Jurisdictional Statement — Arnold v. Virginia

Mops raserp ie Hoes ote

’ » Page :

I.” REFERENCE TO REPORTS OF

: \ AOPINIIIA sels kccuca or

IL. STATEMENT OF GROUNDS 10 Ls

INVOKE JURISDICTION .,........,,1.

III. QUESTIONS -PRESENTED ........:... 2

‘IV. STATEMENT OF CARR sisitoe -

V. PRESENTATION OF FEDERAL = -

QUESTION ........-.. ib etait ins a at

‘VI. ALTERNATE REASONS FOR ;

REVIEW BY CERTIORARI .......--. 13

VII. ORDER APPEALED FROM Anke

VIII. CONCLUSION beequentegeneses seit

IX. PROOF OF SERVICE | saan ba ulate 16

pee

Vie

; TABLE:OF AUTHORITIES, |

2 : oe

af CONSTITUTIONS AND STATUTES.

| "Constitution of United States of Atacrica, catcat sik eee

‘ ; Amendgent X13 fection |. eae 5X aphie-c'e'e 7".

3 - Constitution of Virginia, Séction 8 ..... wELGenc oo

¥ Constitution of Virginia, Section 60 mekchiet asses ee ¥

- United States Code, Title 28, Section 129702) . Ie

Virginia Acts oe ss SY

: Virginig. Acts 1960, ch. 358 ......... Aone Comes

“Va. Code of 1877, ch, 194 §13 6... .6....6.0000004. 8

"Va. Code of OBA S8826'...-.. SHOE 0 ttig’

Va. Cod of 1919 §4693 . Gti MSA eAO? 3h

cae Va. Code of 1950 §18-301 FRG AOCOUS . Ag |

| Ma Ceala of 1950 $18.1 -00 “iS eet Se

I. 1. JUDICIAL DECISIONS

Giaccio v. Péansyloania, 382 U. §. 399, 86 S. :

> Ct. 518, 15 L. 24. 447 (1966) ...... oe £8.

ak das Meeicaa 203 Va. 398, 124 pr

eee week been beeeee ==

TABLE OF AUTHORITIES (Continued) *

te cael Cree oh a. Hate eS i a:

Jencks v. United States, 353 U. 8. Be? 778. os “a

Ct 1007, 1 L. 21108 (1987) oo. IE

Map v. Ohio, 367 U. 8. 643 818. Ct 1684 ee

6L. 2d 1081 (1961) ...... ean

" ‘Mangis’: Porter, 157 Va. 41s, 1618. E. et

MAB Sistas: AARNE AS dines 9

Pointer y. Texas, 380-—U. S. 400, 85 Ss. Ct. 1065 |

13 L. 24 983 (ANGE) cv eveseesecsiese sects ie

Thompson v. Louisville, 362 U. S. 199, 808. Ct. :

624, 4 L, 24654, 80 A. L. R. 2 1385 (1960) ... 13

* IIL TREATISE |

Note: Contests of Skill and the Lottery Laws, ‘Sa

23 Va. Law Rev. 431 ..... Jivieenalion de wevesc eS S

oe

. ‘ > % . o a“ . .

e . <<

i a al a LS SEM Ie bet < et ety di ci EEA

. a

. : ‘ | Pa .

2 - - $ ¢ - .

‘ ° : a

“4 .

°° ° ’ : ” *

‘ye

& . . .

g : : ' ,

oy (

‘ ° . ‘

. . P ‘ “ -

’

¥ 7 . .

* ° 7 .

*

ae ‘ _ -

. ar

Z . .

‘ ; ; :

«

: > : ° s .

. .

- 1 .

4 ‘ ;

3 :

F ;

. .

e .

. ‘ 2 <

— . ‘ be = .

% % *

f ; 4 3

. . . - J

‘ * % e. S * c . *.

‘ . . \ A

5 * - ‘ . “

. = ar . é . ,

. . 2 \ . .

. . *-¢ ‘

n 2 3 M ‘

4 ‘ ; e ‘

. ya? bd] a . won .

“ ‘ |

ae o . .

- * . . . os

bY : .

” od 2

pote eos . ~ »

= ° , 5 ‘ *

at . . = 4 Be

, - 28° 7 2 . °. . °

. . 2 °

‘ - * : o-

. ° *

. * > ° . . - =

wa : a ;

‘ : _

. , : >

. x . Pr . ? *

. “ ‘

* » ° - «*

a : . ‘ =

. ‘

. Los ¥ . - . 1

t . 1 ‘ ‘ if

ee, :

€ A ’ r ‘ * . ‘

, : ~ Py

« . } . . : . .

- 5 b. «

J .~ 4 . ad if f

F .

. aed ° . ; >

cow Kr

< . . -

; - a ‘ ‘ . . may

5 ie

. s ar ‘

2

.- . *

is¢ . . .

° é * a

. . a

e

. *

ts IN THE ° kiss of ‘oo

OLIVER W. ARNOLD, | sirge

+ Appellant \. daw

Wet fap2 ere

ie COMMONWEALTH OF VIRGINIA,

“are figk ce ite rae

}«

. Pa ibinscsbeisicnse ve

To the Honorable Chiet Justice and Associate Justices 3

of The Supreme Court of the United States: =i OR

The Appellant, Oliver W. Arnold, scbinits the

or statement of the jurisdiction for this: .appeal.

I. REFEREN CE TO REPORTS OF OPIN ION: S

’ A writ of error was denied by the Supreme Court pat

of Appeals of Virginia to the judgment: of ‘conviction’

of the trial ‘court; and consequently no opinion. was

; rendered or reported i in an. official or ee — :

11. STATEMENT OF GROUNDS TO | ae

INVOKE JURISDICTION:

Juried iction is’ invokéd..on the grounds" ‘ther the

‘Appellant was ‘convicted by. a- State court-of: the:crime — :

of violating a State criminal statute which, is invalid sf

: - |

- because the statute is repugnant to Section | of the

. Amendment. XIV: of the Constitution of the United

State of. America; and ;

BS The nature of the proceeding sought to be re-

vi is a prosecution by the Appellee against the Ap-

_ pellant for the felonious operation of a numbers rficket

“as defined by the Va. Code §18.1-340; and —

a 2. ‘The judgment sought to be reviewed was made

. and entered by-the Supreme. Court of Appeals of Vir-

ginia on October 5, 1966, and the notice of appeal to-

this Court was timely filed with that court on January

"3, 1967 within the réquired ninety days; and

a The statutory provisiog believed to confer the

jurisdiction on this Court is 28 U. S. C. §1257 (2); and

4. Qne of the numerous judicial decisions by this

Court believed to sustain jurisdiction .is:” Giaccio~v.

447 (1966); and

5.° The validity of Section 340 of Title 18.1 of the

Code of Virginia of: 1950 as amended is involved;

said statute is'found in the 1960 Replacement Volurke

4 of the-Code of Virginia of 1950 on pages 303-304;

and the text of said statute is set out verbatim on pages

7 and 8 of this jurisdictional statement. (

IIL. QUESTIONS PRESENTED

The questions presented by this appeal are:

vt (a) Is the statute ‘making a felony of the operation

* >. of a gumbers yracket invalid because it is vague and

i standardless? | | -»

2

’ Pennsylvania, 382 U. S. 399, 86S. Ct. 518, iS L. 2d =

(b) Was Instruction No: | given on behalf of the

Commonwealth erroneous bécause it was so general and °.

' indefinite in its terms as to involve the submission of a

matter of law to the jury for determination?"

(c). Should the verdict of the jury as bien a 3

asidé because it was uncertain what the jury decided?

(d) ' Should a new ‘trial be granted for improper :

a

~ (e) Should the testimony of C. H. Moore, particu-

larly in regard to his opinion designating two slips of

eS record?

Temarks mgde by the Commonwealth’s.- Attorney i in his

opening statement?

paper as numbers slips, have been stricken oe the

' (f). Is a police officer sabi to cross-examina- ©

; tion front his report of the investigation of the crime?

‘@

( g)°: Was the evidence sufficient ta convict?

“(t) Did certain ‘remarks. made by the trial judge —

in the presence of the jury result én prejudicial error?

IV. STATEMENT. OF CASE Pag

The following is a concise statement ‘of the case con-

fined to the question of jurigfiction. Page references

ta the record prepared by the clerk of the trial court-are

_ preceded by the letter “R" and to the ‘transcript are

preceded by the letter “T”.. + ding

?

