Carolina Statute and there was no systematic, purposeful, intentional or arbitrary exclusion of any qualified person from said jury by reason of race, or otherwise.

"2. That adult negroes constitute approximately 12% of the total adult population of Union County, North Carolina.

"3. That, although there was no member of the colored race on the Grand Jury of Union County in 1957 (the Grand Jury of said County was chosen for a period of one year as provided by law), members of the colored race served on the Grand Jury at various times before and subsequent to 1957; and members of the colored race have served on the trial panel of said court regularly before, including and subsequent to 1957.

"4. That no evidence was offered by movant that any qualified person to serve as a juror was wrongfully exculded from serving on the Grand and Petit juries of Union County at any time.

"5. That the Bill of Indictment in this case was regularly and legally found and returned by a duly and legally constituted Grand Jury of Union County, North Carolina, at the October 1957 Term of Superior Court of said County. "6. That none of the movant's constitutional rights were violated or abridged in the selection of the Grand Jury which found and returned the Bill of Indictment in this case."

Whereupon Judge Olive denied the motion to quash the bill of indictment. Defendant assigns as errors Judge Olive's findings of fact Numbers 1, 3, 4, 5 and 6, for the reason that these findings of fact are contrary to the evidence offered by the defendant, and to all the competent evidence offered during the hearing of the motion to quash the bill of indictment. Defendant neither excepts to, nor assigns as error, the finding of fact Number 2 "that adult negroes constitute approximately 12% of the total adult population of Union County, North Carolina."

[1] The findings of fact of Judge Olive are conclusive on appeal, if supported by competent evidence, "in the absence of some pronounced ill consideration" of the evidence by Judge Olive. State v. Koritz, 227 N.C. 552, 43 S.E.2d 77, 80. certiorari denied 332 U.S. 768, 68 S.Ct. 80, 92 L.Ed. 354; State v. Speller, 231 N.C.. 549, 57 S.E.2d 759, certiorari denied 340 U.S. 835, 71 S.Ct. 18, 95 L.Ed. 613; State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613; State v. Bell, 212 N.C. 20, 192 S.E. 852; State v. Walls, 211 N.C. 487, 191 S.E. 232; State v. Cooper, 205 N.C. 657, 172S.E. 199; Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Thomas v. State of Texas, 212 U.S. 278, 29 S.Ct. 393, 53 L.Ed. 512.

Prior to 1947, it was provided by N.C.G.S. § 9-1 that the tax returns of the preceding years for the county should constitute the source from which the jury list should be drawn, and this was then the only prescribed source, and from this source shall be selected for the jury list the names of all such persons as have paid all the taxes assessed against them for the preceding year and are of good moral character and of sufficient intelligence. To meet the constitutional change of the previous year election, N.C. Const. Art. I, Sec. 13, making women eligible to serve on juries, N.C.G.S. § 9-1 was amended in 1947, 1947 Session Laws, Ch. 1007, enlarging the source to include not only the tax returns of the preceding year but also "a list of names of persons who do not appear upon the tax lists, who are residents of the county and over twenty-one years of age," to be prepared in each county by the Clerk of the Board of Commissioners. The 1947 amendment struck out the provision as to the payment of taxes for the preced-ing year, and further provided that names for the jury list shall be secured from such sources of information as are deemed reliable which will provide the names of persons of the county above twenty-one years of age residing within the county qualified for jury duty. Excluded from the list are persons who have been convicted of crime involving moral turpitude, or are non compos mentis. N.C.G.S. § 9-2 provides that the jury list shall be copied on small scrools of paper of equal size and put into the jury box. N.C.G.S. § 9-3 provides that at least twenty days before a term of the Superior Court, the Board of County Commissioners shall cause to be drawn from the jury box by a child not more than ten years of age the required number of scrolls and the persons who are inscribed on such scrolls shall serve as jurors at the term of the Superior Court next ensuing such drawing.

