Oliver Wendell Holmes, Jr.

“ It is suggested that the allegations of the motion to quash, not having been controverted and having been supported by the affidavit of the defendant, must be taken to be true. But a motion, although reduced to writing, is not a pleading, and does not require a written answer. It appears from the grounds on which the judge decided it, apart from anything else, that the allegations were controverted, and under such circumstances it was necessary for the defendant to make an attempt to introduce evidence. ”

“ The trouble with the case is that we are not warranted in assuming that the allegations are true. The record contains an agreed statement called a brief, in which it appears that the defendant made a motion to quash on the grounds stated, and in which it is said that the defendant offered to introduce testimony to support these grounds. ”

“ The plaintiff in error has been convicted of murder, and the error alleged is that the grand jury was composed wholly of white persons, and that all negroes, although constituting four fifths of the population and of the registered voters of the county, were excluded on account of their race and color. ”