Opposition Brief — Reid v. North Carolina

INDEX

PAGE

IS GE CIRO CRD anreencecntiemssinnnveeeeteencntneneninionenninnnnennaenenaiseamenantan 1

Facts 2

Argument ..... 4

I. The Petitioner has not shown intentional, arbitrary and

systematic exclusion of eligible persons of Petitioner’s

A SUP RIUM x. necictcnceatiitininnsacccnsnainshinntetcohaaibanitnakinnh 4

II. The decision of the Supreme Court of North Carolina

that there was no fatal variance between the allega-

tions of the indictment and the evidence, presents no

Federal question 10

Conclusion 16

Appendix 18

AUTHORITIES CITED

Akins v. Texas, 325 U.S. 398, 89 L. ed. 1692 4,10

American Railway Erp. Co. v. Kentucky, 273, U.S. 269,

71 L. ed. 639 13, 14

Bell Telephone Co. v. Pennsylvania Public Utility Commis-

sion, 309 U.S. 30, 84 L. ed. 563 13

Bergemann v. Backer, 157, U.S. 655, 39 L. ed. 845... 12

Bonner v. Gorman, 213 U.S. 86, 53 L. ed. 709 ' 14

Brooks v. Missouri, 124, U.S. 394, 31 L. ed. 454 16

Buchalter v. New York, 319, U.S. 427, 87 L. ed. 1492 15

Caldwell v. Texas, 187 U.S. 692, 34 L. ed. 816 12

Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 86 L. ed.

1031, 1036 15

Hartford Life Ins. Co. v Johnson, 249 U.S. 490, 63 L. ed. 722... 16

Hill v. Texas, 316 U.S. 400, 86 L. ed. 1559 9

Howard v. Fleming, 191 U.S. 126, 48 L. ed. 121 15

Howard v. Kentucky, 200 U.S. 164, 50 L. ed. 421 15

Kohl v. Lehiback, 160, U.S. 292, 40 L. ed. 432 12

Moore v. Missouri, 159 U.S. 673, 40 L. ed. 301 15

Murray v. Louisiana, 163 U.S. 101, 41 L. ed. 87 5

Neal v. Delaware, 103 U.S. 370, 26 L. ed. 567 9

i

Noble v. Mitchell, 164, U.S. 367, 41 L. ed. 472 13, 14

Norris v. Alabama, 294 U.S. 587, 79 L. ed. 1074.. 4, 8,9

Patton v. Mississippi, 332 U.S. 463, 92 L. ed. 76 9

Pierre v. Louisiana, 306 U.S. 354, 83 L. ed. 757 9

Snyder v. Massachusetts, 291 U.S. 97, 78 L. Cd. 674.........-..c.cse000-ee- 15

State v. Allen, 186 N.C. 302, 119 S.E. 504 11,13

State v. Boone, 35 N.C. 244 13

State v. Christmas, 101 N.C. 749, 8 S.E. 361 11

State v. Ellsworth, 130, N.C. 690, 41 S.E. 548 ll

State v. Franklin, 204 N.C. 157, 158, 167 S.E. 569 12

State v. Gentry, 228 N.C. 643, 46 S.E. (2d) 863.000.0000 13

State v. Gibson, 170 N.C. 697, 86 S.E. 774 12

State v. Grace, 196 N.C. 280, 281, 145 S.E. 399 12

State v. Harbert, 185 N.C. 760, 118 S.E. 6 12

State v. Harris, 195 N.C. 306, 141 S.E. 883 12

State v. Hough, 227 N.C. 596, 42 S.E. (2d) 659 13

State v. Martin, 199 N.C. 636, 155 S.E. 447 12

State v. Reid, 230 N.C. 561, 53 S.E. (2d) 849 1,16

State v. Staton, 133 N.C. 642, 45 S.E. 362 ll

Swain v. State, 215 Ind. 259, 18 N.E. (2d) 921, 926........................ 4

Tarrance v. Florida, 188 U.S. 519, 47 L. ed. 572, 116 So. 470

(Fla.) (Certiorari denied in 278 U.S. 599, 73 L. ed.525) 4

Thomas v. Texas, 212 U.S. 278, 53 L. ed. 512 4,10

Twining v. New Jersey, 211 U.S. 78, 53 L. ed. 97 15

Virginia v. Rives, 100 U.S. 313, 25 L. ed. 667 4

West Ohio Gas Co. v. Public Utilities Commission, 294 U.S.

63, 79 L. ed. 761 14

Zimmerman v. State, ........ “EIR , 09 A. (2d) 675 (Certiorari

denied, 93 L. ed. (Ad. Op. No. 7) 425) 4

16 C.J.S. (Constitutional Law), Sec. 540 4

STATUTES

General Statutes of North Carolina, Chapter 9:

Sec. 1 18

Sec. 2 18

Sec. 3 19

Sec. 6 20

Sec. 7 20

Sec. 8 20

Sec. 29 20

Sec. 30 .. 20

General Statutes of North Carolina, Chapter 15, Section 173...... 11

28 U.S.C. 1940 ed., Sec. 344 16

ii

In the

Supreme Court of the United States

October Term, 1949

No. 129, Misc.

ALLEN T. REID

Petitioner,

vs.

THE STATE OF NORTH CAROLINA

Respondent.

Brief of the State of North Carolina, Respondent,

Opposing Petition for Writ of Certiorari.

STATEMENT OF THE CASE

The Petitioner, Allen T. Reid, seeks, by writ of certiorari,

to have the Supreme Court of the United States review a

decision of the Supreme Court of North Carolina affirming

a judgment of the Superior Court of Wilson County, im-

posing a sentence of death upon Petitioner, based upon a

conviction of burglary in the first degree under the laws

and statutes of North Carolina. The opinion of the Supreme

Court of North Carolina was filed on June 16th, 1949, and

is reported as:

State v. Allen T. Reid, 230 N. C. 561; 53 S.E. (2d) 849.

FACTS

On September ist, 1948, Mrs. James Barnes lived in an

apartment in a house located at 204 Park Avenue, Wilson,

North Carolina. (R. 19) She was then twenty-seven years

of age, weighed 128 pounds, and was a teacher in a high

school in Wilson. (R. 22) Her husband was in Washington,

D. C., and she was alone. She came in on the early morning

of September 2nd and retired, there being one window to

the bedroom. While sleeping, she was awakened by some-

one placing a hand on her shoulder. (R. 20) She got off

on the opposite side of the bed, and a person seized both

of her wrists and told her not to scream. (R. 21) She was

able to free her right wrist, and the intruder told her to

get back on the bed, stating also that he wanted to commit

an act of sexual perversion. (R.21) He also made certain

statements as to what would happen if she screamed as set

forth on R. 21. She screamed, calling Mrs. Sarah Mayo,

who lived in another apartment, when the intruder began

to twist her left wrist. (R.21) The intruder then jumped

out of the window head first. (R.21) The intruder was a

male person, but she did not know him, and she was not

acquainted with the Petitioner. (R. 22) A lady living next

door heard the scream, heard a car start. (R.23) This

happened in the nighttime, and there was no light reflected

into the room from the outside. (R. 24)

The police investigated at once and found the screen out-

side the window had been cut from top to bottom with a

sharp instrument; two razor blades were found under-

neath the window on the outside. (R. 25) Paper wrappings

for razor blades were also found at the same place, and

the blades and wrappings were stamped with the trade

name of “Treet”. (R. 26, 44, 50,59) About four blocks from

Mrs. Barnes’ apartment, a ’35 or ’36 Model Chevrolet was

found on the railroad track, which apparently had been

hit by a train. A “Treet” blade wrapper was found on the

floor-board of the front seat. (R. 26,27) This car belonged

to Pinkney Reid, father of the Petitioner, and the Petition-

er, Allen Reid, had been driving it for about a year and

left his father’s home with the car the night of September

lst. (R. 57,58) This car was found on the railroad track

the same night Mrs. Barnes’ apartment was entered. (R.

26,27) A “Treet” razor blade, sealed in a wrapper, was

found in a trunk in a room where Petitioner and his wife

lived. (R. 46,53) The Petitioner’s father testified that Pe-

titioner stayed in and had a trunk in this room. (R. 58) A

fingerprint was found on the bottom section of the window.

(R. 28) This fingerprint was found to be a fingerprint of

the Petitioner, Allen Reid, and the Identification Officer of

the Wilson Police Department, and two identification offi-

cers of the State Bureau of Investigation testified to this

effect. (R. 27, 34,39) Two of these men had received F.B.I.

instruction. The Petitioner was apprehended at Norfolk,

Virginia, and when arrested in a hotel room stated he was

registered in the name of “Johnnie Stewart,” but that his

name was Robert Terry. (R.57) A billfold containing a

driver’s license and other identification cards was found

between the mattress and the springs of Petitioner’s bed;

these cards and license were in the name of “Allen Reid”.

