The plaintiff in error, Charley Smith, was charged by indictment in the circuit court of Bolivar county, Miss., with having on the 14th day of May, 1894, in that county, willfully, feloniously, and of malice aforethought, killed and murdered one Wiley Nesby.
Before arraignment the accused moved, upon grounds stated in writing, to quash the indictment. One of those grounds was that the grand jurors who presented the indictment were not impartial, 'as guarantied by the constitution of the state aforesaid and of the United States, of which the defendant is a citizen of color, black'; another, 'because of the prejudice against him and his race on account of their color, the grand jury aforesaid was purposely selected of the white race, to the exclusion of the colored persons of the county competent for jury service, by the officers charged therewith, under the state law, on account of their color, for the purpose of procuring this indictment against defendant in violation of his constitutional right to be tried for his life upon the charge of murder herein in the circuit [court] of Bolivar county, state aforesaid'; still another, that the grand jury 'was not a duly elected and legally impaneled grand jury, as contemplated in the guaranties of the constitution of the state of Mississippi, and the constitution of the United States.'
The motion to quash the indictment was overruled. The record shows that the defendant duly excepted to the action of the court, but does not show that any evidence was introduced in support of the motion.
The accused was then arraigned, and pleaded not guilty. He demanded a special venire. Thereupon 50 names were drawn from the jury box, in open court, and process was issued for those persons.
The case having been continued, the accused at the next term made an application by petition for the removal of the cause for trial into the circuit court of the United States for the Western division of the Southern district of Mississippi. The petition is here given in full: