanctioned a consistent practice, engaged in by the repre­
sentative of the State in its courts, of excluding Negroes 
from juries not because of a belief that striking Negroes 
will increase the chances of winning a given case, or pro­
vide an impartial jury, but pursuant to, and in support of, 
a theory of racial inferiority.

B. Negroes Have Been Summoned for Jury Service in Only 
Token Numbers and the State Has Offered No Explanation 
of the Small Proportion Called.

Negroes constitute more than one-fourth of the total num­
ber of males over 21 years of age residing in Talladega 
County, Alabama, but no Negro has ever served on a petit 
jury in either a civil or criminal case (supra pp. 8-9). No 
more than three Negroes have served on the grand jury of 
1818 (R. 9, 36). Usually the number is less, and approxi­
mately 20 per cent of the time there are no Negroes at all 
on the grand jury (R. 21). On grand and petit jury venires 
Negro representation averages from 10 to 15 per cent of 
the total (R. 10, 19). In petitioner’s case eight Negroes 
were called (six were available) to serve on the trial venire 
of one hundred (R. 202) and none served on his trial jury 
as a result of strikes exercised by the Solicitor (R. 205, 
229). There were four to five Negroes on the grand jury 
venire, two of whom served on the grand jury (R. 8, 36).

18 Twelve votes are necessary for the grand jury to indict. Code 
of Ala., tit. 30, §89 (1958).



19

The Supreme Court of Alabama concluded that a suffi­
cient number of Negroes were on the jury rolls because 
“ from 10 per cent to 23 per cent of the members of the 
grand jury panels in the past several years have been 
Negroes” (R. 228). From the Solicitor’s testimony, how­
ever, it is clear that the 23 per cent figure referred to a 
petit jury venire, rather than grand jury venire, and was 
restricted to one rather extraordinary occasion.19 The 
Solicitor also testified that the number of Negroes on the 
venires ranged from 4 per cent (rather than 10 per cent) 
to 23 per cent (R. 19) and averaged from 10 to 15 per cent 
(R. 10).

These decided variations between Negro and white par­
ticipation in the jury system of Talladega County and the 
Negro and white proportions of the total number of eli­
gible jurors, if  unexplained by the State, are sufficient evi­
dence of unconstitutional racial discrimination in the selec­
tion of jurors. There may be no precise “ formula for 
determining when ‘tokenism’ ends and ‘fair’ representation 
begins” , as was said by the Supreme Court of Alabama 
(R. 229), but the State must surely offer some explanation 
of why the proportion of Negroes on grand and petit jury 
venires averages at most one-half of the proportion of 
eligible Negroes in the population. (Cf. Speller v. Allen, 
344 U. S. 443, 481, where the Court would not accept, unless 
explained, a jury box in which Negroes constituted only 
7 per cent of the jurors when Negroes constituted 38 per 
cent of those eligible.) Although they represent 26 per 
cent of those eligible, Negro participation in the jury sys­
tem of the county has been limited to the extent that 
Negroes play almost no role in the actual process of indict­
ing, trying or sentencing persons charged with crime.

19 See note 11, supra.



20

Petitioner adduced evidence tending to show that the Jury 
Commissioners followed selection procedures, some in vio­
lation of state statute, which naturally tended to restrict 
Negro participation in the jury system. For example, only 
white church rolls and civic club lists were used to obtain 
the names of prospective jurors (R. 66). The all-white 
Board of Jury Commissioners relied heavily on personal 
contacts with friends, acquaintances and customers in se­
lecting names for the jury roll and these contacts were 
predominantly with white persons (R. 97, 102, 113, 116). 
One Commissioner demonstrated unfamiliarity with the 
Negro community by testifying that his estimate of the 
proportion of Negroes in the population was 10 per cent 
(R. 105). The Clerk of the Commission, who helped gather 
names of prospective jurors, acknowledged that her ac­
quaintance was “more or less” confined to whites (R. 72).

