HARRY PHILLIPS, Circuit Judge.
This is an appeal from the order of the district court denying appellant’s petition for a writ of habeas corpus.
Appellant, a Negro, was tried in the Circuit Court of Maury County, Tennessee, in 1949, under an indictment charging him with the crime of rape of a girl under fifteen years of age. The jury returned a verdict of guilty and fixed his sentence at forty-nine years and one day. Details as to appellant’s previous criminal record and his personal history are set forth in the dissenting opinion of Judge McAllister.
In his trial in the State court appellant was represented by Mr. Pride Tom-linson, Jr., a leading member of the Maury County Bar, as court-appointed counsel. This attorney filed a motion for a new trial, which later was dismissed on appellant’s own application made in open court. Appellant is now serving his sentence in the Tennessee Penitentiary.
The District Judge, the Honorable William E. Miller, conducted a thorough evidentiary hearing in the habeas corpus proceeding. Appellant was represented capably in the district court by Mr. Kent Sandidge, III, of the Nashville Bar as court-appointed counsel. Prior to the hearing in this court Mr. Sandidge had been appointed Assistant United States Attorney and was permitted to withdraw as counsel for appellant. Thereupon, this court appointed Mr. James 0. Bass, Jr., and Mr. J. Brad Reed of the Nashville Bar as counsel for appellant. These attorneys have filed a comprehensive brief and made an able oral argument before this court.
Two questions are raised on this appeal: (1) that a confession was elicited from appellant subsequent to his arrest and before indictment, after his request to see a lawyer had been denied, relying upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and (2) that Negroes were systematically excluded because of their race from the grand jury which indicted appellant and from the petit jury which convicted him, in violation of his rights under the equal protection clause of the Fourteenth Amendment.
I.
Appellant previously filed a habeas corpus proceeding in the State courts, but did not raise the Escobedo question in that proceeding. This issue was presented for the first time in the district court in the present case. The district judge correctly ruled that appellant has failed to exhaust his State remedies and that the district court would not consider his claim for relief based on that issue. 28 U.S.C. § 2254.
It is now settled that neither Escobedo v. State of Illinois, supra, nor Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, would apply retroactively to this case, [87]*87which was tried in 1949. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Further, since appellant’s contention is premised upon a denial of his right to counsel, and no question is made in this court as to the voluntariness of his confession, Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, is not applicable.
We accordingly hold that no relief on the issue of denial of the right to counsel is available to appellant in this case.
II.
Both the grand jury which indicted appellant and the petit jury which returned a guilty verdict against him were composed entirely of members of the white race. We now turn to the contention that Negroes were excluded systematically from the grand jury and the petit jury, in contravention of appellant’s rights under the Fourteenth Amendment. This contention is based upon a principle of constitutional law long since firmly established. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664.
In Carter v. State of Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 690, 44 L.Ed. 839, the Supreme Court said:
“Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. Strau-der v. West Virginia, 100 U.S. 303 [25 L.Ed.2d 664]; Neal v. [State of] Delaware, 103 U.S. 370, 397 [26 L.Ed. 567, 574]; Gibson v. [State of] Mississippi, 162 U.S. 565 [16 S.Ct. 904, 40 L.Ed. 1075].”
In Norris v. State of Alabama, 294 U.S. 587, 589, 55 S.Ct. 579, 580, 79 L.Ed. 1074, the court said:
“[Although the state statute defining the qualifications of jurors may be fair on its face, the constitutional provision affords protection against action of the state through its administrative officers in effecting the prohibited discrimination.”
The “rule of exclusion” has been applied to prohibit discrimination against any delineated class. Hernandez v. State of Texas, 347 U.S. 475, 480, 74 S.Ct. 667, 98 L.Ed. 866. Briefly stated, the rule is: proof that Negroes constitute a substantial segment of the population of the jurisdiction, that some Negroes are qualified to serve as jurors, and that none of them have been called for jury service over an extended period of time establishes a prima facie case of systematic exclusion of Negroes from jury service. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Ross v. State of Texas, 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352; Labat v. Bennett, 365 F.2d 698 (C.A.5).
