Gibson v. Mississippi/Opinion of the Court
The first question presented for our consideration relates to the application of the accused for the removal of the prosecution from the state court into the circuit court of the United States.

By section 641 of the Revised Statutes it is provided: 'When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state, where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of the citizens of the United States, * * * such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the state court shall cease,' etc.

In Neal v. Delaware, 103 U.S. 370, 385, 386, reference was made to the previous cases of Strauder v. West Virginia, Virginia v. Rives, and Ex parte Virginia, 100 U.S. 303, 313, 339, and to sections 641 and 1977 of the Revised Statutes; also, to the act of March 1, 1875 (18 Stat. 337, c. 114), which, among other things, declared that 'no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as grand or  etit juror in any court of the United States, or of any state, on account of race, color or previous condition of servitude.' The cases cited were held to have decided that the statutory enactments referred to were constitutional exertions of the power of congress to enact appropriate legislation for the enforcement of the provisions of the fourteenth amendment, which was designed, primarily, to secure to the colored race, thereby invested with the rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons; that, while a state, consistently with the purposes for which the amendment was adopted, may confine the selection of jurors to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications, and while a mixed jury in a particular case is not, within the meaning of the constitution, always or absolutely necessary to the enjoyment of the equal protection of the laws, and therefore an accused, being of the colored race, cannot claim, as matter of right, that his race shall be represented on the jury, yet a denial to citizens of the African race, because of their color, of the right or privilege accorded to white citizens or participating as jurors in the administration of justice would be a discrimination against the former inconsistent with the amendment and within the power of congress, by appropriate legislation, to prevent; that, to compel a colored man to submit to a trial before a jury drawn from a panel from which were excluded, because of their color, men of his race, however well qualified by education and character to discharge the functions of jurors, was a denial of the equal protection of the laws; and that such exclusion of the black race from juries because of their color was not less forbidden by law than would be the exclusion from juries, in states where the blacks have the majority, of the white race because of their color.

But those cases were held to have also decided that the fourteenth amendment was broader than the provisions of section 641 of the Revised Statutes; that, since that section authorized the removal of a criminal prosecution before trial, it did not embrace a case in which a right is denied by judicial action during a trial, or in the sentence, or in the mode of executing the sentence; that, for such denials, arising from judicial action after a trial commenced, the remedy lay in the revisory power of the higher courts of the state, and ultimately in the power of review which this court may exercise over their judgments, whenever rights, privileges, or immunities claimed under the constitution or laws of the United States are withheld or violated; and that the denial or inability to enforce in the judicial tribunals of the states rights secured by any law providing for the equal civil rights of citizens of the United States, to which section 641 refers, and on account of which a criminal prosecution may be removed from a state court, is primarily, if not exclusively, a denial of such rights, or an inability to enforce them, resulting from the constitution or laws of the state, rather than a denial first made manifest at or during the trial of the case.

We therefore held, in Neal v. Delaware, that congress had not authorized a removal of the prosecution from the state court where jury commissioners or other subordinate officers had, without authority derived from the constitution and laws of the state, excluded colored citizens from juries because of their race.

In view of this decision, it is clear that the accused in the present case was not entitled to have the case removed into the circuit court of the United States, unless he was denied, by the constitution or laws of Mississippi, some of the fundamental rights of life or liberty that were guarantied to other citizens resident in that state. The equal protection of the laws is a right now secured to every person wi hout regard to race, color, or previous condition of servitude; and the denial of such protection by any state is forbidden by the supreme law of the land. These principles are earnestly invoked by counsel for the accused. But they do not support the application for the removal of this case from the state court, in which the indictment was found, for the reason that neither the constitution of Mississippi nor the statutes of that state prescribe any rule for, or mode of procedure in, the trial of criminal cases which is not equally applicable to all citizens of the United States and to all persons within the jurisdiction of the state, without regard to race, color, or previous condition of servitude. Nor would we be justified in saying that the constitution and laws of the state had, at the time this prosecution was instituted, been so interpreted by the supreme court of Mississippi as to show, in advance of a trial, that persons of the race to which the defendant belongs could not enforce in the judicial tribunals of the state the rights belonging to them in common with their fellow citizens of the white race. If such had been the case, it might well be held that the denial of the equal protection of the laws arose primarily from the constitution and laws of the state. But when the constitution and laws of a state, as interpreted by its highest judicial tribunal, do not stand in the way of the enforcement of rights secured equally to all citizens of the United States, the possibility that, during the trial of a particular case, the state court may not respect and enforce the right to the equal protection of the laws, constitutes no ground, under the statute, for removing the prosecution into the circuit court of the United States in advance of a trial.