N.C.G.S. § 9-24 provides that a Judge of the Superior Court presiding over a term of court at which a grand jury is to be selected "shall direct the names of all persons returned as jurors to be written on scrolls of paper and put into a box

or hat and drawn out by a child under ten years of age; whereof the first eighteen drawn shall be a grand jury for the court; and the residue shall serve as petit jurors for the court." N.C.G.S. § 9-25, Grand Juries in Certain Counties, provides as to Union County as follows: "A grand jury for Union County shall be selected at each February term of the superior court in the usual manner by the presiding judge, which said grand jury shall serve for a period of one year from the time of their selection."

The grand jury which indicted the defendant at the October 1957, Mixed Term of the Union County Superior Court, was selected, sworn and impaneled at the February Term 1957 of Union County Superior Court, pursuant to N.C.G.S. § 9-25, which appears in the Record of this case on the former appeal. J. Hampton Price, Clerk of the Superior Court of Union County for 9 years, and prior to that County Tax Collector of Union County for about 13 years, testified in substance as follows: I have the jury book with me covering the period from 1945 up to the present. I think the Minutes of the Court took care of the jury up until that time. I have the Minutes Docket Book of the Court back to 1936. I am familiar with most of the names on the jury list since I have been Clerk. Ike Montgomery, a Negro, was on the grand jury in 1954. Lex Houston, a Negro, is on the grand jury in 1958. There were other Negroes in the panels, but when you are drawing them by lot it is not always possible to get a Negro on the grand jury, due to the small ratio between Negroes and whites in Union County. From 1950 to 1958, both inclusive, no Negroes served on the grand juries of Union County, except Ike Montgomery and Lex Houston. In 1942 there is the name of Curtis Smith, and I think we have a Curtis Smith, white and a Curtis Smith, Negro. if he is a Negro or white. if he is a Negro or white. is a Negro or white.

In 1945 there is one W. I. Helms, and I don't know In 1948 there is a Hoyle Helms, and I don't know In 1939 there is a Curtis Helms, and I don't know if he

B. F. Niven, County Tax Collector of Union County for 8 years, and prior to that Deputy Sheriff of the county for 4 years, and Sheriff of the county for 16 years, testified in substance as follows: He has with him his records and ledgers for about 21 or 22 years. From his records he testified as to the numbers of whites and the numbers of Negroes in the 9 townships of Union County for a number of different years. He didn't miss a court during the 20 years he was Deputy Sheriff and Sheriff. He did not attend court after he was Sheriff. He testified as follows: "I cannot say that any negroes were on the Grand Jury during my term. They were on the regular panel but the Grand Jury is selected out of the regular panel in the courtroom in the presence of the Court by a child out of a hat. The whole panel is in there. I think if a negro had been chosen to serve on the Grand Jury I would have known it. I could not say for sure that any negroes did not serve on the Grand Jury, but I do know that they have been on the regular juries and there could have been one on the Grand Jury, but I could not name one by name. I know Ike Montgomery. I am not sure which township he lives in but I think it is Vance. I have my scroll for the year 1954.” Roy J. Moore, Tax Accountant and Tax Supervisor of Union County since 15 May 1935, testified in substance: He is Clerk to the Board of County Commissioners of Union County. He helps prepare the jury list. The jury list is prepared every two years from the tax scroll for men, both Negroes and whites. He gets the names of women, both Negroes and whites, from the precinct lists. About 10% of the names placed in the jury box are women. When the jury list is prepared, it is presented to the Board of County Commissioners. The names so presented are cut from this list, and put in the jury box. From the jury list presented to the Board of County Commissioners is excluded those people exempt from jury service by N.C.G.S., § 9-19, to wit, all practicing physicians, regular ministers of the gospel, practicing attorneys at law, etc. No Negroes have been excluded from grand juries because of race to his knowledge.

