Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge; reversed.
F. W. A. Eiermann, Scipio A. Jones, Wallace L. Purifoy, Jr., Elmer Schoggen and Leon B. Ransom, for appellants.
Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.
BAKER, J. An information filed in the circuit court charged Rome Bone and Mose Bone with having committed murder in the first degree by shooting and killing Mrs. Deaver. The offense was alleged to have been committed on September 8, 1938.
Thereafter, on Monday, December 19, 1938, when the case was set for trial the state appeared by the prosecuting attorney, or his deputies, who announced ready for trial, and the defendants both were present in person by their attorneys, and, according to the record, "upon roll call, all twenty-four jurors answer present. Thereupon J. H. Hollis, Louis Hart and Harry Lytle ask leave to be excused from the panel, which is by the court granted, and comes W. H. Smith, E. S. Scott and J. H. Cowan, who are duly summoned by the sheriff, being colored electors of Pulaski county, are found to be qualified electors, and are duly sworn as petit jurors,and placed on the regular panel which is designated as panel No. 1 of this term of court."
Before the beginning of the trial of the case the defendants filed a motion to quash the venire of petit jurors, from which venire it was proposed to draw the petit jury by whom the defendants were to be tried.
It was alleged in the petition that the petit jury was composed exclusively of white persons and that all persons of color, or of African descent, known as negroes, were excluded from said jury on account of their race and color, and for no other reason.