We may repeat here, what was said in Neal v. Delaware, namely, that, in thus construing the statute, 'we do not withhold from a party claiming that he is denied, or cannot enforce, in the judicial tribunals of the state, his constitutional equality of civil rights, all opportunity of appealing to the courts of the United States for the redress of his wrongs. For, if not entitled, under the statute, to the removal of the suit or prosecution, he may, when denied, in the subsequent proceedings of the state court, or in the execution of its judgment, any right, privilege, or immunity given or secured to him by the constitution or laws of the United States, bring the case here for review.'

So, in Bush v. Kentucky, 107 U.S. 110, 116, 1 Sup. Ct. 625, which was an indictment for murder, returned before, but tried after, the court of appeals of Kentucky held unconstitutional a statute of that commonwealth excluding from grnad or petit juries citizens of African descent because of their race and color, and had declared that thereafter every officer charged with the duty of selecting or summoning jurors must so act without regard to race or color, this court said: 'That decision was binding as well upon the inferior courts of Kentucky as upon all its officers connected with the administration of justice. After that decision, so long as it was unmodified, it could not have been properly said, in advance of a trial, that the defendant in a criminal prosecution was denied or could not enforce, in the judicial tribunals of Kentucky, the rights secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The last indictment was consequently not removable into the federal court for trial under section 641 at any time after the decision in Com. v. Johnson, 78 Ky. 509, had been pronounced. This point was distinctly ruled in Neal v. Delaware, and is substantially covered by the decision in Virginia v. Rives, 100 U.S. 313. If any right, privilege, or immunity of the accused, secured or guarantied by the constitution or laws of the United States, had been denied, by a refusal of the state court to set aside either that indictment, or the panel of petit jurors, or by any erroneous r ling in the progress of the trial, his remedy would have been through the revisory power of the highest court of the state, and ulitmately through that of this court.' See, also, In re Wood, 140 U.S. 278, 284, 11 Sup. Ct. 738.

In his petition for the removal of the prosecution into the circuit court of the United States, the defendant also states that, notwithstanding, at the time of selecting the grand jurors for the said December term, 1892, there were in the five supervisors' districts of the county of Washington 7,000 colored citizens competent for jury service, and 1,500 whites qualified to serve as jurors, there had not been, for a number of years, any colored man summoned on the grand jury in that county, and that colored citizens were purposely, on account of their color, excluded from jury service by the officers of the law charged with the selection of jurors. It is clear, in view of what has already been said, that these facts, even if they had been proved and accepted, do not show that the rights of the accused were denied by the constitution and laws of the state, and therefore did not authorize the removal of the prosecution from the state court. If it were competent, in a prosecution of a citizen of African descent, to prove that the officers charged with the duty of selecting grand jurors had, in previous years, and in other cases, excluded citizens of that race, because of their race, from service on grand juries,-upon which question we need not express an opinion,-it is clear that such evidence would be for the consideration of the trial court upon a motion by the accused to quash the indictment, such motion being based upon the ground that the indictment against him had been returned by a grand jury from which were purposely excluded, because of their color, all citizens of the race to which he belonged. U.S. v. Gale, 109 U.S. 65, 69, 3 Sup. Ct. 1. But there was no motion to quash the indictment. The application was to remove the prosecution from the state court, and a removal, as we have seen, could not be ordered upon the ground, simply, that citizens of African descent had been improperly excluded, because of their race, and without the sanction of the constitution and laws of the state, from service on previous grand juries, or from service on the particular grand jury that returned the indictment against the accused.

