Petition — Wright v. Johnson

—_ —

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——————

'

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

NO. B5 - 31

R. C. WRIGHT, Warden, Et al.,

Petitioner,

vs.

JERRY L. JOHNSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

LEwIs R. SLATON

District Attorney

Atlanta Judicial Circuit

RICHARD E. HICKS

Assistant District Attorney

H. ALLEN MOYE

Assistant District Attorney

Fulton County JOSEPH J. DROLET

Courthouse Assistant District Attorney

Third Floor

Atlanta, Georgia 30303 § Of Counsel for Petitioner

TABLE OF CONTENTS

Page

CITATIONS TO OPINIONS BELOW.......... 1

ee ik ec een yaks 1

QUESTION PRESENTED.................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.................. 2

STATEMENT OF THE CASE................. 3

BASIS FOR FEDERAL JURISDICTION

cde ec Gkeu yaa eke esha bane bee ens 7

REASON WHY THE WRIT SHOULD

ee ee Bl 7

teeta eevhscndek dead eden 20

APPENDIX A: Johnson v. Wright,

509 F.2d 828 (5th Cir. 1975)............... la-10a

APPENDIX B: Johnson v. Wright,

Civil Action No. 18116 (N.D. Ga.,

August 20, 1973) Order of Court............. 1b-9b

APPENDIX C: Johnson v. State,

230 Ga. 196, 196 S.E. 2d 385 (1978).......... 1e-7¢

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page

Cases:

Barnes v. United States, 412 U.S. 837 (1973).... .11, 15

Brown v. State, 15 Ga. App. 484, 83 S.E. 890

SME ARPREES ot ney MESS rere 10

Casey v. United States, 276 U.S. 413 (1928)..... 15, 16

Coleman v. Alabama, 399 U.S. 1 (1970)........... 10

Elkins v. State, 17 Ga. App. 479,

re lc nceekeckebeccureensts 10

Ezzard v. State, 229 Ga. 465, 192 S.E. 2d 376

BRIER IRR ree errr 9, 13,15

Fanning v. State, 39 Ga. App. 531,

tn win cosa bhanedeesenceves 9, 10

Henderson v. State, 227 Ga. 68, 179 S.E.

ee ee ete Us hea cen eedt 17

In re Winship, 397 U.S. 358 (1970) ......... 12, 18, 14

Johnson v. State, 230 Ga. 196, 196 S.E. 2d 385

rade iad eee Oe es ee eee ries aes 4s 6, 13

Johnson v. Wright, 509 F.2d 828 (5th Cir. 1975) .... 1

Johnson v. Wright, Civil Action No. 18116

eee wh se heakeeeeeanedsee 13

Kingsby International Pictures Corp. v.

Regents of University of State of New York,

ee ip ecdeteaeusase 10

McHenry v. State, 58 Ga. App. 410, 198 S.E. 818

REREAS P S l a, ait ae te 9

Pickett v. State, 123 Ga. App. 1, 179 S.E.

te al, i naa whe ess tet 17

Reed v. State, 195 Ga. 842, 255 E. 2d 692 (1943)... 9

Roviaro v. United States, 353 U.S. 53 (1957)....... 16

ii

re erereeeeernenennmenenes

TABLE OF AUTHORITIES—Continued

Page

Cases—Continued:

Smith v. Smith, 454 F.2d 572 (5th Cir. 1971)...... 12

Turner v. United States, 396 U.S. 398 (1969)...... 16

United States v. Collier, 381 F.2d 616

ee oe 18

United States v. Cruikshank, 92 U.S.