(R.57) Petitioner stated that a friend of his left this bill-

fold there. (R.57) When the police officers from Wilson

saw Petitioner in the Norfolk jail, he admitted his name

was Allen Reid. (R. 48,51) The Petitioner stated that on

the night in question, he borrowed the car from his father,

went to a tobacco warehouse and there got with two colored

men who wanted to ride around; that these men caused

him to wreck the car, held him up, robbed him and carried

him to Norfolk, Virginia, where they guarded him, would

not let him leave, and threatened him with death if he

told anything. (R. 48,52) He claimed he did not know

these colored men. (R. 48) When he was returned to Wil-

son, he denied driving the car. (R. 49, 53)

The Petitioner did not testify in the case and offered no

evidence.

ARGUMENT

I.

PETITIONER HAS NOT SHOWN INTENTIONAL,

ARBITRARY AND SYSTEMATIC EXCLUSION OF

ELIGIBLE PERSONS OF PETITIONER’S RACE FROM

JURY SERVICE.

It is not denied that under the Fourteenth Amendment,

the eligible citizens of Petitioner’s race are entitled to

their chance to serve on the various juries and cannot he

deprived of this chance by design. But fairness in selection

does not require a guaranteed, proportional representation

of the Petitioner’s race on every jury selected and con-

stituted.

Akins v. Texas, 325 U.S. 398, 89 L. ed. 1692;

Thomas v. Texas, 212 U.S. 278, 53 L. ed. 512;

Virginia v. Rives, 100 U.S. 313, 25 L. ed. 667;

Swain v. State, 215 Ind. 259, 18 N.E. (2d) 921, 926;

Zimmerman v. State, Md. ...... , 59 A. (2d) 675;

Certiorari denied, 93 L. ed. (Ad. Op. No. 7) 425;

16 C.J.S. (Constitutional Law), Sec. 540.

The type of discrimination condemned is said to be

“purposeful discrimination” (AKINS v. TEXAS, 325 USS.

398, 89 L. ed. 1692), or a “long-continued, unvarying, and

wholesale exclusion of Negroes from jury service” (NOR-

RIS v. ALABAMA, 294 U.S. 587, 79 L. ed. 1074). There

is a presumption that officers in charge of jury selection

have performed their duty fairly and justly (TARRANCE

v. FLORIDA, 188 U.S. 519, 47 L. ed. 572, 116 So. 470 (Fla.),

Certiorari denied in 278 U.S. 599, 73 L. ed. 525) and with-

out discrimination against race or class. The burden of

proof is upon Petitioner to show an alleged discrimination

in the selection of a grand or petit jury (AKINS v. TEXAS,

325 U.S. 398, 89 L. ed. 1692; MURRAY v. LOUISIANA,

163 U.S. 101, 41 L. ed. 87).

The Petitioner does not attack the terms or the provisions

of the statutes of North Carolina as to jury selection and

service (Petitioner’s Brief, p. 3), but he does claim an un-

constitutional discrimination resulting from administration.

The Petitioner challenged the array of petit jurors and

special veniremen and moved to set aside the whole list

(R. 7,8,9), but Petitioner did not challenge the Bill of

Indictment because of the constitution of the grand jury.

A member of his race did serve on that jury. (R.17) We

now examine the evidence on the motion to quash the

panels.

K. J. Herring, Clerk of the Board of Commissioners of

Wilsen County, (R. 10):

This witness had been Clerk to the Board of Commis-

sioners since 1943. He produced the minute book containing

the names of persons drawn for jury duty in Wilson County

since he had been Clerk. He testified (R.10) that there

was no way to tell from the records or from the slips in

the jury box whether a person was white or colored, unless

you happened to know the individuals. He had no way of

knowing the number of colored persons serving on prior

juries, and the number of forty was drawn for each Court.

He testified that jurors were selected on a basis of character

and intelligence, and there was no discrimination because

of race or color. (R. 11)

Mrs. Sadie H. Collins, Register of Deeds since December

4, 1944 (R.11):

This witness produced minute books Nos. 13 and 14.

Book 14 covered the period from November 2, 1942 to

February 22, 1943. She testified (R. 12) that the books did

not show whether a juror was white or colored; that you

could not tell unless you had persona] acquaintance, and

she did not know anything like a majority. All of the

minute books of the County Commissioners in the office

of Register of Deeds were tendered to counsel for Petitioner

for investigation as to discrimination. (R. 12)

Reverend I. B. Butler, a minister of Wilson County

(R. 12):

This witness had lived in Wilson County since 1921. He

testified that he had visited the Courts frequently and that

he didn’t believe he had ever seen a Negro serve on a petit

jury in Wilson County. He did not have personal knowledge

of any Negroes who had been called for jury duty. He

estimated that the colored population was 40% of the total.

On cross-examination, this witness testified that he attend-

ed the last term of Superior Court and thought it was in

September. He could not remember when he was in Court

at any time prior to the September Term. He did not know

the number of persons, either white or colored, that had

been excused for sickness or other reasons. (R. 13)

James A. Armstrong, a member of the Negro race

(R. 13):

This witness owned property and paid taxes, and had

lived in the County all of his life, or forty-seven years. He

did not know of his personal knowledge that any Negro

had been called for service on the petit jury. He was sum-

moned as a venireman in the Allen Reid case (Petitioner’s

case).

Charles C. Lamm, Clerk of Wilson County Superior

Court since December, 1942 (R. 14):

This witness testified that he received the names of per-

sons summoned for jury duty. That for this Term, forty

regular jurors were drawn, and none were colored; that

sixty-five veniremen were drawn, and he happened to know

one that was colored. He did not have knowledge of all the

veniremen. There was nothing on the list to indicate

whether jurors were white or colored. He was present when

the special venire was drawn, and no name was laid aside

because of race or color.

J. W. Thompson, Sheriff of Wilson County for two years

(R. 15):

This witness testified as follows:

“I am the Sheriff of Wilson County, have been for

two years. I have before me a list of persons drawn

for jury duty at this term of court. I supervised the

summoning of those persons for jury duty. I have

rsonal knowledge of the number of Negroes on this

No Negroes are on the list of regular jurors drawn.

There are three Negroes on the list of special venire-

men, that I know of. There names are James A. Arm-

strong, Henry Shaw, Paul Hargrove, Kelly Strickland,

Johnnie Williamson. I believe there is another that I

don’t recall just offhand. From this list, I know the

townships these men live in; some of them I know

personally. I have been Sheriff for the past two years.

I don’t know the exact number of Negroes who have

been drawn for regular jury duty for the past two

years, but I do know there have been some drawn for

regular jury duty; I just couldn’t say how many. I

would say, roughly, that the ey of Wilson

County is 50,000. I would say that the Negroes com-

prise between 35% and 40% of that total.”

On cross-examination, this witness testified that he was

in the Commissioners’ room when the panel of jurors was

drawn, and none were laid aside because of race or color,

and the same was true as to the special venire since he

was present when it was drawn. There was nothing on

the scrolls to indicate the color of persons, but the town-

ship is indicated on the slip.

This evidence falls far short of making out a prima facie

case which the State would be called upon to rebut. It

merely shows:

(a) That the minute books and slips or scrolls showing

names of jurors contain nothing showing the race of the

juror.

(b) That a colored juror served on the grand jury that

found the Bill of Indictment.

(c) That when the names of the regular panel and spe-

cial veniremen were drawn, none were laid aside because

of race or color.

(d) That there were some five or six colored persons or

Negroes drawn for the special venire.

(e) That no Negroes appeared on the regular panel.

(f) The witness, James A. Armstrong, forty-seven years

of age, property owner and tax payer, had not served as a

juror, and had no personal knowledge of other Negroes

serving, but it appears that he was serving as a Negro

venireman in this case.

(g) The witness Butler had no personal knowledge of

Negroes serving on the jury, but his knowledge only ex-

tended to the prior term of Court in September, and he did

not know as to the Negroes excused.

(h) The Sheriff establishes that Negroes have been

drawn for jury duty for the past two years in Wilson

County, but he did not know how many.

(i) That Negroes constitute 35% to 40% of the total

population of the County.

The Petitioner has failed to show that long-continued

exclusion; that purposeful, intentional, arbitrary exclusion

of any representative of a large group of the Negro race

which warrants the inference or prima facie case requiring

proof in rebuttal on the part of the State. In NORRIS v.

ALABAMA, 294 U.S. 587, 79 L. ed. 1074, no Negro had

served on the grand jury or petit jury within the memory

of many witnesses who had lived in the County all of their

lives. A member of the Commission which made up the

jury roll testified that he had “never known of a single

instance where any Negro sat on any grand or petit jury

in the entire history of that County.” It was shown that

there were many eligible persons of the Negro race com-

petent for jury duty.

In NEAL v. DELAWARE, 103 U.S. 370, 26 L. ed. 567,

it was shown that out of a colored population which ex-

ceeded 20,000 in 1870 and in 1880 exceeded 26,000, no

colored citizen had been summoned as a juror in the Courts

of the State.

