Anderson v. Georgia Petition for Writ of Certiorari to the Supreme Court of Georgia

    t ft

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1967 
Misc. No. ______

EDWARD ANDERSON and RUFUS HINTON,
Petitioners,

v.
STATE OF GEORGIA

PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF GEORGIA

JACK GREENBERG CHARLES STEPHEN RALSTON 
MICHAEL MELTSNER10 Columbus Circle 

New York, New York
C. B. KINGP. O. BOX 1024 
Albany, Georgia

Attorneys for Petitioners

JOHN P. HOWLAND 
Of Counsel



I N D E X
PAGE

Citation to Opinion Belov;------------------------------
Jurisdiction-- ----------------------— ~
Questions Presented---- ------——  ------------
Constitutional and Statutory Provisions Involved-------
S t a t ement------ ---- -------— — ---------------
How the Federal Questions Were Raised and Decided Belova
REASONS FOR GRANTING TKE WRIT:

I. THE DECISION OF THE SUPREME COURT OF GEORGIA 
CONFLICTS WITH THIS COURT'S DECISION IN 
WHITUS V. GEORGIA----------- ------- *-------------

II. THE DECISION UPHOLDING THE EXCLUSION FROM JURIES
OF PERSONS SOLELY BECAUSE OF THEIR ECONOMIC STATUS 
CONFLICTS WITH PRINCIPLES DECLARED 3Y THIS COURT 
AND WITH DECISIONS OF THE FIFTH CIRCUIT----------

CONCLUSION------------------------ *----------------------

TABLE OF AUTHORITIES

Cases:

Bostick v. South Carolina, 386 U.S. 479------ -Brookins v. State, 221 Ga. 181, 144 S.E.2d 83 (1965)- 
Brown v. Allen, 344 U.S. 443--------------

7
8 
15

Douglas v. California, 372 U.S. 353
Fay v. New York, 332 U.S. 261-----
Gideon v. Wainwright, 372 U.S. 335- 
Griffin v. Illinois, 351 U„S. 12—

13
15
13
13

Harper v. Virginia State Board of Elections, ^  ^
383 U.S. 663--- --------------------------------------- - 14

Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) -11# 12, 14, 15
Reece v. Georgia, 350 U.S. 85---- ---------- ~ “ “ °

Smith v. Texas, 311 U.S. 128 (1940)--------------------- “ J-4Speller v. Allen, 344 U.S. 443 (1953)----------------------  12
Spencer v. Texas, 385 U.S. 554, — —— — —  - •
Swain v. Alabama, 380 U.S. 202— — --  9# 10
Thiel v. Southern P. Co., 328 U.S. 217—  - --— — —11, 14, 15
United States ex rel Goldsby v. Harpole, 263 F.2d 71 

(5th Cir. 1959)------------------------
Whitus v, Balkcom, 333 F.2d 496 (5th Cir. 1964)----
Whitus v. Georgia, 385 U.S. 545----- *--------------
Williams v. Georgia, 349 U.S. 375---- —



ii
PAGE

Statutes:
28 U.S.C. § 1257(3)— ---------------------
Ala. Code Ann., Tit. 30 § 21 (Recomp. 1958) 
Del. Code Ann., Tit. 10 § 4504 (1953)-----
Ga. Code Ann.:

§
§
§
§
§
§
§
§
§
§
§
§
§
§

26-7202----
59-106-----
86-1210-------
92-101-----
92-111-----
92-130-----
92-201-- —
92-219-----
92-239— —
92-3101----
92-3210----
92-3706----
92-6305---
92-6307----

2, 3, 7, 8, 11,
$

2. 3,

3
13
3

1212
13
13
1313
12
12
12
12
7

Ind. Ann. Stat. § 4-3317 (Supp. 1966) 11
Mont. Rev. Codes Ann. § 93-1402 (1964) 12
N.Y. Judiciary Law § 504(3) (Supp. 1965) 
Tex. Rev. Civ. Stat. art. 2133 (1964)--
W. Va. Code Ann. § 5262 (1961)-----
H.B. 307, Georgia Legislature (1967)

Other Authorities:
45 Mich. L. Rev. 262 (1947)—  
26 Tex. L. Rev. 533 (1948)—  
United States Census (I960)—  
33 Va. L. Rev. 519 (1947) —



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1967 
Misc. No. ______

EDWARD ANDERSON and RU^US HINTON,
Petitioners,

v.
STATE OF GEORGIA

PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF GEORGIA

Petitioners pray tliat a writ of certiorari issue to review 
the judgment of the Supreme Court of Georgia entered in the above' 
entitled cases February 23, 1967, rehearing denied March 9, 1967. 
(Time to file petition for writ of certiorari has been extended 
to and including July 7, 1967.) In the trial court, the Superior 
Court of Crisp County, the same evidence was entered in both 
cases relating to jury discrimination. The cases were briefed 
together in the Supreme Court of Georgia and that court entered 
a single opinion in both cases. The two cases present the same 
questions and review is sought here by a single petition for 
certiorari as authorized by Supreme Court Rule 23 (5).

Citation to Opinion Below

The opinion of the Supreme Court of Georgia is reported 
at 154 S.E.2d 246 (1967). It is set out in Appendix A, infra.

Jurisdiction

The judgment of the Supreme Court of Georgia was entered on 
February 23, 1967 (R. A. 111-121? R. H. 241-250),"" and motion

1/ There is a separate certified record from the Supreme Court 
of Georgia for the case of each petitioner. Throughout this 
petition "R. A." refers to the Record in the Anderson case and 
"R. H." refers to the record in the Hinton case.



for rehearing was denied on March 9, 1967 (R. A. 130; R. H. 259)*
An extension of time for filing a petition for writ of certiorari 
was granted by Mr. Justice Black to and including July 7, 1967.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§ 1257(3), petitioners having asserted below and assert here the 
deprivation of rights, privileges and immunities secured by the 
Constitution of the United States.

Questions Presented

Under Georgia law, the grand juries which indicted petitioners 
and the traverse juries which convicted them were drawn from lists 
compiled from tax digests segregated according to race and from 
which persons with property less than a certain amount were 
excluded.