We do not overlook, in this connection, the fact that the petition for the removal of the cause into the federal court alleged that the accused, by reason of the great prejudice against him on account of his color, could not secure a fair and impartial trial in the county, and that he prayed an opportunity to subpoena witnesses to prove that fact. Such evidence, if it had been introduced, and however cogent, could not, as already shown, have entitled the accused to the removal sought; for the alleged existence of race prejudice, interfering with a fair trial, was not to be attributed to the constitution and laws of the state. It was incumbent upon the state court to see to it that the accused had a fair and impartial trial, and to set aside any verdict of guilty based on prejudice of race.

The petition for removal also proceeds upon on the ground that the indictment was returned by a grand jury organized under the Code of Mississippi which went into operation in 1892, after the date of the alleged murder, when, it is contended, it should have been organized in the mode required by the Mississippi Code of 1880, in force at the time the offense in question was committed.

The organization of the grand jury under a statute of the state (even if that statute was not applicable to offenses committed before its passage), rather than under a statute that was applicable, constitutes no ground for the removal of the prosecution into the federal court, unless the statute whose provisions were followed either expressly, or by its necessary operation, denied to the accused some 'right secured to him by any law pr viding for the equal civil rights of citizens of the United States.' It is not every denial by a state enactment of rights secured by the constitution or laws of the United States that is embraced by section 641 of the Revised Statutes. The right of removal given by that section exists only in the special cases mentioned in it. Whether a particular statute, which does not discriminate against a class of citizens in respect of their civil rights, is applicable to a pending criminal prosecution in a state court, is a question, in the first instance, for the determination of that court; and its right and duty to finally determine such a question cannot be interfered with by removing the prosecution from the state court, except in those cases which, by express enactment of congress, may be removed for trial into the courts of the United States. If that question involves rights secured by the constitution and laws of the United States, the power of ultimate review is in this court, whenever such rights are denied by the judgment of the highest court of the state in which the decision could be had. As the judges of the state courts take an oath to support the constitution of the United States as well as the laws enacted in pursuance thereof, and as that constitution and those laws are of supreme authority, anything in the constitution or laws of any state to the contrary notwithstanding, 'upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them'; and 'if they fail therein, and withhold or deny rights, privileges, or immunities secured by the constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the state in which the question could be decided to this court for final and conclusive determination.' Robb v. Connolly, 111 U.S. 624, 637, 4 Sup. Ct. 544.

But it is said that the statute under which facto, when applied to the case of the present facto, which applied to the case of the present defendant, and for that reason the judgment should be reversed. This question does not depend upon section 641 of the Revised Statutes, but upon the clause of the constitution forbidding a state to pass an ex post facto law. It is not clear that the record so presents this point as to entitle us to consider it, under the statutes investing this court with jurisdiction to re-examine the final judgments of the highest courts of the several states. But, as human life is involved, as the defendant pleaded not guilty, and as the state, by its attorney general, has discussed the question upon its merits, without disputing the authority of this court to pass upon it, we will assume, and we think it may be properly assumed, that the plae of not guilty, in connection with the petition for removal, sufficiently presents the question, and shows that the state court denied to the accused what he specially set up and claimed to be a right secured to him by the constitution of the United States.

By the constitution of Mississippi of 1890, which was in force at the time of the commission of the alleged offense, it was provided: 'No person shall be a grand or petit juror unless a qualified elector and able to read and write; but the want of any such qualification in any juror shall not vitiate any indictment or verdict. The legislature shall provide by law for procuring a list of persons so qualified, and the drawing therefrom of grand and petit jurors for each term of the circuit court.' Section 264. And by the same instrument it was also provided: 'All crimes and misdemeanors and penal actions shall be tried, prosecuted, and punished as though no change had taken place, until otherwise provided by law.' Section 283. By the Mississippi Code of 1880, in force when the alleged murder was committe , it was provided that 'all male citizens of the United States and not being under the age of twenty-one years, nor over the age of sixty years, and not having been convicted of any infamous crime, shall be qualified to serve as jurors within the county of their residence' (section 1661); and by section 1664 of the same Code it was provided that 'the board of supervisors shall, at least twenty days before the term of every circuit court, select twenty persons competent to serve as jurors in said county, to be taken, as nearly as conveniently may be, in equal numbers from each supervisor's district of the county, who shall serve as grand jurors for the next ensuing term of said court.'

