of citizens from service on grand juries on account of race is a denial of due process to members of the excluded race charged with indictable offenses. The latest case is State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964). Ordinarily it is not deemed such denial if the defendant is not a member of the excluded race. In the instant case all of the defendants are Negroes except Lowry. Though he is white, he had lived and associated with Negroes in their homes and joined with them in their marches and demonstrations. Since he made common cause with them in their demonstrations and is cast jointly with them in the trial, we think he is entitled to raise the question also. Defendants offered evidence in support of the motion and we summarize the evidence as follows: According to the 1960 census the population of Union County is 24,467 persons over 21 years of age. Of this number 4,423 or 18% are non-white. According to the 1961 tax ledger there were 12,577 white and 2,023 non-whites assessed for taxes. Non-whites are 14% of the total. Some persons listed on the ledger are nonresidents. About 10% of those listed are women. The jury list for the county is made biennially, in odd years. A new jury list was made in June 1961. The names of all persons, regardless of race or sex, appearing on the tax ledger or scroll were put on the list. Names of females were added by taking every seventh or eighth female name, regardless of race, from voter-registration books (in 1963 all the female names in the registration books were put on the list-there had been a new registration). The list thus made was delivered to the county commissioners; they examined the list and excluded those exempt by statute; they placed an "x" beside each name to be excluded. The names approved by the county commissioners were put on separate slips of paper, one name on each slip, and these slips were placed in compartment no. 1 of the jury box. Each slip had the name, age and township of a prospective juror. If the person was colored, the designation "col." appeared after his or her name. When it was necessary to draw a venire for a term of court the names were drawn from the box by a child under 10 years of age, in the presence of the officials designated by statute, and the names were placed on a list. This constituted the jury panel for the ensuing term; the persons constituting the panel were summoned by the sheriff. At each February term or session a grand jury of 18 persons was drawn, to serve for one year. At the February terms the jury panel consisted of 48 jurors. Their names were put in a hat and 18 names were drawn from the hat by a child under 10. These constituted the grand jury. Usually 36 jurors were drawn for regular criminal and civil terms other than the February terms; 30 for the second week of criminal terms. There was testimony that the names drawn from the jury box for jury service were placed on the jury lists regardless of race, none discarded. No copy of the original 1961 jury list, or of any lists prior thereto, was preserved. When a new list was made the slips in the box were destroyed. The grand jury which returned the indictments in the instant case was from the 1959 list. It was prepared in the same manner as was the 1961 list. From 1955 to 1958 there were no Negroes on the grand jury. From 1959 to 1962 there was one Negro on each grand jury. From November 1959 to February 1964, 706 jurors were drawn for service, and of this number 37 were Negroes. A special venire of 75 jurors was drawn in open court at the February 1964 session, for the trial of the instant case; 6 were Negroes. Attorneys for defendants requested permission to count the names in the jury box and determine the number of whites and the number of Negroes, the sheriff to observe and assist. Upon objection by the solicitor, the request was not granted. The judge found the following facts: The population of Union County is 83% white, 17% non-white. Three Negroes were drawn and reported for service on the panel of 48 jurors for the February Term 1961; the grand jury drawn from this panel had one Negro member-this is the grand jury that returned the bills in the case at bar. *** it is a general practice in Union County that the jury list carries the designation 'col.' behind the name of Negro jurors. times the designation 'col.' is omitted and there is no definite way to distinguish white from Negro from a study of the list." Negroes have served on the grand jury and petit jury in Union County before and subsequent to August 1961. some The court concluded that there was no evidence of systematic exclusion of qualified Negroes from jury service, defendants' constitutional rights were not abridged or violated, and the indictments are valid and proper. We are of the opinion, and so hold, that the indictments are invalid and the court erred in denying the motion to quash. The court found as a fact that "it is the general practice in Union County that the jury list carries the designation 'col.' behind the name of Negro jurors." It is obvious that "col." is an abbreviation of the word "colored" and is intended to designate race. This practice was in effect outlawed in State v. Speller, 229 N.C. 67, 47 S.E.2d 537. In that case the names of Negroes in the jury