It is equally well settled that a member of a racial group has no constitutional right to be tried by a jury composed proportionately of members of his own race. In Swain v. State of Alabama, 380 U.S. 202, 208, 85 S.Ct. 825, 829, 13 L.Ed.2d 759, the Court said:
“[A] defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. [State of] Virginia v. Rives, 100 U.S. 313, 322-323 [25 L.Ed. 667]; Gibson v. [State of] Mississippi, 162 U.S. 565 [16 S.Ct. 904]; Thomas v. [State of] Texas, 212 U.S. 278, 282 [29 S.Ct. 393, 53 L.Ed. 512]; Cassell v. [State of] Texas,
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HARRY PHILLIPS, Circuit Judge.
This is an appeal from the order of the district court denying appellant’s petition for a writ of habeas corpus.
Appellant, a Negro, was tried in the Circuit Court of Maury County, Tennessee, in 1949, under an indictment charging him with the crime of rape of a girl under fifteen years of age. The jury returned a verdict of guilty and fixed his sentence at forty-nine years and one day. Details as to appellant’s previous criminal record and his personal history are set forth in the dissenting opinion of Judge McAllister.
In his trial in the State court appellant was represented by Mr. Pride Tom-linson, Jr., a leading member of the Maury County Bar, as court-appointed counsel. This attorney filed a motion for a new trial, which later was dismissed on appellant’s own application made in open court. Appellant is now serving his sentence in the Tennessee Penitentiary.
The District Judge, the Honorable William E. Miller, conducted a thorough evidentiary hearing in the habeas corpus proceeding. Appellant was represented capably in the district court by Mr. Kent Sandidge, III, of the Nashville Bar as court-appointed counsel. Prior to the hearing in this court Mr. Sandidge had been appointed Assistant United States Attorney and was permitted to withdraw as counsel for appellant. Thereupon, this court appointed Mr. James 0. Bass, Jr., and Mr. J. Brad Reed of the Nashville Bar as counsel for appellant. These attorneys have filed a comprehensive brief and made an able oral argument before this court.
Two questions are raised on this appeal: (1) that a confession was elicited from appellant subsequent to his arrest and before indictment, after his request to see a lawyer had been denied, relying upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and (2) that Negroes were systematically excluded because of their race from the grand jury which indicted appellant and from the petit jury which convicted him, in violation of his rights under the equal protection clause of the Fourteenth Amendment.
I.
Appellant previously filed a habeas corpus proceeding in the State courts, but did not raise the Escobedo question in that proceeding. This issue was presented for the first time in the district court in the present case. The district judge correctly ruled that appellant has failed to exhaust his State remedies and that the district court would not consider his claim for relief based on that issue. 28 U.S.C. § 2254.
It is now settled that neither Escobedo v. State of Illinois, supra, nor Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, would apply retroactively to this case, [87]*87which was tried in 1949. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Further, since appellant’s contention is premised upon a denial of his right to counsel, and no question is made in this court as to the voluntariness of his confession, Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, is not applicable.
We accordingly hold that no relief on the issue of denial of the right to counsel is available to appellant in this case.
II.
Both the grand jury which indicted appellant and the petit jury which returned a guilty verdict against him were composed entirely of members of the white race. We now turn to the contention that Negroes were excluded systematically from the grand jury and the petit jury, in contravention of appellant’s rights under the Fourteenth Amendment. This contention is based upon a principle of constitutional law long since firmly established. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664.
In Carter v. State of Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 690, 44 L.Ed. 839, the Supreme Court said:
“Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. Strau-der v. West Virginia, 100 U.S. 303 [25 L.Ed.2d 664]; Neal v. [State of] Delaware, 103 U.S. 370, 397 [26 L.Ed. 567, 574]; Gibson v. [State of] Mississippi, 162 U.S. 565 [16 S.Ct. 904, 40 L.Ed. 1075].”
In Norris v. State of Alabama, 294 U.S. 587, 589, 55 S.Ct. 579, 580, 79 L.Ed. 1074, the court said:
“[Although the state statute defining the qualifications of jurors may be fair on its face, the constitutional provision affords protection against action of the state through its administrative officers in effecting the prohibited discrimination.”
