Whitfield, J.,
(after stating the facts).-—Having been convicted of embezzlement, the plaintiff in error insists here on writ of error that the trial court erred in overruling his challenges to the array of jurors made on the ground that there was illegal discrimination in the selection and summoning of the jurors.
It is not contended that the statutes of this state under which the jurors were selected and summoned are violative of an constitutional provision; but it is urged that the action of the officers of the state in the execution or administration of the statutory provisions for selecting and summoning the jurors was such that citizens were discriminated against on account of race or color and that thereby the state has denied the plaintiff in error the equal protection of the laws in violation of the constitution of the United States.
Section one of the fourteenth amendment to the constitution of the United States provides that: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No [103] state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The constitution of the United States within its limited sphere is the supreme law of the land and it is the duty of all officials whether legislative, judicial, executive, administrative or ministerial to so perform every official act as not to violate the constitutional provisions.
The duty rests upon all’courts, state and national, to guard, protect and enforce every right granted or secured by the constitution of the United States whenever such rights are involved in any proceeding before the court and the right is duly and properly claimed or asserted.
Where a discrimination has been made against persons because of race or color in a state statute or in any action of officials thereunder, in the selection, summoning or empaneling of jurors, any person of the race so discriminated against who is to be tried on a criminal charge by such jurors may by proper proceedings duly taken for that purpose have the statute or the action taken thereunder annulled by the court as being a denial by the state to the person so being tried of the equal protection of the laws in violation of the fourteenth amendment to the constitution of the United States. This rule is the law of the land because it has been so determined by t'he supreme court of the United States acting within its judicial power. Straunder v. West Virginia, 100 U. S. 303; Virginia v. Rives, 100 U. S. 313; Ex Parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. Rep. 904; Cater v. State of Texas, 177 U. S. 443, 20 Sup. Ct. Rep. 687; Rogers v. Alabama, 192 U. S. 226, 48 Sup. Ct. Rep. 417; State v. Peoples, 131 N. C. [104]*104784, 42 S. E. Rep. 814; State v. Warner, 165 Mo. 399) 65 S. W. Rep. 584; Green v. State 73 Ala. 26.
The statutory provisions of this state for selecting, summoning and empaneling jurors do not discriminate, or authorize any discrimination against any person -for jury duty because of race or color, and do not violate the constitutional provision above quoted. It is the duty of the officers charged with the administration or execution of such statutory provisions, to do so without violating the constitution of the United States, by discriminating against persons on account of race or color or by other illegal action. If in the selection, summoning or empaneling of jurors, a discrimination is made against any citizen on account of race or color, such action is not authorized by the statute, is illegal, and upon proper proceeding duly taken for that purpose, should be set aside and annulled in toto.
Where the statute of a state in its terms does not abridge a privilege or immunity of citizens of the United States, or does not deny to any person the0 equal protection of the laws, the action of officials in executing the provisions of such statute is presumed to be legal. When illegal action by an official in the administration or execution of a valid statute is charged, such illegal action should be duly, properly, directly and distinctly alleged and if not admitted by demurrer or otherwise, should be duly proven or proof thereof duly offered according to the usual and proper mode of procedure in such cases. Brownfield v. South Carolina, 189 U. S. 426, 23 Sup. Ct. Rep. 513; Tarrance v. Florida, 188 U. S. 519, 47 Sup. Ct. Rep. 572; Williams v. State of Mississippi 170 U. S. 213, 18 Sup. Ct. Rep. 583; Carter v. State of Texas, 177 U. S. 442, 20 Sup. Ct. Rep. 687; Smith v. State of Mississippi, 162 U. S. 592, 16 Sup. Ct. Rep. 900; Tarrance v. State 43 Fla. 446, 30 South. Rep. 685; Montgomery v. State, 53 Fla. 115, 42 South. Rep. 894.
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Whitfield, J.,
(after stating the facts).-—Having been convicted of embezzlement, the plaintiff in error insists here on writ of error that the trial court erred in overruling his challenges to the array of jurors made on the ground that there was illegal discrimination in the selection and summoning of the jurors.
It is not contended that the statutes of this state under which the jurors were selected and summoned are violative of an constitutional provision; but it is urged that the action of the officers of the state in the execution or administration of the statutory provisions for selecting and summoning the jurors was such that citizens were discriminated against on account of race or color and that thereby the state has denied the plaintiff in error the equal protection of the laws in violation of the constitution of the United States.