box were printed in red, while those of whites were printed in black. When the name of a Negro was drawn from the box it was discarded and the juror was not summoned. This Court ruled that these practices are discriminatory and arbitrary, and declared the following principle: "It has long been the holding in this jurisdiction that the law knows no distinction among those whose names are rightly in the jury box, and none should be recognized by the administrative officials. State v. Sloan, 97 N.C. 499, 2 S.E. 666; Capehart v. Stewart, 80 N.C. 101." [15-17] Statutory provisions in this state, respecting the qualifications, selection, listing, drawing and attendance of jurors is fair and nondiscriminatory and meets all constitutional tests. State v. Wilson, supra. A jury list is not discriminatory merely because it is made from the tax lists. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. But it is better practice to supplement such lists by resort to voter registrations and other available lists. We have no statutory requirement that the names placed in the jury box be deginated according to race, and we perceive no good reason why such practice should be indulged. The reason assigned therefor in the case at bar is that many persons in Union County, white and Negro, have the same name and the racial designations make it possible to positively identify a person so that notice may be mailed to the proper individual. Jurors are usually notified of their selection by mail, and accept service by mail; if service is not thus accepted they are summoned personally. We do not consider the reason assigned for racial designations a valid one. If two white jurors have the same name, race designation would not furnish identification. The obvious solution of the identification problem would be to add the addresses where confusion might arise. Of course, the designation of race, just as sex or religious denomination, may in certain records serve a useful and necessary purpose, and the compilation of such information cannot be outlawed per se. But the promotion of a distinction purely on the basis of race is not justified. Hamm v. Virginia State Board of Elections, 230 F. Supp. 156 (ED, Va.1964), affd. 85 S.Ct. 157. It would be well for county commissioners and clerks of superior court to maintain for reference purposes statistical data with respect to the racial and sex composition of jury lists and juries which serve in the courts, so that the information may be readily available when motions such as the one under consideration are interposed. But this should not include racial designations in the jury box itself. Such practice lends itself to administrative abuses as in the Speller case, and casts doubt upon the administration of the jury system. As stated in Speller: "* ** the law knows no distinction among those whose names are rightly in the jury box." [18, 19] There is in this record no direct evidence of administrative abuses or arbitrary exclusions so far as the conduct of the Union County officials is concerned. But there is a wide discrepancy in the ratio of the races in population and in jury service. Prior to 1963 there was never more than one Negro on any grand jury; during a period of 8 years, 1955 to 1962, inclusive, Negroes constituted about 5% of the petit juries. There is, of course, no requirement of law that Negro representation on jury panels be equivalent percentage-wise to population. Neither the small percentage of Negroes on the juries of Union County, nor the racial designation placed after the names of Negroes on the jury box, is conclusive proof of arbitrary and systematic exclusion of Negroes from the grand jury. But such circumstances do constitute a prima facie showing to that effect. [20, 21] With respect to the grand jury the facts of the instant case are closely analagous to those in State v. Wilson, supra. There, "one Negro served on the grand jury that returned the bill of indictment in question. Another served a year earlier." Two or three Negroes served during a seven-year period. In the case at bar four of the eight grand juries, during the peiod 1955 to 1962, had a Negro in service. In Wilson we said: "When, at a hearing upon a motion to quash the bill of indictment, there is a showing that a substantial percentage of the population of the county from which the grand jury that returned the bill was drawn is of the Negro race and that no Negroes, or only a token number, have served on the grand juries of the county over a long period of time, such showing makes out a prima facie case of systematic exclusion of Negroes from service on the grand jury because of race. Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77; Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L. Ed.2d 991; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, L.Ed. 1074. *** To over come such prima facie case, there must be a showing by competent evidence that the institution and management of the jury system of the county is not in fact discriminatory. And if there is contradictory and conflicting evidence, the trial judge must make findings as to all material facts." Further: "The burden of proving discriminatory jury practices is upon defendant. State v. Covington. 