Brown v. Allen

delivered the opinion of the Court.

Certiorari was granted to review judgments of the United States Court of Appeals for the Fourth Circuit. 343 U. S. 903; 342 U. S. 953; 342 U. S. 941. These cases *447were argued last year. As the records raised serious federal constitutional questions upon which the carrying out of death sentences depended and procedural issues of importance in the relations between states and the Federal Government upon which there was disagreement in this Court, we decided to set the cases for reargument. We have now heard the cases again.

The judgments of affirmance were entered October 12, 1951, on appeal from three judgments of the United States District Court for the Eastern District of North Carolina, refusing writs of habeas corpus sought by prisoners convicted in that state. We conclude that all required procedure for state review of the convictions had been exhausted by petitioners in each case before they sought the writs of habeas corpus in the federal courts. In each case petitions for certiorari to this Court for direct review of the state judgments rendered by the highest court of the state in the face of the same federal issues now presented by habeas corpus had been denied.1

It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review with another petition for certiorari directed to this Court.2 It is to be noted that an applicant is barred unless he has “exhausted the remedies available in the courts of the State ... by any available procedure.” The legislative history shows that this paragraph, in haec verba, was presented to the Congress with the recommendation of *448the Judicial Conference. The legislative history of 28 U. S. C. § 2254 has no discussion of the considerations which moved congressional enactment other than that contained in S. Rep. No. 1559. But see a similar clause § 2254 in H. R. 3214, 80th Cong., 1st Sess.; H. R. 3214, 80th Cong., 2d Sess.; S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9; Report of the Judicial Conference of Senior Circuit Judges, 1947, pp. 17-20.

The second paragraph of § 2254 has been construed by several courts of appeals. In Ekberg v. McGee, 191 F. 2d 625, the Ninth Circuit refused to consider that the statute meant to deny a federal forum where state procedures were inexhaustible. The Third Circuit in Master v. Baldi, 198 F. 2d 113, 116, held that the exhaustion of one of several available alternative state remedies with this Court’s denial of certiorari therefrom is all that is necessary. In Bacom v. Sullivan, 181 F. 2d 177, and Bacom v. Sullivan, 194 F. 2d 166, the Fifth Circuit ruled that when a federal question had been presented to the state courts by at least one post-conviction procedure, certiorari on the same question having been once denied by this Court, there appeared a unique and extraordinary circumstance justifying federal examination under Darr v. Burford, 339 U. S. 200.3

*449When, in April 1948, Judge Maris presented the Judicial Conference draft of § 2254 to the Senate Judiciary Subcommittee, the language of the revision of 28 U. S. C., on which the hearings were being held, set out three bases for exercise of federal jurisdiction over applications for habeas corpus from state prisoners. Under the language of the bill as it then read, an application might have been entertained where it appeared (1) that the applicant had exhausted the remedies available in the courts of the state, or (2) where there was no adequate remedy available in such courts, or (3) where such courts had denied the applicant a fair adjudication of the legality of his detention under the Constitution and laws of the United States. In accepting the recommendation of the Judicial Conference, the Congress eliminated the third basis of jurisdiction. S. Rep. No. 1559, p. 9, shows the reason for this as follows:

“The second purpose is to eliminate, as a ground of Federal jurisdiction to review by habeas corpus judgments of State courts, the proposition that the State court has denied a prisoner a ‘fair adjudication of the legality of his detention under the Constitution and laws of the United States.’ The Judicial Conference believes that this would be an unde*450sirable ground for Federal jurisdiction in addition to exhaustion of State remedies or lack of adequate remedy in the State courts because it would permit proceedings in the Federal court on this ground before the petitioner had exhausted his State remedies. This ground would, of course, always be open to a petitioner to assert in the Federal court after he had exhausted his State remedies or if he had no adequate State remedy.

“The third purpose is to substitute detailed and specific language for the phrase ‘no adequate remedy available.’ That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment.”

