Opposition Brief — Pendergraft v. Cook

Page

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Jurisdictional statement .......................... 1

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Statutory provisions involved ..................... 3

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boone eeeshebadeeuenseccecsecescbcbsensss 6

I. Whether Section 1762, Mississippi Vode of 1942,

Annotated, recompiled, which excluded women

from jury service in the State of Mississippi, de-

nied the petitioner her constitutional rights as

guaranteed under the Fourteenth Amendment to

the United States Constitution? .............. 6

Il. Whether the Court of Appeals for the Fifth

Circuit committed error in giving prospective

application to White v. Cook, 251 F. Supp 401

DT. tht adtbdinennencagdlads waos anadeebe, ca 6

Ill. Whether petitioner was denied her constitu-

tional rights to be secure against unreasonable

searches and seizures as provided by the Fourth

Amendment to the United States Constitution? 11

I “Peete kbneihéabnentsecbeesenecctacces nas 14

Or GD owe cunceveveccsetecceccétccecs 14

Appendix A

Opinion of the Fifth Circuit Court of Appeals ..... A-l

Appendix B

Supplemental opinion ........................... A-9

Pry

Table of Cases Cited

Ballard v. United States, 329 U.S. 204 .............. 7

Os dn aw nuwsccescnceesceces 4

UE We I NE ER OD occ ccceccccccccccccces 8

Eaton v. Price, 360 U.S. 246 ..................2005- 8

Hoyt v. Florida, 368 U.S. 57 (1962) ................ 6, 10

Pendergraft v. Cook, 323 F. Supp. 967 (1971) ........ ll

Simeox v. Harris, 324 Fed. 2d 376 (1963) ........... 9

State v. Virginia Hall, 187 So.2d 861 (Miss.

Dt tnt hau inehitetbiadadabensconcend 6, 8, 9, 10

Vale v. Louisiana, 399 U.S. 30, 26 L. Ed.2d 409, 90

tS cb ebibh isiintininibedentscencacuwe 12

White v. Cook, M. D. Ala, 1966, 251 F. Supp. 401 ...2, 4, 6

Miscellaneous Cited

Mississippi Code of 1942, Section 1762 .............. 3

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Title 28, U.S.C., Section 2254(1) ................... 1

United States Constitution:

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

Number 71-1306

CATHERINE T. PENDERGRAFT |

Petitioner,

vs.

Superintendent of he Mere State © Penitentiary,

Respondent.

BRIEF

Satin @ Sein Seo Uhh ete Cue 0 Go

United States Court of Appeals for the Fifth Cireui

OPINIONS BELOW —

The opinion sought to be reviewed i “ — v.

Cook, 5 Cir. 1971, 446 F. 2d 1222, reh. q:JeR- --- ag Ee

(No. 71-1598, November 12, 1971). See’® Appendix :

JURISDICTIONAL STATEYMENT

Respondent concedes that this Court ‘t has Jurisdiction

to review the decision by Writ of Cerftorari by virtue

of Section 2254 (1), Title 28, U. S. ©,

—_ a ae NL I ey as ee

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QUESTIONS PRESENTED

I

Whether Section 1762, Mississippi Code of 1942, An-

notated, Recompiled, Which Excluded Women From Jury

Service in the State of Mississippi, Denied the Petitioner

Her Constitutional Rights as Guaranteed Under the Four-

teenth Amendment to the United States Constitution?

I

Whether the Court of Appeals for the Fifth Circuit

Committed Error in Giving Prospective Application to

White v. Cook, 251 F. Supp. 401 (1966)?

Ii

Whether Petitioner Was Denied Her Constitutional

Rights to Be Secure Against Unreasonable Searches and

Seizures as Provided by the Fourth Amendment to the

United States Constitution?

_ —— =

STATUTORY PROVISIONS INVOLVED

Section 1762, Mississippi Code of 1942, Annotated, Re-

compiled, ‘‘Who are competent jurors.”

Every male citizen not under the age of twenty-

one years, who is a qualified elector and able to read

and write, has not been convicted of an infamous

crime, or the unlawful sale of intoxicating liquors

within a period of five years and who is not a common

gambler or habitual drunkard, is a competent juror;

but no person who is or has been within twelve

months the overseer of a public road or road con-

tractor shall be competent to serve as a grand juror.

But the lack of any such qualifications on the part

of one or more jurors shall not vitiate an indictment

or verdict. However, be it further provided that

no talesman or tales juror shall be qualified who

has served as such tales juror or talesman in the

last preceding two years; and no juror shall serve

on any jury who has served as such for the last

preceding two years; and no juror shall serve who

has a case of his own pending in that court, provided

there are sufficient qualified jurors in the district

and for trial at that term.

’

STATEMENT OF THE CASE

Petitioner is a woman. She was convicted of murder in

the Circuit Court of the First Judicial District of Hinds

County, Mississippi. On appeal to the Mississippi Supreme

Court that conviction was reversed for several reasons.

She was retried, reconvicted and her conviction was af-

firmed by the Mississippi Supreme Court. 213 So. 2d 560.

She took a direct appeal to this Court. A Motion to Affirm

or Dismiss was filed by the State of Mississippi and on

a Ss PEER LET ETE I

— =

April 21, 1969, this Court granted the Motion to Dismiss

for want of jurisdiction, and also, treating the papers

whereon the appeal waz taken as a Petition for Writ of

Certiorari, denied certiorari. 374 U.S. 715, 22 L. Ed. 2d

671, 89 S. Ct. 1453; reh. den., 395 U. S. 941, 23 L. Ed. 2d

459, 89 S. Ct. 1993.

Throughout these entire proceedings in the State Courts

and before this Court, the unconstitutionality of the statu-

tory exclusion of women from jury service was persistently

urged by petitioner. After the dismissal of the appeal and

denial of certiorari, a Petition for Writ of Habeas Corpus

was filed in the United States District Court for the Jack-

son Division of the Southern District of Mississippi. Dis-

trict Judge Dan M. Russell, Jr. presided at all times that

this case has been in the District Court.

On December 30, 1969 Judge Russell followed White v.

Cook, M. D. Ala., 1966, 251 F. Supp. 401 (3-Judge), which

held as unconstitutional a like exclusionary statute of Ala-

bama and the dictum of the Court of Appeals for the Fifth

Circuit in Bass v. State, 381 F. 2d 692.

Judge Russell allowed an interlocutory appeal to the

Court of Appeals for the Fifth Cireuit on the jury issue

under Section 1292, Title 28, U. S. C. In view of the fact

that there was also a question before the United States

District with respect to the constitutionality of the search

and seizure, the Court of Appeals for the Fifth Circuit de-

clined to decide the jury question and remanded the case

to the District Court.

After fully considering the admissibility of the ques-

tioned items of evidence on stipulation of counsel, on Feb-

ruary 22, 1971 the District Court ruled that the items of

evidence were obtained as a result of a reasonable search,

and were admissible in evidence, but reaffirmed its earlier

SS Ow SS a et ss 6S Oe AM.

—— a we

decision that petitioner was entitled to be indicted and

tried by juries from which women had not been excluded.

The State of Mississippi, feeling aggrieved by this judg-

ment, prosecuted an appeal to the Court of Appeals for

the Fifth Cireuit on the jury issue. On August 13, 1971 the

United States Court of Appeals for the Fifth Circuit dis-

missed the Petition for Writ of Habeas Corpus and on

November 12, 1971° denied a Petition for Rehearing. A

copy of this Opinion is Appended, bound with this Brief,

and marked as Appendix ‘‘A’’,

Whether Section 1762, Mississippi Code of 1942, Anno-

tated, Recompiled, Which Excluded Women From Jury

Service in the State of Mississippi, Denied the Petitioner

Her Constitutional Rights as Guaranteed Under the Four-

teenth Amendment to the United States Constitution?