The “rule of exclusion” has been applied to prohibit discrimination against any delineated class. Hernandez v. State of Texas, 347 U.S. 475, 480, 74 S.Ct. 667, 98 L.Ed. 866. Briefly stated, the rule is: proof that Negroes constitute a substantial segment of the population of the jurisdiction, that some Negroes are qualified to serve as jurors, and that none of them have been called for jury service over an extended period of time establishes a prima facie case of systematic exclusion of Negroes from jury service. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Ross v. State of Texas, 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352; Labat v. Bennett, 365 F.2d 698 (C.A.5).
It is equally well settled that a member of a racial group has no constitutional right to be tried by a jury composed proportionately of members of his own race. In Swain v. State of Alabama, 380 U.S. 202, 208, 85 S.Ct. 825, 829, 13 L.Ed.2d 759, the Court said:
“[A] defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. [State of] Virginia v. Rives, 100 U.S. 313, 322-323 [25 L.Ed. 667]; Gibson v. [State of] Mississippi, 162 U.S. 565 [16 S.Ct. 904]; Thomas v. [State of] Texas, 212 U.S. 278, 282 [29 S.Ct. 393, 53 L.Ed. 512]; Cassell v. [State of] Texas, 339 U.S. 282 [70 S.Ct. 629], Neither the jury roll nor the venire need be a perfect mirror of the community or accurately [88]*88reflect the proportionate strength of every identifiable group. ‘Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.’ Cassell v. [State of] Texas, 339 U.S. 282, 286-287 [70 S.Ct. 629] (opinion of Mr. Justice Reed, announcing judgment).”
In Thomas v. State of Texas, 212 U.S. 278, 282, 29 S.Ct. 393, 394, the Court stated that:
“It was ruled in Martin v. [State of] Texas, 200 U.S. 316 [26 S.Ct. 338, 50 L.Ed. 497], as in other cases, that discrimination in organizing a grand jury and impanelling a petit jury cannot be established by merely proving that no one of the defendant’s race was on either of the juries, and that an accused person cannot of right demand a mixed jury, some of which shall be of his race, nor is a jury of that kind guaranteed by the 14th Amendment to any race. And it was said ‘What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury, as well as in the im-panelling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color.’ ”
District Judge Miller made a finding of fact that there was no purposeful exclusion of qualified Negroes from the grand and petit juries in Maury County, Tennessee, in 1949, including the following:
“Petitioner has failed to establish a prima facie case of purposeful discrimination or exclusion of qualified negroes from the grand and petit juries of Maury County during 1949. Petitioner introduced census reports which purported to establish' that the population of Maury County during the period in question was twenty-five per cent negro. He then introduced testimony of several witnesses who said that they were unable to recall that any negroes had served on the grand or petit juries during that time. They further testified that there were qualified negroes living in the county at that time. (It is to be noted that one of the witnesses who testified that there were qualified negroes who could have served on the jury did not even know what the qualifications for jury duty were.)
“In order to establish sufficient ground for relief, it must be shown that there was a purpose to discriminate. Mere racial imbalance will not suffice. Akins v. Texas, 325 U.S. 398 [65 S.Ct. 1276, 89 L.Ed. 1692], While petitioner introduced evidence as to the percentage of negro population in Maury County in 1949, he did not establish with any certainty what proportion of the negro population would qualify for jury duty. Against the testimony of the individuals who were unable to recall any negroes serving on the juries during the period in question, defendant has offered the highly credible testimony of three participants in the 1949 trial, including the trial judge, the Honorable Joe M. Ingram. Pride Tomlinson, Jr., who served as petitioner’s attorney, and Attorney General Paul Bumpus both testified that during 1949 negroes were in fact subpoenaed for jury duty in Maury County, but in most cases they requested to be excused and such requests were honored.
“Judge Ingram testified that ne-groes had not been excluded from jury duty since 1942 in Maury County. Upon examining the jury commissioner’s records, Judge Ingram was able to identify not less than twenty-two negroes who were members of the jury panel at the time of petitioner’s trial. Under these circumstances, it is clear that the petitioner has failed in his effort to establish a pattern of exclusion of negroes from jury duty in Maury County during 1949.” [89]*89“Whether there has been systematic racial discrimination by administrative officials in the selection of jurors is a question to be determined from the facts in each particular case.” Patton v. State of Mississippi, 332 U.S. 463, 466, 68 S.Ct. 184, 186, 92 L.Ed. 76.
