# Jurisdictional Statement — Arnold v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0911%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1967 - **Citation:** 386 U.S. 713 ## Text 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.- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0911%3A1. Public record. Not legal advice.