I

Whether the Court of Appeals for the Fifth Circuit Com-

mitted Error in Giving Prospective Application to White

v. Cook, 251 F. Supp 401 (1966)?

The above questions were first presented to the Supreme

Court of Mississippi in State v. Virginia Hall, 187 So.2d

861 (Miss. 1966). This was an appeal to the Mississippi

Supreme Court by the State of Mississippi from an Order

of the Circuit Court of Lee County, Mississippi, quashing

an indictment against Virginia Hall shortly after the de-

cision of the three-judge District Court in Alabama in

White v. Cook, supra. The Mississippi Supreme Court re-

versed the Circuit Court and reinstated the indictment.

The case was then taken to this Court by direct appeal

and the appeal was dismissed per curiam. The Chief Jus-

tice and Harlan and White, JJ, were of the opinion that

the appeal should be dismissed for want of jurisdiction.

Justice Douglas and Justice Fortas were of the opinion

that probable jurisdiction should be noted.

The Respondent places strong reliance on Hoyt v. Flor-

ida, 368 U.S. 57 (1962), wherein this Court said:

‘‘We need not, however, accept appellant’s invita- _

tion to canvass in this case the continuing validity of

this Court’s dictum in Strauder v. West Virginia, 100

U.S. 303, 310, 25 L. Ed. 664, 666, to the effect that a

_ — oat, ne

state may constitutionally ‘confine’ jury duty to

‘males’. This constitutional proposition has come un-

questioned for more than eighty years in the decisions

of this Court. See Fay v. New York, supra (332 U.S.

at 289, 290) and had been reflected until 1957 in con-

gressional policy respecting jury service in the federal

courts themselves.’’

The pros and cons of this proposition are further dis-

cussed in Ballard v. United States, 329 U. S. 204, both in

the majority and dissenting opinions. This case was de-

cided prior to the Act of Congress making women eligible

for jury duty in federal courts regardless of their ineligi-

bility in certain state courts. In the majority opinion Jus-

tice Douglas made one observation for which we can all

be thankful when he said,

‘‘The truth is that the two sexes are not fungible.’’

In an opinion in that case by Justice Frankfurter, joined

by Chief Justice Vinson and Justices Jackson and Burton,

it was said that:

‘‘Even now, this Court does not find that the exelu-

sion of women constitutes an inroad upon the vital

safeguards for a criminal trial so as to involve the

denial of due process.”’

While Justice Burton was speaking in dissent, it is sug-

gested that he made a correct statement when he said:

‘There is no constitutional, statutory or court rule

or policy requiring women to be placed on all federal

jury lists. Congress might have required such a course

and might have set up complete federal qualifications

for federal jurors, but it never has done so. Instead,

it has provided that state actions shall determine most

of the qualifications for federal jury service. As a re-

sult it would be reversible error for the federal courts

in i. on

to include women on federal juries in those states

which do not make women eligible for service as

jurors of the highest court of law in such states.’

However, subsequent to this pronouncement Congress

did make women eligible in federal courts regardless of

eligibility in a given state court.

Some still say the denial of certiorari or dismissal of

an appeal by this Court means nothing but this belief is

far from universal. Many courts in the proper type of

case feel strongly to the contrary, and it is respectfully

suggested that the case at bar, as well as the Virginia Hall

case, supra, fall in that category of cases where the dis-

missal of appeal and denial of certiorari is of considerable

import. In Brown v. Allen, 344 U.S. 543, this Court said:

‘‘Perhaps the profession could accept denial as

meaningless before the custom was introduced of not-

ing dissent from them. Lawyers and lower judges will

not readily believe that justices of this court are tak-

ing the trouble to signal a meaningless division of

opinion about a meaningless act.’’

As in the case at bar in the Virginia Hall case, supra,

in Brown v. Allen, supra, there were dissents from the

denial of certiorari.

As this Court knows, four justices must vote in the af-

firmative before the Court will grant certiorari. In Eaton

v. Price, 360 U. S. 246, in an opinion by Justice Brennan,

it was also revealed that the ‘‘rule of four’’ applies to

appeals as well as to petitions for certiorari.

By the provisions of 28 U. S. C., Section 1257(2), ap-

peals may be taken to this Court from the highest court

of a state when there is drawn in question the validity of

any state statute on the ground of its being repugnant

to the Constitution, Treaties or Laws of the United States,

a =

and the decision is in favor of its validity. In the case

at bar, and in the Hall case, supra, the only question be-

fore this Court was whether or not the Mississippi statute

confining jury service to males is repugnant to the Con-

stitution of the United States. There is no question but

that these appeals presented what, on their face, would

appear to be a substantial federal question. Where such a

question as the constitutionality of a state statute is

squarely presented to this Court, there must be some

mandating reason for the dismissal of the appeal and the

denial of certiorari. The explanation is believed found in

cases such as Simcox v. Harris, 324 Fed. 2d 376 ( 1963),

decided by the Court of Appeals for the Eighth Circuit.

Simcox was a federal prisoner being held in prison at

Aleatraz. He filed habeas corpus and the case was ulti-

mately decided adversely to him by the Court of Appeals

for the Ninth Circuit. Certiorari was then denied by

this Court. He was transferred to a federal prison in

Missouri and went the same route on the same question

through the District Court in Missouri and the Court of

Appeals for the Eighth Circuit. As that Court said:

‘Application for certiorari was made to the Su-

preme Court from the decision of the Court of Ap-

peals of the Ninth Circuit, and the Supreme Court

thus was faced directly with the question, presented

to it on appellant’s existing imprisonment and in

the only manner that could come before the court

from the lower federal courts, whether the holding

of those courts, that the Kahn case had not been af-

fected by any of the Supreme Court’s subsequent de-

cisions but still remained the law, should be permitted

to stand. The Court’s denial of certiorari seems to

us in this situation, differently than such action on its

part generally, to have a mandating significance, (a)

because of the immediacy of the question in the par-

ticular proceeding, and (b) because of the nature of

the setting out in the order denying certiorari that

one of the justices was of the opinion ‘that certiorari

should be granted’. Simcox v. Maddigan, 370 U.S. 904,

82 S. Ct. 1593, 8 L.Ed. 24 830.’’ (Emphasis added.)

It is respectfully suggested that the case at bar is in

the identical situation and that a mandating significance

should be attached to the dismissal of appeal and denial

of certiorari.

There can be no question but that the constitutionality

of a state statute such as that with which we are here

involved presents a substantial federal question, but as

Chief Justice Warren remarked in an address before the

American Law Institute in 1954, quoting from Wiener,

the Supreme Court’s new rules, 68 Harvard Law Review

20:

“It is only accurate to a degree to say that our

jurisdiction in cases on appeal is obligatory as dis-

tinguished from discretionary on certiorari. .As re-

gards appeals from state courts our jurisdiction is

limited to those cases which present substantial fed-

eral questions. In the absence of what we consider

substantiality in the light of prior decisions, the ap-

peal will be dismissed without opportunity for oral

argument’’ (Emphasis added).

In the light of that statement by the then Chief Justice

it would appear obvious that when the case at bar and

the Virginia Hall case, supra, were presented on both ap-

peal and petition for certiorari, the Supreme Court did

not consider the question presented as a substantial one

in the light of its prior decisions particularly in Hoyt v.

Florida, supra, which reaffirmed what was said in Strau-

der v. West Virginia.

— Bis 3:

the consideration seemingly involved on its part from

i

— a

The Court of Appeals for the Fifth Circuit certainly

recognized the validity of this position taken by the re-

spondent when Judge Coleman, who delivered the ma-

jority opinion, stated:

‘‘This, then, brings us face to face with the unre-

viewed and unreversed decision of the Supreme Court

of Mississippi in State v. Hall, supra, and in Mrs.