If the substitution for “adequate remedy available” of the present definition was intended by the Congress to eliminate the right of a state prisoner to apply for relief by habeas corpus to the lower federal courts, we do not think that the report would have suggested that a remedy for denial of a “fair adjudication” was in the federal court. The suggested elimination of district and circuit courts does not square with the other statutory habeas corpus provisions. See 28 U. S. C. §§ 2241, 2242, 2251, 2252, 2253, 3d paragraph. We are unwilling to conclude without a definite congressional direction that so radical a change was intended.

In each of these cases the District Court, in determining the propriety of its granting the writ, considered the effect of our refusal of certiorari on the same questions upon direct review of the judgments of the highest court of the state. As that question, pretermitted in our ruling in Darr v. Burford, 339 U. S. 200, 214-217, a case where no certiorari was sought here from state denial of collateral relief by habeas corpus from imprisonment, had given rise to definite differences of opinion in the federal *451courts, a ruling here was necessary.4 There is a similar difference in this Court.5 As other issues command a majority that upholds the judgments of the Court of Appeals, this opinion is that of the Court although it represents the minority view on the effect of our denial *452of certiorari. The position of the majority upon that point is expressed by the opinion of Mr. Justice Frankfurter, post, p. 488. A summary review of habeas corpus practice in the federal courts in relation to state criminal convictions will be found in Hawk v. Olson, 326 U. S. 271, 274, and Darr v. Burford, 339 U. S. 200, 203. It is hoped the conclusions reached herein will result in the improvement of the administration of justice and leave the indispensable function of the Great Writ unimpaired in usefulness.

II. Effect of Former Proceedings.

The effect to be given this Court’s former refusal of certiorari in these cases was presented to the District Court which heard the applications for federal habeas corpus upon full records of the state proceedings in the trial and appellate courts. In No. 32, Brown v. Allen, the District Court, upon examination of the application, the answer, and the exhibits, adopted, without hearing argument or testimony, the findings of the sentencing judge with respect to both the composition of the grand jury and the voluntary character of the confession. These were the federal constitutional issues involved in the state trial. The record which the District Judge had before him embraced the record of the case in the North Carolina courts and this Court, including all the relevant portions of the transcript of proceedings in the sentencing court. The District Court then dismissed the petition. Sub nom. Brown v. Crawford, 98 F. Supp. 866.

In No. 22, Speller v. Allen, the petition for habeas corpus in the District Court raised again the same federal question which had been passed upon by the trial and ap*453pellate courts in North Carolina and which had been offered to this Court on petition for certiorari; to wit, the jury commissioners had “pursuant to a long and continuous practice, discriminated against Negroes in the selection of juries, solely on account of race and/or color.” The District Court had before it the record which had been filed in the Supreme Court of North Carolina on appeal. Included in this record was the same transcript of proceedings in the trial court which had been before the State Supreme Court. In addition, the District Court took further evidence by way of testimony and stipulation. The District Court, upon examination of all the evidence and the stipulations, adopted the findings of the sentencing judge with respect to the composition of the trial jury. It added that petitioner “failed to substantiate the charge that he did not have a trial according to due process, . . . .” The court then vacated the writ; and held that while the petition could be dismissed “solely in the light of the procedural history,” there was the added alternative ground of failure to substantiate the charge. Sub nom. Speller v. Crawford, 99 F. Supp. 92, 97.

In No. 20, Daniels v. Allen, petitioners at the state trial made a timely motion to quash the indictment and challenged the array, alleging discrimination against Negroes in the selection of both grand and petit jurors in contravention of the guarantees of the Fourteenth Amendment. Timely objection was also made to admission in evidence of what were alleged to be coerced confessions. Petitioners contend that the admission of these confessions violated their due process rights under the Fourteenth Amendment. They also urge that the refusal of the Supreme Court of North Carolina to examine the merits of the trial record in the state courts because of their failure to serve a statement of the case on appeal until one day beyond the period of limitation, is a denial of equal protection under the Fourteenth Amendment. In their *454application to the District Court, petitioners repeated once again those federal constitutional questions which had earlier been presented to the sentencing court and the Supreme Court of North Carolina and which had also been repeated in their petition for certiorari filed in this Court.

