U.S. Supreme Court HALE v. COMMONWEALTH OF KENTUCKY, 303 U.S. 613 (1938)

[Page 303 U.S. 613, 616]

mit the introduction of that proof. The failure so pointed out is analogous,' the court said, 'to a case where there is proof without pleading, and the rule is that 'pleading without proof or proof without pleading' are each unavailable.'

On petition for rehearing, the motion which had been omitted from the record was brought to the attention of the Court of Appeals. Rehearing was denied. On petition to this Court for certiorari the parties stipulated that the motion to set aside the indictment as filed by petitioner in the trial court might be read and considered as a proper part of the record. Certiorari was granted, 303 U.S. 629, 58 S.Ct. 523, 82 L.Ed. --.

On argument at this bar, the Attorney General of the State expressly disclaimed reliance upon the omission from the original record on appeal of the motion to set aside the indictment, as the fact of the motion had been brought to the attention of the Court of Appeals upon the application for rehearing, and conceded that, if the facts set forth in the affidavits submitted upon that motion were sufficient to show a denial of constitutional right, the judgment should be reversed.

We are of the opinion that the affidavits, which by the stipulation of the State were to be taken as proof, and were uncontroverted, sufficed to show a systematic and arbitrary exclusion of negroes from the jury lists solely because of their race or color, constituting a denial of the equal protection of the laws guaranteed to petitioner by the Fourteenth Amendment. Neal v. Delaware, 103 U.S. 370, 397; Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687; Norris v. Alabama, , 55 S.Ct. 579

The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Reversed and remanded.

Mr. Justice CARDOZO took no part in the consideration and decision of this case.