Pendergraft’s direct appeal, that the decision in White

v. Cook, supra, was not binding on it. 187 So2d at

863, and that there existed a reasonable basis for the

legislative classification which excluded women from

jury duty in Mississippi State Courts.”’

The Respondent would respectfully contend that these

two questions have been decided with finality by the Mis-

sissippi Supreme Court, the Court of Appeals for the Fifth

Circuit, and this Court.

il

Whether Petitioner Was Denied Her Constitutional

Rights to Be Secure Against Unreasonable Searches and

Seizures as Provided by the Fourth Amendment to the

United States Constitution?

In Pendergraft v. Cook, 323 F. Supp. 967 (1971), a copy

of this Opinion is Appended, bound with this Brief, and

marked Appendix ‘‘B’’, the District Court stated:

‘‘This Court agrees with the finding of the State

Supreme Court that probable cause existed for the

arrest of petitioner, but this of itself does not validate

the search. The cause for arrest must exist inde-

pendent of the search. Upon the officers’ observance

of the body in rigor mortis and upon their awareness

that petitioner had been at home alone with the de-

ceased throughout the afternoon and evening, they

ae a

had probable cause for arrest. In the obvious fact

that, when they arrived, efforts had been made to

clean the body, traces of blood being present on the

floor and nearby doorknobs, and because of the num-

bers of people in and out of the premises, their efforts

to gather and preserve evidence were permissible.

This Court agrees that the detectives would have

been derelict in their duty if they had not been alert

and observant in investigating a death which bore

every indication of having been violently inflicted.”

In Vale v. Louisiana, 399 U. S. 30, 26 L. Ed.2d 409, 90

S. Ct. 1969, this Court held:

‘The Louisiana Supreme Court thought the search

independently supportable because it involved nar-

cotics, which are easily removed, hidden, or destroyed.

It would be unreasonable, the Louisiana Court con-

cluded, ‘to require the officers under the facts of the

case to first secure a search warrant before searching

the premises, as time is of the essence inasmuch as

the officers never know whether there is anyone on the

premises to be searched who could very easily destroy

the evidence.’ 252 La. at 1070, 215 So.2d at 816. Such

a rationale could not apply to the present case, since

by their own account the arresting officers satisfied

themselves that no one else was in the house when

they first entered the premises. But entirely apart

from that point, our past decisions make clear that

only in ‘a few specifically established and well-deline-

ated’ situations, Katz v. United States, 389 U. §. 347,

397, 19 L. Ed.2d 576, 585, 88 S. Ct. 507, may a warrant-

less search of a dwelling withstand constitutional

scrutiny, even though the authorities have probable

cause to conduct it. The burden rests on the state to

show the existence of such an exceptional situation.

. .”? (Emphasis added)

_ —13—

The United States District Court obviously recognized

that the State had shown an exceptional situation when

the facts revealed that the petitioner had been at home

alone with the deceased throughout the afternoon and

evening, and that when they arrived they noticed that

efforts had been made to clean the body, and further find-

ing traces of blood on the floor and doorknobs and that a

number of people had been in and out of the premises.

Mr. Justice Black, with whom the Chief Justice joined

in the dissenting opinion, stated:

‘‘Moreover, the circumstances here were sufficiently

exceptional to justify a search, even if the search was

not strictly ‘incidental to an arrest.’ The Court

recognizes that searches to prevent the destruction or

removal of evidence have long been held reasonable

by this Court. Preston v. United States, supra; Mc-

Donald v. United States, 335 U.S. 451, 455, 93 L. Ed.

153, 158, 69 S. Ct. 191 (1948); Carroll v. United States,

267 U.S. 132, 69 L. Ed. 543, 45 S Ct. 280, 39 ALR

790 (1925). Whether the ‘exceptional circumstances’

justifying such a search exist or not is a question that

may be, as it is here, quite distinct from whether or

not the search was incident to a valid arrest. .. .”?

a a

CONCLUSION a

Respondent respectfully submits that the petition for

writ of certiorari should be denied and that the judgment

of the Court of Appeals for the Fifth Circuit be affirmed.

Respectfully submitted

A. F. SUMMER

Attorney General

By: GUY N. ROGERS

Assistant Attorney General

P. O. Box 220

New Capitol Building

Jackson, Mississippi 39205

Attorneys for Respondent

Certificate

I, Guy N. Rogers, Assistant Attorney General for the

State of Mississippi, do hereby certify that I have this day

mailed, postage prepaid, a copy of the foregoing Brief in

Opposition to Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit, to

Henorable W. E. Gore, Jr., Attorney at Law, 500 First

Federal Building, Jackson, Mississippi 39205.

This the .... day of June, A. D., 1972.

Guy N. Rogers

Assistant Attorney General

lll wii

APPENDIX A

In the

United States Court of Appeals

For the Fifth Circuit

No. 71-1598

MRS. CATHERINE T. PENDERGRAFT,

Petitioner-Appellee,

versus

TOM D. COOK, SUPERINTENDENT,

MISSISSIPPI STATE PENITENTIARY,

Respondent-Appellant.

Appeal from the United States District Court for the

Southern District of biussissippi

(August 13, 1971)

Before Coleman, Simpson, and Roney,

Circuit Judges.

Coleman, Circuit Judge: This case is here, on habeas

corpus, for the second time. We had previously remanded

it, Pendergraft v. Cook, 5 Cir., 1970, 433 F.2d 969.

Upon remand, the District Court held that the search

and seizure involved in this case was not constitution-

ally invalid, Pendergraft v. Cook, 323 F.Supp. 967 (S.D.,

ine ee “

Miss., 1971). For the reasons set forth in the reported

opinion of the District Court, we affirm its judgment

on this issue.

The District Court reaffirmed its earlier decision

(not reached on the prior appeal) that the petitioner

was constitutionally entitled to be indicted and tried by

juries from which women had not been totally and statu-

torily excluded (See 433 F.2d 970). On this issue, we

reverse and direct that the petition be dismissed.

Mrs. Catherine T. Pendergraft, of Jackson, Mississippi,

was convicted in the state circuit court of the murder of

her husban¢. On issues no longer in existence, the Missis-

sippi Supreme Court reversed the first conviction and re-

manded the case for a new trial, Pendergraft v. State,

191 So.2d 830 (Miss., 1966).

The new trial resulted in a second conviction, which was

affirmed, Pendergraft v. State, 213 So.2d 560 (Miss., 1968).

A direct appeal to the Supreme Court of the United States

resulted in dismissal for want of jurisdiction and the

denial of certiorari, Pendergraft v. Mississippi, 394 U.S.

715, 89 S.Ct. 1453, 22 L.Ed.2d 671 (1968), rehearing denied,

395 U.S. 941. Mr. Justice Douglas recorded his opinion

that probable jurisdiction should be noted.

In both appeals from both convictions to the Supreme

Court of Mississippi Mrs. Pendergraft urgently sought

reversal because of the total exclusion of women from

the grand jury which indicted her and the petit juries

which had tried her, see 213 So.2d at 565. The Missis-

sippi Supreme Court specifically declined to reverse on

that ground, citing its decision in State v. Hall, 187 So.2d

861 (Miss., 1966).

In Hall, supra, the Court had held that the power to

prescribe qualifications for jurors in state courts is vested

in the legislature and that it had the power to make rea-

| — atin

sonable classifications, such as, for the causes stated,

validly included the exclusion of women.

Mr. Chief Justice Ethridge dissented on the ground

that the total exclusion of women from jury service is

an invalid classification, in violation of the due process

and equal protection clause of the Fourteenth Amend-

ment, as well as of §14 of the Mississippi Constitution.