1. Were petitioners, who are Negroes, denied due process 
and equal protection of the laws by being indicted and tried by 
juries selected from segregated tax digests and hence by juries 
from which Negroes had been systematically excluded?

2. Were petitioners, who are indigents, denied due process 
and equal protection of the laws by being indicted and tried by 
juries from which persons with insufficient property to be on tax 
digests were excluded?

constitutional and Statutory Provisions Involved

These cases involve the Fourteenth Amendment to the Consti­
tution of the United States.

These cases also involve the following sections of the 
Georgia Code Ann., which are set out in full in Appendix B, 
infra?

§ 59-106;
§ 92-101;
§ 92-130;
§ 92-201;
§ 92-219;
§ 92-239;
§ 92-6307.

2



STATEMENT

In March 1966 a group variously estimated to be from 175 
to 300 persons assembled in the front of the courthouse of Crisp 
County, Georgia (R. A. 46, 56, 62). The persons were Negroes 
who had gathered to protest conditions in the Negro community, 
including segregated schools and poor street conditions in Negro 
neighborhoods (R. H. 209). Petitioners were among the group. 
Petitioner Hinton testified at his trial that he decided, as a 
symbol of mourning over the conditions of Negroes in Crisp County, 
to lower the United States and the State of Georgia flags at the 
courthouse to a position of half mast (Ibxd.). In the process, 
unidentified persons pulled the flags from the ropes, and the 
eyelets by which the American flag was fastened to the rope were 
torn (R. A. 58-60, 61-64; R. H. 156, 166, 173, 209). Petitioners 
subsequently were indicted under §§ 26-7202 and 86-1210, Georgia 
Code Ann. for defacing, mutilating and contemptuously abusing the 
flags of the United States and the State of Georgia.

Prior to trial petitioners filed motions to quash the indict­
ments and to challenge the traverse jury panel from which the 
jurors were to be selected to try the cases (R« A. 11—18; R. H. 
10-17). The motions challenged §§ 59-106 and 92-6307, Ga. Code 
Ann., the statutes establishing the method for selecting juries, 
on a number of grounds: (1) § 59—106 set up a property quali­
fication for jury service in limiting it to persons possessing 
sufficient property to be placed on the Georgia Tax Digest;
(2) the standards provided to guide the jury commissioners in 
selecting the jurors were too broad and indefinite; (3) the two 
statutes violated the due process and equal protection clauses 
of the Fourteenth Amendment in that they required that Negroes 
and whites be listed separately on the tax digests, and hence 
permitted the jury commissioners to consider race in the selection 
of jurors. Petitioners also charged that Negroes had been system­
atically excluded from the grand and traverse juries as a result 
of the statutes and the practices of the jury commissioners.

— 3 —



At the hearing on the motions to quash and to challenge the 
array, the following was put into evidence: according to the 
United States Census reports for 1960, the total population in 
Crisp County over 21 years of age and hence eligible for service 
on juries was 9,680; 3,567, approximately 37% were Negro; 6,113, 
approximately 63% were white. Of the Negroes, 2,207 did not own 
sufficient property to be placed on the Tax Digest. Thus, only 
1,360 Negroes, or about 38.2% of the Negro population, could be 
initially considered for jury service under the Georgia statutes 
(R. H. 142). About 78% of the whites, or 4,758, were on the tax 
digests (R„ H. 142) . It was stipulated at trial that a sub­
stantial number of the citizens of Crisp County had all of the 
statutory qualifications for jury service save being listed 
on the Tax Digest, and for that reason were not considered for 
jury service (R. H. 4C).

Of the persons on the Tax Digest themselves from which the 
juries were selected, 22% were Negro; 13.7% of the traverse jury 
actually drawn were Negro (7 out of 51). Of the grand jury, one 
out of 21 was a Negro (R. H. 40).

The evidence as to the method used by the commissioners in
2/compiling the jury lists was as follows. In December, 1964 

the jury commissioners cf Crisp County, at the instance of the 
County Solicitor, revised the jury list (R, H. 42). The revised 
lists, which took four to seven days to complete, were made from 
names in the segregated Tax Digest (R. H. 78). Selection was 
made by six white jury commissioners, aided at times by the ex­
sheriff, tax commissioner and a Negro grocer, on the basis of 
their knowledge of the people in the Digest (R. H. 60-61, 79-80). 
Their knowledge of the Negro population was based entirely on 
casual and business acquaintance (R. H. 43-45, 56-58, 80-82, 94, 
101, 107, 121-22). Women, white or Negro, were considered for the

2/ There was evidence that there had been an earlier revision 
In October, 1964 (R. H. 109), which had to be redone because all 
the Negro names had been put at the end of the list (R. H. 109-10)

4



None3l/list only if they specifically requested it (R. H. 61). 
of the commissioners could remember more than two Negroes actually 
serving either on grand or traverse juries after use of the revised
list (R. H. 96, 108, 117, 132-33, 137).

Petitioners' pre-trial motions were all overruled by the trial 
court. The two cases were tried separately and both petitioners 
were convicted as charged (R. A. 25; R. H. 1 8 ) They were both 
sentenced to 12 months in work camps (R. A. 26; R. H„ 19), and 
the convictions were affirmed by the Supreme Court of Georgia. 
Petitioners are presently enlarged on bail pending disposition 
of this petition by this Court.

How the Federal Questions Were Raised 
_______ and Decided Below_______ _

Prior to trial, petitioners made motions to quash the indict­
ment and challenged the array of traverse jurors. They raised in 
those motions the constitutionality under the Fourteenth Amendment 
of excluding persons from consideration for jury service who did 
not have sufficient property to be placed on the Tax Digest (R. A. 
14-17; R. H. 14-17). They also raised the question of the consti­
tutionality under the Fourteenth Amendment of the jury statutes 
insofar as they required juries to be selected from tax digests 
that were segregated as to race and the question of whether Negroes 
had been systematically excluded from juries (R. A. 11-14; R. H. 
10-14). Petitioners introduced evidence which showed the method 
by which jury commissioners selected jurors. These motions were 
overruled by the trial court.

