Page:Bone v. State (1939).pdf/6

members selected by the jury commissioners. They had been excused by the court without any reasonable or formal excuses having been announced for their retirement. The record discloses further that upon an examination as to the qualifications of these three new jurors placed upon the panel, although each was declared qualified to serve, the state peremptorily challenged each one. This fact is not stated by way of criticism of the trial court, nor of the prosecuting attorney. Had these three negro electors been regularly placed upon the panel of the jury by the jury commissioners in the discharge of their duties, there could not have justly been any criticism on account of the fact that there might not have been a negro juror in the final trial of the case. We are attempting to make clear and emphasize the matter that the test lies not in the fact that there was no juror of the negro race upon the trial jury, but the vice is in an omission by administrative officers, jury commissioners, for instance, in the systematic exclusion of negroes from the regular jury panel. In this case it is made clear that the jury commissioners had selected twenty-four members who constituted the regular jury panel from which the juries were to be drawn in the trial of cases. It was charged that, not only in this case, but in the formation of juries, the selection of the two panels, the negro electors had been systematically excluded, and that this had been practiced continuously for a period of forty years in the circuit court of Pulaski county. There was no denial of this charge, either by the filing of a response or answer to this motion, or by any act or announcement on the part of the court in overruling the motion. In fact, the court by its ruling refused to hear any evidence and assumed that by the removal of some of the members of the jury and the placing thereon of qualified negro electors there was the full and complete answer to the objection made. This procedure, on the part of the court, may be analyzed in the light given us by a comparatively recent decision of the United States Supreme Court, rendered without a dissent, which opinion is not only binding upon the courts of that jurisdiction, but binds with equal force appellate