# Wood v. Brush

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United States Supreme Court
140 U.S. 278
Wood v. Brush
The petitioner stated that he was a citizen of the United States of the African race; that he was convicted in the court of general sessions of the peace for the city and county of New York of the crime of murder in the first degree, and, being sentenced to death under chapter 489 of the Laws of 1888 of that state, was committed to the custody of the appellee, to await the execution of the sentence, which was fixed to occur in the week beginning December 1, 1890; that the indictment upon which he was arraigned was found by a grand jury of that court at its October term, 1889, and his conviction by a petit jury was at its March term, 1890; 'that from the panels and lists of jurors whence said grand jury and petit jury were drawn and from said juries all persons of African race and descent and black in color were excluded' because of their race, and in said city, county, and state have always been excluded for a like reason; that upon his arraignment on the 28th day of October, 1889, he was then without counsel or means of procuring counsel, and was required to and did plead to the indictment in ignorance of his rights in the premises; that upon the trial he was ignorant of the above facts 'without his fault, and was therefore unable to challenge or otherwise object to the lists, panels, and array of grand and petit jurors for the ground aforesaid;' that after conviction, learning the facts in relation to such exclusion of persons of his race from the list of grand and petit jurors, he moved, with due diligence, upon allegation and tender of proof of the facts aforesaid, for a new trial; that according to law and the practice of the court his motion should have been entertained and decided upon its merits, and, upon due proof, should have been granted, but the court refused altogether to entertain it or to pass upon his said contention upon proofs tendered, and a time was thereupon fixed for his execution; that by reason of such facts 'he has been deprived of all the privileges and just rights of citizens of the United States, and of the equal protection of the laws, and is in like manner deprived of his liberty, and about to be deprived of his life, without due process of law;' and that his commitment and detention under said conviction and sentence are void and of no validity. The petitioner prayed also for a writ of certiorari to the court of general sessions of the peace and its clerk, commanding it or him to certify to the court below true copies of the lists of grand jurors for the October term, 1889, of that court, of the lists and panels of trial jurors or additional trial jurors for its March term, 1890, and of the indictment and other papers in the prosecution under and by virtue of which he was held in custody.
The above motion by the prisoner was in writing, and was to the effect that the verdict of guilty be vcat ed and set aside, the judgment of conviction stayed, and a new trial granted upon the following grounds: 'First. That the defendant is of the African race, and black in color, and that all persons of this race and color were excluded in the drawing of the panel of the petit jurors, from which the trial jury herein was selected. Second. That by reason of such exclusion the defendant was denied the equal protection of the laws, and did not have the full and equal benefit thereof in the proceedings for the security of his life and liberty as is enjoyed by white persons, and to which he is and was justly entitled. Third. That all persons of the African race and of color were excluded from the grand jury by which the indictment against the defendant was found, and upon which he was tried, and consequently said indictment was illegal and void, and the defendant ought not to have been put upon trial upon said indictment, as said trial court was without jurisdiction. Fourth. That persons of the African race and color have always been excluded from the list and drawings of both the grand and petit jurors in and for the city and county of New York, though there were and for many years last past have been many such persons qualified by law in all respects to sit as grand and petit jurors in this court, and residing in the city and county of New York. Fifth. That the honorable recorder who presided at the trial, as a member of the board who selected the grand jury by which defendant was indicted, had judicial knowledge and notice of the exclusion of persons of said African race and color, and should have advised the defendant of such fact when called upon to plead, as defendant was without counsel, and unable to procure the same. Sixth. That the honorable recorder, sitting as trial judge, had judicial knowledge and should have taken judicial notice of the fact of the exclusion in manner aforesaid of persons of the African race and color from the panel of petit jurors in attendance at the term of court from which the jury in defendant's case was selected. Seventh. That the entire proceedings herein were contrary to the just rights and interests of the defendant, and not in accordance with the guarantied rights of the defendant. This motion is based upon the affidavit of the defendant, herewith filed, all proceedings in said cause, and the request to subpoena and examine witnesses concerning the material allegations in the affidavit of said Wood contained.'
There was a further motion at the same time that subpoenas be issued directed to the commissioners of 'jurors of the city of New York and to all other officers, clerks, and persons who are known to the court to possess personal knowledge of the facts relating to these matters alleged in the affidavit of defendant at this time filed, and whose testimony may enable defendant to establish the facts in said affidavit set forth, and that said commissioners and others be examined, and their evidence be taken in support of this motion, and before the court passes upon the same.'
This motion was supported by the affidavit of Wood, which, after reciting his conviction, and stating that when arraigned he had no counsel, and was without means to procure any, and that the plea of not guilty was entered without an examination of the indictment by counsel for him, proceeded: 'Deponent further says that he is a citizen of the United States, and was born in the state of Virginia, and that he is of the African race and descent, and black in color. Deponent further says that there are at least several thousand citizens of the African race and descent and black in color who are and were for more than ten years last past residents of the city, county, and state of New York, and who are qualified in all respects to sit as grand and petit jurors in the court where this deponent was heretofore tried, convicted, and sentenced to death; that the officers authorized by the laws of the state of New Yor to select the names of and the persons to serve as grand jurors and petit jurors to serve for and in the court of general sessions of the peace of the city and county of New York selected no persons of the African race or color to serve as such jurors, but, on the contrary, excluded all persons of such race and color from those to serve as and be drawn for jurors; that said officers in and for said city and county of New York drew from the list of those so selected to serve as grand jurors the grand jurors by whom the indictment against the defendant was found, and drew from the list of those selected to serve as petit jurors the petit jurors before whom the defendant was to be and was tried for his life under said indictment, and that from both the grand and petit jurors sitting in said court by whom the deponent was indicted and tried all persons qualified by law to serve as jurors who were persons of the African race and color were excluded because of their race and color, and that no one person of said African race and color was drawn or summoned, but that said grand and petit jurors were composed exclusively of white persons, and that, in fact, all persons, as deponent is informed and believes, of the African race, although qualified to serve as jurors, have always in said city, county, and state been excluded from serving upon juries because of their race and color, and that by reason of such exclusion the said juries have been composed wholly of the white race; and the defendant, in the finding of the said indictment and the trial thereupon, was denied the equal protection of the laws, and did not have the full and equal benefit of all laws and proceedings in the said state of New York for the security of his person as is enjoyed by white persons. Deponent asks that said judgment and the verdict herein be set aside and a further hearing be granted and such proceedings had as may be consistent with defendant's just rights.'
This was the case presented to the court below, and is the case presented on this appeal from the order refusing to grant the writ of habeas corpus.
R. J. Haire, for appellant.
Chas. F. Tabor, Atty. Gen., and I. H. Maynard, Asst. Atty. Gen., for appellee.
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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