3/ This practice was followed despite the absence of authorization 
for it in the Georgia statutes.
4/ In the Hinton case, when the jury returned with its verdict 
and was polled, it appeared that one of the jurors was either 
incompetent or had bean under duress to agree to the verdict. The 
jury was sent back out to reconsider its verdict, and counsel for 
the petitioner moved for a mistrial or to be able to examine the 
juror further. The jury returned once more with a verdict of 
guilty. The motions were denied, however (R. H. 225-33).

5



Upon appeal these questions were raised by petitioners in 
their enumerations of errors to the Supreme Court of Georgia 
(R. A. 107-109; R. H. 237-39). The Supreme Court of Georgia 
ruled on these points by holding that the challenge to the array 
of the grand jury had been waived under Georgia law because it 
was not made until after indictment. It further held that the 
exclusion of persons with insufficient property to be on the Tax 
Digest was constitutional and that the evidence as to exclusion 
of Negroes was not sufficient to demonstrate such exclusion.

6



REASONS FOR GRANTING THE WRIT 

I
THE DECISION OF THE SUPREME COURT OF GEORGIA 
CONFLICTS V7ITH THIS COURT'S DECISION IN 
WIIITUS V. GEORGIA o

At the time of petitioners' convictions, May 1966, the jury
lists for crisp County and all other Georgia counties were required

5/by law to be made up from the county tax digests. Ga. Code Ann.
§ 59-106 (App. B, p. 1 ). The digests were required by law to
be segregated by race. Ga. Code Ann. § 92-6307 (App. B., p. 3).
Jury commissioners used the digest to select names of upright
and intelligent citizens" to serve as jurors, qualifying the
persons selected on the basis of the statutory standard and their
own knowledge of the people in the digest.

Thus, petitioners were indicted by a crisp County grand jury
and convicted by a traverse jury chosen under a selection system
virtually identical to the one already condemned by this Court as
a denial of equal protection of the laws. Whitus v. Georgiâ

6/385 U.S. 545; Bostick v. South Carolina, 386 U.S. 479.
The Supreme Court of Georgia refused to rule on petitioners 

objections to the grand jury on the ground that the motion to 
quash had been filed too late under Georgia law, i.e., after the 
indictment had been handed down rather than before. Petitioners 
urge, however, that the Georgia rule is not an adequate state

5/ The Georgia jury selection scheme was changed after this 
Court's decision in Whitus v. Georgia, 385 U.S. 545. H.B. 307, 
passed in the 1967 session of the Georgia Legislature, requires 
that in the future jurors be selected from the lists of registered 
voters and, if necessary, other sources. Petitioners here were 
tried by a jury selected by the method in effect prior to Whituŝ.
6/ The jury list involved hex’e was selected in the revision in 
T964. The system of selection had resulted in discrimination in 
Crisp County prior to that revision. Thus, the Georgia Supreme 
Court stated in another case that "the evidence is undisputed 
that prior to the December 1964 term of the Superior Court o 
Crisp County there has been a long history of 75 years in whic 
only a few Negroes had served on a jury in Crisp County. This is 
sufficient to establish a prima facie case of discrimination 
against Negroes * * Brookins v. State, 221 Ga. 181, 144
S.E.2d 83, 87 (1965).

7



ground that bars this Court's reaching the question of the consti­
tutionality of the composition of the grand jury. It clearly 
would be impossible to raise the issue of the composition of 
the grand jury before that jury had actually been drawn and its

Williams v. Georgia, 349 U.S. 375. In any event, since the grand 
jurors were drawn from the same list as was the traverse jury 
panel, the statistics as to the grand jury, set out below, are 
relevant to deciding the issue of the constitutionality of the 
method of selection of the traverse jury panel, a question reached 
and decided by the court below.

In December 1964, the jury commissioners of Crisp County 
had completely revised the jury list (R. H. 42).^/ Eut, just as 
in Whitus, the revised lists were made, as statutorily required, 
from the segregated tax digest. The method used was for the
rommissioners to meet, to call off one by one the names of tax
payers as listed on the digest, and to discuss whether each was 
qualified according to the commissioners' knowledge. The six 
jury commissioners were white and were aided at times by a few 
outsiders, who provided additional information concerning the

Negro, were considered for the list unless they specr.fically 
requested it (R. H. 61). Grand and traverse jury panels were 
then selected from the jury list by the method prescribed by law. 
Ga. Code Ann. § 59-106.

The following statistics were stipulated by counsel to apply 
to this case. The tax digest numbered 1,360 Negroes and 4,758 
whites, Negroes being 22% of the total taxpayers listed (R. H.

7/ The evidence as to the procedure followed by the commissioners T s  found in the certified record in the Hinton case (R. II. 38-145) , 
and was used in both cases. The evidence consists of testimony 
taken at the hearing on the motions in these cases, together with 
evidence taken in Brookins v. State, 221 Ga. 181, 144 3.3.2d 83 
(1965), which concerned the same jury list.
8/ The persons consulted were all whites, with the exception of 
one Negro grocer (R. H. 79-80).

composition known. See, Reece v. Georgia, 350 U.S. 85? and cf_.,

people in the digest (R. H. 60-61, 79-80) &  No women, white or

8



142). A venire of 30 men was drawn for grand jury duty; 2 Negroes 
and 28 whites (R. H. 40). The percentage of Negroes drawn was 
6.61%, which dropped to 4.7% when only one Negro was chosen to 
serve on a panel of 21 (R. H. 40). At the same time a traverse 
jury panel of 7 Negroes (13.7%) and 44 whites was drawn (86.3%)
(R. H. 40); the evidence does not show whether a Negro served on
the actual juries that tried the cases.

The testimony of the jury commissioners tended to corroborate 
the discrimination revealed by the statistics. None of them 
could remember more than a handful of Negroes who had been drawn 
from the revised list, and only one or two who had actually served 
on grand or traverse juries (R. H. 96, 108, 117, 132-33, 137).