Sp ED OE CIN sg bv cas sccvsecccctectcceccece 9

Wallace v. State, 224 Ga. 255, 161 S.E. 2d 288

Ses bic sau Ube kh ee cee kde eae eaeedue 10

Webb v. State, 18 Ga. App. 44, 88 S.E. 825 (1916).. 10

Wood v. State, 233 Ga. 347, 211 S.E. 2d 300

RE aS ee 10

Statutes:

A. United States Code

So i 17

Se as HE OI ov bbb vo scevcctucccoce 15

Be es MI Mn ng vce cucnscccdevucsectice 18

Be SE I Ss co casccdsenscdacvuceres 18

Bee We GS I voce cnveuccccesesssecees 18

Be Wits Ws MED so cc cc cccccccccccccses 2

ee I, wi ov nc odeccencscsveesves 6, 7

B. Georgia Code Annotated

os nee abeeeseeues veces 11, 15

Sec. 26-2901........... an eeeakeaaeeeeeee 3

(tou. peeggaucheteuneaneneeus 3

I ee 2, 9, 12, 17, 18

i eee eee eo ee uO eee 3, 8

C. Georgia Sessions Laws

1910 Georgia Laws, pp. 134, 185.............. 8

ili

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

NO. 74-

R. C. WRIGHT, Warden, Et al.,

Petitioner,

vs.

JERRY L. JOHNSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Fifth Circuit, entered on April 2, 1975.

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 509 F.2d 828 (5th

Cir. 1975) and is set out in Appendix A hereto, pp. la-

lla, infra.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on April 2, 1975. A

1

2

timely motion for rehearing was filed, and was denied

by that Court on April 28, 1975. The jurisdiction of this

Court is invoked under 28 U.S.C. Sec. 1254 (1).

QUESTION PRESENTED

DID THE COURT OF APPEALS ERR IN

RULING THAT THE STATE OF GEORGIA IS

REQUIRED TO PROVE, AS AN ESSENTIAL

ELEMENT OF THE OFFENSE OF CARRYING

A WEAPON WITHOUT A LICENSE, GEORGIA

CODE ANN. SEC. 26-2903, THAT THE ACCUSED

DID NOT POSSESS A LICENSE, WHERE THE

GEORGIA SUPREME COURT HAS RULED THAT

THE POSSESSION OF A LICENSE IS AN AFFIR-

MATIVE DEFENSE TO SAID OFFENSE, TO BE

RAISED BY THE DEFENDANT?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Fourteenth Amendment to

the United States Constitution.

2. This case also involves the following provisions

of the Code of Georgia:

a. Georgia Code Ann. Sec. 26-2903

Carrying Pistol without License.

A person commits a misdemeanor when he has or

carries on or about his person outside of his home, auto-

mobile or place of business any pistol or revolver,

whether concealed or not, for which he has not obtained

a license from the ordinary of the county in which he

resides.

3

b. Georgia Code Ann. Sec. 26-2904

License to Carry Pistol or Revolver.

The ordinary of each county may on application

under oath and payment of a license fee of three dollars

issue a license, either in term or during vacation, to any

resident of the county authorizing the applicant, for a

period of three years from the granting of such license,

to have and carry a pistol or revolver in an open manner

and fully exposed to view or in his motor vehicle pro-

vided the applicant: (a) is twenty-one years or older;

(b) is mentally competent; (c) has not within the 10

years immediately preceding the application been con-

victed of a felony or within the two years immediately

preceding the application been convicted of a forcible

misdemeanor; and (d) gives a bond, with a surety ap-

proved by the ordinary of said county, payable to the

Governor in the sum of $300 conditioned upon the law-

ful use of the pistol or revolver.

The ordinary granting the license shall keep a record

of the name of the person taking out the license, the

name of the maker of the firearm to be carried, and the

caliber and number of the firearm. The ordinary shall

not grant a license to any applicant who does not com-

ply with the above requirements and furnish the re-

quired information. The ordinary of the county where

the license was issued shall, after notice and hearing,

revoke the license upon adjudication of mental in-

competency, upon the conviction of a felony, a forcible

misdemeanor, or a violation of section 26-2901 or

section 26-2902.

STATEMENT OF THE CASE

On January 7, 1972, at about 2:30 p.m., Officer D. F.

