The opinion
SOPER, Circuit Judge
(dissenting).
Two illiterate Negro youths were convicted of wilful and premeditated murder after a trial by jury in the Superior Court of Pitt County, North Carolina, and sentence of death was passed upon them on June 6, 1949. Their attorneys immediately noted an appeal to the Supreme Court of North Carolina and were allowed 60 days in which to prepare and serve a statement of the case on appeal in accordance with the local practice. The most important ground of appeal was the charge, not without factual foundation, that the jury had been chosen in a way which violated the Constitution of the United States in that persons of the colored race were deliberately excluded from the jury lists from which the trial juries of the county were selected. Negroes comprised 44.2 per cent, of the persons in Pitt County over 21 years of age, and one-third of the persons on the tax list of the county which constituted the basic source for the jury list. The literacy rate for Negroes in the county was 74.2 per cent. Nevertheless no Negro has ever served on the Pitt County grand jitry; less than 2 per cent, of the jury list consists of Negroes, and less than 1 per cent, of the petit jurors have been Negroes.
It has been decided in many cases that the exclusion of Negroes from juries solely because of their race deprives a Negro defendant .of the equal protection of the laws guaranteed by the 14th Amendment-See Ross v. Texas, 341 U.S. 918 , 71 S.Ct. 742 , 95 L.Ed. 1352 ; Shepherd v. Florida, 341 U.S. 50 , 71 S.Ct. 549 , 95 L.Ed. 740 ; Brunson v. North Carolina, 333 U.S. 851 , 68 S.Ct. 634 , 92 L.Ed. 1132 . The last citation shows that the Supreme Court of the United States on March 15, 1948, reversed without opinion the judgments of the Supreme Court of North Carolina in five criminal cases from Forsyth County in that state on account of the unconstitutional exclusion of Negroes. In one of these cases, as in the case at bar, a single Negro served on the county jury, but in all, the evidence showed an unconstitutional discrimination. Subsequently the Supreme Court of North Carolina reversed two consecutive judgments of the Superior Court of Bertie County in State v. Speller, 229 N.C. 67 , 47 S.E.2d 537 and 231 N.C. 549 , 57 S.E.2d 759 , for similar defects in the constitution of the jury. It is not claimed that the evidence of discriminatory exclusion of Negroes from the jury lists in Pitt County, from which the jury in the pending case was chosen, differs materially from the evidence of discrimination in the Brunson and Speller cases where the convictions were set aside.
*771 Unfortunately, the convicted men in the pending case have never been able to secure a review of the judgment of the trial court on the merits either in the Supreme Court of North Carolina or in the Supreme Court of the United States, because their attorneys failed to file the statement of their case on appeal within the 60 day period fixed by the court. They served their statement on the solicitor of Pitt County, the prosecuting attorney, on August 6 instead of August 5, 1949, and hence were one day late. This delay did not embarrass the prosecution in any way and might well have been waived since the solicitor was able to prepare and serve his reply within the time allowed him by the court; and hence the final disposition of the case in the Supreme Court of the State was in no way retarded by the slip of defendants’ attorneys. Nevertheless the solicitor moved the court to strike the case on appeal and this motion was granted. The result was that an appeal on the merits to the Supreme Court of North Carolina was precluded, notwithstanding the repeated efforts to secure such a hearing which are described in the opinion of the court herein.
Furthermore, the Supreme Court of the United States did not consider the case on its merits in passing upon the application for certiorari. Seemingly, the court adopted the course advocated by the Attorney General of the State in his brief in opposition to the application for the writ wherein he asked the court to dismiss the petition on the ground that the Supreme Court of North Carolina had not passed on the merits of the case, but had dismissed the appeal for procedural reasons only and had suggested that the appellants might pursue another method which they had failed to do. It is true that during the argument in the Supreme Court of the United States the attorneys for the petitioners handed to the court a typewritten copy of the proceedings in the trial court and asked the court to consider it; but since it was not part of the record of the Supreme Court of North Carolina, which accompanied the petition for the writ, it is probable that the Supreme Court of the United States did not consider the merits but dismissed the petition because it appeared that the Supreme Court of North Carolina had only passed on local procedural matters, leaving other remedies open to the appellants, and had not decided any federal question. The situation is not unlike that before the Supreme Court in White v. Ragen, 324 U.S. 760 , 65 S.Ct. 978 , 89 L.Ed. 1348 , where it was held that if the court is unable to say that the action .of a state Supreme Court, brought to its attention by petition for certiorari, was not based on an adequate non-federal ground, the petition for certiorari must be dismissed, although it sufficiently alleges violation of constitutional rights, and in such case the dismissal of the writ does not bar an application to the Federal District Court for relief based on federal rights. It would seem that the attorneys for the state in the pending case, having induced the Supreme Court of the United States to dismiss the defendants’ petition for certiorari on the ground that no federal rights were involved, should now be precluded from using the dismissal of the writ of certiorari by the court as ground for dismissing the pending petition of ha-beas corpus in the federal District Court.
