Page:Bone v. State (1939).pdf/9

.] urged by the defendants and their counsel was not as to any individual member constituting the panels of the jury before which they were to be arrainged for trial. The objection was broader than that. It was made as against the panels of the jury, the venire as made up by administrative officers, wherein there had been the systematic exclusion of members of the negro race qualified to serve. If the objection made was tenable, and, no doubt, it was, it must have operated not to remove from the jury panel three members in whose places there might have been substituted qualified jurors of the negro race, but this objection was to the entire panel, and as Mr. Justice B said in the Pierre Case, supra, the venire should have been quashed. The removal of three from an improper venire upon which twenty-one improperly were left, certainly did not cure the error or meet the requirements of the substantive law of the land. The difference in this case and the Pierre Case is not the fact that an indictment was regularly found by the grand jury in the Louisiana case, while in the case at bar, under what we think is perhaps a more modern practice, defendants were charged and tried upon information filed by the prosecuting attorney, and, of course, in such instances grand jurors are not required and did not return any indictment.

We have just called attention, however, to the fact that even a grand jury indictment must be held bad and must be quashed, although it furnish no evidence of guilt of the accused and that fact be judicially ascertained and determined by announcement of the highest court of the state, yet notwithstanding that fact a defendant may not be so indicted if there is the substantial form and semblance of discrimination by the systematic exclusion of members of the colored race and one of that race be indicted by grand juries so formed. So in this case, which contains all the elements as set forth by the motion, which is undenied, proof of which, no doubt, was deemed available, there was error in the failure to quash the entire venire of the petit jury. On account of this error both of these cases must be reversed, and the cases be remanded for a new trial.