258 N.C. 495, 128 S.E. 2d 822; Miller v. State, 237 N.C. 29, 74 S.E.2d 513; Akins v. Texas, supra (325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692). But this does not relieve the prosecuting attorney of the duty of going forward with the evidence when the defendant has made out a prima facie case." [22] In the instant case the crucial findings of fact are either indefinite or based on the absence of evidence. Defendants made out a prima facie case of systematic exclusion by showing the population ratio and that only a token number of Negroes had served on the grand jury, never more than one on any grand jury, sometimes none, and that such Negroes as were approved on the biennial list were designated "col." This was enough to cast the burden on the State to go forward with the evidence and show facts with respect to the management of the jury system sufficient to clearly overcome defendants' prima facie showing. But the State offered no evidence except such as it could elicit on cross-examination. The sheriff and the county commissioners were best qualified to give testimony relative to the administration of the jury system, since the law places upon them the primary responsibility therefor; they were not called and did not testify. Copies of jury lists, showing the names included and those excluded, were not kept; when a new jury list was made the old one was destroyed. The judge would not permit an examination of the current jury box or a determination of its racial composition. The court found that "there is no definite way to distinguish white from Negro from a study of the list," and Negroes have served on the grand jury and petit jury in Union County before and subsequent to August 1961," and "there is no evidence of systematic exclusion of qualified Negroes from jury service." These findings are negative in character, or so general in nature as to be indefinite and inconclusive. They fall far short of a positive, factual showing sufficient to overcome defendants' prima facie evidence. It is suggested that State v. Perry, 250 N.C. 119, 108 S.E.2d 447, cert. den. 361 U.S. 833, 80 S.Ct. 83, 4 L.Ed.2d 74, establishes as a matter of law that there is no systematic exclusion of Negroes from grand juries in Union County. This proposition is, of course, untenable. Each case must be decided according to the evidence adduced and the circumstances involved. There might be a different result in separate cases involving the same grand jury. Furthermore, the Perry case involved the 1957 grand jury, of which we have very little evidence in the instant case. Furthermore, the Perry case did not involve, so far as the opinion discloses, any racial designation of the names in the jury box. Defendants made other assignments of error, but, if there were errors, they may not again arise in the event of another trial. The indictments are quashed and the verdict and judgments are vacated for want of valid indictments to support them. It does not follow that defendants are entitled to discharge and dismissal of the charges. If the State so elects it may send new bills and if they are returned true bills by an unexceptionable grand jury, defendants may be tried thereon for the offenses alleged. Reversed. 266 N.C. 31 STATE OF NORTH CAROLINA v. MAE MALLORY, HAROLD REEP, RICHARD CROWDER, JOHN C. LOWRY, AND RESOLUTE INSURANCE COMPANY AND TIDEWATER BONDING AND SURETY AGENCY, INC., SURETIES FOR MAE MALLORY, HAROLD REEP AND RICHARD CROWDER. Nos. 509, 510. SUPREME COURT OF NORTH CAROLINA. DEC. 15, 1965. Proceeding to enforce forfeiture of appearance bonds and a forfeited cash deposit for appearance in lieu of bond. From adverse judgment of the Superior Court, Union County, John D. McConnell, J., the sureties and defendants appealed. The Supreme Court, Parker, J., held that where each bond recited that the defendant had appealed his or her conviction and sentence and bound the defendant to appear in specific term of the superior court and each succeeding term of the court pending final disposition of the above case and not to depart without leave of court, Supreme Court decision quashing indictments against defendants did not release and discharge corporate sureties from liability on appearance bonds and cash deposit, and there was a breach thereof when defendants, following return of new indictments failed to answer. An assignment of error not supported by an exception is ineffectual. An exception to the judgment presents the face of record proper for review, and the review is limited to questions of whether error of law appears on face of record proper and whether judgment is regular in form. 3. Bail 74 (1) Whether quashing of indictment will discharge bail must be determined by conditions of bond. 4. Bail 74 (1) Where each bond recited that the defendant had appealed his or her conviction and sentence and bound the defendant to appear at specific term of the superior court and each succeeding term of the court pending final disposition of the above case and not to depart without leave of court, Supreme Court decision quashing indictments against defendants did not release and discharge corporate sureties from liability on appearance bonds which were breached upon defendants' failure to answer new indictments. G.S. § 15-113. Individual defendants, who had actual knowledge of contents of the appearance bonds that they had signed as principals pending appeal of their judgments of conviction and sentence and who had actual knowledge of Supreme Court decision quashing their indictments were not deprived of their constitutional rights and due process because solicitor failed to notify defendants of his election to proceed with new indictments and failed to seek to admit defendants to new appearance bonds. Const. art. 1, § 17; P.S.C.A.Const. Amend. 