(Syllabus.)

1. Constitutional Law — Excluding Negroes from Serving as Jurors as Denial of Equal Protection. Whenever by any action of the 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 or petit jurors in the criminal prosecution of a person of the African race, the equal protection of the law is denied to him contrary to the Fourteenth Amendment to the Constitution of the United States.

2. Jury — Exclusion of Negroes Solely Because of Race or Color not Shown by Fact That None Were on Jury. The mere fact that there were no persons of African descent upon the jury summoned for the purpose of trying the accused does not of itself show the exclusion of such persons solely because of race or color.

3. Constitutional Law — Mixed Jury not Guaranteed to Negro Defendant. A person of African descent charged with crime cannot of right demand a mixed jury, some of which shall be of his or her race, nor is a jury of that kind guaranteed by said Fourteenth Amendment to any race.

4. Same — Refusal to Quash Panel of Jurors Held Erroneous. For facts in evidence sufficient to sustain the motion to quash the panel of jurors upon the ground that citizens of African descent had been excluded from the panel solely on account of their race or color, see opinion.

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Appeal from District Court, Muskogee County; W.J. Crump, Judge.

Jewell Carrick was convicted of murder and she appeals. Reversed and remanded.

On the 30th day of October, 1927, Jewell Carrick, a young colored girl, killed Henry Ausler, a colored man, by stabbing him to death with a knife. Information was duly filed in the district court of Muskogee county, charging her with the murder of Henry Ausler in said county. The defendant was duly arraigned, and entered a plea of not guilty.

On the trial, the jury returned a verdict finding defendant Jewell Carrick guilty of the crime of murder as charged in the information and assessing her punishment at death. The judgment and sentence rendered in pursuance of the verdict was rendered on the 5th day of May, 1928. To reverse the judgment, the defendant perfected an appeal by case-made.

The evidence on the part of the state, summarized, is to the effect: That Henry Ausler on Sunday evening, October 30, 1927, was at the home of the defendant, Jewell Carrick. That Emma Sanders and Dovie James, both colored, were present at the time. That Jewell Carrick left the room and returning claimed that some small change, amounting to two or three dollars, a knife, and a ring were missing. She accused the deceased of taking the same, and he left the house. Shortly after, defendant, accompanied by Emma Sanders, also left. That near the hour of 9 o'clock that night defendant found the deceased in a colored root beer stand on North Second street, city of Muskogee, talking to several persons who were in there at the time. She spoke to the deceased, demanding that he return to her the articles above

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mentioned. Here the evidence conflicts; some witnesses claiming that defendant held an open knife in her right hand, others claiming that she did not. When defendant and Emma Sanders, her companion, started to go out, the deceased called Emma Sanders and gave her a knife. Outside of the root beer stand another conversation took place between defendant and the deceased, and defendant advanced upon the deceased with an open knife in her upraised hand. The deceased attempted to strike and kick her, then turned and ran down Second street. That just as he turned his back to her he slipped, and defendant struck the deceased with a knife, stabbing him in the back. The deceased ran north on Second street to Court and then west, followed by defendant holding an open knife in her hand. That near the intersection of Court and Lombard streets defendant caught up with the deceased, and she stabbed him again, from the effects of which he died in a few minutes thereafter.

The facts as shown by the evidence on the part of the defendant may be summarized as follows: That on the day of the homicide, Jewell Carrick was at her home taking a bath when the deceased came there. That the money, knife, and ring mentioned above were taken while she was out of the room. That the deceased did not deny having the same, and when she requested him to return the same to her, he ran out of the house. The testimony of both the defendant and Dovie James is to the effect that at the time defendant was in a pleasant mood when she left her home, and that outside the root beer stand the deceased struck her over the eye with his fist and kicked her in the stomach, that defendant was pregnant, and that said assault and battery was

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of sufficient force and violence as to cause her to have a "miscarriage" the next day.