4

Lindstrom of the Atlanta Police Department, heard a

call over the police radio which, in essence, stated there

was a suspicious person at a grocery store on Lee Street,

in southwest Atlanta. (Hearing Transcript, p. 3; Trial

Transcript, p. 17). Officer Lindstrom answered that

call, which was at Patterson’s Grocery Store. There,

Officer Lindstrom talked to two or three employees,

who stated that a tall, black male in his early twenties,

wearing a flop-hat had entered the store. They indi-

cated that they believed this man had been involved in

the robbery of the store two days previously. The em-

ployees informed him that the subject had left the

scene in a red Ford Fairlane which was jacked up in the

rear with a license tag wired on to the car. It was be-

lieved that the car was occupied by four black males,

one or two of whom had flop-hats on. Officer Lindstrom

passed this information over the police radio and set

about to search for the suspect. (Hearing Transcript,

pp. 4, 17; Trial Transcript, pp. 17, 18, 19, 27).

Officer R. R. Wilbanks heard the call over the radio.

He joined the search of the immediate area. Officer

Lindstrom was driving down Ashby Street when he

spotted a car fitting the description of the subject ve-

hicle going in the opposite direction. He turned around

and followed it. (Hearing Transcript, p. 4; Trial Tran-

script, p. 20). The two cars passed Officer Wilbanks,

who was proceeding in the opposite direction. He turned

and followed. After they crossed the railroad tracks, at

the intersection of Murphy Street and Lillian Street,

Officer Wilbanks turned on his blue light, honked, and

pulled the car over. Officer Lindstrom, who was in a

police station wagon, pulled in front of the subject ve-

hicle. (Hearing Transcript, pp. 5, 6, 18, 19; Trial Tran-

script, pp. 21, 27).

5

The suspects, including Respondent, were trans-

ported to the police station. They were advised of their

rights, and asked to sign waiver forms, acknowledging

the reading of their righis, and waiving the presence of

counsel at a line-up. Respondent signed both forms.

The next day, January 8, 1972, at about 2:30, Respon-

dent appeared in a line-up, at which time he was iden-

tified by Mr. Willie Verdon, operator of Willybern’s

Food Store in Atlanta, which was robbed on December

10, 1971. (Hearing Transcript, pp. 22, 33, 34, 42, 43;

Trail Transcript, pp. 35, 36, 37).

Respondent was subsequently indicted by the Grand

Jury of Fulton County and charged with the offenses of

armed robbery, carrying a concealed weapon, and carry-

ing a pistol without a license. To said charges, Respon-

dent pleaded not guilty, and, on July 24, 1972, was

placed on trial in the Superior Court of Fulton County,

Georgia, before the Honorable Jack Etheridge and a

jury.

During the trial, after the evidence and arguments

had been presented, the judge sought to instruct the

jury on the law. His charge, in pertinent part, was as

follows:

Now, this defendant has been charged, as I said

in one indictment, with the possession of a pistol

without a license, and with the carrying of a pistol

outside of his home, not in an open manner. I in-

struct you that the State has proven a prima facie

case of the possession of a pistol in this case by

someone who is alleged by the Grand Jurors here

to have been the defendant, which the defendant

denies. And when a prima facie case is made, I

charge you that it is then upon the defendant, if

you believe the defendant to be the person alleged

to have committed this crime, to show that he did

6

possess a license to carry the weapon alleged to

have been carried by the State. The defendant in

doing so must prove that a license existed to

the weapon in order to overcome the prima facie

showing of the violation of this law by the State.

(Trial Transcript, p. 171).

The jury returned a verdict of guilty, and the defen-

dant was sentenced to a term of ten (10) years in the

penitentiary for the offense of armed robbery, and

twelve (12) months each for the two pistol offenses, to

run concurrent to the armed robbery sentence. Respon-

dent then proceeded by direct appeal to the Supreme

Court of Georgia, which, on February 22, 1973, affirmed

the conviction. Johnson v. State, 230 Ga. 196 (1973).

See, Appendix C.

