perior Court then draws a number of tickets from the box. The tickets are handed to a sheriff who in turn entrusts them to a clerk. It is the clerk's duty to "arrange" the tickets and to type up, in final form, the list of persons to be called to serve on the panel.

Approximately sixty persons were selected to make up the panel from which the jury in this particular case was drawn. The judge who picked out the tickets-bearing the names of persons composing the panel-testified that he did not, nor had he ever, practiced discrimination in any way, in the discharge of that duty. There is no contradictory evidence. Yet the fact remains that there was not a single Negro in that panel. The State concedes that Negroes are available for jury service in Fulton County, and we are told that Negroes generally do serve on juries in the courts of that county. The question we must decide, based upon our independent analysis of the record, is whether petitioner has made a sufficient showing of discrimination in the organization of this particular panel. We think he has.

The Jury Commissioners, and the other officials responsible for the selection of this panel, were under a constitutional duty to follow a procedure-"a course of conduct"-which would not "operate to discriminate in the selection of jurors on racial grounds." Hill v. Texas, 316 U. S. 400, 404 (1942). If they failed in that duty, then this conviction must be reversed-no matter how strong the evidence of petitioner's guilt. That is the law established by decisions of this Court spanning more than seventy years of interpretation of the meaning of "equal protection."

2 Norris v. Alabama, 294 U. S. 587 (1935).

3 E. g., Neal v. Delaware, 103 U. S. 370 (1881); Rogers v. Alabama, 192 U. S. 226 (1904); Norris v. Alabama, supra; Pierre v. Louisiana, 306 U. S. 354 (1939); Cassell v. Texas, 339 U. S. 282 (1950).

Petitioner's charge of discrimination in the jury selection in this case springs from the Jury Commissioners' use of white and yellow tickets. Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate. Further, the practice has no authorization in the Georgia statutes-which simply enjoin the Commissioners to select "upright and intelligent men to serve as jurors It is important to note that the Supreme Court of Georgia, in this case, specifically disapproved of the use of separately colored tickets in Fulton County, saying that it constituted "prima facie evidence of discrimination."

We agree. Even if the white and yellow tickets were drawn from the jury box without discrimination, opportunity was available to resort to it at other stages in the selection process. And, in view of the case before us, where not a single Negro was selected to serve on a panel of sixty-though many were available we think that petitioner has certainly established a prima facie case of discrimination.

The court below affirmed, however, because petitioner had failed to prove some particular act of discrimination by some particular officer responsible for the selection of the jury; and the State now argues that it is petitioner's burden to fill this "factual vacuum." We cannot agree. If there is a "vacuum" it is one which the State must fill, by moving in with sufficient evidence to dispel the prima facie case of discrimination. We have held before," and the Georgia Supreme Court, itself, recently followed these

4

* Ga. Code Ann. § 59-106. See Crumb v. State, 205 Ga. 547, 54 S. E. 2d 639 (1949).

5 Norris v. Alabama, supra, 294 U. S., at 594-595, 598; Hill v. Texas, 316 U. S. 400, 405-406 (1942); Patton v. Mississippi, 332 U. S. 463 (1947).

559

FRANKFURTER, J., concurring.

decisions, that when a prima facie case of discrimination is presented, the burden falls, forthwith, upon the State to overcome it. The State failed to meet this test.

Reversed.

MR. JUSTICE BLACK Concurs in the result.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE REED, concurring.

I concur in the reversal. My concurrence is based on the undisputed facts presented by the record. The facts that make a prima facie case of discrimination in the selection of petitioner's jury are as follows. The population of Fulton County is 691,797. Negroes comprise 25% or 165,814. The tax receiver's digest from which the jury list is selected has 105,035 white citizens and 17,736 Negroes-14%. The jury list for the year in question had 20,509 white and 1,115 Negroes-5%. From that list a number, 150 to 200, were drawn for service on each of the divisions of the court. Evidently these were for a week or a term's service. The venire from which the trial jury for Avery was selected numbered 60. All were white.

These facts establish a prima facie case of discrimination which the record does not rebut.

MR. JUSTICE FRANKFURTER, concurring.

It is undisputed that the drawings here were made from a box containing white and colored slips differentiated according to racial lines, white for white veniremen and yellow for colored. The slips were indiscriminately

• Crumb v. State, supra.

FRANKFURTER, J., concurring.

345 U.S.

placed in the box and were drawn from the box by a county court judge. There was testimony from a recent member of the county Board of Jury Commissioners that the use of these white and yellow slips was designed for purposes of racial discrimination, and it has not been shown that they could serve any other purpose. So far as the particular facts of this case are concerned, we may accept the testimony of the judge who drew the slips from the box as to the honesty of his purpose; that testimony does not refute the fact that there were opportunities to discriminate, as experience tells us there will inevitably be when such differentiating slips are used. In this case the opportunities are obvious, partly because the aperture in the box was sufficiently wide to make open to view the color of the slips and partly because of the subsequent use or abuse that could be made of the slips however fairly drawn. However that may be, opportunity for working of a discriminatory system exists whenever the mechanism for jury selection has a component part, such as the slips here, that differentiates between white and colored; such a mechanism certainly cannot be countenanced when a discriminatory result is reached. The stark resulting phenomenon here was that somehow or other, despite the fact that over 5% of the slips were yellow, no Negro got onto the panel of 60 jurors from which Avery's jury was selected. The mind of justice, not merely its eyes, would have to be blind to attribute such an occurrence to mere fortuity.

Accordingly, I concur in the judgment.

Syllabus.

TINDER v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 113. Argued April 9-10, 1953. Decided May 25, 1953.

As it existed in 1950, 18 U. S. C. § 1708 made it an offense to steal from a mailbox any mail, letter, or "any article or thing contained therein." It provided that an offender shall be fined not more than $2,000 or imprisoned not more than five years, or both; and provided further that if the value of "any such article or thing" does not exceed $100, the offender shall be fined not more than $1,000 or imprisoned not more than one year, or both. Held: A defendant convicted in 1950 of theft from a mailbox of a letter not shown to have had a value of more than $100 was improperly sentenced to imprisonment for more than one year. Pp. 566–570.

(a) The words "article or thing" in the concluding proviso included letters; the Section does not distinguish between theft of mail and theft of an article or thing contained in a piece of mail. Pp. 567-569.

(b) The elimination of the concluding provision of § 1708 by the Act of July 1, 1952, 66 Stat. 314, is inapplicable to a prior conviction under that Section. P. 569.

193 F. 2d 720, reversed.

Petitioner was convicted of mail theft in violation of 18 U. S. C. § 1708, and subsequently moved to vacate or correct the sentence. The District Court denied petitioner's motion. The Court of Appeals affirmed. 193 F. 2d 720. This Court granted certiorari. 343 U. S. 976. Reversed and remanded to the District Court for correction of sentence, p. 570.

William W. Koontz, acting under appointment by the Court, argued the cause and filed a brief for petitioner.

Murry Lee Randall argued the cause for the United States. With him on the brief were Acting Solicitor