Further evidence of the Commission’s failure to familiar­
ize itself with the qualifications of Negro residents is found 
in the fact that the Commission did not place the names of 
every person possessing the qualifications on the jury rolls 
(R. 89, 117), although this is required by state statute, Ala. 
Code, tit. 30, §24 (1958). Neither the Jury Commission nor 
its clerk undertook a systematic survey or canvass of the 
County, or visited every precinct as required by §24, in 
order to obtain the names of every qualified juror (R. 89, 
117). The Supreme Court of Alabama excused the Commis­
sion’s failure to abide by the statute on the ground that 
“ no evidence was presented that only Negroes had been 
left off. The means employed by the Jury Commission for 
acquiring names for the rolls simply were not exhaustive 
enough to insure the inclusion of all qualified persons, be 
they white or Negro”  (R. 229).

But the failure of the Commissioners to employ “ means” 
which were “ exhaustive enough to insure the inclusion of



21

all qualified persons” obviously worked to exclude a higher 
proportion of Negroes than whites because the Commis­
sioners selected on the basis of acquaintance and were not 
as familiar with the Negro as with the white citizens of 
the County. This is a case, therefore, where the Jury Com­
missioners selected prospective jurors on the basis of per­
sonal acquaintance and did not perform “ their duty to fa­
miliarize themselves fairly with the qualifications of the 
eligible jurors of the county without regard to race.” Cas­
sell v. Texas, 339 U. S. 282, 290; Hill v. Texas, 316 U. S. 
400, 404; Smith v. Texas, 311 TJ. S. 128, 132.

The only evidence offered by the State falls far short 
of accounting for the gap between the number of Negroes 
serving on jury venires and the Negro proportion of the 
population. Although the Supreme Court of Alabama af­
firmed petitioner’s conviction, it did not so much as mention 
the evidence submitted by the State in attempted explana­
tion of the low proportion of Negroes on the venires. This 
evidence consisted of inconclusive statistics regarding cases 
of syphilis and gonorrhea, illegitimacy, and receipt of 
public assistance in the County.

The statistics offered have tenuous, if any, relation to 
the statutory qualifications of jurors. See Ala. Code, tit. 30, 
§21 (1958). Alabama has made no attempt by statute to 
exclude from jury service persons suffering from venereal 
disease, fathering illegitimate children or receiving public 
welfare funds. While all three Jury Commissioners and 
the Clerk of the Commission testified at the hearing on the 
motion to quash, there is no evidence that any person, 
white or Negro, has ever been excluded from jury service 
on these grounds. The State apparently took the view that 
these statistics indicate that many Negroes in Talladega 
County were of questionable integrity and character and, 
therefore, less qualified for jury service (E. 188, 189), but



22

none of the Jury Commissioners testified they took such 
information into account when considering the qualifica­
tions of prospective jurors. Cf. Speller v. Allen, 344 U. S. 
443, 481.

The record does not reveal the theory upon which the 
State would connect a contagious or congenital disease, 
poverty, or cases of illegitimacy to character. But regard­
less of their relevance, the statistics offered by the State 
regarding disease,20 poverty,21 and illegitimacy22 do not 
establish that any significant percentage of Negroes are 
not qualified for jury service.

Thus the State presented no evidence on which even an 
inference can be based establishing a legitimate ground for

20 The most that the evidence as to syphilis and gonorrhea showed 
was that 10 or 11 more Negroes than whites contracted syphilis 
(R. 188) and 12 more Negroes than whites contracted gonorrhea 
during 1961 (K. 190). Even assuming that these statistics refer 
to males over 21 (and the record does not show this to be the case), 
evidence that 22 more Negroes than whites contracted venereal 
disease in 1961 (K. 190) does not explain the decided variation 
between the Negro and white proportions on jury venires in a 
county with more than 16,000 males over 21. The State’s position 
that these statistics cover all cases of venereal disease occurring 
during the year (R. 190), nullifies any possible claim that they 
represent a mere sample.