The Mississippi Chief Justice pointed out that in 1966

only two states in the Union had statutes completely and

absolutely excluding women from jury service, these being

South Carolina and Mississippi. The Chief Justice fur-

ther concluded, however, 187 So. 2d at 871, that a holding

in line with his views ‘‘should be prospective only in its

application’’.

In 1968, the Mississippi Legislature amended the jury

statutes to permit women to serve on grand and petit

juries, Chapter 335 Laws of Mississippi of 1968 (amend-

ing § 1762 of the Mississippi Code of 1942, Recompiled,

as amended).

When the Supreme Court of the United States denied

review, Mrs. Pendergraft filed her petition for the writ

of habeas corpus in United States District Court. In that

petition, she contended, as in the State and Federal Su-

preme Courts, that she had been twice tried and twice

convicted of the crime of murder by a jury composed en-

tirely of members of the male sex, that both the indict-

ment and the convictions were thus in denial of the equal

protection and due process of law, additionally contend-

ing, as stated in the outset, that her state court trial had

been rendered invalid by the admission of evidence ille-

gally seized in violation of federal constitutional rights.

The District Court twice relied upon the reasoning of

a Three-Judge District Court in the Middle District of

Alabama which had held unconstitutional a Similar ex-

clusionary statute of that state, White v. Crook, 251 F.

eat ti cs =

Supp. 401, 408 (1966). The Alabama Three-Judge Court,

however, was careful to point out that its decision should

be prospective in its application (viting cases) 251 F.

Supp. at 409.

This appeal, therefore, encounters these incontroverti-

ble facts: (1) Mrs. Pendergraft was indicted and tried

by juries from which women were totally excluded by

statute; (2) since 1968 Mississippi has not excluded

women from jury service, and (3) there can be no cur-

rently existing justiciable controversy as to the exclusion

formerly practiced, unless Mrs. Pendergraft, on collateral

attack, is entitled to retrospective application of a finding

of unconstitutionality.

This, then, brings us face to face with the unreviewed

and umreversed decision of the Supreme Court of Mis-

sissippi in State v. Hall, supra, and in Mrs. Pendergraft’s

direct appeal, that the decision in White v. Crook, supra,

was not binding on it, 187 So.2d at 863, and that there

existed a reasonable basis for the legislative classification

which excluded women from jury duty in Mississippi

state courts.

We also encounter the concession of Mr. Chief Jus-

tice Ethridge and of the Alabama Three-Judge Court

that any holding of unconstitutionality on this score

should be entitled to prospective application only.

Indeed, the Fifth Circuit, in assuming, without decid-

ing, the correctness of the decision in White v. Crook,

supra, was of the clear view that it should not be ac-

corded retrospective effect, Juelich v. United States, 5

Cir., 1968, 403 F.2d 523.

We, therefore, conclude that Mrs. Pendergraft was not

entitled to habeas corpus relief in the Court below and

that her petition should have been dismissed, Linkletter

v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Bd.2a 601

~~ eT

(1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct.

1772, 16 L.Ed. 2d 882 (1965).

The judgment of the District Court on direct appeal is

reversed. On cross appeal it is affirmed. The case is

remanded with directions that the petition for the writ of

habeas corpus be dismissed.

SIMPSON, Circuit Judge, concurring in part and dic

senting in part:

I agree with the Court that the search and seizure

involved in this case did not deprive Mrs. Pendergraft

of her Fourth Amendment protection against unreason-

able searches and seizures. I therefore concur in affirm-

ance of the cross-appeal. With respect to the issue raised

on the direct appeal, I agree with the lower court that

under well defined principles of the jurisprudence existing

at the time of the petitioner-appellee-cross-appellant’s

indictment and trial, Mrs. Pendergraft must be reindicted

by a grand jury and retried by a petit jury from each

of which women have not been arbitrarily excluded, Ac-

cordingly, I would affirm upon the direct appeal taken

by the respondent Superintendent of the Mississippi State

Penitentiary.

The Court concedes that the Statutory exclusion of all

women from service on grand and petit juries solely

because of their sex is violative of the Equal Protection

and Due Process Clauses of the Fourteenth Amerinent

to the United States Constitution. Because the Court

takes the position that this doctrine was first enunciated

in White v. Crook, D.C.M.D. Ala., 1966, 251 F.Supp. 401,

it reasons that the grant of the writ of habeas corpus

in this case is equivalent to making the holding in White

retroactive, something which the three-judge district court

in White expressly declined to do. It also cites the Fifth

Circuit case of Juelici v. United States, 1968, 403 F.2d

523, in which it was held that the exclusion of women

— LAE DH TEN YBN TNE MLN ATRIA O RY RRL LE AEG I POULT EIEIO RI RN

IIe APRN Na eam ;

=! .

from appellant’s 1954 federal court trial did not invalidate

his conviction.

I am not persuaded that the decision in White v. Crook

marks the point in time at which the State of Mississippi

should have been put on notice that its statutory ex-

clusion of women from grand and petit juries violated

the Fourteenth Amendment. In Ballard v. United States,

1946, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, the Supreme

Court reversed mail fraud convictions because women had

been systematically excluded from service on federal

juries in the Southern District of California. The follow-

ing language from the Ballard opinion is worth repeating

here:

‘*We conclude that the purposeful and systematic

exclusion of women from the panel in this case was

a departure from the scheme of jury selection which

Congress adopted and that, as in the Thiel case, we

should exercise our power of supervision over the

administration of justice in the federal courts, Mc-

Nabb v. United States, supra, to correct an error

which permeated this proceeding.

‘*It is said, however, that an all male panel drawn

from the various groups within a community will

be a truly representative as if women were included.

The thought is that the factors which tend to in-

fluence the action of women are the same as those

which influence the action of men—personality, back-

ground, economic status—and not sex. Yet it is not

enough to say that women when sitting as jurors

neither act nor tend to act as a class. Men likewise

do not act as a class. But, if the shoe were on the

other foot, who would claim that a jury was truly

representative of the community if all men were

intentionally and systematically excluded from the

panel? The truth is that the two sexes are not

_—

es.

fungible; a community made up exclusively of one

is different from a community composed of both; the

subtle interplay of influence one on the other is

among the imponderables. To insulate the courtroom

from either may not in a given case make an iota

of difference. Yet a flavor, a distinct quality is lost

if either sex is excluded. The exclusion of one may

indeed make the jury less representative of the com-

munity than would be true if an economic or racial

group were excluded,’’ [footnotes omitted] 329 U.S.

at 193-4, 67 S.Ct. at 264,

Hoyt v. Florida, 1961, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.

2d 118, arose out of the alleged murder of a man by

his wife. Florida law, at the time of Mrs. Hoyt’s jury

trial, permitted women to serve on juries only if they

voluntarily registered for such service. The United

States Supreme Court upheld the conviction for second

degree murder on the basis that the appellant had

failed to produce any substantial evidence to show an

arbitrary exclusion of women from jury service as a

result of the application of the Florida statute. In con-

cluding its opinion in Hoyt, however, the Court noted:

‘Finding no substantial evidence whatever in this

record that Florida has arbitrarily undertaken to ex-

clude women from jury service, a showing which it

was incumbent on appellant to make . . . we must

sustain the judgment of the Supreme Court of Flor-

ida.’’ 368 U.S. 69, 82 S.Ct. at 166-7, 7 L.Ed.2d at 126.