The State did not attempt to rebut the petitioners' case. 
Rather, the Supreme Court of Georgia attempted to distinguish 
Whitus v. Georgia, suprac on the grounds that s (1) in that case 
a discriminatory jury list and tax digest were used to make up 
the revised list; (2) that in the instant case the jury commis­
sioners called on outside help, including a Negro, to gain 
information on the community taxpayers rather than relying solely 
on their own knowledge? and (3) this case was governed by Swain 
v. Alabama, 380 U.S. 202, since the percentage of Negroes on the 
traverse jury panel as compared to that on the tax digest was 
closer to the statistics developed in Swain than to those in
Whitus.

Petitioners contend that none of the grounds asserted by the 
Supreme Court below are sufficient to distinguish the case from 
Whitus.

(1) in Whitus, the discriminatory revised list was prepared 
by using the jury list which had been condemned in Whitus v *
Balkcom, 333 F.2d 496 (5th Cir. 1964), as well as the segregated 
tax digest. Preparation of the jury list from these two segregated 
sources presented an "opportunity for discrimination. v *
Georgia, 385 U.S. at 552. The fact that here the jury list was 
made only from the segregated tax digest, rather than from a 
segregated jury list as well, in no way eliminated that opportunity

9



to discriminate." The most that can he said is that the Whitus 
jury commissioners also had reference to a discriminatory jury 
list which had been made from an earlier segregated tax digest.
In both cases the revised jury lists were made from segregated 
sources.

(2) The use of outside sources in the way revealed by this 
record in no way should lead to a different result. The people 
consulted by the commissioners did not supply names in addition 
to those on the segregated digests— they merely gave information 
concerning persons listed in the digests. With a single excep­
tion, they were white and knew little more of the Negro taxpayers 
than the commissioners themselves. Lee Outlaw, the one Negro 
consulted, operated a grocery store in the Southern part of 
Cordele, Georgia, where only half of the Negro population lived 
(R. H. 111-12). He allegedly went through the entire list of 
1,360 Negro taxpayers in a half day or a whole day (R. H. 49).
He clearly was limited by his partial knowledge of the Negro 
population and inadequate time to consider the qualifications 
of the people that he did know.

(3) The Georgia Supreme Court misplaced its reliance on 
Swain v. Alabama, 380 U.S. 202. The "opportunity for discrimi­
nation, " in Whitus, resulting from preparation of a jury list 
from segregated sources, was not present in S w a m . In Alabama, 
a wide variety of sources were used for prospective jurors. 380 
U.S. at 207.

For the above reasons, the decision of the Georgia Supreme 
Court is in conflict with this Court's decision in Whitus v. 
Georgia, certiorari is appropriate, and the judgment should be 
reversed.

10



II
THE DECISION UPHOLDING THE EXCLUSION FROM JURIES 
OF PERSONS SOLELY BECAUSE OF THEIR ECONOMIC 
STATUS CONFLICTS WITH PRINCIPLES DECLARED BY 
THIS COURT AND WITH DECISIONS OF THE FIFTH 
CIRCUIT.

The Supreme Court of Georgia held that the exclusion from 
jury service of persons with insufficient property to be on tax 
digests did not violate the equal protection clause of the 
Fourteenth Amendment. Petitioners contend that that decision 
conflicts with principles set down by this Court in HarE§£ v* 
Virginia State Board of Elections, 383 U.S. 663# which struck 
down the exclusion of persons from state governmental processes 
solely because of their indigency. The decision also is in con­
flict with the decision of the Fifth Circuit in Labat v. Bennett, 
365 F.2d 698 (5th Cir. 1966), which applied principles established 
by this Court in Thiel v. Southern P. Co., 328 U.S. 217, and held 
that the exclusion of daily wage earners from state juries violated 
the equal protection clause.

Both the grand jury which indicted petitioners and the 
traverse jury which convicted them were drawn from lists of 
Crisp County landowners and personal property taxpayers in 
accordance with Ga. Code Ann. § 59-106.^/ This Court has not yet 
passed directly upon the important question presented by dis­
crimination along economic lines in the selection of state juries. 
At least three other states maintain explicit property qualifi­
cations,^ and two other states expressly bar paupers from jury

9/ Petitioners' challenge to the composition of the grand jury 
was overruled below on state procedural grounds, .i.e,., that it had 
been made after indictment rather than before. Petitioners contend 
that this rule is insufficient to prevent this Court :crom reaching 
the issue (see text, supra). However, since the grand juiy is 
selected from the list of jurors who in turn have bear* cnosen 
exclusively from the county tax digests, the grand jury no less 
than the traverse jury bears the taint of the improper selection 
procedure.
10/ ind. Ann. Stat. § 4-3317 (Supp. 1966)r N.Y„ Judiciary Law 
§ 504(3) (Supp. 1965); Tex. Rev. Civ. Stat. art. 2133 (1964).

11



service.^/ Even in jurisdictions where there are no express 
statutory provisions, the juror selection process often functions 
as if there were. For example, in 1949, the Clerk of the Vance 
County, North Carolina, jury commission placed on the list those 
among the eligible population who had "the most property," Speller 
v. Allen, 344 U.S. 443, 480 (1953) (where the issue of economic 
discrimination in state jury selection was expressly reserved for 
future scrutiny). In Labat v . Bennett, 365 F.2d 698 (5th Cir.
1966) (en banc), daily wage earners were excluded from jury 
service by the commissioners without statutory authority. In 
other instances, persons who have failed to pay poll taxes have 
been barred from jury service because the list of registered 
voters was used as the source of names by the jury commission.
See, United States ex rel Goldsby v. Harpole, 263 F.2d 71, 78 
(5th Cir. 1959).

For these reasons, the recent amendment of the Georgia 
statute (substituting voter registration lists for tax digests 
as tho source of prospective jurors) does not make the constitu­
tional question raised by this record of less consequence. Cf,. 
Spencer v. Texas, 385 U.S. 554, 556, Note 2 (1967).