In examining the application, the District Court Judge studied the records of the trial and appellate courts of North Carolina, including a transcript of the proceedings in the sentencing court. He concluded that the findings of the judge of the sentencing court on the matter of whether the jury had been properly selected were supported by all the evidence and that it was not shown that there was a purposeful and systematic exclusion of Negroes solely on account of race. He also found that the trial judge correctly determined that the confessions were voluntary and that the instruction concerning the confessions was adequate. In addition the District Judge heard all evidence offered by the prosecution or defense.

The District Court Judge did advert to the circumstance that this Court had denied a petition for certiorari on the same questions, and he further observed that to his mind the procedural history of the case did not make it appear that petitioners were denied the substance of a fair trial. He added that petitioners “failed to substantiate the charges made.” 99 F. Supp. at 216. The writ was vacated and the application dismissed. On the procedural history, the District Court refused to entertain the request. Sub nom. Daniels v. Crawford, 99 F. Supp. 208.

The records of the former proceedings thus determined the action of the United States District Court. The fact that further evidence was heard in two of the cases was to assure the judge that the prisoners were not held in custody in violation of the Constitution. In dismissing these petitions for habeas corpus the District Court did not treat our denial of certiorari as conclusive.

*455In the Brown case, the last one decided, Judge Gilliam based his decision on this finding of fact:

“12. The facts found by the trial Judge, in respect to the composition of the grand jury, are supported by the evidence before him, and these findings and the conclusion thereon are adopted as findings in this respect, and the facts found by that Court in respect to the question of admission of statements made by the defendant are also supported by the evidence, and these findings and the conclusions thereon are likewise adopted.” 98 F. Supp. 866, 870.

The court cited from Stonebreaker v. Smyth, 163 F. 2d 498, 499, in support of the above statement that this is the proper rule:

“ ‘While action of the Virginia courts and the denial of certiorari by the Supreme Court were not binding on the principle of res judicata, they were matters entitled to respectful consideration by the court below; and in the absence of some most unusual situation, they were sufficient reason for that court to deny a further writ of habeas corpus.’ ” 98 F. Supp. at 868.

In the Speller case, the pith of his conclusion is stated as follows:

“ ‘The Court now concludes that the writ should be vacated and the petition dismissed upon the procedural history and the record in the State Courts, for the reason that habeas corpus proceeding is not available to the petitioner for the purpose of raising the identical question passed upon in those Courts.’ ” 99 F. Supp. 92, 95.

To this was added the alternative ground of agreement with the conclusions of the sentencing court. See pp. 452-453, supra.

*456In the Daniels case, decided the same day, the District Court left open the question of its power to reexamine, 99 F. Supp. at 213, and concluded on the record that the State had afforded a fair trial.