Hoyt, unlike Ballard (which was a direct federal ap-

peal), mounted an attack upen the Florida jury system

upon constitutional grounds. In the course of its opinion

in Hoyt, the Supreme Court noted that only three states

excluded women from jury service and Mississippi was

pointedly named as one of the three. From and after

1961, the decision date of Hoyt, prior to the killing in-

at

—_e SOOT LPR ELE ENTE LO IT RIT IT BET EOL OT oI

a “a

volved here and prior to the indictment and trial here

involved, the warning flags were flying, for Mississippi

to note and heed. What clearer signal had to be given

to that state that its statutory policy of barring women

from jury service was out of step with national policy

and required modernization? Yet Mississippi did not

amend its statute so as to permit women to serve on

its juries until 1968, after Mrs. Pendergraft had been tried

a second time for the murder of her husband before an

all-male jury, under an indictment returned by an all-male

grand jury in 1965. Both at the time of indictment and

both trials, Section 1762 of the Mississippi Code of 1942

expressly limited competent jurors to male citizens.

The facts of this case do not present a retroactivity

problem at all, when existing precedents are carefully

analyzed. Between 1961 and the time of Mrs. Pender-

graft’s indictment in 1965, and beyond all peradventure

before the second trial before an all-male jury in 1967,

resulting in the sentence permitted by the majority to

stand, Mississippi had ample opportunity to eliminate

the statutory exclusion of women from jury service.

Failure by that state to take timely and appropriate action

deprived Mrs. Pendergraft of her federal constitutional

rights to equal protection of the laws and to due process

of law, guaranteed to her by Amendment XIV to the

Constitution of the United States. These rights were in

existence and were known to be in existence for many

years before she was indicted and tried. It is extremely

unfortunate that the false issue of retroactivity vel non is

allowed to muddy the majority’s consideration of what is

really a simple question.

I respectfully dissent from the reversal of the main

appeal.

=

APPENDIX B

Mrs. Catherine T. PENDERGRAFT, Plaintiff,

v.

Tom D. COOK, Superintendent, Mississippi State

Penitentiary, Defendant.

Civ. A. No. 4499.

United States District Court, S. D. Mississippi,

Jackson Division.

Feb. 23, 1971.

Supplemental Opinion March 2, 1971.

Petition for habeas corpus by state prisoner. The United

States District Court for the Southern District of Mis-

sissippi, Dan M. Russell, Jr., J., issued the writ, but the

Court of Appeals remanded the case, 433 F.2d 969. On

remand, the District Court held that upon observance of

officers, who were called to residence of petitioner and

her husband, of body of husband in rigor mortis, and upon .

their awareness that petitioner had been at home alone

with deceased throughout the afternoon and evening, offi-

cers had ‘‘probable cause for arrest’’ of petitioner which

was independent of search conducted by the officers, so

that ensuing search was necessary for preservation of evi-

dence and was thus valid.

Order aceordingly.

1. Searches and Seizures Key 7(28)

There can be no consent to a search where party al-

legedly consenting was in a dazed condition due to alco-

hol, drugs or shock.

ome ee eEnoase - — —

PPA ANE OME SRT TT OR EEO

— A-10— Y

2. Arrest Key 63(4)

When constitutional validity of an arrest by state offi-

cials arises on an application for a writ of habeas corpus,

federal constitutional standards alone establish the test,

and it is function of federal court to determine whether

facts available to officers at moment of arrest would war-

rant a man of reasonable caution in the belief that an

offense has been committed.

3. Arrest Key 63(4)

A hunch does not constitute ‘‘ probable cause for arrest.’’

See publication Words and Phrases for other judi-

cial constructions and definitions.

4 Arrest Key 63(4)

Searches and Seizures Key 3.3(1)

Upon ebservance of officers, who were called to resi-

dence of petitioner and her husband, of body of husband

in rigor mortis, and upon their awareness that petitioner

had been at home alone with deceased throughout the

afternoon and evening, officers had ‘‘probable cause for

arrest’’ of petitioner which was independent of search

conducted by the officers, so that ensuing search was neces-

sary for preser- ation of evidence and was thus valid.

Weaver E. Gore, Jr., Jackson, Miss., for plaintiff.

A. F. Summer, Atty. Gen., Guy Rogers, Asst. Atty. Gen.,

Jackson, Miss., for defendant.

OPINION OF THE COURT

RUSSELL, District Judge.

This cause is before the Court for the second time, hav-

ing been remanded by the Fifth Cireuit Court of Appeals

— A-11 —

in Cause No. 29229, October 29, 1970, 433 F.2d 969, with

directions for this Court to pass on the issue of whether

petitioner’s state court trial was invalid by reason of the

alleged admission of illegal evidence against her in viola-

tion of her constitutional rights.

By way of background, petitioner, Mrs. Catherine T.

Pendergraft of Jackson, Mississippi, was convicted in the

First Judicial District of Hinds County, Mississippi of

the murder of her husband, Ralph N. Pendergraft. Her

first conviction was reversed by the Mississippi Supreme

Court and the cause remanded for a new trial as reflected

in Pendergraft v. State, 191 So. 2d 830, rendered Novem-

ber 7, 1966. That court primarily found reversible error

in the trial court’s denial to petitioner of the right to con-

sult with counsel during a two hour recess. The state

appellate court also pointed out other errors, among them

that a judicial determination, in the absence of the jury,

should have been made as to whether probable cause ex-

isted for the arrest of Mrs. Pendergraft at the time a

search was made of the residence. In its opinion the Court

summarized that Jackson police officers, on the night of

August 26, 1965, in the course of their investigation of an

obviously violent death, without benefit of a search war-

rant, and, prior to petitioner’s formal arrest the next day

following an autopsy, picked up several articles, which

were subsequently exhibited in the trial against petitioner.

The Court, in relating the facts upon which it found that

the officers were lawfully upon the premises, said that the

officers conversed briefly with the accused’s physician and

then went to the family room where the nude body of

the deceased lay on the floor covered by a bedspread. Their

investigation revealed the body to be cold and stiff with

seventeen visible wounds thereon. No blood or blood

stains were beneath the body and the body itself appeared

to have been cleaned with the exception of blood found

under the fingernails and on the bottom of the feet. An

—_— OT ETI BE PEI ET PGES

— A-12 —

investigation of the premises disclosed traces of blood

on the floor of the kitchen and in the hallway. Blood

was found on the doorway to the bar adjoining the family

room, and a blood stained bottle and glass were found in

the bar. Further investigation led to the utility room

where the officers noticed the clothes dryer to be warm,

and upon opening it found articles of clothing, towels and

other items therein. A sponge and pillowslip were found

elsewhere in the home. The Court, in finding that the offi-

cers were lawfully upon the premises, held that they

could testify to that which came under their observation,

but that the greater question was whether they had the

right in the course of their investigation to open the bar

area and to open the dryer without a search warrant and

without arrest. The Court further held that the ques-

tien should have been resolved by a judicial determination

of whether there was probable cause for the arrest of pe-

titioner contemporaneous with such a search. The lack

of this determination was thus one of the grounds for

reversal.

Preceding the second trial and conviction, petitioner filed

a motion to suppress certain evidence, contending that

various articles were examined and taken by police offi-

cers from the Pendergraft residence on the night of Au-

gust 26, 1965, prior to her arrest the following day, and

other articles were seized and impounded on the follow-

ing day under an illegal search warrant, which warrant

had not been placed in evidence in the first trial, and that

both searches and seizures were illegal. After a full, evi-

dentiary hearing, the trial judge issued his written opin- |

ion on the motion finding that only certain of the articles

introduced in the first trial were impounded by police

officers on the night of August 26, 1965, and that the re-

maining articles were seized the next day following the

arrest and issuance of a search warrant. As to those

articles taken on the night of August 26, 1965, and ad-

— A-13—

dressing himself to the ruling of the Mississippi Supreme

Court with respect to probable cause, the trial judge, after

referring to the testimony of police officers and that of

petitioner relating to the initial investigation on the night

of August 26, 1965, found that the officers had probable

cause to believe that a felony had been committed and

reasonable grounds to believe that petitioner committed

the felony. He accordingly overruled that part of the

motion relating to the items seized on the night of August

26, 1965, and specified that the following items could be

used as evidence by the state: (1) a band aid from under-

neath the deceased’s body; (2) a bottle of scotch and glass

with blood stains; (3) two knives obtained in the kitchen;

(4) a pillowslip with blood thereon; (5) a yellow sponge

found on the floor; and (6) the bedspread covering the de-

ceased’s body. As to the search warrant, although it spe-

cifically itemized all other articles which were seized under

it, the trial judge found that the affidavit on which ihe

search warrant was issued was defective and therefore

the search warrant was -yveid. The judge accordingly sus-

tained the motion to suppress as to all evidence seized un-

der the illegal warrant. That evidence, including the items

found in the clothes dryer, was not offered at the second

trial and is, of course, not an issue here.