“Therefore, the trier of fact who heard the witnesses in full and observed their demeanor on the stand has a better opportunity than a reviewing court to reach a correct conclusion as to the existence of that [limitation of negroes] type of discrimination.” Akins v. State of Texas, 325 U.S. 398, 401, 65 S.Ct. 1276, 1278, rehearing denied, 326 U.S. 806, 66 S.Ct. 86, 90 L.Ed. 491.
The standard of review in this case, as in other civil cases tried by a district judge sitting without a jury, is that the findings of fact of the district judge will not be set aside unless they are “clearly erroneous.” Rule 52(a), Federal Rules of Civil Procedure.
“Our delicate and serious responsibility of compelling state conformity to the Constitution by overturning state criminal convictions, should not be exercised without clear evidence of violation.” Brown v. Allen, 344 U.S. 443, 482, 73 S.Ct. 397, 420, 97 L.Ed. 469, rehearing denied [Speller v. Allen], 345 U.S. 946, 73 S.Ct. 827, 97 L.Ed. 1370.
The applicable Tennessee statutes relevant to the qualifications of jurors which were in effect in 1949 at the time of appellant’s conviction were as follows:
“Every male citizen who is a freeholder or householder, and twenty-one years of age, is legally qualified to act as a grand or petit juror, if not otherwise incompetent under the express provisions of this Code.” Williams Tenn.Code, Sec. 10006. Subsequently substantially changed — see T.C.A. Sec. 22-101.)
Incompetent persons. “Persons convicted of certain infamous offenses, specially designated in this Code, persons of unsound mind, persons not in the full possession of the senses of hearing and seeing, and habitual drunkards, are incompetent to act as jurors.” Williams Tenn.Code, Sec. 10009; now T.C.A., Sec. 22-102.
Occupational and disability exemptions. “The following persons are exempt from liability to act as jurors: All persons holding office under the laws of the United States, or of this state; all employees of the railway mail service; all practicing attorneys, physicians, and clergymen; all acting professors or teachers of any college, school, or institution of learning; all members of fire companies; all persons over sixty-five years of age, disabled by bodily infirmity, or specially exempted by any other positive law; all pharmacists registered under and in accordance with the laws of the state; service in the national guard shall be accepted in lieu of all jury duty while actually in the military service of the state.” Williams Tenn.Code, Sec. 10010; now T.C.A., Sec. 22-103.
Excuse from service. “Any person may be excused from serving as a juror, when the state of his own health, or that of his family, requires his absence, or when, for any reason, his own interests, or those of the public, will, in the opinion of the court, be materially injured by his attendance.” Williams Tenn.Code, Sec. 10011; now T. C.A., Sec. 22-104.
Disqualification by interest or relationship. “No person can act as a jur- or in any case in which he is interested, or when either of the parties is connected with him by affinity or consanguinity, within the sixth degree, computing by the civil law, except by consent of all the parties.” Williams Tenn.Code, Sec. 10007; now T.C.A., Sec. 22-105.
In 1949 there was in effect a private statute applicable to Maury County, which governed the method of selecting lists of prospective jurors. The act, [90]*90which created a county board of jury commissioners, provided that:
“See. 5. Be it further enacted, That it shall be the duty of the Jury Commissioners biennially on the first Monday in July, or upon the call of the Chairman, upon any day within thirty days thereafter, to meet and select from the tax books of the county and from any reliable sources the names of upright, intelligent men, known for their integrity, fair character, and sound judgment, from the various civil districts of the county and in proportion to the population of such districts, as near as may be, possessing the qualifications as required by law * * * ” Chapter 45, Private Acts of Tennessee, Extra Session, 1913.
The list selected from the tax books by the jury commissioners numbered approximately 1500. The tax books of Maury County did not designate the race of the persons listed thereon. Shortly before each term of court, all of the names on the jury commissioners list were placed in a box and a number of them (approximately 100) were drawn as prospective members of the jury panel for that term. These persons whose names were drawn were summoned for jury duty for the next succeeding term and either served or were disqualified or excused by the judge.