A. Effect of Denial of Certiorari. — In cases such as these, a minority of this Court is of the opinion that there is no reason why a district court should not give consideration to the record of the prior certiorari in this Court and such weight to our denial as the District Court feels the record justifies. This is the view of the Court of Appeals. 192 F. 2d 763, 768 et seq.; Speller v. Allen, 192 F. 2d 477. This is, we think, the teaching of Ex parte Hawk, 321 U. S. 114, 118, and White v. Ragen, 324 U. S. 760, 764, 765. We have frequently said that the denial of certiorari “imports no expression of opinion upon the merits of a case.” House v. Mayo, 324 U. S. 42, 48; Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U. S. 251, 258. Cf. Ex parte Abernathy, 320 U. S. 219. When on review of proceedings no res judicata or precedential effect follows, the result would be in accord with that expression, that statement is satisfied. But denial of certiorari marks final action on state criminal proceedings. In fields other than habeas corpus with its unique opportunity for repetitious litigation, as demonstrated in Dorsey v. Gill, 80 U. S. App. D. C. 9, 148 F. 2d 857, see 7 F. R. D. 313, the denial would make the issues res judicata. The minority thinks that where a record distinctly presenting a substantial federal constitutional question disentangled from problems of procedure is brought here by certiorari and denied, courts dealing with the petitioner’s future applications for habeas corpus on the same issues presented in earlier applications for writs of certiorari to this Court, should have the power to take the denial into consideration in determining their action. We indicated as much in House v. Mayo, supra, p. 48, and Ex parte Hawk, supra, *457p. 117, when we specifically approved a district court’s refusal to reexamine ordinarily the questions passed upon by our denial. Permitting a district court to dismiss an application for habeas corpus on the strength of the prior record should be a procedural development to reduce abuse of the right to repeated hearings such as were permitted during the period when there was no review of the refusal of a habeas corpus application, Salinger v. Loisel, 265 U. S. 224. See 61 Harv. L. Rev. 657, 670. Compare the protection given by statute against abuse of habeas corpus in federal criminal proceedings, 28 U. S. C. § 2244. Since a federal district court has power to intervene, there is a guard against injustice through error. Darr v. Burford, supra, at 214. It should be noted that the minority does not urge that the denial of certiorari here is res judi-cata of the issues presented. It is true, as is pointed out in the opinion of Mr. Justice Frankfurter, the records of applications for certiorari to review state criminal convictions, directly or collaterally, through habeas corpus or otherwise, are not always clear and full. Some records, however, are. It seems proper for a district court to give to these refusals of certiorari on adequate records the consideration the district court may conclude these refusals merit. This would be a matter of practice to keep pace with the statutory development of 1867 that expanded habeas corpus. We think it inconsistent to allow a district court to dismiss an application on its appraisal of the state trial record, as we understand those do who oppose our suggestion (see Mr. Justice Frankfurter’s opinion, post, pp. 500-501 and 503-506), but to refuse to permit the district court to consider relevant our denial of certiorari.

B. Effect of State Court Adjudications. — With the above statement of the position of the minority on the weight to be given our denial of certiorari, we turn to another question. The fact that no weight is to be given *458by the Federal District Court to our denial of certiorari should not be taken as an indication that similar treatment is to be accorded to the orders of the state courts. So far as weight to be given the proceedings in the courts of the state is concerned, a United States district court, with its familiarity with state practice is in a favorable position to recognize adequate state grounds in denials of relief by state courts without opinion. A fortiori, where the state action was based on an adequate state ground, no further examination is required, unless no state remedy for the deprivation of federal constitutional rights ever existed. Mooney v. Holohan, 294 U. S. 103; Ex parte Hawk, 321 U. S. 114. Furthermore, where there is material conflict of fact in the transcripts of evidence as to deprivation of constitutional rights, the District Court may properly depend upon the state’s resolution of the issue. Malinski v. New York, 324 U. S. 401, 404. In other circumstances the state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata.6

Furthermore, in view of the consideration that was given by the District Court to our denial of certiorari in these cases, should we return them to that court for reexamination in the light of this Court’s ruling upon the effect to be given to the denial? We think not. From the findings of fact and the judgments of the District Court we cannot see that such consideration as was given by that court to our denials of certiorari could have had any effect on its conclusions as to whether the respective defendants had been denied federal constitutional protec*459tion.7 It is true, under the Court’s ruling today, that the District Court in each of the three cases erroneously gave consideration to our denial of certiorari. It is also true that its rulings, set out above, show that without that consideration, it found from its examination of the state records and new evidence presented that the conduct of the respective state proceedings was in full accord with due process. Such conclusions make immaterial the fact that the trial court gave consideration to our denial of certiorari.

The District Court and the Court of Appeals recognized the power of the District Court to reexamine federal constitutional issues even after trial and review by a state and refusal of certiorari in this Court. Darr v. Burford, 339 U. S., at 214. The intimation to the contrary in the Speller case, 99 F. Supp., at 95, see p. 453, supra, must be read as the Court’s opinion after the hearing. “In the review of judicial proceedings the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”8 Certainly the consideration given by the District Court to our former refusals of cer-tiorari on the issues presented cannot affect its determinations that there was no merit in any of the applications for habeas corpus. 98 F. Supp. 868, 870; 99 F. Supp. *46097, 99; 99 F. Supp. at 216. Where it is made to appear affirmatively, as here, that the alleged error could not affect the result, such errors may be disregarded even in the review of criminal trials.9 Whether we affirm or reverse in these cases, therefore, does not depend upon the trial court’s consideration of our denial of certiorari but upon the soundness of its decisions upon the issues of alleged violation of federal procedural requirements or of petitioner’s constitutional rights by the North Carolina proceedings. We now take up those problems.

