In 1900, the Texas Court of Criminal Appeals, in the decision Whitney v. State, 59 S.W. 895 (Tex. Crim. App. 1900), reversed a black defendant’s rape conviction on the grounds that black residents of Harris County were excluded from the grand jury that indicted him. Testimony introduced in connection with the defendant’s motion to quash the indictment revealed that black residents had been routinely excluded from all juries in Harris County. The court summarized the somewhat contradictory testimony as follows:
The court heard evidence on the motion, which was substantially as follows: B. R. Latham testified that he was one of the commissioners that selected the grand jury that found the bill of indictment against appellant. Said grand jurors so selected were all white men. The population of Harris County is over 50,000, two-thirds or three-fourths of which are white persons, and the rest blacks or negroes. In selecting the names for the grand jury, witness stated that they put no negroes on the jury; that there were many negroes in the county capable of performing jury service, but that he would not put them on; that he never knew of negroes being impaneled on the grand jury in Harris County, and was not accustomed to putting them on; that they did as other commissioners had done before; that, if the names of competent negroes had been given to the commissioners, he would not have been in favor of putting them on the grand jury unless the court had so instructed; that he had no prejudice or ill feeling against negroes, nor did he have any prejudice or ill feeling against defendant, but that he did not consider negroes competent and qualified for jury service. [Another party familiar with the formation of Harris County juries] testified that he had observed the practice in Harris County of organizing juries for years, and that he knew of no negroes being put on any of the juries; that there were hundreds of educated negroes and property owners in Harris County, if not thousands; that the sentiment of the people is against putting negroes on juries; that there were 25,000 negroes in Harris County, and many negro schools and benevolent associations of all kinds; and that he knew many negroes that would make good jurors.
The trial court had upheld the indictment on the grounds that “the evidence failed to show that negroes were excluded from juries because of prejudice or ill feeling against them, or because of prejudice or ill feeling against defendant.” The Court of Criminal Appeals responded:
We do not understand that this would afford sufficient ground for refusing to sustain the motion. It is not a question of prejudice or ill feeling, but the fourteenth amendment, as construed by the Supreme Court of the United States, holds that if there are qualified negro jurors in the county, and in the formation of juries, grand or petit, where a negro is on trial, negroes are intentionally excluded from such juries, then he is denied the equal protection of the laws, and the case should be reversed.