The question for decision is the correctness of the rulings on the motion to quash.
*70A careful perusal of the record leaves us with the impression that the findings and rulings of the trial court on the defendant’s motion to quash the indictment are without support in the factual evidence. True, it is stated by at least two of the witnesses that the Commissioners intended and practiced “no discrimination” in the drawing of jurors, but these are conclusional statements which run counter to the facts. For instance, the Clerk of the Board of County Commissioners says the red and black scrolls were for the convenience of the Sheriff in summoning prospective jurors, albeit his own testimony shows that the red scrolls never reached the Sheriff or got beyond the Commissioners. And the Chairman of the Board of County Commissioners says that all rejections were made for “want of good moral character and sufficient intelligence.” This cause was available to the Commissioners as a general objection only when the jury list was being prepared, G. S., 9-1, and not after the names were in the box. G. S., 9-2; 9-7.
The conclusions reached in the court below are not supported by the record. Hence, the rulings are subject to review on appeal. S. v. Walls, 211 N. C., 487, 191 S. E., 232 (certiorari denied, 302 U. S., 635); S. v. Henderson, 216 N. C., 99, 3 S. E. (2d), 357; S. v. Daniels, 134 N. C., 641, 46 S. E., 743; S. v. Peoples, 131 N. C., 784, 42 S. E., 814. Even in some discretionary matters an appeal may lie for deficiency in the record. Crane v. Carswell, 204 N. C., 571, 169 S. E., 160.
In S. v. Peoples, supra, it was held by this Court that “the exclusion of all persons of the Negro race from a grand jury, which finds an indictment against a Negro, where they are excluded solely because of their race or color, denies him the equal protection of the laws” in violation of his constitutional rights, and that a motion to quash the indictment would properly lie in such case. A like conclusion is reached here by virtue of our decisions on the ‘“law-of-the-land” clause in the Declaration of Rights, Art. I, Sec. 17. S. v. Collins, 169 N. C., 323, 84 S. E., 1049.
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. S. v. Sloan, 97 N. C., 499, 2 S. E., 666; Capeharl v. Stewart, 80 N. C., 101.
Then, when we turn to the Federal cases on the subject, no doubt is left as to the invalidity of the indictment appearing on the present record. Patton v. Mississippi, 332 U. S., 463; Smith v. Texas, 311 U. S., 128, 85 L. Ed., 84; Pierre v. Louisiana, 306 U. S., 354, 83 L. Ed., 757; Hollins v. Oklahoma, 295 U. S., 394, 79 L. Ed., 1500; Norris v. Alabama, 294 U. S., 587, 79 L. Ed., 1074; Rogers v. Alabama, 192 U. S., 226, 48 L. Ed., 417; Carter v. Texas, 177 U. S., 442, 44 L. Ed., 839; Neal v. Delaware, 103 U. S., 370, 26 L. Ed., 567. “A systematic and arbitrary exclusion of negroes from grand and petit jury lists because of *71their race and color constitutes a denial to a negro charged with crime of the equal protection of the laws guaranteed by the Fourteenth Amendment.” Hole v. Kentucky, 303 U. S., 613, 82 L. Ed., 1050. See Annotation following this case in 82 L. Ed., 1053, for collection of authorities and valuable note.
Upon the showing here made, the trial court might well have directed the Commissioners to proceed, as the law commands, with the drawing of a proper jury panel to be summoned for service at a later term, from which a lawful grand jury could be drawn and unexceptionable petit juries selected. G. S., 9-3; 9-25. Perhaps this may now be done without an order of court.
The defendant is not to be discharged. Tie will be held until the accusation against him can be performed by an unexceptionable grand jury, and, even after the present bill is quashed, the court may still order his detention for like purpose, if need be, in manner similar to that approved in S. v. Griffice, 74 N. C., 316.
The exceptions to the rulings on the motion to quash must be sustained.
Reversed.