III. Right to Plenary Hearing.

Petitioner alleges a procedural error in No. 32, Brown v. Allen. As we stated in the preceding subdivision, the writ of habeas corpus was refused on the entire record of the respective state and federal courts. 98 F. Supp. 866. It is petitioner’s contention, however, that the District Court committed error when it took no evidence and heard no argument on the federal constitutional issues. He contends he is entitled to a plenary trial of his federal constitutional issues in the District Court. He argues that the Federal District Court, with jurisdiction of the particular habeas corpus, must exercise its judicial power to hear again the controversy notwithstanding prior determinations of substantially identical federal issues by the highest state court, either on direct review of the conviction or by post-conviction remedy, habeas corpus, coram nobis, delayed appeal or otherwise.10

Jurisdiction over applications for federal habeas corpus is controlled by statute.11 The Code directs a court en*461tertaining an application to award the writ.12 But an application is not “entertained” by a mere filing. Liberal as the courts are and should be as to practice in setting out claimed violations of constitutional rights, the applicant must meet the statutory test of alleging facts that entitle him to relief.13

The word “entertain” presents difficulties. Its meaning may vary according to its surroundings.14 In § 2243 and § 2244 we think it means a federal district court’s conclusion, after examination of the application with such accompanying papers as the court deems necessary, that a hearing on the merits legal or factual is proper. See Walker v. Johnston, 312 U. S. 275, 283, First and Second; Smith v. Baldi, post, p. 561, at p. 568. Even after deciding to entertain the application, the District Court may determine later from the return or otherwise that the hearing is unnecessary.

It is clear by statutory enactment that a federal district court is not required to entertain an application for habeas corpus if it appears that “the legality of such detention has been determined by a judge or court of the *462United States on a prior application for a writ of habeas corpus.” 15 The Reviser’s Notes to this section in House Report No. 308, 80th Cong., 1st Sess., say that no material change in existing practice is intended. Nothing else indicates that the purpose of Congress was to restrict by the adoption of the Code of 1948 the discretion of the District Court, if it had such discretion before, to entertain petitions from state prisoners which raised the same issues raised in the state courts.18

Furthermore, in enacting 28 U. S. C. § 2254, dealing with persons in custody under state judgments, Congress made no reference to the power of a federal district court over federal habeas corpus for claimed wrongs previously passed upon by state courts.17 See discussion at p. 447, supra. A federal judge on a habeas corpus application is required to “summarily hear and determine the facts, and dispose of the matter as law and justice require,” 28 U. S. C. § 2243. This has long been the law. R. S. § 761, *463old 28 U. S. C. § 461. It was under this general rule that this Court approved in Salinger v. Loisel, 265 U. S. 224, 231, the procedure that a federal judge might refuse a writ where application for one had been made to and refused by another federal judge and the second judge is of the opinion that in the light of the record a satisfactory conclusion has been reached.18 That principle is also applicable to state prisoners. Darr v. Burford, supra, 214-215.

Applications to district courts on grounds determined adversely to the applicant by state courts should follow the same principle — a refusal of the writ without more, if the court is satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion. Where the record of the application affords an adequate opportunity to weigh the sufficiency of the allegations and the evidence, and no unusual circumstances calling for a hearing are presented, a repetition of the trial is not required. See p. 457, supra. However, a trial may be had in the discretion of the federal *464court or judge hearing the new application. A way is left open to redress violations of the Constitution. See p. 447, supra. Moore v. Dempsey, 261 U. S. 86. Although they have the power, it is not necessary for federal courts to hold hearings on the merits, facts or law a second time when satisfied that federal constitutional rights have been protected.19 It is necessary to exercise jurisdiction to the extent of determining by examination of the record whether or not a hearing would serve the ends of justice. *465Cf. 28 U. S. C. § 2244. See n. 15, supra. As the state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has been determined, on the facts presented, by the highest state court with jurisdiction, whether through af-firmance of the judgment on appeal or denial of post-conviction remedies. See White v. Ragen, 324 U. S. 760, 764.