Respondent on April 4, 1973, filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in

the U.S. District Court for the Northern District of

Georgia, Atlanta Division. This petition was dismissed

on April 27, 1973, because Respondent had failed to

exhaust all State remedies. Upon motion for leave to

appeal in forma pauperis, the District Judge recon-

sidered his original order, and determined that since

Respondent had raised all issues alleged in his petition

on his appeal to the Georgia Supreme Court, and that

since the Georgia Supreme Court had reached and de-

cided each of those issues, the exhaustion requirement

had been met.

That order was entered by Judge Edenfield on May

23, 1973. Prior to the entry of that order, and pursuant

to the order of the District Court dated April 27, 1973,

Respondent filed a petition for habeas corpus in the

Superior Court of Fulton County on May 11, 1973. In

this petition, Respondent raised the same issues alleged

7

in his petition to the District Court. On May 25, 1973,

after entry of the order of May 23 by the District Judge,

Respondent’s petition was dismissed in Fulton Superior

Court.

On August 20, 1973, the District Judge entered an

order denying Respondent’s petition. The order was

eventually appealed to the United States Court of Ap-

peals for the Fifth Circuit, which, on April 2, 1975,

entered an order affirming in part and reversing in part,

the order of the District Court. A motion for rehearing

was timely filed, and denied on April 28, 1975.

In his petition to the District Court below, and in his

appeal to the Supreme Court of Georgia, respondent

contended that the charge, quoted above, placed an

impermissible burden upon him to prove that he had a

license to carry the pistol outside his home, office or

automobile. In each instance, the Court disagreed with

him. See, Appendices B and C. The Court of Appeals

reversed. See, Appendix A.

The petitioner before this Court was the Respondent-

Appellee below. It is respectfully urged that this Court

review that portion of the decision of the Court of Ap-

peals which revised the order of the District Court.

BASIS FOR FEDERAL JURISDICTION BELOW

The jurisdiction of the United States District Court

for the Northern District of Georgia, Atlanta Division,

was invoked by the respondent, and accepted by the

Court, pursuant to 28 U.S.C. Sec. 2254 (1970). See,

Appendix B.

REASON WHY THE WRIT SHOULD BE GRANTED

This Court should issue the Writ of Certiorari to the

8

Court of Appeals below because that Court, in its de-

cision in this case, resolved an important issue of Geor-

gia law in a way contrary to prevailing Georgia law as

enunciated by the Supreme Court of Georgia.

A

In 1910, the General Assembly of Georgia acted to

regulate the possession and use of handguns in Georgia.

In that year, Georgia’s first handgun licensing statute

was enacted. Georgia Laws 1910, pp. 134, 135. That

statute was amended in 1960 and superseded in 1969.

The present statute is set out above. Georgia Code Ann.

Sec. 26-2904. For sixty-five years, it has been illegal in

Georgia to possess a handgun outside of the home or

office.

The license required to authorize such possession of a

handgun is issued by the ordinary (now probate judge)

of the county to any resident of that county meeting

the following qualifications: a) he is twenty-one years

of age; b) he is mentally competent; c) he has not been

convicted of a felony within the ten years immediately

preceding the application; and d) he has not been con-

victed of a forcible misdemeanor within the two years

immediately preceding the application. Any resident

meeting these qualifications, who makes application to

the ordinary and gives a bond conditioned upon the

proper use of the handgun, will be issued a license.

That license authorizes the named person, and no one

else, for a period of three years, to carry the handgun

specified in the license by make, caliber and serial num-

ber, “in an open manner and fully exposed to view or

in his motor vehicle,’’ when outside the confines of his

home or office. Georgia Code Ann. Sec. 26-2904.

9

This case involves the enforcement arm of this li-

censing provision, which is codified as Georgia Code Ann.