On August 11, 1965, at ieuclictennlas 11:30 A.M.

(T. 97) ‘several investigators for the Virginia Alco-

holic Beverage Control Board and ather law officers

(T. 47) Séarched a building at 301 First Street, North-

‘ ‘ ‘s 3

_ west, Roanoke, Virginia, called Jackie's Shoe Shine ,

“Parlor, for violations of the Virginia A. B. C. Act (T. |

54). A shoe shine parlor:is operated in front (T. 48) --

* But the back room is apparently used for a common

. ‘nuisance commonly’ called a “nip joint” (T. 56-57) alleg-

edly operated by the Cabbler brothers (T. 57). At the

time of this raid, the place was being operated by Hal - |

' Cabbler, the father of the alleged — 47. 57- — ra

58). | |

_ Apptilant was standing i in the front room leaning on |

a counter at the time of the raid. (T. 100) and, because he

was the first person encountered, one of ‘the investiga-

tors handed the search warrant to him (T. 61; T. 100-

102). Because, the warrant was for the place and not him

individually, Appellaat refused to be searched (T. 102)

after handing the investigator the items in his hand (T. —

- * 102). Since he was charged with na crime, the Appellant ”

- tried to leave’ but this was'not permitted (T. 102-103; T.

210). Later Investigator Bell saw Appellant secretly :

_ throw on. the floor two slips of paper (T. 52). intro-

duced as Commonwealth’s Exhibits 1 and 2 (T. 53).

Appellant denied throwing the slips on the floor and

_ am argument resulted. At this moment, Roanoke City

Vice Squad Officer H: J, Heath entered the premises

and arrested Appellant for disorderly-conduct (T. 69)

~ and upon secing the slips of paper also charged Appel-

aca Possession of numbers slips (T. 70). +

| "Both of: these chifrges j were for. violations of ordi- :

nances of the City of. Roanoke, Virginia. No warrants

were obtained for either of these two violations, but on ©

September 1965, Appellant was tried in the Municipal

Court. of. the City of Roanoke for the charges. At the _ 7

conclusion of the trial, Appellant was ‘bound over to 2 |

the grand jury for felonious violation of Va. Code _ 7 |

4

§18.1 - 340 although neither Appellant nor: his counsel

was aware that the trial was a opens anes are

a felony.. ; 7

ao Subsequently Appellant was indicted by a special |

grand jury impaneled by the 'Hustings Court of the City

of Roanoke for the apparent felony: that he “did un-

lawfully and feloniously promote and be concerned in

the managing and drawing of a lottery for money and .

other things of value, said lottery being commonly known ©

‘ as the numbers game” (R. 2). After several continuances .

and pretrial conferences, the charge was. tried by a

petit jury impaneled by said ‘Hustings Court on January

13, 1965 (R. 17-19).

At the trial, a mass of ordinary. newspapers gath-

ered from the premises -was introduced in évidence.

These newspapers contained appropriate news items re-

porting stock market prices and horse racing: results. AD

‘ witness, Floyd M.- Bailey, testified that he played the

- . number “906” for 25c with Appellant in front of Whee-

_ by’s Store on First Street, Northwest, Roanoke, Virginia

on August 5, 1965 ‘fT, 90-91). Another witness, Samuel

Grant Fleming, testified he played numbers with Appel- ‘

lant “Two or three times” approximately: a “year or

more” before the raid on August 11, 1965 (T. 116).

The investigators ‘identified the »stwo ordinary slips of

paper which Appellant allegedly threw on the floor

(T. S3)s

,. Then an expert witness testified how a numbers

game is operated. He also testified that. two separate

numbers games were operated in Roanoke, Virginia. «

One of the games based the winnings on the stock

market results and the other game based the winnings

4

\

on horse racing results (T. 125- 134). He ‘sfated Jackie’s

Shoe Shine Parlor gave information by telephone about

_ current winning numbers (T. 134). :

‘In particular the expert testified there were two ma-

jor numbers games in the. City of Roanoke. In each game,

the “player” gambled’ on the number with a “writer”

“who passed the bet on to.a “banker” who headed the

operation. Each “writer”. took bets from several “play-

ers”; each “runner” took bets from several “writers”,

and the “banker” took bets from several “runners.” In a

- small operation, a person could be a “writer”, “runner”,

and “banker” or a combination of ‘two of them; but in

Roanoke there were two m&jor numbers games. This

testimony was hypothetical, without mentioning the

Appellant, to explain to the judge and jury the nature

of ‘the alleged. crime with which the Appellant was

charged: (T. 127-134).