In Maury County the relevant census figures were as follows:
1940 1950
Total Population 50,357 40,368
White 30,225 (66.5%) 31,782 (72.2%)
Negro 10,130 (33.5%) 8,579 (27.8%)
The figures as to males 21 were as follows:
White 8853 (66.9%) 9470 (73.7%)
Negro 2918 (33.1%) 2486 (26.3%)
The State trial judge who presided 'over the criminal trial of appellant was the Honorable Joe M. Ingram, who has ;served as judge of the Eleventh Judicial ■Circuit of Tennessee continuously since ; September 1, 1942. The following affidavit of Judge Ingram was filed in the record in the district court in the present case:
“This Statement and Affidavit is made pursuant to 28 U.S.C.A. Section .2245 and at the request of Ed. R. Davies, Special Counsel, and may be ■filed in the above cause and presented at the Hearing which is scheduled for 'Tuesday, July 7, 1964.
****** “The undersigned is the duly elected, .qualified Judge of the 11th Judicial Circuit of Tennessee and has been continuously since September 1, 1942. As .such Circuit Judge he presides over the Criminal Court in Maury County and therefore was the presiding Judge at the trial of Brooks Lee Anderson, the Petitioner, at the time of his conviction of the charge of rape on August 1, 1949, in Case No. 5112, and sentenced to confinement in the State Penitentiary for 49 years and 1 day.
“The allegation that Negroes were systematically excluded from service on the Grand Jury and Petit Jury at the time of this trial is utterly false and without any foundation. The undersigned personally knows that since 1942 until the present time, Negroes have not been systematically excluded from service on the Grand Jury and Petit Jury in this county. In the first place, the Judge of this Court would not name Jury Commissioners that would engage in any such practice and I personally know that at the date of [91]*91this trial, Negroes had been selected and named and placed in the Jury Box for Jury Service. They certainly have not been excluded or refused service on Juries by the Court because of their race or color and from time to time may have been drawn from the Jury Box to serve on Juries and many members of the Colored Race have served on both the Grand and Trial Juries and, as a matter of fact, during the past few years at almost every term of our Circuit Court, Negroes have served on both the Grand Jury and Trial Jury.
“The reason the undersigned is so emphatic and positive about this matter is the result of a trial of the so-called race riot cases that were tried in this Court in 1946. At that time, the Defendants were represented by the N.A.A.C.P. Appointed Attorneys Thurgood Marshall, Z. Alexander Loo-by, a Dr. Branson, an attorney of Washington, D. C. and Maurice Weaver of Chattanooga, Tennessee.
“Counsel for the Defendants filed a Plea in Abatement to the Indictments in these cases alleging among other things that Negroes were systematically excluded from service on the Grand Jury that returned the indictments. The Court spent some two weeks or more hearing proof on this matter and it was established at that hearing that this charge was false, that there had been no systematic exclusion of Ne-groes from Jury service at that time and consequently the Plea in Abatement was overruled. In one of these cases, No. 4712, State vs. Lloyd Kennedy, was tried on November 11, 1946, motion for a new trial was overruled and sentence pronounced on December 6, 1946 and the case appealed to the Supreme Court of Tennessee.
“The Supreme Court of Tennessee affirmed this conviction and found that there was no error in the Trial Court’s action in overruling said Plea in Abatement and later this action was approved by the Supreme Court of the United States when certiorari was denied. I did not mean to digress so much about this matter but Mr. Davies advises in his letter that A. J. Morton of Morton Funeral Home in Columbia, Tennessee, has been subpoenaed by Petitioner for the purpose of proving the systematic exclusion of Negroes from Jury duty in Maury County at the time of this trial in 1949. Mr. Morton was one of the Defendants in the so-called race riot eases and as such was 'present in Court at the time it was shown in 1946 that this allegation is untrue.
“The Jury Commission of Maury County met in July, 1948, and at that time selected and deposited in the Jury Box 1501 names to make up the Grand and Trial Jury list for the next two-year period and from which Jury Box names were drawn by lot for each term of Court to make up and form the Grand Jury and Trial Jury (for two years) from that time and it was from this list of 1501 names so selected by the Jury Commission in July, 1948, that the Grand Jury was formed that indicted Brooks Lee Anderson on May 23, 1949, and the Trial Jury that tried this Defendant on August 1, 1949.