The county tax digests in Georgia contain only the names of 
property taxpayers. Ga. Code Ann. § 92-6305.“ *'' All real c*nd 
personal property is subject to the state ad valorem tax and 
the county tax unless otherwise exempted. Ga. Code Ann.
§ 92-101 Exemptions are granted covering land held for
charitable, religious, educational, or other eleemosynary purposes

11/ Del. Code Ann., Tit. 10 § 4504 (1953); W. Va. Code Ann.
§ 5262 (1961). And see, e.q., Ala. Code Ann., Tit. § 21 (Recomo. 1958) (illiterates excluded from jury service unless 
they are freeholders or householders); Mont. Rev. Coues Ann.
§ 93-1402 (1964).
12/ Collection of the state income tax is made through the state 
Revenue Commissioner's office rather than by county officials.
Ga. Code Ann. §§ 92-3101, 3210.
13/ See also, Ga. Code Ann. §§ 92-111 and 92-3706.

12



as well as property owned by certain foreign corporations. Ga. 
Code Ann. §§ 92-130 and 92-201. In addition, a specific exemp­
tion is granted for property actually occupied as a home up to 
a valuation of $2,000, and for personal property such as clothing, 
furniture, domestic animals, and tools up to a value of $300.
Ga. Code Ann. §§ 92-219 and 92-239.

An individual whose assets do not exceed the maximum allowed 
by the various exemptions may be required to file a return indi­
cating his non-liability for tax, but he will be excluded from 
jury service. Thus, 62% of the Negroes in Crisp County did not 
own sufficient property to be listed on the 1964 tax digest and 
they were thereby barred from serving on grand or traverse juries. 
Similarly, 22% of the white population of the County was excluded.

Petitioners contend that such a system of juror selection 
violates the Fourteenth Amendment in at least three respects.

(1) It is a denial of equal protection of the laws because 
the service on juries is restricted according to an irrational 
and arbitrary distinction based on property ownership. It was 
admitted by the State by stipulation that a "substantial number" 
of Crisp County citizens have all of the statutory qualifications 
for jury service; U e ., they are "upright," "experienced," and 
"intelligent" (Ga. Code Ann. § 59-106). Nevertheless, they are 
not considered for jury service because they have insufficient 
property to be included on the tax digest (R. H. 40). Such 
exclusion for the sole reason of indigency or insufficient pro­
perty after statutory exemptions is no more valid under the 
Fourteenth Amendment than was the denial of the right to vote on 
analogous grounds struck down in Harper v . Virginia State Board 
of Elections. 383 U.S„ 663. And, in other cases this Court has 
similarly held that classifications based solely upon poverty 
cannot be sustained. E_.g_., Griffin v. Illinois, 351 U.S. 12; 
Gideon v. Wainwright, 372 T7.S. 335; Douglas v. California, 372 
U.S. 353. While these cases concern the denial of counsel or 
assistance on appeal, the principles which they embody extend to 
every area of contact between the government and the citizen.

13



(2) Petitioners urge that Georgia's method of juror selec­
tion contravenes the equal protection clause of the Fourteenth 
Amendment because the consistent result of its use has been juries 
on which the Negro minority in Crisp County is drastically under­
represented. Despite repeated condemnation by this Court of the 
exclusion or token inclusion of a racial minority on juries# such 
practices continue under the guise of nonracial methods of 
selection. Thus# in Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966)# 
the United States Court of Appeals for the Fifth Circuit# sitting 
en banc# held that the intentional failure to include daily wage 
earners in the jury lists discriminated against Negroes in vio­
lation of the equal protection clause in that the class excluded 
contained a disproportionately large number of Negroes. 365 F.2d 
at 720. As has been noted, the mere use of tax digests as the 
source of prospective jurors automatically excludes 62% of the 
adult Negro population of Crisp County. There can be no question 
that the automatic disqualification of such a percentage amounts
to an invidious discrimination# whether that discrimination is 
premised upon property classifications or not.

(3) Finally, petitioners urge that this Court recognize 
and enforce the due process right to a jury which reflects a 
cross section of the community available fcr service. Petitioners 
clearly have standing to enforce this right since they themselves 
are indigents and hence were tried by juries from which members
of their class were excluded (R. A. 27-29; R. H. 23-25). (See 
also the affidavits of poverty filed with this petition.) A 
holding that a cross section of the community must be represented 
on state juries was intimated in Smith v. Texas# 311 U.S. 128 
(1940)11/ and applied to federal juries in Thiel v. Southern,P.
Co.# 328 U.S. 217, 220. Many commentators read Thiel to presage 
constitutional application of the standard to the states. See# 
e.g..# 45 Mich. L. Rev. 262# 264 (1947); 26 Tex. L. Rev. 533, 536

14/ "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." 311 U.S. at 130.

14



(1948); 33 Va. L. Rev. 519, 521 (1947). See also, Fay v. New 
York, 332 U.S. 261.

Indeed, in Labat v c Bennett, 365 F.2d 698 (5th Cir. 1966), 
the United States Court of Appeals for the Fifth Circuit, sitting 
en banc, has applied the cross-section theory of Thiel, to state 
criminal juries, 365 F.2d at 722-23. There, the jury selection 
system excluded daily wage earners. Thus, the decision of the 
Supreme Court of Georgia in this case, by rejecting that argument, 
is in conflict with the Fifth Circuit.

The court below relied on Brown v. Allen, 344 U.S. 443, 
evidently interpreting that decision as permitting the selection 
of jurors solely from tax digests that excluded a substantial 
proportion of members of the community who were otherwise quali­
fied for jury service. However, in Brown, the North Carolina jury 
selection statute contemplated a list including not only property 
owners but also voters. This Court specifically remarked that 
the addition of voters as eligibles for jury service to an earlier 
scheme limiting such service to taxpayers alone represented a

15/significant enlargement of the pool. 344 U.S. at 470. In
Brown, in fact, this Court clearly left open the question of the 
validity of the use of a source for jurors by a state when that 
source does not "reasonably [reflect] a cross-section or the 
population suitable in character and intelligence for that civic 
duty." 344 U.S. at 474. Here, the tax digests in Crisp County 
do not reflect such a cross section since 62% of eligible Negroes 
and 22% of eligible whites (comprising one-third of the total 
eligibles) were automatically excluded from consideration for 
jury duty, although many of them, as was stipulated, were otherwise 
fully qualified.