21 Viewed most favorably for the State, the evidence on receipt 
of public assistance showed that 44.6 per cent of recipients were 
Negroes although Negroes constituted only 32 per cent of the popu­
lation. However, Alabama has no property test for jurors, except 
to the extent that illiterates must be householders or freeholders. 
Ala. Code, tit. 30, §21 (1958). (Some householders are eligible for 
public assistance (R. 195).) In the absence of evidence on the 
rate of illiteracy, no inference can be drawn that a larger propor­
tion of Negroes than whites are ineligible for jury service because 
of poverty. Moreover, the statistics offered by the State do not 
classify recipients according to sex.

22 With respect to illegitimate births, the statistics offered fail to 
reveal the race, age or residence of the fathers of illegitimate chil­
dren (R. 186-87) and so prove nothing of the character or integrity 
of Negro males over 21 in the County.



23

ineligibility of an appreciable number of otherwise quali­
fied Negroes. “ Had there been evidence obtainable to con­
tradict and disprove the testimony offered by petitioner, 
it cannot be assumed that the State would have refrained 
from introducing it” Pierre v. Louisiana, 306 U. S. 354, 461.

The Supreme Court of Alabama supported its determina­
tion that petitioner had not established a prima facie case 
of jury discrimination on the ground that “no evidence as 
to the educational level of the general Negro population 
was offered in support of appellant’s position” (R. 229). 
This ruling that a prima facie case of systematic exclusion 
requires an affirmative showing by petitioner that Negroes 
are as qualified as whites to serve on juries is in direct 
conflict with the decisions of this Court. In Norris v. Ala­
bama, 294 U. S. 587, 591, the Court found a prima facie 
case, which the state must refute, on evidence that although 
Negroes were a distinct group in the county, no Negro had 
ever served on a jury. “ This testimony in itself made out 
a prima facie case” and “ the case thus made was supple­
mented by direct testimony that specified Negroes, thirty 
or more in number, were qualified for jury service,” Norris 
v. Alabama, 294 U. S. at 591 (emphasis supplied). See 
also Patton v. Mississippi, 332 U. S. 463, 466. The holding 
of the Supreme Court of Alabama assumes that Negroes 
are less qualified and, therefore, must prove they are as 
qualified as whites. But in Speller v. Allen, 344 U. S. 443, 
481, the Court would not assume, without evidence from the 
State, that “ there is not a much larger percentage of 
Negroes with qualifications of jurymen” ; and in Cassell v. 
Texas, 339 U. S. 282, 289, this Court said “ . . . with no 
evidence to the contrary, we must assume that a large 
proportion of the Negroes of Dallas County met the statu­
tory requirements for jury service.” See also Hill v. Texas, 
316 U. S. 400, 404.



24

CONCLUSION

W herefore, for the foregoing reasons, petitioner prays 
that the judgment of the court below be reversed.

Respectfully submitted,

M ichael Meltsner 
H enry M. di Suvero 
F rank H. H eferon 

Of Counsel

Jack Greenberg 
Constance B aker M otley 
James M. Nabrit, III 

Suite 2030 
10 Columbus Circle 
New York, New York, 10019

Orzell B illingsley, Jr.
Peter A. H alt.

1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Petitioner



A P P E N D I X



la

APPENDIX

Statutes Involved

18 U. S. C. §243

No citizen possessing all other qualifications which are 
or may be prescribed by law shall be disqualified for ser­
vice 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 whoever, being an officer 
or other person charged with any duty in the selection or 
summoning of jurors, excludes or fails to summon any 
citizen for such cause, shall be fined not more than $5,000.