“The Court has no recollection of how many, if any, Negroes were drawn from the Jury Box that made up the Grand and Trial Juries for the May, 1949, term of the Circuit Court, but a casual examination of the Jury Commission’s records on file in the office of the Circuit Court Clerk of this County (the Circuit Court Clerk is also Clerk of the Jury Commission) reveals that many names of persons selected and placed in the Jury Box at that time for jury service were members of the Colored Race.
“For example, in the rural 5th District of this County, which is the home district of the undersigned, the following Colored persons were placed on the Jury rolls by the Jury Commission in its July, 1948, meeting and placed in [92]*92said Jury Box. Their names are as follows:
Jim Amis
Henry English
Walter Braden
Jess Braden
District 9 contains the following persons selected by the Jury Commission and placed in the Jury Box that are personally known by the undersigned to be members of the Negro Race:
Archie Crosby
V. K. Greenfield
Ed Brown
Charlie Harrison
John W. Joyce
A. M. Cobble
Rufus Vestal
Will Matthews
Toby Armstrong 10th District
“District 7 contains the following names personally known by the Court to be members of the Colored Race:
Charlie Chavers
Ed Driver
Perry Dudley
Max Fleming
Henderson Hylick
Maxie Perryman
Jordan Townes
Joe Worley
Walter Woodson
“So therefore, the undersigned personally knows that there was no systematic exclusion of members of the Colored Race from Jury service in this County at the time of the trial of the Petitioner.
“This, the 4th day of July, 1964.
/s/ Joe M. Ingram”
The case of Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132, cert. denied, 333 U.S. 846, 68 S.Ct. 659, 92 L.Ed. 1129 (1947), which is referred to in the affidavit of Judge Ingram, involved the question of whether there was a systematic exclusion of Negroes from juries in Maury County in 1946. The opinion of the Supreme Court of Tennessee states that approximately eleven hundred pages of the record in that case were devoted to testimony on this question. The Supreme Court of Tennessee said:
“It should be borne in mind that members of the Negro race have no constitutional right to trial by a mixed racial jury. All that they have is a right that their race shall not be discriminated against in the selection and drawing of grand juries. The testimony of the jury commissioners is to the effect that when they placed the names of seven hundred and fifty or more taxpayers in the jury box for subsequent drawing, they were not aware as to the race of a great many of the persons whom they placed therein, but undertook to select a proportionate number of such persons from the various civil districts of the county without regard to their race. That this must be true is evidenced by other testimony in the record. A Negro teacher called by the defendant testified that he was summoned for jury duty at a time previous to the impanelment of the grand jury that indicted the defendant and was excused from jury service at his own request. The evidence further shows that at the November term 1946, at which defendant was tried, one Negro appeared for jury service and was present awaiting such until the entire panel of some fifteen members was excused by the trial judge. The evidence also shows that one member of the colored race, Henry McGlothlin, was on a list of jurors drawn from the jury box in drawing a panel to select the petit jury for the trial of this case. The proof shows that these names which were drawn from the box were placed therein by the jury commission in July, 1944, or more than a year and a half before the commission of the alleged crime in this case.” 186 Tenn. at 317-318, 210 S.W.2d at 135.
The findings of the State court on the issue of discrimination, although not binding on the court, are entitled to great respect. Pierre v. State of Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 83 L.Ed. 757.
[93]*93Mr. Paul F. Bumpus, who served as district attorney general in Maury County from 1935 through 1950, testified that Negroes were summoned and appeared for jury duty “at practically every term of court as far as I can remember” but they generally were not willing to serve and asked to be excused; that “frequently they would have letters from their employers asking that they be excused, that they were needed badly at work.” Attorney-General Bumpus did not recall having seen a Negro serve on a jury in Maury County prior • to' 1949.
Mr. Pride Tomlinson, Jr., who represented appellant as court-appointed attorney at his trial in 1949, testified that Negroes were included in calls for jury duty in Maury County, particularly following certain racial troubles that occurred there in 1946, but that they frequently were excused from duty on their own applications. Mr. Tomlinson did not recall having seen a Negro serving on a jury in the county prior to 1949, but testified that many Negroes have served and continue to serve on juries in the county since that time.