: Throughout every stage of ‘the trial, in the notice

of appeal and assignments of error: to the rulings-of —

ial court (R. 26-28); and in the petition for a writ

“ error to the Supreme Court of Appeals of Virginia,

the Appellant contended the evidence should -have been

struck because tie statute creating the offens¢ was con-

_ $titutionally invalid. At all said points of procedure,

the Appellant also contended [Instruction ,No. 1 based

_ om the statute was erroneous because. of the invalidity of.

the statute (R. 17-19; R. 26-28). There could be no up-

holding of the conviction by either the trial court or by °

the Supreme Court of Appeals of Virginia without a.

square holding in favor of the validity of the statute

alleged to be repugnant to the Constitution of the United

States of ‘America, (See Point-1 of the petition for a writ

rove a=

6

?-

‘ V. PRESENTATION OF FEDERAL

vpliq . QUESTION

Shice the Appellant will go to jail if his conviction

under the State statute is not reversed, the federal ques-

tion involved is material to him. Because the statute

is obviously constitutionally invalid for reasons herein-

‘after mentioned, the federal question is substantial.

Section 60 of the Virginia Constitution of Virginia

prohibits lotteries. Being concerned or involved in num- °

_ €rous ways with a lottery is a misdemeanor in Virginia

by virtue of a statute which provides:

re any person : :

(1)

- @)

(3)

(4)

(5)

Set up, promote or be concerned in manag-

_ ing or drawing a lottery or aca for money

- or other thing of value,

-—_—

0 oe permit such lottery in any house

er his control,

Knowingly rmit money or. other property

to be ra fie for in such house, or to be won

‘therein, by, throwing or using dice, or by any

other game of chance,

Knowingly permit the sale in ee? house of

any chance or ticket in, or share of a ticket

in, a lottery, or any writing, certificate, bill,

token or other device’ purporting or intended

to guarantee or assure to any person, or en-

title him to a prize or share’of, or/interest in

. a prize to be drawn in a lottery, or, /

For himself or another | ‘person buy, sell or

transfer, to ‘have in ‘his possession for the pur-

pose of sale or with intent to exchange, ne- —

gotiate or transfer, or aid in selling, exchang-

ing, as or transferring, a chance or

7

s

ticket ‘in or share of a ticket in a lottery, or

any such writing, certificate; bill; ita or

device,

‘He shall be paler in jail.net exceeding one

Fm and fined not exceeding five hundred dol-

. ” Va. Code §18.1 - 340. : |

This identical atte, without the numbering of

paragraphs, was codified in the Va. Code of 1877 asch. - |

194 §13, carried forward to the. Code of 1887 as §3826

and the Code of: 1919 as §4693; and with the paragraphs

; numbered, made part_of the. Code of 1950 as §18 - 301.

- SB rite 1958, the operation ofa “numbers racket” is -

apparently a felony i in Virginia. by virtue of an rly

ment to the aforesaid statute adding the following: |

al ” . provided that any perspn who shall

ft ehh any of the provision’ of this section when —_

such. violation shall consist of the operation or con-

‘duct of a lottery commonly known as the numbers - #

® _ game or the numbers:racket shall be confined in the -

: penitentiary, not less than one year nor more than |

ten years and fined. not less ‘than five hundred dol-

xi lars, or in the discretion of the jury.or the court

trying the casé without a jury, he shall be confined in

jail not less than six months nor more than. twelve -

months and fined not more than five hundred dollars,

either or both.” Acts 1958, ch. 377.

2... The statute as amended was re-enacted as Va. Code

$18.1 - 340. Acts 1960, ch. 358. There is:no reported ju-

dicial decision dealing with said 1958 felony amendment

. to the Virginia anti- lottery statute.