An affidavit of Roy J. Moorse in the Record shows that 48 persons were drawn from the jury box for service as jurors at the February Term 1957 of the Union County Superior Court, and that of this number one person at least was a Negro. James R. Braswell, Chairman of the Board of County Commissioners of Union County for the past four years testified in substance: The jury list has been prepared and put in the jury box twice since he was chairman-in 1955 and 1957. The jury list is made up from the tax records and precinct scrolls. He has been present each time the jury was drawn from the jury box during his term of office. At no time during his chairmanship of the Board has there been any discrimination.

This appears from an affidavit of James R. Braswell in the Record: “Affiant further says that in selecting the names of male persons for jury service, in the manner above stated, no consideration or regard is given to race, creed or color; that all names of women are selected from the precinct registration books for jury service without regard to race, creed, color or party affiliation; that the names of the white race and the Negro race selected from the tax returns are therefore in direct proportion to the names of persons of the white race and the Negro race appearing on the tax returns and the precinct registration books." Deputy Sheriff Shelly Griffin, Deputy Sheriff for 8 years, a Policeman for 6 years, and just elected Sheriff of Union County, testified, in part, on direct examination by defendant's counsel: "I have been Deputy Sheriff for eight years. When court is in session, I take charge of the courtroom. The Sheriff is there most of the time and I am there most of the time also. During the period, I knew personally that Lex Houston served on the Grand Jury and I believe that he served this year. He is serving now. He began to serve in February, 1958. I cannot remember any others who served; there may have been one more, but I can't remember." On cross-examination by the State he testified: "During my eight years of public service there, I have observed the trial panel and have observed Negroes serving on the trial juries. About every term of Court we have from one to two, maybe more. And that has been true within the past eight years. I have just been elected Sheriff of the County." On redirect examination by defendant's counsel he testified: "During my eight years I have observed negroes on the jury panel, one or two on practically every jury panel. Prior to that time, I was a City Police Officer and I did not get too much chance to go into the courtroom. But during those eight years, I can only remember seeing two negroes on the Grand Jury."

Defendant introduced in evidence the grand jury lists of Union County Superior Court for the years 1936 through 1958.

Defendant has offered no evidence that any qualified Negro, man or woman, has had his or her name excluded at any time from the jury list or the jury box of Union County, or has been excluded at any time from serving on grand and petit juries in Union County Superior Court, by reason of race.

Defendant has offered no evidence of any racial discrimination at any time against members of the Negro race in the preparation of the jury list and the jury box in Union County, and in drawing jurors from the jury box for a term of court. Defendant has offered no evidence of any racial discrimination at any time against members of the Negro race in the drawing in open court by a child under ten years of age of the names of eighteen jurors to serve as a grand jury from the names of all persons returned as jurors at that term from a box or hat containing the names of all the jury panel, as is required by N.C.G.S. § 9-24.

De

[2] According to Judge Olive's finding of fact Number 2, to which defendant has not excepted, adult Negroes constitute about 12% of the adult population of Union County. The defendant's evidence clearly shows that for at least eight years prior to November 1958 one or two Negroes have served on practically every jury panel at terms of Union County Superior Court, and from these panels during that time the grand juries of Union County Superior Court have been selected. The evidence is undisputed that the names of jurors drawn from the jury box to serve as jurors at the February Term 1957 Union County Superior Court contained at least the name of one Negro, and that from this list of jurors the grand jury was drawn that found the bill of indictment in this case. fendant's evidence also plainly shows that for at least eight years prior to November 1958, only two Negroes, to wit, Ike Montgomery in 1954, and Lex Houston in 1958, have served upon the grand juries of Union County Superior Court. Considering all of the evidence, the facts that for at least eight years prior to November 1958 only two Negroes were drawn from a box or hat in open court by a child under ten years of age, as grand jurors from a list of jurors, practically all of which contained the names of one or two Negroes, and that the grand jury finding the bill of indictment in this case was drawn from a jury panel containing at least one Negro, do not show, in our opinion, that Negroes, because of their race have been systematically excluded from serving upon grand juries of Union County for at least eight years prior to November 1958, and in particular fails to show that Negroes because of their race were wrongfully excluded from serving on the grand jury that found the bill of indictment against defendant in this case.