14; G.S. § 15-122. 6. Bail 77 (2) Trial court's judgment ordering that bonds of defendants be forfeited absolutely should be modified when case is certified back to add that the state should have and recover from the principal defendant and corporate surety penalty of appearance bond in the face amount thereof. Proceeding by the State of North Carolina to enforce forfeited appearance bonds and a forfeited cash deposit for appearance posted in lieu of bond. At the February 1964 Mixed Session of Union County Superior Court the individual defendants were tried on two separate indictments, consolidated for trial. One indictment charged them jointly on 17 August 1961 with unlawfully, wilfully, feloniously and forcibly kidnapping one Mabel Stegall, a violation of G.S. § 14-39. The other indictment is identical except that is charges the kidnapping of G. Bruce Stegall. Plea: Not guilty. Verdict: Guilty as charged. Judgment of imprisonment was entered as to each defendant, and each defendant appealed to the Supreme Court. Defendant Mallory gave an appearance bond when she appealed to the Supreme Court as follows: "IN THE SUPERIOR COURT CASES NOS. 1088 & 1089-APPEARANCE BOND IN CASES ON APPEAL TO SUPREME COURT "NORTH CAROLINA UNION COUNTY: STATE OF NORTH CAROLINA V. MAY (MAE) MALORY KNOW ALL MEN BY THESE PRESENTS: "That May (Mae) Malory, as principal, and Resolute Insurance Co., as surety, are held and firmly bound unto the State of North Carolina in the sum of Fifteen Thousand ($15,000) Dollars, for which payment well and truly to be made, the parties hereto bind themselves, their heirs, executors, administrators, and assigns, jointly and severally firmly by these persents. "Signed, sealed and dated this the 16 day of March, 1964. "The condition of this bond is such that, whereas the above bounden, May (Mae) Malory having been convicted in the Superior Court of Union County, North Carolina, in the above numbered cases and having appealed from the judgments and sentences of the Court to the Supreme Court of North Carolina, and the Court having fixed her appearance bond in these cases Nos. 1088 Kidnapping G. Bruce Stegall; Nos. 1089 Kidnapping Mabel Stegall in the amount of Fifteen Thousand ($15,000) Dollars: "Now, therefore, if the above bounden defendant, May (Mae) Malory shall make her appearance at the May 4th, 1964 term of Union County Superior Court and at each succeeding term of said Court pending the final disposition of the above cases, and shall not depart the same without leave of the Court, then this obligation shall be void; otherwise to remain in full force and effect. [SEAL] S/MAY MALORY. May (Mae) Malory. By RICHARD F. TAYLOR, Attorney in Fact. [SEAL] "Witness: Carroll R. Lowder, Clerk of Superior Court "State of NORTH CAROLINA, UNION COUNTY "The execution of the foregoing instrument was acknowledged before me by RESOLUTE INSURANCE CO. By Richard F. Taylor, Attorney in Fact, for the purposes therein expressed. "Witness my hand and seal, this the 16 day of March, 1964. CARROLL R. LOWDER, Clerk Superior Court Union County." Defendant Reep, when he appealed to the Supreme Court, gave an appearance bond identical with that of defendant Mallory, and with the same surety, except that his bond is in the amount of $7,500. Defendant Crowder, when he appealed to the Supreme Court, gave an appearance bond identical with that of defendant Mallory, and with the same surety, except that his bond is in the amount of $10,000. Defendant Lowry's wife posted with the Superior Court of Union County $5,000 in cash as security for his appearance, when he appealed to the Supreme Court. In the record Lowry's name is spelled Lowry and also Lowery. The appearance bond signed by Lowry and his wife is as follows: FEBRUARY 28 TERM, 1964, SUPERIOR COURT-RECOGNIZANCE "STATE OF NORTH CAROLINA, UNION COUNTYS STATE V. JOHN CYRIL LOWRY "In this case the defendant John Cyril Lowry, and Mrs. Marcia Lowry his sureties, come into court and acknowledge themselves indebted to the State of North Carolina in the sum of Five ($5,000.00) Thousand Dollars. "The conditions of the above obligation are such that if the above-bounden defendant John Cyril Lowry shall make his personal appearance at the next term of this court, to be held on May 4, 1964 and at each succeeding term of said Court pending the final disposition of the above cases, 19__, and not depart the same without leave, then this obligation to be null and void, otherwise to remain in full force and effect. "Witness our hands and seals, this 28 day of February, 1964. [SEAL] [SEAL] (on reverse side) "NORTH CAROLINA, UNION COUNTY. /s/ JOHN C. LOWRY, /s/ Mrs. MARCIA LOWRY, "Mrs. Marcia Lowry, one of the subscribers to the above undertaking, being duly sworn, says that he [sic] is a resident and freeholder in the State of North |