The offenses ni jade misdemeanors by the statute are “J

' -fairly clear and certain. A lottery is a form of gamblin |

where a consideration i is paid (or. -“~ to be pels) for

a chance to win a prize. Maughs v. Porter, 157 Va. 415,

161.S. E. 41 (1931). Sometimes it is difficult to decide

when success depends on skill or on chance, but fairly rea- .

sonable standards of differentiation are available. See

Note: Contests of Skill and the Lottery Laws, 23 Va. Law

Rev. 431. The “numbers game” or “numbers racket” is

clearly a lottery, Hayden v. Commonwealth, 203 Va. 398,

124 S. E. 2d 13 (1962) ; and thus the statute contains a

‘standard as to what acts involving the “numbers game”

are promipiase as misdemeanors.

“On the aim hand, the 1958 naiandanane contains no

standard to ascertain when an act involving a lottery,

_otherwise prohibited agga misdemedhor, constitutes’ the .

“operation or conduct of a... numbers game”. ‘The

statute does not define a “numbers game”; and while’ it _

_may be clear that what some people call a numbers |

" game is a lottery, it is not clear which lotteries are num-

bers games and which lotteries are not..Also the statute

does not define “operation” or “conduct”. Is the purchase

of a chance called a “number” a misdemeanor or a

felony? Is the sale of a-‘“number” a misdemeanor or a *

felony? If not a felony, how far can a gambler go up

the ladder in the numbers racket before he commits a fel-

ony instead of a misdemeanor? The statute contains no

standards to distinguish what.is felonious and leaves these

questions unanswered.

During the course of the trial neither the judge nor

the jury.nor the prosecutor nor the defense counsel un-

derstood what was prohibited by the felony provision of

the statute. To solve the problem the prosecutor called an

expert witness to explain the crime with which the Appel

lant was charged, but the only evidence against the Ap-

pellant was that he threw on the floor two slips of paper

which could be interpreted as numbers slips but could

also be initerpreted otherwise (T. 50). The. judge had to

_- instruct the jury, without a statutory standard, about what

was prohibited by. the felony provision of the statute. The

judge solved the problem by giving only one instruction

on behalf of the Appellee (under which the jury had

to return its sped following | the language of the statute

as follows (R. 20):. a ae ok |

“The court instructs the jury that if you believe

from the evidence, beyond a reasonable doubt, that

_the defendant, Oliver < Arnold, set up, promoted, .

or was concerned in managing a numbers game, you

. should find him guilty as charged and fix his punish-

‘ment at confinement in jail not exceeding one year

ora gi not excepding five hundred dollars, either —

or bo

“The Court ‘aoe instructs the jury that if

- you believe from the evidence beyond a reasonable

doubt that any such violation as set forth above con-

sists of the operation or conduct of a lottery com-

monly known as the “numbers game”.then you shall

7

»

’ find the defendant guilty and fix his punishment by _

: confinement in the penitentiary not less than one

year nor more than-ten years and a fine not less than

five hundred dollars; or in the discretion of. the

: . jury by confinement in jail not less than six months ~

nor more than twelve months and fined not more

than five hundred dollars, either or both.”

The first paragraph apparently defines a misde-

mednor violation of Va. Code §18.1 - 340. {1), except it |

substitutes for the word “lottery” the. words “numbers -

eae: However, it does not tell the jury what is an

egal numbers game. Whether calling it a lottery or num-

bers game, the instruction should have defined the ele-

ments of —— chance and prize ‘instead. of .

ee

,

leaving the j jury to decide what an illegal numbers all

is.

The coven péragraph siaeiia defines iis felony

' violation. Howéver it does not tell the jury how to dis-

tinguish between an ordinary lottery and ‘a “lottery com-

@monly known-as the numbers game.” Furthermofe it does

- define “operation” or “conduct”, leaving the jury

ecide not only what a numbers racket is but also

what acts of “concern” with a numbers racket constitute

the “operation” of a numbers racket’ o-

;‘The proof of the pudding is in the eating” and

Pe proof of the confusion of the instruction based on a

ague statute is in the jury’s own admission of confusion.

The jury found the AppellAnt guilty “as charged”. and

fixed his punishment at configement in jail for one year

and a-fine-of $500.00. Immediately thereafter, the fol-

lowing staternents were made in open court (T. 266-267;

emphasis added ) (Moran was the Prosecutor ; Kennett, a

the defense counsel) :

- “MR. MORAN: If your Honor please, is it a

misdemeanor or felony,, I believe-under the punish- .