Sec. 26-2903. In Georgia, it is prima facie illegal to pos-

sess or carry a handgun outside of the home, office or

automobile. Ezzard v. State, 229 Ga. 465 (3) (1972). But,

as an accomodation to the people who have a need, real

or perceived, to carry a weapon, this prima facie il-

legality may be justified by proof of the acquisition of a

license. Since the Second Amendment is inapplicable to

individuals, no person has an absolute right to bear

arms. United States v. Cruikshank, 92 U.S. (2 Otto) 542

(1875). Therefore, the action of the General Assembly

of Georgia in establishing this statutory scheme was

constitutionally permissible, based upon the legislative

determination that the safety and protection of all

Georgians required such action.

The enforcement statute, enacted to enforce the man-

date of the licensing statute, is a criminal statute carry-

ing misdemeanor punishment. In a prosecution under

that statute, and under the predecessor statute, the

Appellate Courts of Georgia have consistantly required

that the State prove that the accused carried a handgun

on or about his person in a place not his home, office, or

automobile. This holding has been based upon the con-

struction of the statute, finding that those are the es-

sential elements of the offense stated in Georgia Code

Ann. Sec. 26-2903. With equal consistency the Georgia

Courts, in these same cases, have held that the posses-

sion of a license, duly-issued, is an affirmative defense,

to be raised by the defendant, and considered by the

jury with the other evidence, and not to be negated in

advance by the State. Ezzard v. State, supra. See, Reed

v. State, 195 Ga. 842, 850, 851 (5) (1943); McHenry v.

State, 58 Ga. App. 410 (1) (1938); Fanning v. State, 39

10

Ga. App. 531 (1929); Webb v. State, 18 Ga. App. 44 (1)

(1916); Elkins v. State, 17 Ga. App. 479 (1915); Brown

v. State, 15 Ga. App. 484 (1914). This construction and

interpretation of the Georgia statutory scheme by the

highest court in the State of Georgia is binding on the

federal courts. Coleman v. Alabama, 399 U.S. 1, 9 (1970);

Kingsby International Pictures Corp. v. Regents of Uni-

versity of State of New York, 360 U.S. 684, 688 (1959).

The essential elements of the offense of carrying a

pistol without a license are the possession of a pistol or

revolver outside of the home, office, or automobile.

Whether or not an accused has a license authorizing

him to carry the handgun under circumstances is a

matter of defense, and is not an essential element of the

offense.

This construction has been placed on this criminal

statute for obvious reasons. In all criminal cases, the

law requires that the prosecution prove, beyond a rea-

sonable doubt, all of the essential elements of the offense

charged. But where there is some fact with regard to

such an offense, the proof of which involves the proof of

a negative, and where the knowledge of that fact is

peculiarly within the knowledge of the defendant; and

where going forward with the evidence on that issue

would not subject him to undue hardship or unfairness,

it is logical to require the defendant to go forward with

the evidence. This is the rationale behind the construc-

tion placed on the statute by the Georgia Supreme

Court. See, Wallace v. State, 224 Ga. 255 (3) (1968). This

rationale has been extended in Georgia to drug sale

cases. The Georgia Supreme Court has held that the

State does not have to prove that the defendant did not

have authority to sell heroin. Wood v. State, 233 Ga.

347 (1974).

11

The logic of this approach is irrefutable. If the prose-

cution were required to prove that the accused did not

have a license, given the licensing statute discussed

above, the best effort that the State could make would

be to produce evidence from every county in Georgia

(totaling 159), that there was not on the records of the

Court of Ordinary (now probate court) any record of a

license issued to the accused authorizing him to carry a

handgun. Petitioner seriously questions whether or not

such evidence would be sufficient to prove, beyond a

reasonable doubt, that no license had been issued to the

accused.

The approach adopted in Georgia is not unconstitu-

tional. Because the possession of a license is denomi-

nated by the Georgia Supreme Court as an affirmative

defense, the defendant need only present evidence there-

on, unless the State’s case raises the issue. Georgia Code

Ann. Sec. 26-401(a). It is not suggested that, within

this statutory scheme, the defendant is required to

prove that he had a valid license. No burden is cast on

him more than to simply go forward with the evidence

regarding the license. Such a burden does not violate

his right against self-incrimination. Barnes v. United

States, 412 U.S. 837 (1973). While he could take the

stand, such would not be absolutely necessary. He

could raise the issue by coming forward with a certified

copy of the license, or by testimony of other witnesses.

