Ross v. State

233 S.W.2d 126, 156 Tex. Crim. 164, 1950 Tex. Crim. App. LEXIS 1497

• Court: Court of Criminal Appeals of Texas
• Decided: April 19, 1950
• Docket: No. 24630
• Status: Published

Opinions

BEAUCHAMP, Judge.

The appeal is from a conviction for murder, with the death penalty.

The indictment alleges that Herman Lee Ross, the appellant killed Guido Nesti on the 1st day of June, 1948, by shooting him with a gun.

Nesti was the keeper of a package store. Appellant went to his place at night and, in the perpetration of a robbery, shot his victim to death while he was standing with his hands up. He then walked away from the scene. Parties who witnessed the crime recognized appellant as he walked away, according to their testimony on the trial. Further facts in the case, including the circumstances of his arrest, his resistance and his shooting at the officers, certainly do not detract from the heinousness of his crime.

Thomas Dent, an attorney of the colored race, represented appellant and timely filed his motion to quash the indictment on the ground that the grand jury returning the indictment was composed entirely of white men. It is his position that in the impanelment of the grand jury discrimination against the colored race was shown contrary to the provisions of the Constitution of the United States. This raises a federal question, of which the Supreme Court of the United States has jurisdiction. If that court assumes jurisdiction, its decision is final.

Upon the issue thus raised there is in the record an agreement between state’s attorneys and appellant’s attorney* approved by the trial judge, that all appellate courts might determine the merits of appellant’s motion to quash the indictment on the issue of discrimination on such agreed statement of facts. It is not thought necessary to set out the facts incorporated in the agreement. It is appellant’s contention that under the authority of the opinions of the Supreme Court of the United States the facts, upon the question of discrimination, bring him squarely within the holdings in the cases of Neal v. Delaware, 103 U. S. 370; 26 L. Ed. 567; Norris v. Alabama, 294 U. S. 587, 79 L. Ed. 1074, 55 S. Ct. 579; Pierre v. Louisiana, 306 U. S. 354, 83 L. Ed. 757, 59 S. Ct. 536; Smith v. Texas, 140 Tex. Cr. R. 565, 136 S. W. 2d 842, 311 U. S. 128, 85 L. Ed. 84; 61 S. Ct. 164; Hill v. Texas, 144 Tex. Cr. R. 415, 157 S.W. 2d 369, 316 U.S. 400, 86 L. Ed. 1559, 62 S. Ct. 1159. The facts in the two Texas cases are so similar to those shown in the agreed statement found in the present record that no reasonable ground can be discovered why the holding of the Supreme Court of the Unitéd States in the Smith and Hill cases would not be followed by that court.

The facts of this case show without dispute a murder for the purpose of perpetrating a robbery. The appellant is a Negro, his victim a white man, an Italian by birth. In addition to the circumstances of the crime, appellant’s own witness placed on the stand by his attorney to testify in his behalf, Dr. E. A. Etter, testified that he had known appellant all of his life; that he had long been a sufferer from tuberculosis and syphilis; that: “He has been an outcast, a waif of society, * * He said that appellant had a tendency to kill and wanted to kill, and that he had never mixed with society or made any contribution to it.

It would in the opinion of the writer, be a reflection on the colored race to say that they would not return an indictment in this case, even if the grand jury was composed of Negroes in its entirety. We disclaim any intention to hold that any one of them would object to the return of a bill of indictment of this appellant, or any other person where the evidence was even similar to that now before us. However, we must recognize the holdings of the Supreme Court of the United States in cases so very similar that they cannot be distinguished from that now before us. Galveston County, with several thousand Negro voters, has had two Negroes on grand juries during the past thirty years. This showing will not satisfy the court that has definitely and positively expressed its view on the question of discrimination in the authorities cited.

The judgment of the trial court is reversed and the prosecution is ordered dismissed.