As to the second conviction, affirmed by the Mississippi

Supreme Court on July 8, 1968, its decision appearing in

213 So.2d 560, and which is under attack here, the Court

again related the facts pertaining to the death of Pender-

graft. The Court stated that on the afternoon of August

26, 1965, the deceased suffered seventeen stab wounds

while alone with his wife, petitioner here, in their home

in Jackson, Mississippi. About 7:30 p.m., petitioner tele-

phoned her former brother-in-law, Grady Tucker, asking

him and his wife to come to her home immediately as

something had happened to Ralph. Mrs. Tucker called

Dr. W. B. Tumlinson, petitioner’s physician, who arrived

— —_——e PORE ALES LI IERIE LS IOLA GE ELS LISTE ALES CE EEN ENT GE

— A-14—

at the Pendergraft home shortly after the Tuckers. Dr.

Tumlinson called the Hinds County Coroner, who in turn

called the Jackson Police Department. Two detectives

were dispatched to the home in response to this call. They

found the nude body, as they had previously testified,

covered by a pink bedspread, lying on the floor in the

family room. Dr. Tumlinson, the coroner and the detec-

tives examined the wounds which ‘‘ranged from six punc-

ture type wounds behind the right ear, downward to a

gaping wound in his right chest, one in his right abdomen,

four recent cuts just above his right knee, and numerous

other cuts in the palms of his hands, the webbing between

the fingers and on the outside of the fingers. All of these

appeared to be shallow cuts except the ones in his chest

and abdomen. His body had been completely cleaned, and

there was no evidence of blood except on the sole of his

right foot, on the bottom of the left big toe and around

the cuticles of his fingernails.’’ Continuing the Court said:

‘*The detectives found a bloodstain on the doorknob of a

louvered door opening from the family room to an en-

closed bar. On the counter of the bar they found a par-

tially filled bottle of scotch whiskey and a whiskey glass,

both of which had bloodstains on them. The kitchen ad-

joins the family room, and on one counter of the kitchen

the detectives found a butcher knife with bloodstains on

the stainless steel blade, and on another counter near the

sink they found a butcher knife that had been washed

and was still wet. They found a pillowslip with a blood-

stain on it on a bed in a small bedroom connected with

the breakfast room. When the body was turned over, a

bandaid was found underneath the body. All of these

items, together with the pink bedspread which partially

covered the body, were received as exhibits. All of these

items were recovered on the night of August 26, while

the detectives were investigating the killing and before

the appellant was formally arrested on August 27.’’

— A-15 —

The Court further found that when Grady Tucker ar-

rived, he turned the clothes dryer off at the request of the

petitioner and that, during the course of their investiga-

tion, the detectives discovered the dryer still warm with

the items of clothing and towels in it. These were pri-

marily the items picked up the next day under a search

warrant after petitioner had been formally arrested. The

Court affirmed the trial court’s refusal to allow the con-

tents of the dryer to be introduced in evidence, and

affirmed the trial court’s finding that the detectives had

probable cause to arrest petitioner with the consequent

proper admission of the articles picked up in their initial

investigation which occurred on the night of August 26,

adding this: ‘‘These detectives would have been derelict in

their duty if they had not been alert and observant in

investigating a death which bore every indication of hav-

ing been violently inflicted by the only other person pres-

ent, namely, Mrs. Catherine Pendergraft; they would have

been derelict in their duty if they had not followed up

every lead they ran across.”’

As to why petitioner was not then and there arrested

and booked, the appellate court stated that the doctors,

the detectives and other witnesses testified that petitioner

talked with a thick tongue and appeared to be under the

influence of alcohol or drugs; that she was in a precarious

mental, physical and emotional condition. There were nu-

merous phone calls between Dr. Tumlinson and the district

attorney, the coroner and the district attorney, and one

of the detectives and the district attorney. Her doctor

was unable to find a hospital room for her. After this

enumeration, the appellate court said:

“Tt follows quite logically that the only reason the ap-

pellant was not arrested that very night was because all

parties were concerned about her doubtful condition; there

certainly was probable cause to suspect her. The appel-

— —_—_ FRR EEL LEY DETTE SP MNT TAT SBE LETT YO ALI A BET

a

— A-16—

lant was alone with her husband in their home when he

was fatally wounded and when he was stabbed seventeen

times. She never denied that she had done the stabbing;

she said that he attacked her and she acted in self de-

fense.”’

The Court continued:

‘‘The items were found and taken from the immediate

vicinity of the body or from the rooms adjoining the family

room where the body itself was found. These articles were

properly admitted into evidence.’’

On July 15, 1969, petitioner filed her application for a

writ of habeas corpus in this Court setting forth that she

was first tried on December 8, 1965, and convicted; this

conviction was reversed and the cause remanded, 191 So.2d

830; she was tried and convicted again on January 9, 1967;

this conviction was affirmed on July 8, 1968, 213 So.2d

560;! on her appeal to the United States Supreme Court,

that court, on April 21, 1969, denied jurisdiction, if an ap-

peal, and, if a petition for certiorari, denied certiorari, 394

US. 715, 89 S.Ct. 1453, 22 L.Ed.2d 671. A petition for a

rehearing was denied by the U. S. Supreme Court on June

2, 1969, 395 U.S. 941, 89 S.Ct. 1993, 23 L.Ed.2d 459. She

filed a petition for leave to file a writ of error coram nobis

in the State Supreme Court, and on July 7, 1969, it was de-

nied. The respondent conceded that petitioner had ex-

hausted her state remedies, and that at every stage of her

litigation she had protested the exclusion of women from

both the grand and petit jurors which convicted her and

the introduction into evidence of the fruits of an alleged

illegal search, being the two grounds urged upon this

Court.

1 The Court notes her motion for a rehearing was denied on

July 8, 1968.

yet et

DR, BS

7

— A-17 —

By stipulation, the parties agreed that the official record

of her second state court trial, or any portion thereof could

be introduced into evidence, and further stipulated that

the evidence relied on by petitioner as the fruits of an

illegal search consisted of a whiskey bottle, glass and pil-

lowslip containing blood stains. Attached to the stipula-

tion but not referred to therein was a floor plan of the

: residence containing a legend of where, but not when, cer-

tain articles were seized.

The matter was submitted to this Court on the pleadings,

the stipulation, only that portion of the record pertaining

to the hearing on the motion to suppress, and briefs. In

the absence of a transcript of the record of the trial itself,

showing which articles were in fact offered in evidence,

and being of the opinion that petitioner’s contention that

she was deprived of a constitutional right in the total ex-

clusion of women from both the grand jury which indicted

her and the petit jury which tried her involved a con-

trolling question of law, this Court confined its opinion to

the jury issue only, finding in petitioner’s favor.