Section one of the fourteenth amendment to the constitution of the United States provides that: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No [103] state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The constitution of the United States within its limited sphere is the supreme law of the land and it is the duty of all officials whether legislative, judicial, executive, administrative or ministerial to so perform every official act as not to violate the constitutional provisions.
The duty rests upon all’courts, state and national, to guard, protect and enforce every right granted or secured by the constitution of the United States whenever such rights are involved in any proceeding before the court and the right is duly and properly claimed or asserted.
Where a discrimination has been made against persons because of race or color in a state statute or in any action of officials thereunder, in the selection, summoning or empaneling of jurors, any person of the race so discriminated against who is to be tried on a criminal charge by such jurors may by proper proceedings duly taken for that purpose have the statute or the action taken thereunder annulled by the court as being a denial by the state to the person so being tried of the equal protection of the laws in violation of the fourteenth amendment to the constitution of the United States. This rule is the law of the land because it has been so determined by t'he supreme court of the United States acting within its judicial power. Straunder v. West Virginia, 100 U. S. 303; Virginia v. Rives, 100 U. S. 313; Ex Parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. Rep. 904; Cater v. State of Texas, 177 U. S. 443, 20 Sup. Ct. Rep. 687; Rogers v. Alabama, 192 U. S. 226, 48 Sup. Ct. Rep. 417; State v. Peoples, 131 N. C. [104]*104784, 42 S. E. Rep. 814; State v. Warner, 165 Mo. 399) 65 S. W. Rep. 584; Green v. State 73 Ala. 26.
The statutory provisions of this state for selecting, summoning and empaneling jurors do not discriminate, or authorize any discrimination against any person -for jury duty because of race or color, and do not violate the constitutional provision above quoted. It is the duty of the officers charged with the administration or execution of such statutory provisions, to do so without violating the constitution of the United States, by discriminating against persons on account of race or color or by other illegal action. If in the selection, summoning or empaneling of jurors, a discrimination is made against any citizen on account of race or color, such action is not authorized by the statute, is illegal, and upon proper proceeding duly taken for that purpose, should be set aside and annulled in toto.
Where the statute of a state in its terms does not abridge a privilege or immunity of citizens of the United States, or does not deny to any person the0 equal protection of the laws, the action of officials in executing the provisions of such statute is presumed to be legal. When illegal action by an official in the administration or execution of a valid statute is charged, such illegal action should be duly, properly, directly and distinctly alleged and if not admitted by demurrer or otherwise, should be duly proven or proof thereof duly offered according to the usual and proper mode of procedure in such cases. Brownfield v. South Carolina, 189 U. S. 426, 23 Sup. Ct. Rep. 513; Tarrance v. Florida, 188 U. S. 519, 47 Sup. Ct. Rep. 572; Williams v. State of Mississippi 170 U. S. 213, 18 Sup. Ct. Rep. 583; Carter v. State of Texas, 177 U. S. 442, 20 Sup. Ct. Rep. 687; Smith v. State of Mississippi, 162 U. S. 592, 16 Sup. Ct. Rep. 900; Tarrance v. State 43 Fla. 446, 30 South. Rep. 685; Montgomery v. State, 53 Fla. 115, 42 South. Rep. 894.
[105] The constitutional guaranty of equal protection of the laws does not give to any person a right to a jury composed in whole or in part of his own or of any particular race; but every person being tried in a court of justice is entitled to have a jury selected and summoned without illegal discrimination of any character. A large discretion is necessarily allowed the officers charged with the responsible duty of selecting jurors. This discretion should be carefully exercised so as to aid in the proper administration of the law by securing the best juries possible without illegal discrimination against any qualified citizen of the state. Illegal discrimination in selecting persons to serve as jurors affects the validity of the panel or venire as an entirety without reference to the impartiality of individual jurors on the panel. In the eyes of .the law all persons of all races are regarded alike, and no person has any right to insist that a person of his race or color shall be on the jury by which he is tried when charged with crime, or when he is otherwise a party to an action or proceeding. But every person has a right to insist that officers of the law in selecting lists of names of persons to compose the juries in the courts shall not in such selection discriminate against any citizen subject to jury duty because of his race, color or previous condition of servitude, and if such officers do so discriminate they violate the constitution of the United States and the entire lists of jurors so selected is vitiated and illegal. Montgomery v. State, 53 Fla. 115, 42 South. Rep. 894; Virginia v. Rives, 100 U. S. 313, 323; State v. Brown, 119 Mo. 527, 24 S. W. Rep. 1027; 25 S. W. Rep. 200; Lewis v. State, Miss. 45 South. Rep. 360; State v. Casey, 44 La. Ann. 969, 11 South. Rep. 583; Bullock v. State, 65 N. J. L. 557, 47 Atl. Rep. 62, S. C. 86 Am. Ct. Rep. 668; Lawrence v. Commonwealth, 81 V., 484; State v. Sloan, 97 N. C. 499, 2 S. E. Rep. 666.