As will presently appear, this case involves no extraordinary situation. Since the complete record was before the District Court, there was no need for rehearing or taking of further evidence. Treating the state’s response to the application as a motion to dismiss, the court properly granted that motion. Discharge from conviction through habeas corpus is not an act of judicial clemency but a protection against illegal custody.

The need for argument is a matter of judicial discretion. All issues were adequately presented. There was no abuse.

IV. Disposition of Constitutional Issues.

Next we direct our attention to the records which were before the District Court in order to review that court’s conclusions that North Carolina accorded petitioners a fair adjudication of their federal questions. Questions of discrimination and admission of coerced confessions lie in the compass of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Have petitioners received hearings consonant with standards accepted by this Nation as adequate to justify their convictions? Hebert v. Louisiana, 272 U. S. 312; Adamson v. California, 332 U. S. 46.

*466First. We take up Brown v. Allen, No. 32, a case that turns more generally than the others on the constitutional issues.

Petitioner, a Negro, was indicted on September 4, 1950, and tried in the North Carolina courts on a charge of rape, and, having been found guilty, he was sentenced to death on September 15, 1950. In the sentencing court petitioner made a timely motion to quash the bill of indictment, alleging discrimination against Negroes in the selection of grand jurors in contravention of the guarantees of the Fourteenth Amendment to the Federal Constitution. After the verdict, but before sentencing, petitioner, by a motion to set aside the verdict, sought to expand his constitutional attack on the selection of the grand jury to embrace the petit jury also. On appeal the State Supreme Court treated, as we do, petitioner’s motions as adequate to challenge the selection of both juries. 233 N. C. 202, 205-206, 63 S. E. 2d 99, 100-101. A second federal question was raised in the sentencing court when petitioner opposed admission into evidence of a confession which he alleged had been given involuntarily. Following sentencing, petitioner took an appeal to the State Supreme Court and there presented for review the issues of jury discrimination and admission of a coerced confession. On this appeal, that court had before it both a brief on behalf of petitioner and a transcript of all those portions of the sentencing court proceedings which petitioner deemed relevant to a review of his federal questions.20 Dealing with the federal constitutional questions on their merits, the State Supreme Court *467affirmed the conviction. State v. Brown, 233 N. C. 202, 63 S. E. 2d 99.

A. Petitioner’s charge of discrimination against Negroes in the selection of grand and petit jurors in violation of his constitutional rights attacks the operation of a method used by North Carolina in selecting juries in Forsyth County. The statutes detailing the method of selection are cited below.21 It is petitioner’s contention that no more than one or two Negroes at a time have ever served on a Forsyth County grand jury and that no more than five Negroes have ever previously served on a petit jury panel in the county. These contentions are the basis of the allegation that a system of discrimination is being employed against the Negro residents of the county. Petitioner offered no evidence to support his charge of limitation against the jury service of Negroes, except the fact that fewer Negroes than whites, having regard for their proportion of the population, appeared on the jury panels.

The 1940 Census shows the following figures in respect to the population of Forsyth County.

21 Plus Percent Population

50,499 66.5 White . 85,323 tO

25,057 33.5 Negro . 41,152 tq co*

Total . 126,475 100.0 75,556 100.0

According to the unchallenged testimony of the IBM Supervisor in the office of the Tax Supervisor of Forsyth County, a list of names is compiled from a tabulation of all the county property and poll taxpayers who make returns and is thereafter tendered to the County Commissioners for use in jury selection. All males *468between 21 and 50 years of age are required to list themselves for poll tax as well as to list their property. Gen. Stat. of North Carolina, Recompiled 1950, §§ 105-307, 105-341. In 1948, Winston Township, the most heavily populated in Forsyth County, had 7,659 white males and 2,752 colored males who listed polls. In the County of Forsyth outside Winston Township, 10,319 white males and 587 colored males listed polls. This indicates that Negroes number approximately 16% of the listed taxpayers. No figures appear in the record of the percentage of Negroes on the property tax lists.