Ala. Const., Art. I, §6

That in all criminal prosecutions, the accused has a right 
to be heard by himself and counsel, or either; to demand 
the nature and cause of the accusation; and to have a copy 
thereof; to be confronted by the witnesses against him; to 
have compulsory process for obtaining witnesses in his 
favor; to testify in all cases, in his own behalf, if he elects 
so to do; and, in all prosecutions by indictment, a speedy, 
•public trial, by an impartial jury of the county or district 
in which the offense was committed; and he shall not be 
compelled to give evidence against himself, nor be deprived 
of life, liberty, or property, except by due process of law ; 
but the legislature may, by a general law, provide for a 
change of venue at the instance of the defendant in all 
prosecutions by indictment, and such change of venue, on 
application of the defendant, may be heard and determined 
without the personal presence of the defendant so applying 
therefor; provided, that at the time of the application for 
the change o f venue, the defendant is imprisoned in jail 
or some legal place of confinement.



Ala. Code, tit. 30, §3 (1958)

§3. Persons exempt from jury duty.— The following per­
sons are exempt from jury duty, unless by their own con­
sent : Judges o f the several courts; attorneys at law during 
the time they practice their profession; officers of the 
United States; officers o f the executive department of the 
state government; sheriffs and their deputies; clerks of the 
courts and county commissioners; regularly licensed and 
practicing physicians; dentists; pharmacists; optometrists; 
tenchevs while actually engaged in teaching; actuaries while 
actually engaged in their profession; officers and regularly 
licensed engineers of any boat plying the waters of this 
■■lale, passenger bus driver-operators, and driver-operators 
of motet vehicles battling freight for hire under the super- 
\e.iou ot the Alabama public service commission; railroad 
engineers, locomotive firemen, conductors, train dispatchers, 
bus dispatchers, railroad station agents, and telegraph op­
erators. when actually in sole charge of an office; news­
paper reporters while engaged in the discharge o f their 
duties as such; regularly licensed embalmers while actually 
engaged in their profession: radio broadcasting engineers 
and announcers when engaged in the regular performance 
of their duties; the superintendents, physicians, and all 
regular employees of the Bryce hospital in Tuscaloosa 
county and the Searcy hospital in Mobile county; officers 
and enlisted men of the national guard and naval militia 
of Alabama, during their terms of service and convict and 
prison guards while engaged in the discharge of their duties 
as such.

Ala. Code, tit. 30, §10 (1958)

§10. Members to be appointed by governor.— The gov­
ernor shall appoint the members of the several jury com­
missions who shall constitute said several commissions . . .



3a

Ala. Code, tit. 30, §12 (1958)

§12. Salaries of members.— Each member of the jury 
commission shall be paid the sum of five dollars per day 
for the time actually engaged in the discharge of his duties 
as such member, to be paid out of the county treasury upon 
the warrant of the probate judge of the county. . . . but 
the compensation of each member of the commission shall 
not exceed for any year of his term the following amounts: 
In counties of twenty-five thousand population or less one 
hundred dollars; in counties exceeding twenty-five thousand 
and not exceeding fifty thousand population two hundred 
dollars; in counties exceeding fifty thousand and not exceed­
ing sixty thousand population three hundred dollars; and in 
counties exceeding sixty thousand population six hundred 
dollars; the population of said respective counties to be 
determined by the last preceding federal census.

Ala. Code, tit. 30, §18 (1958)

§18. Duties o f clerk. The clerk of the jury commission 
shall, under the direction of the jury commission obtain 
the name o f every male citizen of the county over twenty- 
one and under sixty-five years of age and their occupation- 
place o f residence and place of business, and shall perform 
all such other duties required of him by lav,- under the direc­
tion o f the jury commission.