In HILL v. TEXAS, 316 U.S. 400, 86 L. ed. 1559, it

appeared that there were many eligible Negro jurors but

that no Negro had been on the grand jury list for sixteen

years. The Assistant District Attorney testified that he had

never known of a Negro being called to serve on a grand

jury of Dallas County.

In PIERRE v. LOUISIANA, 306 U.S. 354, 83 L. ed. 757,

from 1896 until 1936, no Negro had served on grand or petit

jury in the Parish. One-half the population of the Parish

was colored, and there were many Negroes eligible for

jury duty.

In PATTON v. MISSISSIPPI, 332 U.S. 463, 92 L. ed. 76,

there were many Negroes qualified to serve as jurors in

the County. It was shown by many witnesses that no Negro

had served on the grand or petit juries for thirty years.

Many other cases could be commented upon, but the

above are sufficient to show that we do not have in this case

the conditions that caused this Court to say that the State

had not met the presumption of race exclusion. In this

case, Petitioner has not shown any large group of Negroes

that are eligible for jury duty as shown in the NORRIS

case, supra, and other cases. Petitioner has not shown over

what period of time such race exclusion has existed, if it

does exist. Petitioner asserts in his brief that the trial Court

refused to let his counsel go into the drawing of prior juries.

This argument is not well founded. On R. 10, 11, it will

appear that the Court did sustain an objection of the State

as to how many jurors were drawn for a prior term, but it

appeared at all times that the records and scrolls did not

show the races; it also appears that the question was

answered on R.11 that a venire of forty was drawn for

each term of Court and that the witness had no personal

10

knowledge as te the number of each race. Again to show

that such argument is not correct: On R.12, the Court

placed at the disposal of Petitioner’s counsel all minute

books in the office of Register of Deeds pertaining to all

juries; and (R.15) Sheriff Thompson testified as to jury

composition on races for the two years he had been in office.

It is recognized that on a question of this nature, the

Court will make an independent investigation, neverthe-

less, great weight is accorded the decisions of State Courts

who make the initial decisions and have a better oppor-

tunity to investigate the facts.

Thomas v. Texas, 212 U.S. 278, 53 L. ed. 512;

Akins v. Texas, 325 U.S. 398, 89 L. ed. 1692.

We submit, therefore, that Petitioner has not made out

a case of jury exclusion because of race.

II.

THE DECISION OF THE SUPREME COURT OF NORTH

CAROLINA THAT THERE WAS NO FATAL VARI-

ANCE BETWEEN THE ALLEGATIONS OF THE IN-

DICTMENT AND THE EVIDENCE, PRESENTS NO

FEDERAL QUESTION.

The Petitioner attempts to raise a constitutional question

under the Sixth Amendment to the Constitution of the

United States because the trial Court and the Supreme

Court of North Carolina held that there was not a fatal

variance between the allegations in the bill of indictment

and the evidence produced at the trial. It is said that the

indictment charges that the Petitioner feloniously broke

and entered the dwelling house of Mrs. James Barnes in

the nighttime with the intent to commit the felony of rape,

whereas the proof or evidence in the case shows that the

Petitioner intended to commit a crime of sexual perversion,

11

which, under the laws of North Carolina, is a distinct and

separate felony from that of rape.

We do not understand the Petitioner claims that the bill

of indictment within itself is defective. The indictment does

conform to the laws of the State of North Carolina.

State v. Allen, 186 N. C. 302, 119 S.E. 504;

State v. Staton, 133 N. C. 642, 45 S.E. 362;

State v. Ellsworth, 130 N. C. 690, 41 S.E. 548;

State v. Christmas, 101 N. C. 749, 8 S.E. 361.

The North Carolina practice in criminal trials permits a

defendant in a criminal case to interpose a demurrer to the

evidence or make a motion for judgment as of nonsuit. The

statute is as follows:

§ 15-173. Demurrer to the evidence—When on the

trial of any criminal action in the superior court, or in

any criminal court, the state has produced its evidence

and rested its case, the defendant may move to dismiss

the action or for judgment of nonsuit. If the motion is

allowed, judgment shall be entered accordingly; and

such judgment shall have the force and effect of a

verdict of ‘not guilty’ as to such defendant. If the mo-

tion is refused, the defendant may except; and if the

defendant introduces no evidence, the case shall be

submitted to the jury as in other cases, and the de-

fendant shall have the benefit of his exception on ap-

peal to the supreme court.