By its remand, the Fifth Circuit Court of Appeals has

now directed this Court to pass on the second ground of

the petition, that is whether or not the evidence introduced

into petitioner’s second state trial was the result of an

illegal search.

Toward the issue, the parties have offered a supple-

mental stipulation that (1) a transcript of the entire rec-

ord of the trial in Cause No. 44,873 on the docket of the

Mississippi Supreme Court together with exhibits, or any

portion thereof, may be introduced; and (2) that all the

hereafter listed items were seized as evidence by members

| of the Jackson Police Department on the night of August

26, 1965, in petitioner’s home without a search warrant

and without her being arrested or advised that she was

suspected of killing her husband:

i DRIP ORR IOI ORGAO RA SEEN ELE IS

— A-18 — |

(a) One pillowslip with a blood spot therecn.

(b) One glass with bloodstain thereon.

(c) One scotch whiskey bottle.

(d) One butcher knife with bloodstain on its handle.

(e) One butcher knife with water spots on its blade.

(f) One sponge with blood spot thereon.

(g) One bedspread with blood spot thereon.

Petitioner has submitted to the Court for the first time

the entire transcript of her second trial and conviction in-

cluding a transcript of the pre-trial hearing on the motion

to suppress, all of which the Court has carefully considered

along with the pleadings, stipulations and exhibits thereto,

and briefs.

Supplementing the facts found by the Mississippi Su-

preme Court, this Court finds that the trial record reveals

that the wounds inflicted on the deceased occurred in the

early afternoon of August 26, 1965, at a time when the de-

ceased and petitioner were alone in the residence. Other

than petitioner’s saying that she took a pill and went to

sleep, the record is silent as to what happened from then

until petitioner, at about 7:30 p.m., telephoned the Tuckers

to come to the residence. One or the other of the Tuckers

called Dr. Tumlinson, petitioner’s physician, who arrived

at the home around 8 p. m., or after, shortly before Tucker,

his wife, and three other people with the Tuckers got there.

Dr. Tumlinson called the coroner who came to the resi-

dence and who then called the Jackson Police Department.

Detective Sergeants J. L. Black and S. M. Magee re-

sponded. They arrived at 9:20 p.m. Persons who remained

on the premises besides petitioner, were Dr. Tumlinson,

and the Tuckers. The police officers examined the body in

the presence of Dr. Tumlinson, who probed the wounds and

neris

EN ae Be ER NIE eg IR een

, — A-19—

offered the opinion that none was fatal. The coroner ar-

rived, and he, too, in the presence of Dr. Tumlinson exam-

ined the body. In detailing the search of the premises,

the responses of the officers at various times during the

trial, and particularly when read out of context, might

infer that various items were picked up before the officers’

attention focused on petitioner. However, in trying to de-

termine the exact sequence of events following the exami-

nation of the body, the district attorney directed this ques-

tion to Sergeant Black: ‘‘Then you had been in the house

about an hour, then, before you actually conferred with

Mrs. Pendergraft, according to your testimony?’’ His an-

swer was: ‘‘No, sir I wouldn’t think it was an hour before

we conferred to (sic) her. Only after the examination of

the body and it was determined by her and by Dr. Tumlin-

son that no one else was there, IT asked Mrs. Pendergraft

what had happened, or could she tell me what had hap-

pened.’’ Other than the band aid and spread covering the

body, immediately observable to the police, the investiga-

tion then revealed traces of blood on the floor of the family

room where the body lay and on the door knob on the

louvered door leading to the bar, only a few feet from de-

ceased’s head. On opening this door, the blood-smeared

bottle and glass were evident. Sergeant Black stated that

at one time, Mrs. Pendergraft was seated in a chair next

to the open doorway leading from the family room to the

kitchen, and that when he went over to talk to her he

noticed in clear view the bloodstained butcher knife on the

kitchen counter, and the knife with drops of water still

clinging to it hanging in a rack by the sink. One of the

Tuckers directed his attention to the dryer in the utility

room adjoining the kitchen, which was warm to his touch,

and to the bloodspotted pillowslip lying on a bed in a back

room designated on the plat as an office. During the course

of the evening, and while the inquest was taking place,

Black testified that petitioner wandered from room to

— Seine < emer Age HUE Ne RAMA : PHOS 2 ALN PR

~~

room, and at one point when she was in the master bed-

room he noticed a sponge on the floor of a room on his

way to see her. ;

Tn the opinion of this Court, the validity of the search

hangs on the determination of whether the search led to

the eventual arrest, or whether probable cause for arrest

existed before the search. Bailey v. United States, 128

U.S.App.D.C. 354, 389 F.2d 305.

As to why petitioner was not immediately arrested

prior to or incident to picking up those articles not under

the immediate observation of the police, the district at-

torney, as reflected in the transcript of the hearing on the

motion to suppress, attempted to show that due to peti-

tioner’s physical and mental condition and the lack of a

hospital room, petitioner’s arrest was humanely delayed

to the next day, yet she nonetheless was in protective cus-

tody. He attempted to do this by questioning petitioner’s

doctor, one of the detectives, and the coroner as to various

telephone conversations had between them and himself as

to what should be done with her that night. As these con-

versations took place outside the presence of petitioner,

they were ruled inadmissible, only the inference of his

attempt remaining. He then offered to testify himself, but

objections to his taking the stand were sustained.

{1] The district attorney also attempted to show that

petitioner consented to the search. Officer Black, under

direct examination, stated that petitioner was cooperative

with the police and made no objection to the search of the

residence and examination of various articles. Petitioner

denied the truth of this statement. Be that as it may, all

witnesses were agreed that petitioner was in a dazed con-

dition, from drugs, alcohol or shock. There can be no con-

sent to a search under these circumstances. United States

v. Moody, D.C., 311 F. Supp. 756. Similarly, it is doubtful

that her feelings could be properly analyzed to test

eae FL ee ROE CT ae eRe 22 8 RS ca Aas Ca a, ea eee } ear:

— A-21—

whether or not she was aware of being in custody, such

awareness being a factor to consider in determining

whether an arrest had been made. United States v. Cortez,

6 Cir., 425 F.2d 453; and United States v. Grandi, 2 Cir.,

424 F.2d 399. Nonetheless such a determination is un-

necessary for, as shown by its stipulation, the state ad-

mits no arrest was made. It remains, then, that the legal-

ity of the search must be tested in relation to probable

cause for arrest.

‘‘A search is not to be made legal by what it turns up.’’

United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.

Fd. 210. Similarly an arrest is not valid if made without

probable cause. In the absence of an arrest, the issue here

is whether or not probable cause alone can validate a

warrantless search. It apparently can if the results of the

search do not determine probable cause.

[2, 3] Under Mississippi law, a police officer without a

warrant may arrest a person when he has reasonable

cause to believe that a felony has been committed and

reasonable cause to believe that such person committed it.

Lathers v. United States, 5 Cir., 396 F.2d 524, 525. There

is no question in this case but that Officers Black and

Magee had authority to arrest petitioner. This is deter-

mined by Section 2470 of the Mississippi Code of 1942.

However, when the constitutional validity of an arrest by

a state official arises on an application for a writ of habeas

corpus, federal constitutional standards alone establish

the test. Paige v. Potts, 5 Cir., 354 F.2d 212. It is the fune-

tion of the federal court to determine whether the facts

available to the officers at the moment of arrest would

‘‘warrant a man of reasonable caution in the belief’’ that

an offense had been committed. Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. A hunch does not

constitute probable cause. At the other extreme neither is

probability a certainty or a conclusion beyond a reason-

able doubt. Lathers v. United States, supra.

— A-22— a

[4] This Court agrees with the finding of the state

supreme court that probable cause existed for the arrest

of petitioner, but this of itself does not validate the search.

The cause for arrest must exist independent of the search.