If the defendant were to go forward with evidence on

this affirmative defense, then the State could come for-

ward with evidence in rebuttal. The only burden that

was shifted by the rulings of the Georgia appellate

courts, and by the statute, and by the instruction given

in this case, was the burden of going forward with the

12

evidence. Overall, the burden of proof rested upon the

prosecution from the time issue was joined until the

time verdict was returned.

B.

The decision of the Court of Appeals below, in disre-

gard of the construction of the statute by the highest

court in Georgia held

that the trial court’s instruction violated Ap-

pellant’s right to due process in permitting the jury

to infer that his pistol was unlicensed from the

evidence that he possessed one, and also in shifting

to him the burden of proof on an essential element

of the offense. 509 F.2d at 830.

This holding actually breaks down into two separate

legal conclusions. First, the Court determined that in a

prosecution under Georgia Code Ann. Sec. 26-2903, the

State was allowed to prove that the defendant possessed

a handgun outside of his home, office or automobile, and

that from that evidence the jury was allowed to infer

that the handgun was unlicensed. Second, the Court

determined that the instruction shifted to the defer !ant

the burden of proof on an essential element of the of-

fense, contrary to this Court’s holding in the case of

In re Winship, 397 U.S. 358 (1970), and that of the

Court of Appeals in Smith v. Smith, 454 F.2d 572 (5th

Cir. 1971).

This analysis of the statute, and of its application in

the present case, is entirely erroneous. In its analysis

below, the Petitioner will attempt to demonstrate the

magnitude and the impact of that error.

C.

In ruling that the charge, which followed the statute

13

as construed and which was held to be proper under

state law, shifted to the defendant the burden of proof

on an essential element of the offense charged, the Court

of Appeals disregarded entirely the construction of the

statute by the Georgia Supreme Court.

Respondent raised this same issue in the Georgia

Supreme Court. That Court found, upon a construction

of the statute, that there was no merit in the contention.

The Court quoted the holding in the case of Ezzard v.

State, swpra.

“There is no merit in the Appellant’s contention

that he was required to carry the burden of proof

on the two misdemeanor charges. The State had

the burden to show, and did show, that the Ap-

pellant carried a pistol on his person, outside his

home, not “‘in an open manner and fully exposed to

view.” . .. The Appellant in defense had the privi-

lege 4 showing that he had a license to carry the

a

Johnson v. State, 230 Ga. 196 at 200, 201 (4b) (1973).

The construction of this statute by the Georgia Ap-

pellate Court is clear. The corpus delicti of the offense is

to carry a pistol outside of the home, office or automo-

bile, even if in an open manner. The possession of a

valid license is an affirmative defense to be raised by the

defendant. The District Court believed itself to be

bound by this analysis. Johnson v. Wright, Civil Action

No. 18116 (N.D. Ga., August 20, 1973). See, Appendix

B.

As so construed, the Georgia statutory scheme, and

this charge, do not violate the rule of In re Winship,

supra. In that case, this Court held that due process

protects the accused in a criminal prosecution against

conviction except upon proof beyond a reasonable

14

doubt of every fact necessary to constitute the crime

with which he is charged. Here, as construed by the

Georgia Supreme Court, the crime is proven by evidence

which shows the accused possessed a pistol outside of

his home, office or automobile. The State proved those

facts beyond a reasonable doubt in this case. The State

earried its burden under Winship. The fact that the

State did not prove, and was not required to prove, that

the accused did not have a license, does not result in a

violation of due process, under Winship. Possession of

a valid license is an affirmative defense to be raised by

the defendant, not an element of the off case, to be

proven by the State.

Such a division of the burden of going forward with

the evidence does not violate the rule of Smith v. Smith,

supra. That case involved a charge on the defense of

alibi which stated: “ ‘alibi as a defense must be estab-

lished’ to the satisfaction of the jury.”” The Court of

Appeals there held that the error lay in the fact that the

language of the charge, by using the imperative “‘must”’

shifted the burden to the defendant.

No such burden can be sustained under our Con-

stitution. Evidence of alibi should come into a case

like any other evidence and must be submitted to

the jury for consideration of whether the evidence

as a whole on the issue of presence proves the de-

fendant’s guilt beyond a reasonable doubt. 454

F.2d at 578.

The problem in the Smith case was simply that the

defendant had raised the defense of alibi, and the trial

court had charged that the defendant had the burden of

sustaining that defense. The Court of Appeals believed

that the evidence of alibi should be submitted to the

jury like any other evidence, to be considered for what-

15

ever it was worth, with all the other evidence. The jury

then, upon a consideration of all of the evidence, would

determine whether the defendant was present and com-

mitted the offense, or whether he was absent.

This is exactly what the statutory scheme in question

here contemplates. The possession of a valid license is

an affirmative defense. Ezzard v. State, supra. An affir-

mative defense, like entrapment, coercion, self-de-

fense, justification, etc., is to be raised by the defen-

dant, but it need not be proved, and no burden is cast

upon the defendant to do more than go forward with the

evidence. Georgia Code Ann. Sec. 26-401(a). Such a

burden does not violate the defendant’s right against

self-incrimination. Barnes v. United States, supra.

Such a statutory scheme, with a like division of the

burden of going forward with the evidence, has been

adopted by the federal courts in several cases. In Casey

v. United States, 276 U.S. 413 (1928), this Court had

occasion to deal with a statutory presumption in nar-

cotics cases. That statute, which has since been re-

codified, appeared at 26 U.S.C. Sec. 4704(a). That pre-

sumption arose if the Government proved that the

accused possessed opium or a derivative thereof not in

the original stamped package. If such was proven, it

was presumed, absent an explanation from the accused,

that the drug was purchased illegally.

This Court, speaking through Mr. Justice Holmes,

stated

The statute here talks of prima facie evidence,

but it means only that the burden shall be upon the

party found in possession to explain and justify it

when accused of the crime that the statute creates.

. .. It is consistent with all the constitutional pro-

tections of accused men to throw on them the bur-

16

den of proving facts peculiarly within their knowl-

edge and hidden from discovery by the Govern-

ment. ... In dealing with a poison not commonly

used except upon a doctor’s prescription easil

proved, or for a debauch only possible by a hee 4

of the law, it seems reasonable to call on a’ person

possessing it in a form that warrants suspicion to

a that he obtained it in a mode permitted by

the law.

276 U.S. at 418.

This Court subsequently held that this presumption

merely places on the accused, at a certain point, the

burden of going forward with the evidence. Roviaro v.

United States, 353 U.S. 58, 63 (1957).

Assuming that the Casey case, as construed in Roviaro,

is still sound law, as is suggested in Turner v. United

States, 396 U.S. 398, 403, 404, 405 (1969), the ruling by

the Georgia Supreme Court in the present case was

absolutely correct, and that of the Court of Appeals

was absolutely erroneous. The presumption dealt with

in those cases was of guilt from unexplained possession.

This Court allowed to stand a rebuttable statutory pre-

sumption upon which the Government could rely as a

substitute for proof of an essential element of the of-

fense charged. In the present case, the Georgia Supreme

Court required that the prosecution prove all of the

essential elements of the offense. Then the defendant

was permitted to come forward with his defense. The

only burden shifted to him was the burden of going for-

ward with the evidence.

This Court, in Casey, recognized the difficulty which

the prosecution might have in proving facts peculiarly

within the knowledge of the accused and hidden from

the Government. A similar situation arises in the case

17

sub judice, as Petitioner has attempted to point out

above. Additionally, it should be noted that Georgia

has no discovery procedure in criminal cases. Henderson

v. State, 227 Ga. 68 (1970).