The defense interposed was that of insanity. In support of this defense there was evidence tending to show that, at the time of the killing, the defendant, by reason of unsoundness or weakness of mind, was not criminally responsible for her acts, that her father, Henry Carrick, was irrational, and that one of his brothers and one sister had traces of insanity and were not bright.

The testimony further shows that a few months before she was born her father in a cruel manner beat and whipped her mother; that her mother was forced to flee to the home of a neighbor for protection, and that this condition existed up to a short time before the birth of defendant; that her father suffered from syphilis, and communicated this disease to defendant's mother prior to defendant's birth. It is further shown that when defendant was 3 years old she was kicked in the face by a mule, which made and left an ugly scar; that she was knocked unconscious, and was in a stupor for a long time thereafter; that as the result of said blow she was not of sound mind; that she was dull of comprehension and not in possession of all her faculties. It is further shown that after she was struck and kicked by the deceased she was taken to the home of a neighbor woman and treated by a physician for the wound over her eye and the blow in her stomach resulting in a "miscarriage."

The testimony of three medical experts was to the effect that defendant could have been suffering from three forms of insanity at the time of the homicide: First, hereditary insanity; second, traumatic insanity, resulting from the kick of the mule; third,

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puerperal insanity, resulting from the kick in the stomach by the deceased and the shock following the same resulting in a miscarriage — any one of which could have caused defendant to have been irresponsible for her acts, and that at the time defendant in their opinion was insane.

The foregoing statement of the case is sufficient for the purpose of this opinion.

C.E. Corbett, for plaintiff in error.

Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and S.H. Lattimore, Co. Atty., of Muskogee, for the State.

DOYLE, P.J. (after stating the facts as above). Appellant, Jewell Carrick, was informed against for the murder of Henry Ausler. The jury found her guilty of murder and fixed her punishment at death. Motion for new trial was duly filed and overruled, and, in pursuance of the verdict of the jury, she was sentenced to suffer the punishment of death by electrocution as provided by law.

To reverse the judgment, an appeal to this court was duly perfected.

The first question presented is whether or not the trial court erred in overruling appellant's motion to quash the panel of jurors.

One of the grounds of the motion to quash is as follows:

"Fifth. Defendant states further that she is a person of African descent, known as `Negro' and that the panel from which this jury was drawn and from which all the jurors and juries for this term was drawn or shall and must be drawn and selected for the trial of this cause, is composed exclusively of white persons or

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members of the Caucasian race; and that all persons of color, or of African descent known as `Negroes,' were excluded from serving on this jury and on all juries during this term of court by the jury commissioners of Muskogee County, Oklahoma, on account of their race and color and for no other reason.

"Sixth. That the aforesaid jury commissioners have for many years past wilfully, knowingly, illegally, wrongfully and by means of a well understood and clever scheme, excluded all persons of African descent known as `Negroes' from serving on juries in this court and county solely on account of their race and color, all of which is a discrimination against this defendant, since she is a Negro, and a member of African descent, and that such discrimination aforesaid is a denial to her of the equal protection of the laws, and of her civil rights guaranteed and vouchsafed her by the Constitution and laws of the United States in the Fourteenth and Fifteenth Amendments thereof.

"Seventh. That Muskogee County has a large colored population constituting, so defendant is informed and believes, and avers, about one-fourth of the total population of said county, and constituting and composing about one-fourth of the qualified voters of said county under the Constitution and laws of the United States and the State of Oklahoma, who are qualified for jury service in said county and state, many of whom were selected by the government of the United States to serve as soldiers in the World's Great War and many of whom were sent across the seas and served the colors and government in the bloody fields of France and other foreign fields and fought bravely, nobly and fearlessly, and notwithstanding and regardless of this, and the still further fact that a large proportion of the persons of African descent known as `Negroes' who are qualified and eligible for jury service, as aforesaid, and who have proven their worth as loyal citizens of the United States, the State of Oklahoma and the County and City of Muskogee, who pay taxes, work the roads, vote for, and promote a campaign for bonds for both county and municipal improvement,