Ala. Code, tit. 30, §20 (1958)

§20. Jury roll and cards.—The jury commission shall 
meet in the court house at the county seat, o f the several 
counties annually, between tbe first day of August and the 
twentieth day o f December, and shall make in a well hound 
book a roll containing the name of every male citizen living 
in the county who possessed the qualifications herein pro 
scribed and who is not exempted by law from serving on



4a

juries. The roll shall be arranged alphabetically and by 
precincts in their numerical order and the jury commission 
shall cause to be written on the roll opposite every name 
placed thereon the occupation, residence and place of busi­
ness of every person selected, and if the residence has a 
street number it must be given. Upon the completion of the 
roll the jury commission shall cause to be prepared plain 
white cards all of the same size and texture and shall have 
written or printed on the cards the name, occupation, place 
of residence and place of business of the person whose 
name has been placed on the jury ro ll; writing or printing 
but one person’s name, occupation, place of residence and 
of business on each card. These cards shall be placed in a 
substantial metal box provided with a lock and two keys, 
which box shall be kept in a safe or vault in the office of the 
probate judge, and if there be none in that office, the jury 
commission shall deposit it in any safe or vault in the court 
house to be designated on the minutes of the commission; 
and one of said keys thereof shall be kept by the president 
of the jury commission. The other of said keys shall be 
kept by a judge of a court of record having juries, other 
than the probate or circuit court, and in counties having no 
such court then by the judge of the circuit court, for the 
sole use of the judges of the courts of said county needing 
jurors. The jury roll shall be kept securely and for the use 
of the jury commission exclusively. It shall not be in­
spected by anyone except the members of the commission 
or by the clerk of the commission upon the authority of 
the commission, unless under an order of the judge of the 
circuit court or other court of record having jurisdiction.

Ala. Code, tit. 30, §21 (1958)

Qualifications of persons on jury roll.— The jury com­
mission shall place on the jury roll and in the jury box 
the names of all male citizens of the county who are gener­



5a

ally reputed to be honest and intelligent men and are 
esteemed in the community for their integrity, good char­
acter and sound judgment; but no person must be selected 
who is under twenty-one or who is an habitual drunkard, 
or who, being afflicted with a permanent disease or physical 
weakness is unfit to discharge the duties of a ju ror; or can­
not read English or who has ever been convicted of any 
offense involving moral turpitude. I f a person cannot read 
English and has all the other qualifications prescribed here­
in and is a freeholder or householder his name may be 
placed on the jury roll and in the jury box. No person 
over the age of sixty-five years shall be required to serve 
on a jury or to remain on the panel of jurors unless he is 
willing to do so.

Ala. Code, tit. 30, §24 (1958)

§24. Duty of commission to fill jury roll; procedure; 
etc.—The jury commission is charged with the duty of see­
ing that the name of every person possessing the qualifica­
tions prescribed in this chapter to serve as a juror and not 
exempted by law from jury duty, is placed on the jury roll 
and in the jury box. The jury commission must not allow 
initials only to be used for a juror’s name but one full 
Christian name or given name shall in every case be used 
and in case there are two or more persons of the same or 
similar name, the name by which he is commonly distin­
guished from the other persons of the same or similar name 
shall also be entered as well as his true name. The jury 
commission shall require the clerk of the commission to 
scan the registration lists, the lists returned to the tax 
assessor, any city directories, telephone directories and 
any and every other source of information from which he 
may obtain information, and to visit every precinct at least 
once a year to enable the jury commission to properly per­
form the duties required of it by this chapter. In counties



6a

having a population of more than one hundred and eighteen 
thousand and less than three hundred thousand, according 
to the last or any subsequent federal census, the clerk of 
the jury commission shall be allowed an amount not to 
exceed fifty dollars per calendar year to defray his ex­
penses in the visiting of these precincts, said sum or so 
much thereof as is necessary to be paid out of the respec­
tive county treasury upon the order of the president of the 
jury commission.

Ala. Code, tit. 30, §52 (1958)

Examination of jurors.— In civil and criminal cases, 
either party shall have the right to examine jurors as to 
their qualifications, interest, or bias that would affect the 
trial of the case, and shall have the right, under the direc­
tion of the court, to examine said jurors as to any matter 
that might tend to affect their verdict.