Finally, in Casey, this Court pointed out that the

drug could only be possessed legally by authority of a

prescription, or illegally; and, that if the drug was pos-

sessed by authority of a prescription, that prescription

could be proven with ease. In Georgia, a pistol may be

possessed outside the home, office or automobile legally,

by authority of a properly issued license. Under any

other circumstances, the possession of a pistol in such a

situation is unlawful. However, in some situations, such

illegality is excused. See, Pickett v. State, 123 Ga. App.

1 (1) (1970).

Just as a prescription to possess drugs may be, with

ease, shown by the accused, so may a license be intro-

duced. Just as emergency is a defense to the charge

under Georgia Code Ann. Sec. 26-2903, so too a valid

license is a defense. There is no constitutional impedi-

ment to shifting to the accused the burden of going for-

ward with the evidence on the issue of emergency if that

be his defense. How then can there be any constitutional

impediment where the defense is not emergency, but

the possession of a valid license. The Petitioner can see

absolutely none.

Furthermore, the Petitioner respectfully suggests

that in numerous other prosecutions, the efficient and

effective enforcement of the criminal laws would be

effectively thwarted if the ruling of the Court of Appeals

is allowed to stand. It is important to note that many

federal drug prosecutions are controlled during trial by

the rules set out in 21 U.S.C. Sec. 885. Prosecutions in

18

the area of tax evasion and of federal firearms violations

would also be affected.

Many state prosecutions would also be affected by

this decision, if allowed to stand. In most jurisdictions,

a defense to a charge of illicit pc session of drugs is the

possession of a doctor’s prescription. What havoc would

be wrought in the enforcement of the drug laws if the

prosecution was required in each case to negate the

issuance of a prescription? For the prosecution to prove

that the accused did not have a valid prescription would

be as easy as proving that no angels can sit on the head

of a pin, or that no fat man can pass through the eye of

a needle. The practical effect of the decision of the

Court of Appeals is to legalize the possession of any drug

which may be legally possessed with a prescription. In

Georgia, that decision makes legal the licenseless pos-

session of any pistol, anywhere, because, in its present

form, Georgia Code Ann. Sec. 26-2903 is unenforceable.

It would be relatively easy for Georgia to resolve the

particular dilemma created in this case. The General

Assembly could simply adopt a rule similar to that

adopted by the federal government. In a federal prose-

cution for possessing an unlicensed firearm, the prose-

cution must negate a valid registration. U.S. v. Collier,

381 F.2d 616 (6th Cir. 1967). This is due to the fact

that lack of registration is an essential element of the

offense under the National Firearms Act, 26 U.S.C.

Sec. 5841, 5851, 5862. However, such proof is relatively

easy for the Government since all such registrations are

maintained in a central location by the Department of

the Treasury. The State of Georgia could easily set up

such a centrally-located agency for maintaining such

records. Or, in the alternative, the individual could be

19

required to carry the license on his person when he

carries the pistol. However, in the case of prescription

drugs, how could the state prove that an accused did

not have a prescription? How could the state change

the law to make such proof possible if it were required?

The only way would be to make all possession illegal,

irrespective of a prescription. Such would be inhumane.

The other alternative would be to make all possession

legal. Such an alternative would be equally inhumane.

The impact of the decision of the Court of Appeals

far exceeds the boundaries of this case. That decision,

if allowed to stand, could have a profound effect on the

course of law enforcement for years to come. For that

reason, Petitioner files this request for certiorari. Pe-

titioner, but for the overall impact of their opinion,

would have no qualms about the order of the Court be-

low. But that opinion, in practical effect, and carried to

its logical extension, makes unenforceable numerous

criminal statutes, both state and federal. For that rea-

son, this Court should grant the Writ of Certiorari to

the Court of Appeals for the Fifth Circuit, and reverse

the decision below.