“Nothing in this section shall prevent the defendant

from introducing evidence after his motion for non-

suit has been overruled; and he may again move for

judgment of nonsuit after all of the evidence in the

case is concluded. If the motion is then refused, upon

consideration of all of the evidence, the defendant may

— and, after the jury has rendered its verdict, he

he shall have the benefit of such latter exception on

appeal to the supreme court. If defendant’s motion for

judgment of nonsuit be granted, or be sustained on

12

appeal to the supreme court, it shall in all cases have

the force and effect of a verdict of ‘not guilty’.”

This motion raises the question as to whether or not

there is sufficient evidence to submit the case to the jury,

and likewise, a defendant can raise the question as to

whether or not there is a fatal variance between the indict-

ment and the proof.

State v. Franklin, 204 N. C. 157, 158, 167 S.E. 569;

State v. Martin, 199 N. C. 636, 155 S.E. 447;

State v. Grace, 196 N. C. 280, 281, 145 S.E. 399;

State v. Harris, 195 N. C. 306, 141 S.E. 883;

State v. Harbert, 185 N. C. 760, 118 S.E. 6;

State v. Gibson, 170 N. C. 697, 86 S.E. 774.

It was certainly a question for the North Carolina Court

to decide as to whether or not the bill of indictment was

sufficient, and upon this phase, there is no question pre-

sented for decision by this Court.

Caldwell v. Texas, 137 U.S. 692, 34 L. ed. 816;

Bergemann v. Backer, 157 U.S. 655, 39 L. ed. 845;

Kohl v. Lehlback, 160 U.S. 292, 40 L. ed. 432.

It was the contention of the State on this record that

although the Petitioner expressed the wish to commit an

unnatural act with the prosecuting witness, nevertheless,

this was not inconsistent with the theory that the final act

that he intended to commit was the felony of rape. It was

a question, therefore, for the North Carolina Courts to de-

cide if the evidence was sufficient to be submitted to the

jury that the Petitioner intended to commit the felony of

rape, and it was decided that there was sufficient evidence

to submit to the jury. This was in accordance with North

Carolina practice.

13

State v. Allen, 186 N. C. 302, 119 S.E. 504;

State v. Boone, 35 N. C. 244.

On a motion of this nature, according to the practice in

North Carolina, the evidence is construed in the light most

favorable to the State.

State v. Gentry, 228 N. C. 643, 46 S.E. (2d) 863;

State v. Hough, 227 N. C. 596, 42 S.E. (2d) 659.

When a state court judicially determines that there is

sufficient evidence of a fact to be submitted to a jury, its

decision is not reviewable by the United States Supreme

Court on writ of certiorari.

Noble v. Mitchell, 164 U.S. 367, 41 L. ed. 472;

American Railway Exp. Co. v. Kentucky, 273 U.S. 269,

71 L. ed. 639;

Bell Telephone Co. v. Pennsylvania Public Utility Com-

mission, 309 U.S. 30, 84 L. ed. 563.

In BELL TELEPHONE Co. v. PENNSYLVANIA PUB-

LIC UTILITY COMMISSION, 309 U.S. 30, 32, 84 L. ed. 563,

it is stated in a per curiam opinion:

“As to the first contention, it appears that the state

court heard the appeal judicially and decided that

there was evidence justifying the finding of the Com-

mission of unreasonable discrimination in the trans-

action of its intrastate business. In the absence of other

constitutional objections, it cannot be said that a state

court denies due process when on appropriate hearing

it determines that there is evidence to sustain a finding

of the violation of state law with respect to the conduct

of local affairs. The contention that such a decision is

erroneous does not present a federal question.”

14

The following paragraph from the opinion of Justice

White in NOBLE v. MITCHELL, 164 U.S. 367, 373, 41 L.

ed. 472 would seem to be decisive of the question:

“It is suggested that there is no adequate proof that

the policy in controversy was issued by a foreign cor-

poration. This involves a mere question of fact, which

was submitted to the jury by the trial court, and as to

which the Supreme Court of Alabama said there was

evidence sufficient for the consideration of the jury,

and which is not subject to review here on writ of

error. DOWER v. RICHARDS, 151 U.S. 659 (38:306);

RE BUCHANAN, 158 U.S. 31 (39:884).”

If it should be determined that the Supreme Court of

North Carolina erroneously decided the case, no question

would be presented for determination by this Court for it

has long been held that where a party is fully heard in the

regular course of judicial proceedings, an erroneous de-

cision of the state court is not a denial of due process within

the Fourteenth Amendment of the Constitution of the

United States.

Bonner v. Gorman, 213 U.S. 86, 53 L. ed. 709;

American Railway Express Co. v. Kentucky, 273 U.S.

269, 71 L. ed. 639;

West Ohio Gas Co. v. Public Utilities Commission, 294

U.S. 63, 79 L. ed. 761.