Ala. Code, tit. 30, §58 (1958)

Oath of petit juror.—The following oath must be ad­
ministered by the clerk, in the presence of the court, to 
each of the petit jurors: “ You do solemnly swear (or 
affirm, as the case may be) that you will well and truly try 
all issues, and execute all writs of inquiry, which may be 
submitted to you during the present session (or week, as 
the case may be), and true verdicts render according to 
the evidence— so help you God;” and the same oath must 
be administered to the talesman, substituting the word 
“ day” for “ session.”

Ala. Code, tit. 30, §60 (1958)

§60. Mode of selecting and empaneling juries in crim­
inal cases other than capital cases.— In every criminal case 
the jury shall be drawn, selected and empaneled as follows:



7a

Upon the trial by jury in any court of any person indicted 
for a misdemeanor, or felonies not punished capitally, or 
in case of appeals from lower courts, the court shall require 
two lists of all the regular jurors empaneled for the week, 
who are competent to try the defendant, to be made and the 
solicitor shall be required first to strike from the list the 
name of one juror and the defendant shall strike two, and 
they shall continue to strike off names alternately until only 
twelve jurors remain on the list, and these twelve thus 
selected shall be the jury charged with the trial of the case.

Ala. Code, tit. 30, §64 (1958)

§64. Voir dire examination of jurors as to qualifications; 
mode of striking in capital cases.— On the day set for the 
trial if  the cause is ready for trial, the court must inquire 
into and pass upon the qualifications of all the persons who 
appear in court in response to the summons to serve as 
jurors, and shall cause the names of all those whom the 
court may hold to be competent jurors to try the defen­
dant or defendants to be placed on lists, and if there is 
only one defendant on trial shall require the solicitor to 
strike off one name and the defendant strike off two names, 
and in case there are two or more defendants on trial, the 
solicitor shall strike one and every defendant shall strike 
one name, and they shall in this manner continue to strike 
names from the list until only twelve names remain thereon. 
The twelve thus selected shall be sworn and empaneled as 
required by law for the trial of the defendant or defendants.

Ala. Code, tit. 30, §89 (1958)

§89. Indictment; concurrence of twelve jurors necessary; 
how indorsed.— The concurrence of at least twelve grand 
jurors is necessary to find an indictment; and when so 
found it must be indorsed “ a true bill,” and the indorsement 
signed by the foreman.



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Acts of Ala., Special Regular Session of 1955, Act No. 475, 
vol. 2, p. 1081.

Section 1. Unless sooner required by order of the pre­
siding Judge o f the Circuit Court, the Jury Commission 
of Talladega County shall meet in the county courthouse 
in Talladega on the first Monday of October, 1955, and 
on said day each two years thereafter, make in a well bound 
book a roll containing the name of every male citizen living- 
in the county who possesses the qualifications prescribed by 
law and who is not exempted by law from serving on juries. 
The roll shall be arranged alphabetically and by precincts 
in their numerical order and the jury commission shall 
cause to be written on the roll opposite every name placed 
thereon their name, occupation and place of business of 
every person selected and if the residence has a street num­
ber, it must be given. Upon completion of the roll, the Jury 
Commission shall cause to be prepared plain white cards, 
all of the same size and texture and shall have written or 
printed on the cards the name, occupation, place of resi­
dence and place of business of the persons whose name 
has been placed on the jury roll; writing or printing but 
one person’s name, occupation, place of residence and of 
business on one card. When the cards have been so pre­
pared, the Jury Commission shall then segregate, remove 
and set aside the cards bearing the names of all jurors 
who served as jurors during the two years next preceding 
September 15th of that year. The names of the jurors on 
the cards so removed shall continue on the rolls as quali­
fied jurors, but the cards shall not then be placed in the jury 
box, but shall be retained as a reserve to be used as here­
inafter provided. All other cards prepared as herein pro­
vided, shall then be placed in a substantial metal box pro­
vided with a lock and two keys, which box shall be kept in 
a safe or vault in the office of the Probate Judge, and if



9a

there be none in that office, the Jury Commission shall 
deposit it in any safe or vault in the Court House to be 
designated on the minutes of the Commission, and one of 
said keys thereof shall be kept by the President of the Jury 
Commission. The other of said keys shall be kept by the 
Presiding Judge of the Circuit Court for the sole use of 
the Judges of the Courts of said county needing jurors. 
The jury roll shall be kept securely and for the use of 
the Jury Commission exclusively. It shall not be inspected 
by anyone except the members of the Commission or by 
the Clerk of the Commission upon authority of the Commis­
sion, unless under an order of a Judge of the Circuit Court 
or other court of record having jurisdiction.