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in Muskogee County, Oklahoma, and last but not least, lend their each and every effort to promote peace, happiness and prosperity in their respective community and to keep down strife, confusion and disorder between the races and members of society, the jury commissioners of this county wilfully, knowingly and purposely refused, failed and neglected to select any person or persons whomsoever of the descent hereinabove mentioned, to-wit: `African descent,' and designate to serve as jurors, solely on account of their race and color, and that such refusal and exclusion, as aforesaid, is a denial to the defendant of the equal protection of the law as guaranteed to her by and under the Fourteenth and Fifteenth Amendments of the United States Constitution and the laws of the State of Oklahoma."

In support of the motion to quash the panel, appellant called as a witness Mr. Ed Sweeney, who testified that he was a member of the jury commission and participated in the selection of jurors for this term of court; that the list of jurors were taken from the tax rolls.

He further testified as follows:

"Q. Did you see any names of members of the Colored race on either of the lists? A. I presume that there was quite a number of them there, but I don't know.

"Q. Will you say that you did find the names of Negroes on the list? A. I don't remember recognizing any. The book was marked with a `C,' those I understand were Colored.

"Q. Did you or any of your associates select any of those names marked with a `C' after this Colored People, as members of this jury? A. Not that I know of."

Mr. Maurice Hopping, called as a witness, testified that he was a member of the jury commission and participated in the selection of jurors for this term of

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court; that the list of jurors were selected from the tax rolls. He further testified as follows:

"Q. Do you know whether there was on that list anything marked to distinguish the members as to race? A. There is in one instance.

"Q. What instance? A. Some of them have marked behind them a small `C' and another instance where I marked a cross myself, and there were some that didn't have any mark to indicate whether they were colored men or white men.

"Q. You did find something to indicate the members of race? A. I did.

"Q. Did you, in going over that list that you had, did you place on there names of any where they were names of Negroes, or where there was anything to indicate the race? A. Not if I knew it.

"Q. Why didn't you? A. Because I never saw a member of the colored race qualified as a juror in this state, and I don't believe, taking them as a whole, that Negroes are competent to serve as jurors.

"Q. Then you are prejudiced against the Negro race? A. No, sir. I don't believe they would be competent to try one of these cases. I don't believe they would be competent to try one of their own race or any one else.

"Q. That's all."

The evidence in support of the motion further shows that a large number of the colored population of Muskogee county possessed the qualifications of jurors. It also appears that the proof offered in support of the motion was undisputed.

The court, after hearing the evidence in support of the motion to quash the panel, overruled said motion. Exception reserved.

It has been repeatedly held by the Supreme Court

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of the United States that, when a person of African descent, charged with crime, challenges the array or panel of jurors on the ground of the exclusion of citizens of the African race therefrom, he must affirmatively prove that such citizens were excluded solely because of their race or color. Martin v. Texas, 200 U.S. 316, 26 S. Ct. 338, 50 L. Ed. 497; Brownfield v. South Carolina, 189 U.S. 426, 23 S. Ct. 513, 47 L. Ed. 882; Tarrance v. Florida, 188 U.S. 519, 23 S. Ct. 402, 47 L. Ed. 572.

Upon a careful consideration of all the evidence offered in support of appellant's challenge to the panel, we cannot resist the conclusion that the trial court committed reversible error in overruling the motion to quash the panel of jurors, because it was shown and admitted that the aforesaid jury commissioners had purposely excluded from the jury list because of their color citizens of the African race, qualified to perform jury service.

It is well settled that a denial to citizens of the African race solely on the ground of their race and color of the right or privilege accorded to white citizens of participating as jurors in the administration of justice is a discrimination contrary to the Fourteenth Amendment of the Constitution of the United States, which declares that: "No 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 state of Oklahoma declares that: "The Constitution of the United States is the supreme law of the land." Const. art. 1, § 1.

