Tom C. Clark

“ The petitioner, a Negro convicted and sentenced to death for murdering a white man, attacks his conviction as violative of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He claims that, as a result of a long-established practice in the county of his conviction, Negroes were arbitrarily and systematically excluded from sitting on the grand jury which indicted him and the petit jury which convicted him. The State answers that the claim comes too late, having been asserted for the first time by a motion for a new trial. ”

“ Therefore, we are left under no doubt that appellant's point on systematic exclusion of Negroes from the jury rolls in Greene County is not well taken.' Exercising its discretion to permit petitioner to attack the exclusion by motion for a new trial, the Supreme Court of Alabama decided petitioner's constitutional claim on the merits. ”

“ I can ask whether or not the law was complied with?↑ Code of Alabama (1958 Recomp.) , Tit. 15, § 382 (10) : 'Hearing and determination in appellate court.-In all cases of automatic appeals the appellate court may consider, at its discretion, any testimony that was seriously prejudicial to the rights of the appellant, and may reverse thereon even though no lawful objection or exception was made thereto. ”