Petitioner, a negro, was indicted for the crime of rape by the grand jury for Dallas County, Texas. When the case was called for trial he submitted to the court his verified written motion to quash the indictment because he had been denied the equal protection of the laws guaranteed by the Fourteenth Amendment. The grounds of his motion were that negroes had been excluded from the grand jury which returned the indictment, and that the jury commissioners and other state officers charged with the duty of organizing and impanelling grand juries in Dallas County have for many years systematically excluded and in this case did exclude negroes from the grand jury because of their race.
After hearing evidence the court denied the motion and proceeded with the trial, which resulted in a verdict and judgment of conviction. The Texas Court of Criminal Appeals upheld the trial court's ruling on the motion and affirmed the judgment. 157 S.W.2d 369. It held that petitioner had not sustained the burden of proof resting on him to show that the failure to select negroes for service on the grand juries in Dallas County was because of their race rather than their lack of statutory qualifications for grand jury service. We granted certiorari, 316 U.S. 655, 62 S.Ct. 1048, 86 L.Ed. --, to inquire whether the court's ruling is consonant with our decisions in Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; and Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84.
Article 339 of the Texas Code of Criminal Procedure provides that a grand juror must be a citizen of the state and county, qualified to vote there, a freeholder within the state or a householder within the county, of sound mind and good moral character, able to read and write. He must not have been convicted of a felony or be under indictment or other legal accusation of any felony. The section directs that 'whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a joror'.
On rejecting the proof of discrimination on which petitioner relied, the Texas Court of Criminal Appeals (157 S.W.2d 372) said 'appellant assumed the burden of sustaining his allegations by proof. He attempted to do so by showing certain facts from which, as he claims, such a conclusion could be reasonably drawn. He showed that 58,000 white persons and 8,000 negroes paid poll taxes in Dallas County, but the record is silent as to how many of them were male and how many were female persons; nor is it shown how many of these male persons could read and write; nor how many of them were freeholders in the state or householders in the county'. And the State argues here that in these circumstances there can be no inference that long-continued failure of the county officials to select members of the colored race to serve on grand juries is discriminatory, without proof that there are members of that race living in the county who are qualified to serve as grand jurors.
The state filed a general denial of petitioner's motion, but submitted no answering affidavits, and called no witnesses, and so the only question before us is whether petitioner made out a prima facie case of the discriminatory exclusion of negroes from the grand jury. Petitioner called as witnesses two of the three grand jury commissioners, whose duty it is to summon sixteen men, of whom twelve are selected for service on each grand jury in Dallas County (articles 338, 357). They testified that the commission had summoned, for service on the grand jury which returned the indictment, members of the white race with whom they were acquainted and whom they knew to be qualified to serve. They testified that members of the commission had no prejudice against the colored race; that they discussed the possibility of selecting negroes to serve, and that they knew negroes in the county. One testified: 'I personally did not know of a qualified negro that I thought would make a good grand juror'. The other testified he did not know which of the negroes of his acquaintance could read and write. Both testified that they made no investigation or inquiry to ascertain whether there were negroes in the county qualified for grand jury service.