This Court said in State v. Walls, supra [211 N.C. 487, 191 S.E. 237]: "The child draws from the jury box the names of all sorts and conditions of men, white and Negro persons, Jew and Gentile, who are qualified to serve under the law. A more perfect system could hardly be devised to insure impartiality." Judge Olive's findings of fact are amply supported by competent legal evidence, with this exception: Judge Olive found in his findings of fact Number 3 that "members of the colored race served on the grand jury at various times before and subsequent to 1957." The evidence plainly shows, and he should have found, that two Negroes have served on Union County grand juries for at least eight years prior to November 1958, to wit, Ike Montgomery in 1954, and Lex Houston in 1958. We amend his findings of fact in that respect alone. Before 1950 the evidence is not sufficiently clear to justify a finding of fact that Negroes have served upon the grand juries of Union County from 1936 to 1950. A study of the evidence plainly shows that this is not a case where Judge Olive's crucial findings of fact are so lacking in support in the evidence that to give them effect would work that fundamental unfairness which is at war with due process or equal protection. Defendant's assignments of error to Judge Olive's findings of fact, as amended by us, are overruled.

Defendant's assignments of error to Judge Olive's failure to find that Negroes have been systematically excluded from serving on grand juries of Union County for more than twenty years, and including the grand jury impaneled in 1957, and from the grand jury that indicted defendant, are overruled.

Defendant assigns as error the denial of his motion to quash the bill of indictment.

[3] A Negro objecting to a grand or petit jury because of alleged discrimination against Negroes in its selection must affirmatively prove that qualified Negroes were intentionally excluded from the jury because of their race or color. State v. Perry, supra; Miller v. State, 237 N.C. 29, 74 S.E.2d 513, certiorari denied 345 U.S. 930, 73 S.Ct. 792, 97 L.Ed. 1360; Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Akins v. State of Texas, supra.

This Court speaking by Ervin, J., said in Miller v. State, supra [237 N.C. 29, 74 S.E.2d 525]: "The Fourteenth Amendment to the Constitution of the United States does not confer upon a Negro citizen charged with crime in a state court the right to demand that the grand or petit jury, which considers his case, shall be composed, either in whole or in part, of citizens of his own race. All he can demand is that he be indicted or tried by a jury from which Negroes have not been intentionally excluded because of their race or color. In consequence, there is no constitutional warrant for the proposition that a jury which indicts or tries a Negro must be composed of persons of each race in proportion to their respective numbers as citizens of the political unit from which the jury is summoned. [Citing numerous cases from the U.S. Supreme Court and from our Court]."

Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991, is plainly distinguishable. The procedure in the State of Louisiana in selecting grand jurors is entirely different from the procedure in North Carolina. The facts of the two cases also differ.

[4] The Supreme Court of the United States has held consistently for 80 years that the indictment of a Negro defendant by a grand jury in a state court from which members of his race have been systematically excluded solely because of their race is a denial of his right to the equal protection of the laws required by the Fourteenth Amendment to the United States Constitution. State v. Perry, supra; Miller v. State, supra; Eubanks v. State of Louisiana, supra. A like conclusion is reached in North Carolina by virtue of our decision on "the law of the land" clause embodied in the Declaration of Rights, Art. I, Sec. 17, of the North Carolina Constitution, and we have consistently so held since 1902. State v. Peoples, 131 N.C. 784, 42 S.E. 814; State v. Speller, 229 N.C. 67, 47 S.E.2d 537; Miller v. State, supra; State v. Perry, supra. However, the evidence in this case and Judge Olive's findings of fact do not show a systematic exclusion of members of the defendant's race, solely because of their race, from the grand jury which found the bill of indictment against him, and from grand juries of Union County for at least seven years before that time.

