Plaintiffs in error were convicted in the circuit court of Escambia County, Florida, of the crime of murder, and sentenced to fifteen years in prison. The supreme court of the state having affirmed this sentence (30 So. 685), the case was brought here on writ of error.
The contention of plaintiffs in error is that they were denied the equal protection of the laws, by reason of an actual discrimination against their race. The law of the state is not challenged, but its administration is complained of. As said by their counsel:
'We do not contend that the colored men are discriminated against by any law of this state in the selection of names for jury duty, nor do we contend that a negro being tried for a criminal offense is entitled to a jury composed wholly or in part of members of his race; but do claim that when a negro is tried for a criminal offense, he is entitled to a jury selected without any discrimination against his race on account of race, color, or previous condition of servitude; and when this is not the case, he is denied the equal protection of the laws as guaranteed by the 14th Amendment to the Constitution of the United States.'
Such an actual discrimination is as potential in creating a denial of equality of rights as a discrimination made by law. But such an actual discrimination is not presumed. It must be proved or admitted. The record discloses these facts: On December 3, 1900, a grand jury was impaneled, and on December 5 returned an indictment charging the defendants with the crime of murder. On December 5 they filed a motion to quash the venire and the panels of the grand and petit jurors. In the motion it was stated that there was in the county as many colored citizens of sound judgment, approved integrity, fair character, and fully qualified for jury duty, as white, and stated as grounds for the motion that 'the county commissioners, in selecting the lists of names for jury duty for and during the present year, discriminated against all colored men of African descent, on account of their race, color, and previous condition of servitude, and from said lists were drawn the grand jury which found the indictment against these defendants and the petit jury which is to try them.' And that 'for many years all colored men of African descent have been discriminated against, and none have been selected or drawn or summoned as grand or petit jurors in this or in any of the courts of this county, although there are more than one thousand four hundred colored men in said county, a large number of whom are taxpayers, and of approved integrity, fair character, sound judgment, and intelligence, well known to the county commissioners to be such; and this discrimination is based entirely on race, color, and previous condition of servitude.'
On December 6 the state's attorney moved the court to strike out the defendants' motion, on the grounds that it was impertinent, submitted nothing for the court's determination or consideration, was not such a motion as the court could consider, and set up no state of facts which, if true, would justify the quashing of the venire. On the same day this motion of the state's attorney was sustained, and the motion of the defendants to quash was stricken out. On the same day they filed a motion to quash the indictment on substantially the same grounds. This motion was overruled. Special venires were issued before the trial jury was finally impaneled, and as one by one these venires were returned the defendants challenged the array of jurors on the ground that the sheriff, in the selection of jurors, knowingly discriminated against all colored men, and refused and failed to select any to serve on the jury, although knowing that there were more than five hundred colored men in the county fully qualified to serve. No evidence was received or offered in support of any of these several motions except an affidavit of the defendants attached to the motion to quash the indictment, stating that the facts set up in the motion were true 'to their best knowledge, information, and belief.'