15/ in addition, the new statute’'worked a radical change in the 
racial proportions of drawings of jurors." Ibid. Moreover, the North Carolina taxing statutes involved in Brown provie.ed no P^o- 
perty exemptions whatsoever and thus lacked the restrictive effec 
of the Georgia statutes.
16/ One of the effects of the restrictive jury selection system 
may be seen by the colloquy mentioned in footnote 4 , supra, where 
it became apparent that one of the jurors serving was probably not 
qualified. Without the property qualifications imposed by Georgia 
law, the pool of qualified persons would of course be much greater# 
thus reducing the chances of such a juror having to be used.

- 15 -



Thus, certiorari should be granted in order to determine 
the important issue presented by this case, to decide the appli- 
cability of Brown v. Allen to the facts here, and to resolve the 
conflict with the Fifth Circuit’s decision in Lab at v. Bennett., 
supra.

CONCLUSION

For the foregoing reasons, petitioners pray that a writ of 
certiorari be granted*

Respectfully submitted,

JACK GREENBERG CHARLES STEPHEN RALSTON 
MICHAEL MELTSNER 

10 Columbus Circle 
New York, New York

C. B. KINGP.0. Box 1024 
Albany, Georgia

Attorneys for Petitioners

JOHN P. HOWLAND 
Of counsel

16



APPENDIX A

Decided: Feb. 23# 1967

SUPREME COURT OF GEORGIA # # 608, 609

23956 HINTON v. STATE
23957 ANDERSON v. STATE

1. Where a defendant is represented by counsel at a 

commitment hearing and where no challenge to the array of 

the grand jury is made until after indictment any conten­

tion that the grand jury is not properly constituted will 

be treated as having been waived.

2. The challenge to the array of the traverse jury was 

properly overruled.

3. The Acts under which the defendants were indicted 

Were not subject to the constitutional attack made 

thereon.

4. When upon the trial of a case the poll of the jury 

discloses a possibility that the verdict is not unanimous 

the proper procedure is to return the jury to the jury 

room for further deliberation.

(a) After verdict it is too late to challenge the com­

petency of a juror where the alleged ground of incompetency 

is known before verdict.

5. The evidence authorized the verdict.



2

The defendants were indicted, tried and con­

victed under Code § 26—7202 and the Act of 1960 (Ga, L. 

1960, p. 985; Code Ann. § 86-1210). After indictment a 

motion to quash the indictment and challenge the array 

of the traverse jury was filed in each case and after 

hearing overruled. Demurrers were filed challenging the 

Acts under which the indictments were made in one case 

and after verdict the defendants' motions for new trial 

were overruled. They now appeal and enumerate as error 

these rulings adverse to them.



3

NICHOLS, Justice, 1. It was stipulated that 

defendants were represented by counsel on April 5, 1966, 

that commitment hearings were held on the fifth and sixth 

of April, 1966 v/here the defendants were represented by 

counsel and the indictments were returned on April 26, 1966. 

No challenge to the array of the grand jury was made prior 

to indictment although the defendants were represented 

by counsel and had been represented by counsel for three 

weeks prior to such indictments. Under the decision in 

Blevins v. State, 220 Ga. 720 (3) (141 SE2d 426), and the

numerous cases cited therein the motions to quash the 

indictments on this ground are without merit as such 

contention must be treated as having been waived.

2. The challenge to the array of the traverse 

jury was properly overruled. The contention of the 

defendants is basically the same as that made in Whitus 

v. State, 222 Ga. 103 (149 SE2d 130), reversed by the United 

States Supreme Court (Whitus v. Georgia, U S  ; 87 

S. C. 643; L E2d ), and it is contended that such 

decision is controlling in the cases sub judice. The 

decision in that case, based upon entirely different 

circumstances, nowise controls the present cases. While 

in both cases the jury was selected from a segregated tax



4

digest as was required by Georgia statutes (this is no 

longer required. See 1966 Ga. L. p. 393), there the 

similarity ends. The evidence in the Whitus case showed 

a "revision" of an old jury list which had previously 

been declared to show discrimination while in the present 

case the evidence showed a completely new jury list made 

up from the tax digest without reference to the old jury 

list. In Whitus the jury commissioners relied completely 

upon their own knowledge of the people in the community 

while in the present cases the jury commissioners sought 

information from others including a negro business man in 

the community.

These cases arose in Crisp County, as did the 

case of Brookins v. State, 221 Ga. 181 (144 SE2d 83), 

where the same question was presented for decision and the 

jiiry selection approved. The evidence in the Brookins 

case was stipulated as part of the evidence in the present 

cases and the additional evidence adduced noway requires 

a different result. The percentages of negroes on the 

tax digest in Crisp County were shown to be 22 percent and 

on the traverse jury actually drawn 13.7 percent (44 whito 

anti 7 negro) . This is not such a disparity as to authorize 

a conclusion on *-his ground alone th*': discrimination exists.



5

See Brookins v. State, supra, citing Swain v. Alabama,

380 U S 202 (85 S C 824; 13 L E2d 759). Nor is the require­

ment that jurors be selected from a tax digest unconstitu­

tional as contended by the defendants. See Brown v. Allen,

344 U S 443 (73 S C  397; 97 L E 469).

3. In case numbered 23957 hive defendant demurred 

and sought to attack the constitutionality of the statues 

[sic] under which he was indicted as being too vague and 

uncertain to set forth a standard of conduct and therefore 

they violate the due process clause of the Constitution 

of the United States as secured by the Fourteenth Amendment 

and the due process clause of the constitution of the 

State of Georgia.