Judge Olive designates all of his findings as findings of fact. They are both findings of fact and conclusions of law. His findings of fact, as amended by us, amply support his conclusions of law and his order. Judge Olive properly denied defendant's motion to quash the bill of indictment, and his assignment of error thereto is overruled.

[5] Defendant's assignment of error for the failure of the court to strike out an affidavit of James R. Braswell, Chairman of the Board of County Commissioners, offered in evidence by the State is overruled. The learned trial judge was well able to weigh the evidence, and to disregard incompetent evidence, if any, in the affidavit. There is nothing in Judge Olive's findings of fact to show, that if the affidavit contained incompetent evidence, which we do not admit, it influenced in any way his findings of fact, his conclusions of law, and his order refusing the motion to quash the bill of indictment. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668; State Farm Mutual Automobile Insurance Co. v. Shaffer, 250 N.C. 45, 108 S.E.2d 49.

[6] Defendant has in his brief his exceptions to the failure of the trial court to sustain his motions for judgment of nonsuit. He makes no argument in his brief in respect thereto. He closes his brief by stating that if his assignment of error to the refusal of the court to quash the bill of indictment is overruled, that he should be awarded a new trial. There was sufficient evidence offered by the State to carry the case to the jury. The trial court correctly overruled defendant's motions for judgment of nonsuit.

[7] Defendant's only other assignments of error, brought forward and discussed in his brief, relate to a hypothetical question asked Dr. J. G. Faulk. Dr. Faulk is a physician and surgeon. Defendant admitted he is a medical expert specializing in surgery. In October 1957 Dr. Faulk was chief of surgery in Union Memorial Hospital. On 12 October 1957 he saw Lillie Mae Rape in the hospital. He took her to an examination room, and did a pelvic examination. The hypothetical question contained a full and fair recital of all relevant and material facts already in evidence, and it was sufficiently explicit for the witness to give an intelligent and safe opinion. It was properly framed so as to inquire of Dr. Faulk, if he had a professional opinion, whether Lillie Mae Rape had had a miscarriage, and if so, what was the cause of it. Dr. Faulk drew no inference from the testimony. He merely expressed his professional opinion upon an assumed state of facts supported by evidence previously offered. Dr. Faulk's answers to the hypothetical question related to matters requiring expert knowledge in the medical field about which a person of ordinary experience would not be capable of forming a satisfactory conclusion unaided by expert testimony from one learned in the medical profession. All defendant's assignments of error relating to the hypothetical question and the answers thereto are overruled. State v. Knight, 247 N.C. 754, 102 S.E.2d 259; State v. Mays, 225 N.C. 486, 35 S.E.2d 494; State v. Dilliard, 223 N.C. 446, 27 S.E.2d 85; State v. Smoak, 213 N.C. 79, 195 S.E. 72.

[8] Defendant's other assignments of error set forth in the Record are not brought forward and mentioned in his brief. In respect to them no reason or argument is stated, and no authority is cited in defendant's brief. They are, under our Rules and decisions, deemed to have been abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 562; Ibid in G.S., Vol. 4A, pp. 157, 185; State v. Bittings, 206 N.C. 798, 175 S.E. 299; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322; State v. Atkins, 242 N.C. 294, 87 S.E.2d 507; State v. Thomas, 244 N.C. 212, 93 S.E.2d 63; State v. Adams, 245 N.C. 344, 95 S.E.2d 902; State v. Smith, 249 N.C. 653, 107 S.E.2d 311. See Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.

In the trial below we find
No error.

263 N.C. 536

STATE. JOHN C. LOWRY. STATE v. MAY MALLORY, RICHARD CROWDER, HAROLD REEP AND JOHN CYRIL LOWRY, DEFENDANTS.

Kidnapping prosecution. The Superior Court, Union County, Walter E. Brock, Special Judge, rendered judgment, and defendants appealed. The Supreme Court, Moore, J., held that motion to quash indictment, returned by grand jury on which but one Negro sat, should have been granted where defendants made prima facie showing of racial discrimination by showing small percentage of Negroes on juries