' ment it wouldn’t — the punishment itself woulda’ t

determine that would it? y

THE COURT: Yes, that’s a misdemeanor.

MR. MORAN: A misdemeanor. Well if that’s

.. the judgment of the ~ I. es wanted to make

sure.

THE COURT: It’s a i alia puiitshiennnt

otherwise it would be in the penitentiary.

MR. KENNETT: Well it’s a question it coil be

in the alternate of the penalty. VP

/ BS.

_

\

THE JURY: The instructions were confusing to

o

‘

a

THE COURT: Well they were to us too. “It isa

. wery: difficult statute to instruct under.

ae MR. MORAN: I believe under the fefony b he ond

__. ‘be confined in jail twelve months: Fe.

‘THE COURT: ‘Peete months. se:

‘MR. MORAN: Felony also. 3 : .

_ MR. KENNETT: Yes sir, that paore a either

one. I would [ike a clarification as to whether he

was convicted under paragraph one or two?

THE COURT: Did you gentlemeh mean ‘to ‘fine

. him under paragraph one or paragraph two?

‘THE J URY: We-did not spell that out, we: will

have to go back in there.

- THE CQURT: It would sound like you found him

; guilty under paragraph-one, but I’m not sure. ire,

MR. KENNETT: I think “under. paragraph two .

-that you could ‘still have an alternative, instead of

. givfhg’ him penitentiary it could have. beeh up to

~ one year in jail and $500.00 fine. ©

THE COURT: Twelve months in jail.

. MR. KENNETT: Yes sir. ,

’. THE COURT: I think the verdict is elie: It’s «

- ufder pardgraph one because that’s the only verdict |

: you could give. .

MR. MORAN: All right, I just eg know.

THE COURT: That’s em ‘vergict gentlemen?

. ‘THE JURY: : Yessir”) . % .

Rarely. can a sonanial atguing that a statute ie vague *

fae stardardless cite admissions by both the jrtdg@ and ~

‘jury in open court, as in this instance; that they do not

» understand what je — by the statute. The due

en,

| See

Do

EE SE, ea a tee ees Ye

Wee

‘.

process clause of the Fourteenth: Amendment of the

United States Constitution invalidates a gtate~criminal

statute which is so vague and standardless that it leaves”

the public uncertain as to what jt prohibits or leaves the

+e judges or jurors free ta decide without any legally fixed

standards, what is prohibited and whaf is hot in each par-

ticular case.-Giaccio-v. Pennslyvania, 382 U: S, 379, 86

‘Ss. Ct. 518, 15.L. 2d. 447 (1966).

‘ VI. ALTERNATE REASONS ror. REVIEW :

3 BY CERTIORARI +

In addition: to the federal sched for which the

Court has. jurisdiction on appeal, there are numerous

‘federal questions involved in. the case for which the

Court might as a mattér of‘sound judicial discretion re-

- view by writ of certiOrari.. Amiong these legal points _

+ are that the Appellant was denied om —. of law”

because:

|

(1) i+. was stained without ‘Gitficieat evidence. .

he sole direct evidence against the Appellant was that.

e threw on thesflodr two ordinary slips of paper, 3 by -

5 inches ‘in size, with various numerals written on same

: (Commonwealth's exhibits’ 1 arid | 2). The. numerals .

‘ were not in his handwriting (T. 176), and may have been ©

for some other use than for the numbers racket (T. ~

150). Even if he did ‘have numbers slips in his posses-

sion, it does not prove he was operating’ a sianibere.

. facket. Conviction without evidence is a denial of due

process, Thompson v. Louisville; 362 U. §. 199, 808. Cr

624, 4 Li 2d 654, 80 A; L. R. 2d— 1355 (1960).

‘(2) Appellant was not permitted to cross-examine.

_ the.expert witness.on matters dealing with that. witness’

'. direct testimony. The. most damaging weepene See

. ° é ‘ . ‘ e

. eo a . . 13 ; o ° \

te - e. et, : a

Ripe F . ion

x . ; 4 ‘ ges ‘ .