In AMERICAN RAILWAY EXPRESS CO. v. KEN-

TUCKY, 273 U.S. 269, 71 L. ed. 639, it is said, at page 273:

“It is firmly established that a merely erroneous de-

cision given by a state court in the regular course of

judicial proceedings does not deprive the unsuccessful

party of property without due process of law.”

The Supreme Court of North Carolina, therefore, had the

right to pass upon the sufficiency of the evidence and to

15

decide what cases, based upon the various aspects of the

evidence, do or do not fall within the purview of the crime

of burglary as charged in the bill of indictment, and this

applies equally to any of the constituent parts required to

be alleged in the bill of indictment.

Buchalter v. New York, 319 U.S. 427, 87 L. ed. 1492;

Howard v. Fleming, 191 U.S. 126, 48 L. ed. 121;

Howard v. Kentucky, 200 U.S. 164, 50 L. ed. 421;

Twining v. New Jersey, 211 U.S. 78, 53 L. ed. 97;

Snyder v. Massachusetts, 291 U.S. 97, 78 L. ed. 674;

Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 86

L. ed. 1031, 1036;

Moore v. Missouri, 159 U.S. 673, 40 L. ed. 301.

The trial Court charged the jury (R.82) that if the jury

found that the Petitioner’s criminal intent was to commit

the crime against nature and not the intent to commit rape,

that the Petitioner would not be guilty of the crime charged

in the bill of indictment.

It is the contention of North Carolina, therefore, that this

point was settled by the general local law of procedure and

furnishes no ground for review or interposition by this

Court and that there is no Federal question involved on

this point.

On this point again, North Carolina further contends

that this Court is without jurisdiction to review this ques-

tion because the Petitioner failed to set up this question

in the State Courts as a question arising under the Con-

stitution of the United States. An examination of the record

will show that the Petitioner did take exception to the over-

ruling of the motion for judgment as of nonsuit, but that

the Petitioner argued the point as a question of State prac-

tice, and his brief filed in the Supreme Court of North

Carolina will so show. While Petitioner did state in his

brief that the defendant in a criminal trial was entitled to

16

know, as a matter of due process of law, the crime with

which he is charged and to have it alleged in the indictment

with particularity, when the Petitioner came to discuss the

question, his argument is entirely on the point that there

was a fatal variance between the evidence and the allega-

tions in the indictment, and the Petitioner cited State cases

on State practice to support his position. The Supreme

Court of North Carolina certainly did not understand that

it was passing on a constitutional question in this respect

as a reading of the opinion in this case will disclose

(STATE v. REID, 230 N. C. 561, 53 S.E. (2d) 849).

Under the statute authorizing review by certiorari of

decisions of the highest courts of the several states, juris-

diction of the United States Supreme Court to review de-

cisions alleged to involve rights, privileges, or immunities

under the Constitution is limited to cases in which the

rights, privileges, or immunities are “specially set up or

claimed.”

28 U.S.C. 1940 ed., Sec. 344

The rights, privileges, or immunities must be set up in

the State courts.

Brooks v. Missouri, 124 U.S. 394, 31 L. ed. 454;

Hartford Life Ins. Co. v. Johnson, 249 U.S. 490, 63 L.

ed. 722.

CONCLUSION

The State of North Carolina, therefore, contends that

the Petitioner has not brought himself within the rulings

of this Court which allow his case to be considered upon

certiorari on the question of jury discrimination and that

the second question raised by him is not substantial and

not of sufficient importance to warrant consideration by the

United States Supreme Court. This second question or point

17

was not set up in the State Courts as a question or point

arising under the Constitution of the United States. There-

fore, this application for writ of certiorari should be denied.

Respectfully submitted,

Harry McMUuLLAN,

Attorney General

RALPH Moopy,

Assistant Attorney General

Counsel for the State of

North Carolina, Respondent.

18

APPENDIX

Chapter 9, General Statutes of North Carolina—Jury

§ 9-1. The board of county commissioners for the sev-

eral counties, at their regular meetings on the first Monday

in June in the year 1947, or the jury commissions or such

other legally constituted body as may in the respective

counties be charged by law with the duty of drawing names

of persons for jury service, at the times of their regular

meetings, and every two years thereafter, shall cause their

clerks to lay before them the tax returns for the preceding

year for their county, and a list of names of persons who do

not appear upon the tax lists, who are residents of the

county and over twenty-one years of age, from which lists

the board of county commissioners or such jury commis-

sions shall select the names of such persons who reside in

the county who are of good moral character and have suffi-

cient intelligence to serve as members of grand and petit

juries. A list of the names thus selected by the board of

county commissioners or such jury commissions shall be

made out by the clerk of the board of county commissioners

or such jury commissions and shall constitute the jury list

of the county and shall be preserved as such.