There is no attempt on the part of the State of North Carolina in the pending appeal to show that there was not a gross violation of the constitutional rights of the prisoners in the trial court. The state’s argument proceeds upon the ground that the appellants lost any right to a review of the action of the trial court of Pitt County when their attorneys failed to conform meticulously to the local procedural requirements. The whole case for the state rests upon the established rule that a defendant convicted of crime may not use the writ of habeas corpus in lieu of an appeal to review the action of the trial court upon questions raised and decided at the trial. But this rule, although upheld in numerous decisions, as the opinion of the court shows, has frequently been held inapplicable and unjust under varying circumstances in many cases so that it has become well nigh essential to examine the history of every case in order to determine whether *772 the rule should be enforced. The subject is illumined by the opinion of the court and the dissenting opinions in Sunal v. Large, 332 U.S. 174 , 67 S.Ct. 1588 , 91 L. Ed. 1982 . There the majority of the court, speaking through Justice Douglas, held that the rule should be applied, but spoke of the exceptions in the following terms, 332 U.S. at page 179, 67 S.Ct. at page 1591 :
“ * * * Yet, on the other hand, where the error was flagrant and there was no other remedy available for its correction, relief by habeas corpus has sometimes been granted. As stated by Chief Justice Hughes in Bowen v. Johnston, 306 U.S. 19, 27 , 59 S.Ct. 442, 446 , 83 L.Ed. 455 , the rule which requires resort to appellate procedure for the correction of errors ‘is not one defining power but one which relates to the appropriate exercise of power.’ That rule is, therefore, ‘not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ Id. 306 U.S. at page 27 , 59 S.Ct. at page 446 . That case was deemed to involve ‘exceptional circumstances’ by reason of the fact that it indicated “a conflict between state and federal authorities on a question of law involving concerns of large importance affecting their respective jurisdictions.” Id. 306 U.S. at page 27 , 59 S.Ct. at page 446 . The Court accordingly entertained the writ to examine into the jurisdiction of the court to render the judgment of conviction.
“The same course was followed in Ex parte Hudgings, 249 U.S. 378 , 39 S.Ct. 337 , 63 L.Ed. 656 , where petitioner was adjudged guilty of contempt for committing perjury. The Court did not require the petitioner to pursue any appellate route but issued an original writ and discharged him, holding that perjury without more was not punishable as a contempt. That situation was deemed exceptional in view of ‘the nature of the case, of the relation which the question which it involves bears generally to the power and duty of courts in the performance of their functions, of the dangerous effect on the liberty of the citizen when called upon as a witness in a court which might result if.the erroneous doctrine upon which the order under review was based were not promptly corrected * * * ’ ”
See also the tentative classification of categories in the dissenting opinion of Justice Frankfurter in which habeas corpus has been entertained, and the reference therein to the opinion of Judge Learned Hand in United States ex rel. Kulick v. Kennedy, 2 Cir., 157 F.2d 811, 813 , where he said: “We shall not discuss at length the occasions which will justify resort to the writ, where the objection has been open on appeal. After a somewhat extensive review, of the authorities twenty-four years ago, I concluded that the law was in great confusion; and the decisions since then have scarcely tended to sharpen the lines. We can find no more definite rule than that the writ is available, not only to determine points of jurisdiction, stricti juris, and constitutional questions; but whenever else resort to it is necessary to prevent a complete miscarriage of justice.”
See also the opinion of Judge Chesnut speaking for this court in Sunal v. Large, 4 Cir., 157 F.2d 165 , in which the exceptional circumstances justifying a departure from the general rule are discussed.
The special and unusual circumstances of the present case justify the statement that the constitutional rights of the prisoners were so clearly violated, that the judgment against them would have been reversed by the Supreme Court of North Carolina if it had felt free to entertain their appeal. So much is clear from the two reversals in State v. Speller, 229 N.C. 67 , 47 S.E.2d 537 and 230 N.C. 345 , 53 S.E.2d 294 , based on the same kind of jury question as that raised in the pending case; and no one can doubt from a consideration of Brunson v. North Carolina, 333 U.S. 851 , 68 S.Ct. 634 , 92 L.Ed. 1132 , and numerous other decisions, that the same result would have been reached in the Supreme Court of the United States had that court reached the constitutional question involved.
If this be so, the insistence by the state upon a technical and trivial procedural step *773 as an impassable barrier to a review of the merits of the case seems to call loudly for the intervention of the federal court. The trial court of Pitt County at two important junctures in the trial stopped the defendants when they sought to raise the jury question. During the period when they were represented by counsel appointed by the court their attorneys allowed them to plead not guilty without raising any objection to the jury list of the county, with which it may be assumed they were familiar; and later when the attorneys selected by the prisoners raised the same point before the trial, they were told that the prisoners by pleading to the indictment, had lost the opportunity to challenge the jury as of right and that the matter lay within the discretion of the court. The court exercised this discretion against the prisoners. Again when the attorneys for the prisoners were one day late in filing the statement of their case on appeal the court struck their statement of the case from the record, so that the appeal on the jury question was effectively denied.
The court’s strict application of the procedural rules in a capital case in these two instances can hardly he approved as a proper exercise of judicial discretion. The defendants merely asked for rulings which would have enabled them to obtain a review by the highest court of the state of the trial court’s action on a grave constitutional question; and the relief could have been granted without interfering with the enforcement of the criminal laws of the state. It can hardly he doubted that the decision in each case lay within the discretion of the judge, but once it was taken, the Supreme Court of the state deemed itself powerless to interfere. Thus there is presented an impasse which can be surmounted only by a proceeding like that before this court. We have been told time and again that legalistic requirements should he disregarded in examining applications for the writ of habeas corpus and the rules have been relaxed in cases when the trial court has acted under duress or perjured testimony has been knowingly used by the prosecution, or a plea of guilty has been obtained by trick, or the defendant has been inadequately represented by counsel. Hawk v. Olson, 326 U.S. 271 , 66 S.Ct. 116 , 90 L.Ed. 61 ; Darr v. Buford, 339 U.S. 200, 203 , 70 S.Ct. 587 , 94 L.Ed. 761 . It is difficult to see any material distinction in practical effect between these circumstances and the plight of the prisoners in the pending case who have been caught in the technicalities of local procedure and in consequence have been denied their constitutional right.
The writ should be granted in the pending case and the prisoners remanded to the state authorities to be tried in accordance with the law of the land.