Code § 26-7202 provides; "Contemptuous use 

or defacement. - It shall also be unlawful for any person, 

firm or corporation to mutilate, deface, dsfrle or con­

temptuously abuse the flag or national emblem of the United 

States by any act whatever. (Acts of 1917, p. 203)." The 

Act of 1960, supra, in so far as the case sub judice is 

concerned makes unlawful the same conduct as it applies 

to the flag or emblem of the State of Georgia.

In Halter v. Nebraska, 205 U S 34, 41 ( S C  

51 L E 697), the United States Supreme Court upheld a



6

statute of the State of Nebraska which prohibited the use 

of the national flag as a part of any advertisement. The 

basis of such decision was the right of the people to 

protect such flag from disrespectful conduct and insults.

The statute upon which Code Chapter 26-72 is based was 

enacted after the decision in Halter v. Nebraska, supra, 

and followed the language of the Nebraska statute. Accord­

ingly, it must be assumed that the General Assembly was 

cognizant of the above decision. It was there held; "One 

who loves the Union will love the State in which he resides, 

and love both of the common country and of the State will 

diminish in proportion as respect for the flag is weakened. 

Therefore a State will be wanting in care for the well 

being of its people if it ignores the fact that they regard 

the flag as a symbol of their country's power and pres­

tige, and will be impatient if any open disrepect [sic] 

is shown towards it." The conduct sought to be prohibited 

by such statute is conduct which shows open disrespect for 

such flag, and no question of freedom of speech is here 

involved. The language of such statute making it unlawful 

to mutilate, deface, defile or contemptuously abuse such 

flags by any act is not vague, uncertain or indefinite, and

such statutes are accordingly not unconstitutional for any



7

reason urged in the demurrers attacking them. Nor was the 

indictment, which expressly stated the unlawful conduct 

of the defendants, subject to demurrer as being vague or 

uncertain.

(a) In view of the holding in the preceding 

division of the opinion it was not error, in the absence of 

a proper request, to fail to define in the charge to the 

jury the terms contained in such statutes which needed no 

definition in order to be understood by the jury.

4. The next enumeration of error to be dealt 

with concerns a motion for mistrial which was overruled in 

case numbered 23956. After deliberation the jury returned 

to the courtroom and its verdict was published. Counsel 

for the defendant then began to poll the jury and as the 

second juror was being polled a colloquy took place which 

counsel for the defendant interpreted as showing that the 

verdict returned was not the verdict of such juror. At 

this point, on motion of the Solicitor-General, the jury 

was instructed to return to the jury room and return a 

unanimous verdict if possible and if not possible to so 

inform the court. After further deliberation the jury 

returned to the courtroom and published another verdict 

which apparently (as far as can be observed from the tran-



8

script), consisted of the original written verdict with the 

additional words "by unanimous vote" added after "guilty." 

Counsel for the defendant objected to such verdict as not 

being a new verdict but the same verdict to which a question 

arose and requested that the jury be instructed to return 

to the jury room and write out a new verdict which request 

was granted. Again the jury returned to the jury room and 

at this point counsel for the defendant moved for a mistrial 

based upon the colloquy which took place when the jury was 

being polled after the original verdict was published.

This motion was overruled and thereafter the jury returned 

to the courtroom with a rewritten verdict of guilty and 

upon being polled each member of the jury affirmed that it 

was his verdict.

The procedure followed by the trial court in 

directing the jury to return to the jury room and arrive 

at an unanimous verdict if possible was not error as this 

is the proper procedure where a poll of the jury discloses 

other than a unanimous verdict of the jury. Macon Ry. &

Light Co. v. Barnes, 121 Ga. 443, 448 (49 SE 282).

(a) Nor was it, after the verdict was published 

and the jury returned to the jury room to correct it as to 

form, error to overrule a motion for mistrial or hear evi­

dence because of the alleged incompetency of one of the jurors



9

5. All who participate in the commission of a 

misdemeanor are principals. Parmer v. State, 91 Ga. 152 

(16 SE 937): Crocker v. State, 103 Ga. App. 870 (121 SE2d 

166) .

"Intention may be manifested by the circumstances 

connected with the perpetration of the offense, and the 

sound mind and discretion of the person accused." Code 

§ 26-202.

The evidence disclosed that the defendants were 

involved in a "freedom march" in Crisp County, Georgia 

and a crowd (estimated by various witnesses to be as many 

as 250 persons) had gathered at the County Courthouse.

The defendants moved over to the flagpole and proccded [sic] 

to lower the flags. The defendant Hinton in his unsworn 

statement said the negro community was in a state of mourning 

and he intended to lower the flag to half mast to symbolize 

the state of mourning. The defendant Anderson made no 

statement. At this point, as the flag was being lowered 

others in the group closed in, removed the flags from the 

lanyard actually tearing the American flag and damaging 

the State flag, both of which were displayed to the jury, 

and proceded [sic] to shake the flags in the faces of the 

police officers ■'•’ho were stationed nearby, At this point



10

James Burch toofc possession of the flags from the demon 

strators and delivered them to the county authorities. 

The evidence authorized the verdicts.

Judgments affirmed. All the justices concur.



APPENDIX B

Georgia Statutes Relating to 
Jury Selection and Tax Digests

Ga. Code Ann, §59-106 (1963 Supp.) . Revision of jury; 
lists. Selection of grand and traverse jurors.. — Biennially, 
or, if the judge of the superior court shall direct, tri- 
ennially on the first Monday in August, or within 60 days 
thereafter, the board of jury commissioners shall revise 
the jury lists.

The jury commissioners shall select from the books 
of the tax receiver upright and intelligent citizens to 
serve as jurors, and shall write the names of the pex’sons so selected on tickets. They shall select from these a 
sufficient number, not exceeding two-fifths of the whole 
nuiriber, of the most experienced, intelligent, and upright 
citizens to serve as grand jurors, whose names they shall 
write upon ether tickets. The entire number first selected, 
including those afterwards selected as grand jurors, shall 
constitute the body of traverse jurors for the county, to 
be drawn for service as provided by law, except that when 
in drawing juries a name which has already been drawn for 
the same term as a grand juror shall be drawn as a traverse 
juror, such name shall be returned to the box and another 
drawn in its stead. (Acts 1878-79, pp. 27, 34; 1887, p. 31; 
1892, p. 61; 1899, p. 44; 1953, Nov. Sess., pp. 234, 285; 
1955, p. 247.)