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The Supreme Court of the United States has repeatedly held that a person of African descent accused of crime is denied the equal protection of the laws, contrary to the guaranty of the Fourteenth Amendment, if citizens of the African race are excluded from service upon the grand jury returning the indictment against him or the petit jury before whom he is placed upon trial solely because of their race or color. Strauder v. W. Va., 100 U.S. 303, 25 L. Ed. 664. And it makes no difference whether such exclusion because of race and color is effected by a statute or by the arbitrary and wrongful acts of the officers in the administration of the law. Gibson v. Mississippi, 162 U.S. 565, 16 S. Ct. 904, 40 L. Ed. 1075; Carter v. Texas, 177 U.S. 442, 20 S. Ct. 687, 44 L. Ed. 839.

The fact that there were no persons of African descent upon the list of jurors selected by the jury commissioners or summoned for the purpose of trying appellant does not of itself show the exclusion of such persons solely because of race or color. Martin v. Texas, supra.

In Ex parte Virginia, 100 U.S. 339, 25 L. Ed. 676, the Supreme Court of the United States, speaking by Mr. Justice Strong, said that: "A state acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the state, and is clothed with the state's power, his act is that of the

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state. This must be so, or the constitutional prohibition has no meaning."

In Martin v. Texas, 200 U.S. 319, 26 S. Ct. 338, 50 L. Ed. 498, the Supreme Court of the United States, speaking of Mr. Justice Harlan, said: "For it is the settled doctrine of this court that `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 14th Amendment of the Constitution of the United States.' Carter v. Texas, 177 U.S. 442, 447, 44 L. Ed. 839, 841, 20 S. Ct. 687; Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664; Neal v. Delaware, 103 U.S. 370, 397, 26 L. Ed. 567, 574; Gibson v. Mississippi, 162 U.S. 565, 40 L. Ed. 1075, 16 S. Ct. 904; Rogers v. Alabama, 192 U.S. 226, 231, 48 L. Ed. 417, 419, 24 S. Ct. 257."

Speaking by Mr. Justice Harlan in Neal v. Delaware, supra, the Supreme Court of the United States said: "We repeat what was said" by us in Va. v. Rives, 100 U.S. 322, 25 L. Ed. 667, "that while a colored citizen, party to a trial involving his life, liberty, or property, cannot claim, as matter of right, that his race shall have a representation on the jury, and while a mixed jury, in a particular case, is not within the meaning of the Constitution, always or absolutely necessary to the equal protection of the laws, it is a right to which he is entitled, `That in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them, because of their color.'"

In Smith v. State, 4 Okla. Cr. 328, 111 P. 960, 140 Am. St. Rep. 688,

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this court said: "The Fourteenth Amendment to the Constitution of the United States does not require the jury commissioners or other officers charged with the selection of juries to place Negroes upon the jury list simply because they are Negroes. The allegation that the jury was composed solely of white men does not violate the Fourteenth Amendment to the Constitution of the United States, and proof of that fact would not support the motion. The ground upon which the decisions of the Supreme Court of the United States rests is not that Negroes were not selected to sit upon juries, but that they were excluded therefrom solely on account of their race or color. In other words, there is no law to compel the jury commissioners or other officers of the court to select or summon Negroes as jurors. They can select any persons whom they regard as competent to serve as jurors without regard to their race or color, but the law prohibits them from excluding Negroes solely on account of their race or color."

And see McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735.

Upon the record before us we are of opinion that appellant was denied the equal protection of the laws contrary to the guaranty of the said Fourteenth Amendment.

Other questions are argued by counsel, but, in the view we have taken of the one considered, they are not important. In view of a trial before another jury, we will not comment on the evidence.

For the error indicated, the judgment appealed from is reversed, and the cause remanded to the trial court for further proceedings according to law.

The warden of the state penitentiary will surrender

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appellant, Jewell Carrick, to the sheriff of Muskogee county, who will hold her in custody until she be discharged or her custody changed by due course of law.

EDWARDS and DAVENPORT, JJ., concur.