Section 2. Whenever the names in the jury box are ex­
hausted or so far depleted that they will probably be 
exhausted at the next drawing of jurors; or whenever it 
shall appear to the Presiding Judge of the Circuit Court 
or Court of like jurisdiction that the jury box is so nearly 
exhausted as to require refilling, and the said Judge shall 
notify the President of the Jury Commission; the said Jury 
Commission shall thereupon place into the jury box all 
cards containing the names of jurors as prepared under 
the provisions of this Act in Section 1 and which have been 
withheld from the box when filled and set aside as a 
reserve. Provided, however, that in placing the cards held 
as a reserve in the box the Jury Commission may delete and 
withhold the cards of the names of any jurors who have died 
or have otherwise become disqualified from serving as 
jurors.

Section 3. Notices of the requirement of the attendance 
of jury service may be served by registered mail, or may 
be served as provided by Section 33 of Title 30, Code of 
Alabama of 1940. Should in the discretion of the sheriff 
the service be made by registered mail, such service shall



10a

be as follows: It shall be the duty of the Sheriff of the 
County to enclose the summons in an envelope addressed 
to the person to be served and place all necessary postage 
thereon and demand a return receipt. When a return 
receipt, signed by the addressee is returned to the sheriff 
by the post office department of the United States the 
sheriff shall thereupon mark the process executed and it 
shall be considered for all purposes as sufficient personal 
and legal service. In the event said jury summons so mailed 
should be returned to the sheriff by the post office depart­
ment of the United States without delivery to the addressee 
then the sheriff shall immediately make every effort per­
sonally to serve said summons. The provisions of this sec­
tion in reference to service by registered mail, however, 
shall not apply to jury summons returnable before the 
court instanter, but such summonses shall be served only 
as provided by Section 33 of Title 30, Code of Alabama of 
1940.

Section 4. The clerks of the several courts in which juries 
are empaneled shall, from time to time as the juries are 
empaneled, certify to the Jury Commission the names of all 
persons so empaneled, and the Clerk of the Commission, 
under the direction of the Commission, shall note opposite 
the names of such persons on the jury roll the date on 
which and the court in which they were empaneled.

Section 5. The clerks of the several courts shall also 
certify to the Jury Commission the names of all persons 
who have been found by the Court to be disqualified or 
exempt, which fact shall be noted opposite their respective 
names on the jury roll.

Section 6. Any authority, right, power and duty here­
tofore imposed by law on the Jury Commission of the 
county or the clerk thereof, and which is not by this Act 
specifically repealed, shall hereafter be exercised or per­



11a

formed by the Jury Commission or the clerk thereof, 
respectively.

Section 7. That all laws in conflict with any of the pro­
visions of this Act be and the same are hereby repealed, 
it being the intent of the Legislature that the subjects 
covered by this Act be the exclusive law on such subjects 
in Talladega County. Provided, however, nothing contained 
in this Act shall be construed to limit the present authority 
of the Judge of the Circuit Court or other Court of like 
jurisdiction from exercising any of the power given such 
Judge under Title 30, Section 22 of the Code of Alabama 
1940.

Section 8. That in the event any section, clause or pro­
vision of this Act shall be declared invalid or unconstitu­
tional, it shall not be held to affect any other section, clause 
or provision of this Act, but the same shall remain in full 
force and effect.

Section 9. This Act shall take effect immediately upon 
its passage and approval by the Governor.



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