Page:Bone v. State (1939).pdf/5

.] challenge to the petit jury, made when the jury was called for the trial, was in due time.

One of the errors found in the Ware Case was in the fact, as disclosed by the opinion, that it was error to overrule the motion without hearing evidence in support of its allegation. Of course, this implies that had the court heard this evidence, and if it had been sufficient to establish the fact of the systematic exclusion from jury service of members of the negro race solely on account of race or color, it was the duty of the court, upon such finding, to quash the venire or jury panel so formed under such conditions and circumstances. The court so declared.

The last statement finds conclusive authority and support in many decisions of the United States Supreme Court, some of which will be cited in our discussion.

Counsel for the appellants in this case make very strong averments of the fact that they were present in court with witnesses, ready to offer proof in support of the motion they had filed. The record does not disclose that they tendered any proof, so we must rely upon the recitals of the record. We find the court denying the motion filed and giving the reason for the action taken. The order is copied above.

We accord to the trial court every consideration and reasonable inference to support the action of the court,but when the court sets forth the sole reason for an order made in a particular matter, we are not at liberty to assume that there was some other reason not specifically set forth and not a reasonable inference or conclusion from the statement made, so it must appear, as it does conclusively in this case, that the court overruled this motion, not because its statements were untrue, or were not susceptible of proof, but rather on account of the fact that the error was confessed by anticipation of the motion filed and an effort was made to cure this error by excusing three members of the regular paneland substituting in their place three qualified negro electors, and these were placed upon the first panel and made a part thereof, taking the places of the three regular