The Annotated Code of 1892 went into effect on the 1st day of November, 1892, all prior statutes being thereby repealed. Sections 2358, 2361, and 2365 of that Code provide:

'Sec. 2358. The board of supervisors, at the first meeting in each year, or at a subsequent meeting if not done at the first, shall select and make a list of persons to serve as jurors in the circuit court for the next two terms to be held more than thirty days afterwards, and, as a guide in making the list, they shall use the registration books of voters; and it shall select and list the names of qualified persons of good intelligence, sound judgment and fair character, and shall take them, as nearly as it conveniently can, from the several election districts, in proportion to the number of the qualified persons in each, excluding all who have served on the regular panel within two years, if there be not a deficiency of jurors.'

'Sec. 2361. The names of the persons on the jury list shall be written on separate slips of paper by the clerk of the circuit court, and put in a box kept for that purpose, marked 'Jury Box,' which shall be securely locked and kept closed and sealed, except when opened to draw the jurors.'

'Sec. 2365. At each regular term of the circuit court, and at a special term if necessary, the judge shall draw, in open court, from the jury box the slips containing the names of fifty jurors to serve as grand and petit jurors for the first week and thirty to serve as petit jurors for each subsequent week of the next succeeding term of the court; and he shall make and carefully preserve separate lists of the names, and shall not disclose the name of any juror drawn. The slips containing the names so drawn shall be placed by the judge in envelopes, a separate one for each week, and he shall securely seal and deliver them to he clerk of the court, so marked as to indicate which contains the names of jurors for the first and each subsequent week. If in drawing it appears that any juror drawn has died, removed or ceased to be qualified or liable to serve as a juror, the judge shall cause the slip containing the name to be destroyed, the name to be stricken from the jury list, and he shall draw another name to complete the required number.'

The contention of the accused is that the constitution of the state (section 283) required that the indictment against him should have been by a jury of the grand inquest, organized as directed in the Code of 1880, because that Code was in force at the date of the murder charged to have been committed; and that the law upon that subject in the Code of 1892 would be ex post facto if applied to his case.

We perceive, in these constitutional and statutory provisions, nothing upon which to rest the suggestion that the accused was tried under a law that was ex post facto in its application to his case. At the time the homicide was committed no person was competent to be a grand or petit juror unless he was a qualified elector, and able to read and write. This requirement was attended by an injunction that the legislature should provide by law for procuring a list of persons so qualified, and for drawing therefrom grand and petit jurors for each term of the circuit court. Const. § 264. And, as we have seen, it was further provided that all crimes and misdemeanors and p nal actions should be tried, prosecuted, and punished as though no change had taken place until otherwise provided by law. Id. § 283. It is clear that the provision in the constitution of 1890 prescribing the qualifications of grand and petit jurors became the law of the state immediately upon the adoption of the constitution, and that legislation was not necessary to give it effect; and that the provisions of the Code of 1880 for the conduct of trials were superseded by those on the same subject in the Code of 1892.