The clerk of the board of county commissioners or such

jury commissions, in making out the list of names to be

laid before the board of county commissioners or such jury

commissions, may secure said lists from such sources of

information as deemed reliable which will provide the

names of persons of the county above twenty-one years

of age residing within the county qualified for jury duty.

There shall be excluded from said lists all those persons

who have been convicted of any crime involving moral

turpitude or who have been adjudged to be non compos

mentis.

§ 9-2. Names on list put in box.—The commissioners at

their regular meeting on the first Monday in July in the

19

year nineteen hundred and five, and every two years there-

after, shall cause the names on their jury list to be copied

on small scrolls of paper of equal size and put into a box

procured for that purpose, which must have two divisions

marked No. 1 and No. 2, respectively, and two locks, the

key of one to be kept by the sheriff of the county, the other

by the chairman of the board of commissioners, and the

box by the clerk of the board.

§ 9-3. Manner of drawing panel for term from boxr.—-At

least twenty days before each regular or special term of

the superior court, the board of commissioners of the county

shall cause to be drawn from the jury box out of the par-

tition marked No. 1, by a child not more than ten years of

age, thirty-six scrolls except when the term of court is for

the trial of civil cases exclusively, when they need not draw

more than twenty-four scrolls. The persons whose names

are inscribed on said scrolls shall serve as jurors at the

term of the superior court to be held for the county ensuing

such drawing, and for which they are drawn. The scrolls

so drawn to make the jury shall be put into the partition

marked No. 2. The said commissioners shall at the same

time and in the same manner draw the names of eighteen

persons who shall be summoned to appear and serve dur-

ing the second week, and a like number for each succeeding

week of the term of said court, unless the judge thereof

shall sooner discharge all jurors from further service. The

said commissioners may, at the same time and in the same

manner, draw the names of eighteen other persons, who

shall serve as petit jurors for the week for which they are

drawn and summoned. The trial jury which has served

during each week shall be discharged by the judge at the

close of said week, unless the said jury shall be then actual-

ly engaged in the trial of a case, and then they shall not be

discharged until the trial is determined.

20

§ 9-6. Jurors having suits pending.—If any of the jurors

drawn have a suit pending and at issue in the superior

court, the scrolls with their names must be returned into

partition No. 1 of the jury box.

§ 9-7. Disqualified persons drawn.—If any of the per-

sons drawn to serve as jurors are dead, removed out of the

county, or otherwise disqualified to serve as jurors, the

scrolls with the names of such persons must be destroyed,

and in such cases other persons shall be drawn in their

stead.

§ 9-8. How drawing to continue——The drawing out of

partition marked No. 1 and putting the scrolls drawn into

partition No. 2 shall continue until all the scrolls in parti-

tion No. 1 are drawn out, when all the scrolls shall be re-

turned into partition No. 1 and drawn out again as herein

directed.

§ 9-29. Special venire to sheriff in capital cases —When

a judge of the superior court deems it necessary to a fair

and impartial trial of any person charged with a capital

offense, he may issue to the sheriff of the county in which

the trial may be a special writ of venire facias, commanding

him to summon such number of persons qualified to act as

jurors in said county as the judge may deem sufficient

(such number being designated in the writ), to appear on

some specified day of the term as jurors of said court; and

the sheriff shall forthwith execute the writ and return it

to the clerk of the court on the day when it is returnable,

with the names of the jurors summoned.

§ 9-30. Drawn from jury box in court by judge’s order.

—When a judge deems a special venire necessary, he may,

at his discretion, issue an order to the clerk of the board of

commissioners for the county, commanding him to bring

into open court forthwith the jury boxes of the county, and

21

he shall cause the number of scrolls as designated by him

to be drawn from box number one by a child under ten

years of age. The names so drawn shall constitute the spe-

cial venire, and the clerk of the superior court shall insert

their names in the writ of venire, and deliver the same to

the sheriff of the county, and the persons named in the

writ and no others shall be summoned by the sheriff. If the

special venire is exhausted before the jury is chosen, the

judge shall order another special venire until the jury has

been chosen. The scrolls containing the names of the per-

sons drawn as jurors from box number one shall, after the

jury is chosen, be placed in box number two, and if box

number one is exhausted before the jury is chosen, the

drawing shall be completed from box number two after

the same has been well shaken.