Whitus v. State

Nichols, Presiding Judge. These cases were appealed to the Supreme Court and transferred by that court to this court. Both defendants were indicted for murder but before such indictments were returned each defendant filed a challenge to the array of the grand jury based upon the deliberate exclusion and inclusion of negroes on the grand jury. After hearing evidence upon the issue thus made the trial court overruled the challenges to the array and it is on such judgment that the plaintiffs in error now assign error, as well as on a judgment during the trial wherein the trial court excluded documentary evidence described by counsel offering the same as “the 1960 Census of Population, Volume 1, characteristics of the Population Part 12, Georgia, United States Department of Commerce, and more specifically table 27 as it applies to Mitchell County, Georgia, wherein it shows a total population in the county of persons over 21 as being 10,206, of which 5,726 are white and 4,480 are colored.” Held: 1. Both the trial court and this court will take judicial notice of the United States Census (see Tift v. Bush, 209 Ga. 769 (75 SE2d 805)), and while the admission of evidence “to refresh the court’s memory” would not be reversible error (see Fields v. Jackson, 102 Ga. App. 117, 128 (115 SE2d 877)), the [329] exclusion of evidence of a fact of which, the court takes judicial notice in the hearing before the court without the intervention of a jury is not harmful error. Argued July 7, 1965 Decided September 8, 1965 Rehearing denied September 22, 1965. P. Walter Jones, B. Clarence Mayfield, for plaintiffs in error. Fred B. Hand, Jr., Solicitor General, contra. 2. The remaining contentions of the plaintiffs in error are controlled by the decision of the Supreme Court in the case of Brookins v. State, 221 Ga. 181 (144 SE2d 83), and under such decision show no reversible error. Judgments affirmed. Eberhardt and Parnell, J.J., concur.