In June 1949, a list of approximately 40,000 names compiled from all the tax lists was handed to the Commissioners by the office of the Tax Supervisor. There is uncontradicted testimony by the IBM Supervisor that the list of jurors was prepared without regard to color, and that it constituted a complete compilation of the names of all resident, adult, listed taxpayers of Forsyth County. Both the grand and petit jury panels employed in this case were drawn from that pool. All the names on that list and no others (the list having been cut up into individual slips of uniform size bearing only one person's name) were put into a jury box. The selection from the jury box of names of persons subject to a summons to serve as grand jurors in a term of court is made by lot, as is the selection of panels of persons subject to summons for duty on petit juries. As the drawings were made by a small child and recorded in public there is no claim or evidence of chicanery in the drawings.

Grand jurors in Forsyth County are selected in January and July for a six months' term. See c. 206, 1937 Public-Local Laws, as amended by c. 264, 1947 N. C. Session Laws, as amended by c. 577, 1949 N. C. Session Laws. A panel of 60 names is drawn from the jury box each December and June by a child in the presence of the County Commissioners. At the June 5, 1950, meeting of the *469Commissioners, 60 names were drawn. These 60 names constituted the panel of persons subject to summons for service on the grand jury which returned the indictment against petitioner. After such a drawing, a jury order is immediately prepared and given to the sheriff, who then summons all the parties he can find to appear for drawings for grand or petit jury service, as the case may be. All persons whose names were drawn were summoned if they could be found. Although there is no evidence as to how many persons were summoned by the sheriff, there is evidence to show that at least four or five Negroes were summoned. The final drawing for grand jury service is conducted in the courtroom in the presence of the Superior Court Judge. When the July 1950 grand jury was selected from the panel of 60, the drawing was again made by a child. The names of all the persons summoned by the sheriff were put into a special section of the jury box and the 18-man grand jury was then drawn. The name of one of the four or five Negroes summoned was drawn in the group of 18, and that Negro served on the grand jury. The remaining names are used for the petit jury panel.

When they are needed, petit jury panels in Forsyth County are drawn from the same jury box in groups of 44 persons. C. 206, Public-Local Laws, supra. After a drawing, the names are given to a deputy sheriff who then summons those persons on the list whom he can find. On the lists supplied to the deputies there are no indications as to whether the persons named are Negro or white. According to the statute all summoned persons must report for jury service. At the selection of the petit jurors for the trial of this case 8 of the 37 persons summoned on the panel were Negroes, as were 3 of a special venire of 20. Challenges, peremptory or for cause, eliminated all Negroes. No objections are made to the legality of these challenges. Uncontradicted evidence by a state witness *470shows that in the two years 1949 and 1950 the percentages of Negroes drawn on grand jury panels in Forsyth County varied between 7% and 10% of all persons drawn. In 1950 the percentage of Negroes drawn on petit jury panels varied between 9% and 17% of all persons drawn.

Prior to 1947, the jury list was composed of those taxpayers who had “paid all the taxes assessed against them for the preceding year.” N. C. Gen. Stat., 1943, § 9-1 ; cf. State v. Davis, 109 N. C. 780, 14 S. E. 55; State v. Dixon, 131 N. C. 808, 44 S. E. 944. This requirement has now been removed, as is shown by comparing the earlier statutes with the present wording of § 9-1 which was put into law in 1947. No change was made in the duty of all males between 21 and 50 to list their polls for assessment nor of the requirement for the county to collect an annual poll tax. Gen. Stat. §§ 105-307, 105-336, 105-339, 105-341; cf. State v. Brown, 233 N. C. 202, 205, 63 S. E. 2d 99, 100-101. The pool of eligible jurors was thus enlarged. This enlargement and the practice of selecting jurors under the new statute worked a radical change in the racial proportions of drawings of jurors in Forsyth County. As is shown by the record in this Court of Brunson v. North Carolina, 333 U. S. 851, tried in North Carolina in October, 1946, Forsyth County with its large Negro population, at that time had a jury pool of 10,622 white and 255 colored citizens. At that time a sheriff