It is equally clear that the provisions of the Code of 1892 regulating the selection of grand and petit jurors were not ex post facto as to the case of Gibson, although they were not in force when the alleged homicide was committed. The requirement of the constitution of 1890 that no person should be a grand or petit juror unless he was a qualified elector and able to read and write did not prevent the legislature from providing, as was done in the Code of 1892, that persons selected for jury service should possess good intelligence, sound judgment, and fair character. Such regulations are always within the power of a legislature to establish, unless forbidden by the constitution. They tend to secure the proper administration of justice, and are in the interest, equally, of the public and of persons accused of crime. We do not perceive that the Code of 1892, in force when the indictment was found, affected in any degree the substantial rights of those who had committed crime prior to its going into effect. It did not make criminal and punishable any act that was innocent when committed, nor aggravate any crime previously committed, nor inflict a greater punishment than the law annexed to such crime at the time of its commission, nor alter the legal rules of evidence in order to convict the offender. These are the general tests for determining whether a statute is applicable to offenses committed prior to its passage. Calder v. Bull, 3 Dall. 386, 390; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, Id. 333; Kring v. Missouri, 107 U.S. 221, 228, 2 Sup. Ct. 443; Duncan v. State, 152 U.S. 377, 382, 14 Sup. Ct. 570. The provisions in question related simply to procedure. They only prescribed remedies to be pursued in the administration of the law, making no change that could materially affect the rights of one accused of crime theretofore committed. The inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed. The mode of trial is always under legislative control, subject only to the condition that the legislature may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments. In Hopt v. Utah, 110 U.S. 574, 589, 4 Sup. Ct. 202, a statute that permitted the crime charged to be established by witnesses who, by the law at the time the offense was committed, were incompetent to testify in any case whatever was adjudged not to be ex post facto within the meaning of the constitution; the court observing that such a statute did not increase the punishment, nor change the ingredients of the offense, nor the ultimate facts necessary to establish guilt, but related 'to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure.' Hence it has been held that a general statute giving the government more challenges than it had at the time of the commission of a particular offense was constitutional. Walston v. Com., 16 B. Mon. 15, 39.

It is also assigned for error: (1) That the court ordered the sheriff 'to summon fifty men from the good and lawful body of Washington county,' etc., when he should have been ordered to summon 'persons qualified as jurors,' or 'said fifty men, jurors as required by law.' (2) That the order di ected the sheriff 'to summon said fifty men to serve as special jurors in the case of State v. John Gibson, when the order should have directed the sheriff to summon fifty men or persons as jurors, and to serve as jurors in the case of the State v. John Gibson as special jurors.' Without stopping to consider whether the particular order complained of was in accordance with correct practice, it is only necessary to say that the objection presented by the assignment of error raises no question of a federal nature. The conduct of a criminal trial in a state court cannot be reviewed by this court, unless the trial is had under some statute repugnant to the constitution of the United States, or was so conducted as to deprive the accused of some right or immunity secured to him by that instrument. Mere error in administering the criminal law of a state or in the conduct of a criminal trial, no federal right being invaded or denied, is beyond the revisory power of this court, under the statutes regulating its jurisdiction. See Andrews v. Swartz, 156 U.S. 272, 276, 15 Sup. Ct. 389; Bergemenn v. Backer, 157 U.S. 655, 659, 15 Sup. Ct. 727. Indeed, it would not be competent for congress to confer such power upon this or any other court of the United States.

We may observe that the former decisions of this court, upon which the counsel for the accused relied with much confidence, do not go to the extent claimed by them. Underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race. All citizens are equal before the law. The guaranties of life, liberty, and property are for all persons, within the jurisdiction of the United States, or of any state, without discrimination against any because of their race. Those guaranties, when their violation is properly presented in the regular course of proceedings, must be enforced in the courts, both of the nation and of the state, without reference to considerations based upon race. In the administration of criminal justice no rule can be applied to one class which is not applicable to all other classes. The safety of the race the larger part of which was recently in slavery lies in a rigid adherence to those principles. Their safety-indeed, the peace of the country and the liberties of all-would be imperiled, if the judical tribunals of the land permitted any departure from those principles based upon discrimination against a particular class because of their race. We recognize the possession of all these rights by the defendant; but upon a careful consideration of all the points of which we can take cognizance, and which have been so forcibly presented by his counsel, who are of his race, and, giving him the full benefit of the salutary principles heretofore announced by this court in the cases cited in his behalf, we cannot find, from the record before us, that his rights, secured by the supreme law of the land, were violated by the trial court or disregarded by the highest court of Mississippi. We cannot say that any error of law of which this court may take cognizance was committed by the courts of the state, nor, as matter of law, that the conviction of the accused of the crime of murder was due to prejudice of race.

The judgment is therefore affirmed. 

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