Upon the officers’ observance of the body in rigor mortis

and upon their awareness that petitioner had been at

home alone with the deceased throughout the afternoon

and evening, they had probable cause for arrest. In the

obvious fact that, when they arrived, efforts had been

made to clean the body, traces of blood being present on

the floor and nearby door knobs, and because of the num-

bers of people in and out of the premises, their efforts to

gather and preserve evidence were permissible. This Court

agrees that the detectives would have been derelict in their

duty if they had not been alert and observant in investi-

gating a death which bore every indication of having

been violently inflicted.

If any search were valid, petitioner contends that this

search was too broad in its range, relying heavily on the

limited search permitted under the holding in Chimel v.

California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

Although the Supreme Court in a later case, Vale v.

Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, re-

frained from expressing an opinion as to whether Chimel

should be applied retroactively, the Fifth Circuit Court

of Appeals has refused to give it retroactive effect. United

States v. Bankston, 5 Cir., 424 F.2d 714, and Lyon v.

United States, 5 Cir., 416 F.2d 91. The search involved

here occurred before the decision in Chimel, and under

United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94

L.Ed. 653, would have been permissible. The Fourth

Amendment prohibition against warrantless searches is

well established. The ‘‘exceptional circumstances’’ which

may validate a search without a warrant were listed in

the Vale decision. This Court notes that all the cases cited

therein as well as those immediately above treat of

» — A-23 —

searches ‘‘incident to an arrest.’’ For them to be ap-

plicable to the present case means that ‘‘incident to an

arrest’’ must be equated with probable cause. An inform-

ative treatment of this point is found in United States

v. Gorman, 2 Cir., 355 F.2d 151, cited with approval in

Bailey v. United States, supra. In Gorman, at pages 159

and 160, the Court pondered the circumstances of a case

in which probable cause was found in support of a search

made prior to an arrest:

‘*TIf we were to hold that Roche did not consent, we

would be obliged to consider another basis for sup-

porting the search. The argument would be that when

a suspect is available for immediate arrest at the

place of the search, to which the police have lawfully

gained access, and reasonable cause for his arrest

exists, a search of personal effects without a warrant

is reasonable even though arrest is postponed. The

record furnishes the necessary premise. The combina-

tion of facts known to the agents—Gorman’s admis-

sion to having an accomplice. Gorman’s and Roche’s

common use of the Connor-Noel cover, Roche’s dis-

claimer of knowledge of a person in his company

answering Gorman’s description, and the telephone

calls from Gorman to Roche’s room in the Holiday

Inn—would together have constituted reasonable

cause for arresting Roche prior to the search of his

luggage; each fact augmented the probative force

of the others. Cf. United States v. Monica, 295 F.2d

400, 401-402 (2 Cir. 1961), cert. denied, 368 U.S. 953,

82 S.Ct. 395, 7 L.Ed.2d 386 (1962).

“‘No Supreme Court decision speaks directly to the

point. Husty v. United States, 282 U.S. 694, 700, 51 S.Ct.

240, 75 L.Ed. 629 (1931), which would seem to sanction

such a search, may rest on special considerations applica-

ble to moving vehicles. Johnson v. United States, 333 U.S.

is say FAO NEOR: TUNE TS Sy EPR rembteNE

—A-2%4— —s

10, 15-17, 68 S.Ct. 367, 92 L.Ed. 436 (1948), and Henry v. _

United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed2d 134

(1959), which might appear at first blush to look the other

way, are fairly distinguishable—Johnson on the ground

that the arresting officer had no ‘valid basis in law’ for

his intrusion into the defendant’s room. 333 U.S. at 16-17,

68 S.Ct. 367, and Henry on the point that no reasonable

grounds existed for the arrest, conceded and held to have

occurred when the car was stopped. 361 U.S. at 103, 80

S.Ct. 168. Contrast Rios v. United States, 364 U.S. 253,

262, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). Indeed, Ker v.

State of California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.

2d 726 (1963) (opinion of Mr. Justice Clark,’ indicates

the question to be open. We have likewise found no con-

trolling decision in this circuit. Mr. Justice Traynor’s well-

known opinion in People v. Simon, 45 Cal.2d 645, 648, 290

P.2d 531, 533 (1955), would sustain the validity of such a

search, see also Willson v. Superior Court, 46 Cal.2d 291,

994 P.2d 36 (1956); and Moseo v. United States, 301 F.2d

180, 188 (9 Cir.), cert. denied [Hansen v. United States],

371 U.S. 842, 83 S. Ct. 72, 9 L.Ed.2d 78 (1962), is not to

the contrary in the circumstances here presented. Compare

United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed.

59 (1951). Lee v. United States, 98 U.S.App.D.C. 97, 232

F.2d 354 (1956), may be distinguishable, like Johnson, on

the basis of unlawful entry by the police, and would not

bind us in any event. We do not understand just what

values would be served by a rule that would force the

police to impose a justifiable restraint on the person as a

condition to making a search which, if fruitless, might

cause them to decide against it; on the other hand, if the

search does lead them to make an arrest for which reason-

able cause previously existed, the search would seem ‘inci-

dent to arrest,’ United States v. Rabinowitz, 339 U.S. 56,

60, 70 S.Ct. 430, 94 L.Ed. 653 (1950), in any normal use

of language, and the dilemma of seeking ‘to justify the

sea meee

— — + om

arrest by the search and at the same time to justify the

search by the arrest,’ Johnson v. United States, supra, 333

US. at 16-17, 68 S.Ct. at 370, is obviously not presented.

Since, however, the alternative basis here considered has

not been argued by the Government, we rest our decision

on what we consider the sufficient ground of consent and

leave determination of this issue for another day.’’

In Bailey, Judge J. Skelly Wright, held: ‘‘Even if the

formal arrest was not made until after the search, the

search will be upheld so.long as there is probable cause

for an arrest before the search is begun.’’ The Gorman

ease was cited as authority. Later in his opinion, Judge

Wright quoted from McDonald v. United States, 335 U.S.

451, 459, 69 S. Ct. 191, 93 L.Ed. 153: ‘‘The ‘exigencies of

the situation made (the police) course (of action) im-

perative.’ 9

Under the reasoning of the Gorman decision and apply-

ing it and Bailey to the present case this Court finds that

independent of the search there was probable cause to ar-

rest petitioner and that the ensuing search was valid and

necessary for the preservation of evidence, an exigency or

special situation recognized in Vale.

Otherwise, the Court re-affirms its earlier decision that

petitioner is entitled to be indicted and tried by juries

from which women have not been excluded, particularly in

view of her alleged plea of self-defense.

An order may be submitted granting the writ of habeas

corpus, except that petitioner shall remain at her present

place of confinement without bail, until the appropriate

state officials determine within a reasonable time whether

or not to seek her re-indictment and another trial.

—A6— .

SUPPLEMENTAL OPINION

In its recent opinion of February 22, 1971, upholding the

validity of the search, on which no order has been entered,

this Court in effect found that the application for a writ

of habeas corpus should be denied on the issue remanded

to it in the decision of the Fifth Circuit Court of Appeals,

Pendergraft v. Cook, 433 F.2d 969. However, in clinging

to its former opinion, before the remand, that petitioner

was entitled to be indicted and tried by juries from which

women had not been excluded, this Court is faced with

the anomalous position of granting the writ on an issue the

Appellate Court refrained from ruling on. As its afore-

said opinion stands today, the Court finds that it has

placed a burden on the respondent to determine whether or

not to effect an appeal, whereas the burden should be on

petitioner who has raised the issues. Accordingly, the

Court finds that the granting of the writ of habeas corpus

should be stayed pending an appeal of the Court’s opinion

of February 22, 1971, as this day supplemented.

The Court will draw its own order.