P. 87. 211 Ga. 339, 85 S.E.2d 773, reversed and remanded. Daniel Duke argued the cause and filed a brief for petitioner.
The judgments of the trial court there affirmed are established as the law of the case and the enumeration of error seeking to re-adjudicate such questions presents nothing for decision by this court. See Rawlins v. State, 126 Ga. 96 ( 54 S.E. 924), and Reece v. State, 211 Ga. 339 ( 85 S.E.2d 773), reversed on other grounds 350 U.S. 85 ( 76 S.C. 167, 100 LE 77). 2.
MOBLEY, Justice. For previous appearances of this case in this court, see Reece v. State, 210 Ga. 578 ( 82 S.E.2d 10); 211 Ga. 339 ( 85 S.E.2d 773); 212 Ga. 161 ( 91 S.E.2d 29). The defendant has been tried again for the offense of rape and found guilty without a recommendation of mercy. His motion for new trial on the general and two special grounds was denied, and to that judgment he has excepted.
DUCKWORTH, Chief Justice. The Supreme Court of the United States having reversed on December 5, 1955, the decision and judgment of this court in Reece v. State, 211 Ga. 339 ( 85 S.E.2d 773), it is hereby ordered that the judgment of the Supreme Court of the United States be and the same is hereby made the judgment of this court; and in consequence thereof the judgment of the Superior Court of Cobb County is Reversed. All the Justices concur.
Between 1935 and 1959, the Supreme Court reviewed at least nine state court convictions raising this issue, reversing the convictions in eight, often after a careful de novo review of the evidence.Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958), reversing 232 La. 289, 94 So.2d 262 (1957); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955), reversing remanding 211 Ga. 339, 85 S.E.2d 773 (violation of 14th Amendment to require challenge to grand jury composition before indictment); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950), reversing 154 Tex.Crim. 648, 216 S.W.2d 813 (1949); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947), reversing 201 Miss. 410, 29 So.2d 96; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945), affirming 148 Tex.Crim. 523, 182 S.W.2d 723 (1944) (facts in record did not prove systematic exclusion); Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942), reversing 144 Tex.Crim. 415, 157 S.W.2d 369; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939), reversing 189 La. 764, 180 So. 630; Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938), reversing 269 Ky. 743, 108 S.W.2d 716 (1937); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), reversing 229 Ala. 226, 156 So. 556 (1934). See also Martin v. Texas, 200 U.S. 316, 26 S.Ct
Between 1935 and 1959, the Supreme Court reviewed at least nine state court convictions raising this issue, reversing the convictions in eight, often after a careful de novo review of the evidence.Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958), reversing 232 La. 289, 94 So.2d 262; Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955), reversing remanding 211 Ga. 339, 85 S.E.2d 773 (violation of 14th Amendment to require challenge to grand jury composition before indictment); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950), reversing 154 Tex.Crim. 648, 216 S.W.2d 813; Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947), reversing 201 Miss. 410, 29 So.2d 96; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945), affirming 148 Tex.Crim. 523, 182 S.W.2d 723 (facts in record did not prove systematic exclusion); Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942), reversing 144 Tex.Crim. 415, 157 S.W.2d 369; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939), reversing 189 La. 764, 180 So. 630; Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938), reversing 269 Ky. 743, 108 S.W.2d 716); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), reversing 229 Ala. 226, 156 So. 556. See also Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497 (1906);
The only reason Negroes were not selected to serve was that the Judge selecting the Grand Jury thought that the white persons selected were better qualified. In the recent case of Reece v. State of Georgia, 349 U.S. 944, 75 S.Ct. 877, 99 L. Ed. 1270; 350 U.S. 85, 76 S.Ct. 167, 169, 100 L.Ed. 77; 211 Ga. 339, 85 S.E.2d 773; 350 U.S. 943, 76 S.Ct. 297, 100 L.Ed. 822, the United States Supreme Court laid the following predicate: "This Court over the past 50 years has adhered to the view that valid grand jury selection is a constitutionally protected right. The indictment of a defendant by a grand-jury from which members of his race have been systematically excluded is a denial of his right to equal protection of the laws.
The court, per Warren, C.J., referred to the pattern of proof in Norris v. State of Alabama, supra, and described this as the "rule of exclusion," which the State had not explained as due to circumstance or chance. Reece v. State of Georgia, 1955, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77, reversing 211 Ga. 339, 85 S.E.2d 773, is a preliminary procedure case companion to Michel v. State of Louisiana, supra, and turns more on the due process clause for decision, although the question raised in the court below, which was overruled for procedural reasons, was one coming under a charge of systematic exclusion of Negroes from the grand jury. The ratio decidendi of this case affords no precedent here.