STATE of Tennessee ex rel. Willie Lee HENDERSON, Petitioner, v. Lake F. RUSSELL, Warden, Respondent, 459 S.W.2d 176

OPINION WALKER, Presiding Judge. The petitioner below, Willie Lee Henderson, appeals from the dismissal of his petition for habeas corpus after an evidentiary hearing. The petitioner, a Negro, has previously filed petitions in state and federal courts but he says that this is the first one raising the question that there had been systematic exclusion of his race from the grand jury which indicted him and the petit jury which convicted him. In 1948 the petitioner, represented by retained counsel, entered a plea of guilty to murder in the first degree and was sentenced to 99 years in the penitentiary.

He did not question the composition of the juries in the trial court, either by motion or plea in abatement. He raises it now for the first time in this proceeding. The petitioner was not convicted by a jury. He entered a plea of guilty voluntarily and with full understanding of its consequences. His plea of guilty was itself a conviction. Like the verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7.

After a voluntary plea of guilty, the right to have evidence presented to a jury to fix the punishment is a statutory one and does not rise to constitutional stature. State ex rel. Edmondson v. Henderson, 220 Tenn. 605, 421 S.W.2d 635; State ex rel. Barnes v. Henderson, 220 Tenn. 719, 423 S.W.2d 497. Likewise, the composition of a jury fixing the punishment on a plea of guilty raises no constitutional question.

Since the composition of the petit jury on a plea of guilty raises no constitutional question, the real issue is whether or not the defendant waived the right to challenge the grand jury which indicted him. In State ex rel. Barnes v. Henderson, supra, the court said: “On the subject of waiver it has been noted that: ‘As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver is not against public policy.

In fact, the trend of modern authority is in favor of the doctrine that a party in a criminal case may waive irregularities and rights, whether constitutional or statutory, very much the same as in a civil case.

Some jurisdictions, however, regard certain rights as nonwaivable in capital cases, or even in felony cases generally. * * ‘Where a constitutional right accorded the accused is treated as waivable, it may be waived by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.’ 21 Am.Jur.2d Criminal Law, § 219.” Under the criminal procedure in this state, objection to the venire or the indictment is deemed waived unless raised in apt time by motion or plea in abatement. In State ex rel. Lawrence v.

Henderson, Tenn.Cr.App., 433 S.W.2d 96, 101, this court said: “If the defendant does not object by motion or plea in abatement, to the veni-re or to the jurors summoned under it, before he pleads to the indictment, ani* objection thereafter is too late.” See also Parker v. State, 2 N.C.App. 27, 162 S.E.2d 526 (1969), and Hamilton v. State of Alabama, 283 Ala. 660, 220 So.2d 267 (1969).

In those cases, the Court of Appeals of North Carolina and the Supreme Court of Alabama held too late a claim in postconviction proceedings that members of petitioner’s race had been systematically excluded from the juries when no such question was presented at his trial. The petitioner here participated as an actor in the order which he now seeks to set aside.

After due and thoughtful consideration and after being properly advised by his retained counsel, he entered a plea of guilty to murder in the first degree and took the known sentence of 99 years rather than take the calculated risk of receiving a more severe penalty at the hands of a jury. See Ray v. State, Tenn., 451 S.W.2d 854 (1970). We hold that petitioner, acting through his employed attorney, waived any objection to the composition of the grand jury .or the petit jury, by his failure to proceed in apt time to question them in the trial court.

Federal courts hold that objections to the racial composition of a grand jury must be raised before trial and may not be presented for the first time on a motion to vacate or by writ of error coram nobis. This rule offends no constitutional right. In Bustillo v. United States, 421 F.2d 131, 132, (5th Cir.), the petitioner filed a 28 U.S.C.A. Sec. 2255 motion to vacate his sentence, claiming that the grand jury which indicted him was defectively constituted. Two years before this proceeding, he had entered a plea of guilty to bank robbery.

Affirming denial of the motion without a hearing, the court said: “Objections to the composition of a grand jury are governed by Rule 12(b) (2) of the Federal Rules of Criminal Procedure. Shotwell Manufacturing Company v. United States, 1963, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357. Rule 12(b) (2) provides that a defect in the indictment must be objected to by motion before trial and that failure to object at that time waives such a defense. Bustillo did not object before trial, or at any other time during the proceeding on the merits, to the composition of the grand jury which indicted him.

His failure to do so constituted a waiver so that he may not now for the first time assert such an objection. Scales v. United States, 1961, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782; Jackson v. United States, 5 Cir. 1968, 394 F.2d 114, 115; Perez v. United States, 5 Cir. 1962, 303 F.2d 441.” In Jackson v. United States, 394 F.2d 114, the Court of Appeals (5th Cir., 1968) considered an objection to the racial composition of the grand jury presented by writ of error coram nobis.

It held: “He is likewise barred from raising the question of the composition of the grand jury on the allegation of racial exclusion, being required by Rule 12(b) (2) of the Federal Rules of Criminal Procedure to allege such a defect by motion before trial, which he did not do then or at any other time during the proceeding on the merits.

His failure to do so constitutes a waiver thereof so that he may not now, for the first time, more than two years after his trial, question the composition of the grand jury which indicted him, the Trial Judge having correctly held that he was in no way prejudiced.” In Atlas Roofing Manufacturing Company v. Parnell, 409 F.2d 1191 (5th Cir., 1969), the court said: « “In the absence of actual bias or prejudice, an objection to the composition of the grand or petit jury panel comes too late after the verdict.” By a state prisoner’s habeas corpus proceeding in Hayes v.

Wainwright, D.C., 302 F.Supp. 716 (1969), the petitioner claimed that Negroes were systematically excluded from serving on grand juries. Finding no merit in his contentions, the court said: “In any event, petitioner having failed to raise an attack upon the grand jury’s composition at the time of his trial cannot now raise the issue.” In Doyle v. State, Tenn.Cr.App., 458 S.W.2d 637 (cert. denied April 20, 1970), by post-conviction proceedings, the petitioner objected to the racial composition of the grand and petit juries which indicted and tried him.

Speaking for the court, Judge Russell held: “We hold, however, that his right to raise this question was waived when it was not raised upon the trial by motion or plea in abatement prior to his pleading to the indictment. Discrimination in the composition of venires has long been condemned in Tennessee. See Zanone v. State, 97 Tenn. 101, 36 S.W. 711. It has also been held in Tennessee, in a long line of cases, that unless a defendant objects by motion or plea in abatement to the venire before he pleads to the indictment he cannot thereafter avail himself of a claim that the venire was improperly composed.

State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Turner v. State, 89 Tenn. 547, 15 S.W. 838; Ellis v. State, 92 Tenn. 85, 20 S.W. 500. See also State ex rel. Lawrence v. Henderson, Tenn.Cr.App., 433 S.W.2d 96. We do not believe that one should be permitted to raise a question in a post conviction proceeding that was waived by failure upon the trial, by design or otherwise, to timely raise it when our procedural law prescribes that it should be raised. To permit this type procedure would make a sham of the trial itself.

A defendant would not raise such questions upon the trial in the hope that he would be acquitted, but with the assurance that he could avail himself of the complaint post conviction to obtain a new trial. We hold that this question was disposed of upon the trial adversely to Doyle when it was not then raised. We are not dealing with a constitutional principle newly announced since his trial, but a right well recognized and protected at that time.” We held to the same effect in Burt v. State, Tenn.Cr.App., 454 S.W.2d 182 (cert. denied May 4, 1970).

From these authorities, it results that the judgment of the lower court dismissing the petition is affirmed.