Page:Bone v. State (1939).pdf/4

522 before motion herein was filed. To which action of the court in denying said motion defendants except."

After overruling the motion as set forth in the foregoing copied order made by the court, defendants wereput to trial. Rome Bone was convicted of murder in the first degree and sentenced to death by electrocution, and Mose Bone was convicted of murder in the second degree and sentenced to the penitentiary for a period of twenty-one years. Upon this appeal several other alleged errors were presented and argued in a somewhat voluminous brief.

We prefer, however, for reasons that are obvious and that will appear later, to discuss what we think is the most important proposition upon this appeal, the alleged error in the overruling and denial of the motion above set out. It is urged now by the state that no evidence was heard upon this motion and on that account no prejudicial error appears therefrom.

We proceed to a discussion of this first problem. This is not a case of first impression on this subjectin this state. A very similar matter was up for consid.eration and hearing nearly twenty years ago in the case of Ware v. State, 146 Ark. 321, 225 S.W. 626. In that case a similar question was presented to the trial court, as was before the circuit court of Pulaski county inthis case. A motion was filed in that case alleging identi.cal facts, with a similar prayer, that is to say, thatnegroes had been excluded from jury service becauseof, and on account of their race or color, and that this was a denial of equal protection of the law under the provisions of the Fourteenth Amendment to the Constitution of the United States. In addition to the allegation of these facts, the pleader in the Ware Case offered by a statement in the motion to make proof of the facts alleged, but in that case, as in this, the court, without hearing any evidence, overruled the motion and put the defendants to trial. It may be said that in neither case does the record disclose what the proof would have been had the court not promptly overruled the motion filed. In the Ware Case, supra, the court held that the