[106] On a former writ of error in this case (53 Fla. 115, 42 South. Rep. 894), it was held that an allegation that the “refusal of the sheriff to select any men of the African race to serve on the jury is on account of their race, color and previous condition of servitude,” is a sufficient charge of discrimination to entitle defendant to prove it. This is the law of the case and is applicable to both the challenges now before the court.
Where testimony is admitted without objection in a judicial proceeding it is treated as received by consent. When so admitted the testimony, if not illegal, should be given all the probative force that its ordinary meaning and effect will afford. The testimony in support of the challenges is not full and clear; but it was admitted without objection, and no testimony was offered in rebuttal. Under these circumstances the evidence adduced by the defendant in support of his challenges to the jurors should be given all the probative force and effect that the meaning of the testimony naturally and ordinarily affords to the mind without technical requirements or limitations. There is uncontroverted testimony that the people of one race and color are numerically in the majority in Duval county where the trial was had, and that about two-thirds of the men of that race are of fair character, sound judgment and intelligence, and fully qualified for jury duty; but that in the list of several hundred names drawn for duty, not more than half dozen, if any, names of men of that race are found; and also that colored men were drawn on the juries when N. B. Broward was sheriff, but it has been a long time since men of that race have served on the jury in the court. A portion of this testimony may be merely opinions or conclusions, but it was admitted without objection and was-not impeached or contradicted in any way. If testimony that is not strictly admissible as distinguished from being illegal, is admitted without [107] objection, and it is not controverted in any way, the courts are not required to give such testimony a narrow or restrictive probative force and effect.
While the presumption is that the officers have legally discharged their duty in selecting and summoning the jurors under statutes that do not authorize any illegal discrimination, yet this is but a presumption that may be overcome by evidence to the contrary. There is uncontroverted testimony that the people of one race and color are largely in the majority of the population in the county where the court was held; that about two-thirds of the men of that race are fully qualified for jury duty; that a list of several hundred names of men selected for jury duty for the year does not contain the names of a half dozen, if any, mien of that race; that men of that race have served on the jury in the past in the county; and that the people of that race are engaged in pursuits that should improve their intellectual and moral condition. As there has been no charge in the law that would exclude men of any race from jury duty, this evidence tended to show a discrimination on account of race or color; and such uncontroverted evidence is at least sufficient to require some proof that, notwithstanding the facts in evidence, there was no discrimination on account of race or color against any person of any race in the selection and summoning of the jurors. See Hubbard v. State, 43 Texas Crim. Rep. 564, 67 S. W. Rep. 413; Whitney v. State, 43 Tex. Crim. Rep. 197, 63 S. W. Rep. 879; Eastling v. State, 69 Ark. 189, 62 S. W. Rep. 584; State v. Murray, 47 La. Ann. 1424, 17 South. Rep. 832; Haggard v. Commonwealth, 78 Ky. 366; Lewis v. State, Miss. 45 South. Rep. 360.
As there was uncontroverted evidence tending to show discrimination against persons on account of race or color in the selection of jurors whose names were on [108] the panels, sufficient to overcome the presumption in favor of the legality of the acts of the officers, the challenges interposed should have been sustained. See Smith v. State, 42 Tex. Cr. Rep. 220, 58 S. W. Rep. 97; Kipper v. State, 42 Tex. Cr. Rep. 613, 62 S. W. Rep. 420; Whitney v. State, 42 Tex. Cr. Rep. 283, 59 S. W. Rep. 895.
The judgment is reversed and the cause is remanded for further proceedings according to law.
Shackleford, C. J. and Cockrell, J., concur
Taylor, Hocker, and Parkhill, JJ., concur in the opinion.