Ga. Code Ann. §92-101 (1961 Revision). Taxable property.— All real and personal property, whether owned 
by individuals or corporations, resident or nonresident, 
shall be liable to taxation, except as otherwise provided 
by law. (Acts 1851-52, pp. 288, 289.)

Ga. Code Ann. §92-130 (1961 Revision). Exemptions— There 
shall be exempt from taxation all intangible personal 
property owned by or irrevocably held in trust for the 
exclusive benefit of, religious, educational and charitable 
institutions, no part of the net profit from the operation 
of which can inure to the benefit of any private person.

There shall be exempt from all ad valorem intangible 
taxes in this State, the common voting stock of a sub­
sidiary corporation not doing business in this State, if 
at least 90 per cent of such common voting stock is owned by a Georgia corporation with its principal place of 
business located in this State and was acquired or is held 
for the purpose of enabling the parent company to carry 
on some part of its established line of business through 
such subsidiary. (Acts 1946, pp. 12, 14; 1947, p. 1183.)

Ga. Code Ann. §92-201 (1961 Revision). Property 
exempt from taxation.— The following described property 
shall be exempt from taxation, to-wit: All public prop­
erty; places of religious worship or burial, and all 
property owned by religious groups used only for single 
family residences and from which no income is derived; 
all institutions of purely public charity; hospitals not 
operated for the purpose of private or corporate profit 
and income; all intangible personal property owned by or 
irrevocably held in trust for the exclusive benefit of



4 <

-  2 -

religious, educational and charitable institutions, no 
part of the net profit from the operation of which can 
inure to the benefit of any private person; all buildings 
erected for and used as a college, nonprofit hospital, 
incorporated academy or other seminary of learning, and 
also all funds or property held or ‘*sed as endowment by such colleges; nonprofit hospitals, incorporated academies 
or seminaries of learning, providing the same is not invested 
in real estate: and Provided, further, that said exemptions 
shall only apply to such colleges, nonprofit hospitals, 
incorporated academies or other seminaries of learning as 
are open to the general public: Provided, further, that 
all endowments to institutions established for white 
people shall be limited to white people, and all endowments 
to institutions established for colored people shall be 
limited to colored people; the real and personal estate of 
any public library, and that of any other literary asso­
ciation, used by or connected with such library; all books and philosophical apparatus and all paintings and statuary 
of any company or association, kept in a public hall and 
not held as merchandise or for purposes of sale or gam: 
Provided the property so exempted be not used for the 
purpose of private or corporate profit and income, distri­butable to shareholders in corporations owning such property 
or to other owners of such property, and any income from such property is used exclusively for religious, educational 
and charitable purposes, or for either one or more of 
such purposes and for the purpose of maintaining and 
operating such institutions; this exemption shall not 
apply to real estate or buildings other than those used 
for the operation of such institution and which is ren^ ed, 
leased or otherwise used for the primary purpose of securing 
an income thereon; and also Provided that such donations of 
property shall not be predicated upon an agreement, contract 
or otherwise that the donor or donors shall receive or retain any part of the net or gross income of the property; 
farm products, including baled cotton grown m  thm State and remaining in the hands of the producer * but not longer 
than for the’year next after their production. The word 
"production" as applied to laying hens shall mean from 
the time that such laying hens come into production at age 
six months rather than when said laying hens are hatched.
The words, "institutions of purely public charity," "non­profit hospitals," and "hospitals not operated fcr̂  the pur­
pose of private or corporate profit and income," snail mean 
and include such institutions or hospitals which may have 
incidental income from pay patients: Provided such income, 
if any, is devoted exclusively to the charitable purpose of 
caring for patients who are unable to pay, and for the pur­
pose of maintaining, operating and improving the facilities 
of such institutions and hospitals, and not directly or 
indirectly for distribution to shareholders in corporations 
owning such property, or to other owners of same. (Acts 
1878-9, p. 33; 1913, p. 122; 1919, p. 32; 1943, p. 348;
1946, p. 12; 1947, p. 1183; 1955, pp. 262, 263; 1965, pp. 
182, 183.)

Ga. Code Ann. §92-219 (1961 Revision). Exemption of 
home occupied by owner.— The homestead of each resident of 
Georgia actually occupied by the owner as a residence and 
homestead, and only so long as actually occupied by the 
owner primarily as such, but not to exceed $2,000 of its 
value, is hereby exempted from all ad valorem taxation for 
State, county and school purposes, except taxes levied by 
municipalities for school purposes and except to pay interest



on and retire bonded indebtedness: Provided, however, 
should the owner of a dwelling house on a farm, who is 
already entitled to homestead exemption, participate in 
the program of rural housing and obtain a new house under 
contract with the local housing authority, he shall be 
entitled to receive the same homestead exemption as allowed 
before making such contract. The General Assembly may from 
time to time lower said exemption to not less than $1,250. 
The value of all property in excess of the foregoing exemp­
tions shall remain subject to taxation. Said exemptions 
shall be returned and claimed in such manner as prescribed 
by the General A-ssembly. The exemption herein provided 
for shall not apply to taxes levied by municipalities.
(Acts 1946, pp. 12, 14.)

Ga. Code Ann. §92-239 (1961 Revision). Exemption of 
personalty.— All personal clothing, household and kitchen 
furniture, personal property used and included within the 
home, domestic animals and tools, and implements of trade 
of manual laborers, but not including motor vehicles, are 
exempted from all State, county, municipal and school 
district ad valorem taxes, in an amount not to exceed $300 
in actual value. (Acts 1946, pp. 12, 13.)

Ga. Code Ann. §92-6307 (1961 Revision). Entry on 
digest of names of colored persons.— The tax receivers 
shall place the names of the colored taxpayers, in each 
militia district of the county, upon the tax digest in alphabetical order. Names of colored and white taxpayers 
shall be made out separately on the tax digest. (Acts 
1894, p. 31.)