. o

’ -

sn a ao Gane

the Appellant was. given by an Investigator for the Vir-

ginia Department of State Police who had no direct

' knowledge of the case but who gave an expert opinion

_ On -how the numbers racket operated in the City of

_ Roanoke based on ‘his personal investigation. dn effect,

he told the jury by infBendo that the Appellant was

. guilty but he had‘no direct proof.’On crogs-examination,

he admitted making periodic réports in narrative form

to Department of State Police of his investigation of the a

numbers racket i in the City of Roanoke (T. 140-142) ; but

a trial court wéuld not permit cross-examination of

as nvestigator from these confidential teports (T. 144;

48). The situation is similar to the one in:Jencks v.

United States, 353 U. 8. 657, 77 $. Ct. 4907, 1 L..2d 1103

(1957). One of the most jealously guasded rights in the.

- administration of justice is' that of cross-examination of

an adversary’s witness. In criminal casés in Virginia,

this right of the accused is preserved in the constitutional

guarantee of cyan Va. Const. §8;-as well as by

the Federal due-pr clause. Pointer v. Texas, 380 U.

ein, $5 S. Ct. 1065, 2 chem 2d 293, (1965).

7 (3) "The basic evidence was cheained from the

Appeidasit by false, arrest. The record is clear that Ap-

pellant was not involved: in the raid of Jackie’s Shoe

Shine .Parlor as a liquor nuis#ncé (T. 47; D. 54). Yet

he was dot permitted to leave the premises and thereby

apparently was forced to throw the two slips of paper.in: _

question .on the floor (T. 52; 10t-103; T. 210). If the

‘ Appellant is honest in his denial of throwing the paperg<

on the floog, he is innocent. If he did throw them on ‘the ©

— floor, his action was céerced by false arrest. The due

¢ process law prohibits the use of evidence obtained illegal-

ly: Map v. poet 367 U. S. 643, 81 S.Ct. 1684, 6 L. 2d

_ 1081 OMI), .*

@ a ee

yt

a

™~

_ Roanoke, Virginia

‘ . z=

o 4 . . |

“VIL ORDER APPEALED FROM

_ The order appealed from made and entered by

the Supreme, Court of Appeals of Virginiaon October 5,

1966, is as follows: i vans ; ear

. “The petition of Oliver W. Arnold for a writ A

error andrsupérsedeastp a judgment rendered by the ~

_Hustings Court of the City of Roanoke on the 13th

day of January, 1966, in a prosecution by the Com-__

monwWeath against the said petitioner for a misde-

meanor, having been matutely considered and a ~

transcript of record of the judgment aforesaid

seen and ihspected, the court being of opinion that the

said judgment. is plainly right, doth reject ‘said

petition and refuse said writ or error. and, super-

sedeas, the effect of which is to affirm the judg-

ment of the said Hustings Court.” ?

' * VIII. CONCLUSION

For the reasons hereinabove stated, the Court should :

note. jurisdiction and should issue a writ of appeal to the >

* final order of the Supreme Court of Appeais of Virginia >

made and entered on October 5, 1966, confirming the

; conviction of the Appellant by judgment of the trial

court on January 13, 1966.

Respectfully submitted, .

OLIVER W. ARNOLD

By: John H. Kennett, Jr.

ey : Of Counsel _

John H. Kennett, Jr.

318-A Second Street, Southwest

Counsel for Appellant

| 1s

. eo

IX. PROOF OF-SERVICE

I, John H. Kennett, Jr., counsel for the Appellant, and

a member of the bar of the Supreme Court of the

United States, do hereby certify that, on thé first day of

_ March, 1967, I served a true copy of the’ foregoing

jurisdictional statement on the Appellee by mailing the

game in a duly addressed envelope by first-class mail with

postage thereon addressed to Robert Y. Button, Attorney,

General of Virginia, Supreme Court of Appeals Build- ©

ing, Richmond, Virginia, and to Leroy Moran; Attorhey

for the Commonwealth in and for the City of Roanoke,

Municipal Building, Roanoke, Virginia. ey,

- JOHN H. KENNETT, JR.

Counsel for Appellant .

16°

~

s

SUPREME COURT OF THE UNITED STATES

. | OCTOBER TERM, 1966.

ARNOLD v. VIRGINIA.

APPEAL FROM THE SUPREME COURT oF APPEALS OF VIRGINIA.

No. 1118. Decided April 24, 1967.

Per CURIAM.

The appeal is dismissed for want of jurisdiction.

Treating the papers whereon the appeal was-taken as Ss

petition for a writ of certiorari, certiorari is denied.-