Appellant asserts that at the time of his trial and conviction in Maury County, Tennessee, there were three steps in the selection of jury panels:
(1) The selection from the tax books of the large list of names of prospective grand and petit jurors by Maury County’s board of jury commissioners;
(2) The selection from the jury commissioners’ large list of a smaller list, which list made up the prospective grand, and petit jurors for a particular term of court;
(3) A narrowing of this smaller list by disqualification or by the judge’s excusing from service persons summoned therefor.
On the basis of the evidence introduced in the district court, appellant now concedes that there was no systematic exclusion in the first two steps. Therefore if systematic exclusion of Negroes did in fact take place it would be the result of step three, i.e. either by disqualification or by the judge excusing from service persons summoned therefore.
In Swain v. State of Alabama, 380 U.S. 202, 226-227, 85 S.Ct. 825, 839, the Court said that:
“Total exclusion of Negroes by the state officers responsible for selecting names of jurors gives rise to a fair inference of discrimination on their part, an inference which is determinative absent sufficient rebuttal evidence. But this rule of proof cannot be woodenly applied to cases where the discrimination is said to occur during the process of peremptory challenge of persons called for jury service. Unlike the selection process, which is wholly in the hands of state officers, defense counsel participate in the peremptory challenge system, and indeed generally have a far greater role than any officers of the State.”
Likewise, the excusing of summoned Negro jurors from service upon their own application and for cause does not necessarily constitute systematic exclusion on account of race.
The fact that no Negro served on the grand jury that indicted appellant or on the petit jury that convicted him, coupled with the further fact that no witness testifying in the present case could recall having seen a Negro serving on a jury in Maury County prior to 1949, would have established a prima facie case of systematic exclusion, except for other evidence in the record. Under the evidence hereinabove outlined, and especially in view of the detailed affidavit of Judge Ingram, we cannot say that the findings of fact of the district judge in the present case are “clearly erroneous.”
Judge Ingram’s affidavit was introduced into evidence under the authority of 28 U.S.C. § 2245, which provides that:
“On the hearing of an application for a writ of habeas corpus to inquire into the legality of the detention of a person pursuant to a judgment the certificate of the judge who presided at the trial resulting in the judgment, setting [94]*94forth the facts occurring at the trial, shall be admissible in evidence.”
To the extent that the affidavit of Judge Ingram contained statements as to matters which took place other than at the trial, we are of the opinion that it was properly admissible under the provisions of 28 U.S.C. § 2246:
“On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit. If affidavits are admitted any party shall have the right to propound written interrogatories to the affiants, or to file answering affidavits.”
The record in the present ease discloses that, after the filing of the foregoing affidavit, the district judge allowed counsel for appellant fifteen additional days in which to propound written interrogatories or further questions to Judge Ingram, or to obtain a supplemental affidavit from him.
Although issues of fact in a habeas corpus case may not be established by ex parte affidavits alone, Walker v. Johnston, 312 U.S. 275, 287, 61 S.Ct. 574, 85 L.Ed. 830; Jones v. Cunningham, 313 F.2d 347, 349 (footnote 4, C.A. 4), cert. denied. 375 U.S. 832, 84 S.Ct. 42, 11 L.Ed.2d 63, the procedure followed by the district court in the present case was in accord with the statute and would be calculated to help maintain a desirable relationship between State and Federal courts. Both the Circuit Judge presiding over the State court in Maury County, Tennessee, and the United States District Judge for the Middle District of Tennessee are judges with original general jurisdiction. It was fitting and proper that Judge Ingram not be called to testify as a witness in federal court so long as the rights of appellant were protected. The rights of appellant were protected amply under the facts of the present case, in that his court-appointed attorney was accorded an opportunity to cross-examine Judge Ingram by interrogatories and to obtain a supplemental affidavit.
We hold that the findings of fact of the district court are not “clearly erroneous.”
The judgment of the district court is affirmed.
This court takes this occasion to express its appreciation and thanks to Mr. James 0. Bass, Jr. and Mr. J. Brad Reed of the Nashville bar, who, acting under appointment of the court as counsel for appellant, undertook the laborious preparation of this case on review, and submitted excellent briefs and arguments on the difficult issues presented.