Petition for Writ of Certiorari — Sugarman v. California

Subject Index

_ Petition for writ of certiorari to the Supreme Court of the

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Stages at which the due process question was raised ........

| Questions presented by this writ ..............eeseeeeeeees 10

| Reasons for allowing the writ ..............ceeeeeeeeeeees 10

Cases believed to sustain jurisdiction ................600. 12

| Brief in support of the petition for writ of certiorari......

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OMNI ooo. h iss des aWacxsnurcacaancand nanan 17

' Summary statement of the facts and the issues involved.... 17

| Specification of errors presented by the writ of certiorari.... 18

_ The Supreme Court of the State of California erred in con-

_ gtruing and applying Sections 954 and 1098 of the Penal

Code of the State of California in this case in a manner

_ that would permit the trial en masse of the defendant on a

_ ‘separate and distinct charge of conspiracy with two other

defendants separately charged with separate and distinct

other conspiracies and other offenses, and to place those is-

_ sues before one and the same jury to be tried all at one

_ _ time wherein seventy-five per cent or more of the evidence

was in no way related to the petitioner. Such statutes, as

thus construed and applied, violate the Fourteenth Amend-

_ ‘ment to the United States Constitution.................. 19

~ Cases believed to sustain our specifications ................ 20

q ‘Motion for permission to dispense with the printing of the

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Table of Authorities Cited

Cases Pages

Ashe v. United States, 2 Fed. (2d) 785...........0..005. 12, 20

Buchalter v. New York, 319 U.S. 427, 87 L. Ed. 1492...... 12, 20

Carter v. Illinois, 329 U.S. 173, 91 L. Ed. 172............ 12, 20

De Jonge v. Oregon, 299 U.S. 353 ... 20... cece eee eee 20

Heber v. Louisiana, 272 U.S. 312 ........... ccc cece eee eee 20

Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557. .12, 20

Krulewitch v. United States, 93 L. Ed. 6283................ 12, 20

Lisenba v. California, 314 U.S. 219, 86 L. Ed. 1166. ..7, 12, 20, 21

McElroy v. United States, 164 U.S. 76, 41 L. Ed. 355...... 12, 20

Mooney v. Holohan, 294 U.S. 108, 79 L. Ed. 791.......... 13, 20

Optner v. United States, 13 Fed. (2d) 11................ 12, 20

People v, Brower, 207 Pac. (2d) 571 ................055. 13, 20

People v. Davis, 42 Cal. App. (2d) 70..................., 20, 21

People of the State of California v. Don Burton, et al., 91

AGA. G17, 906 Pas. (Bd) 2065..... 0... ccc cc cc ceess 16

Pointer v. United States, 151 U.S. 396.................... 12, 20

Wp Cia: SE A, Fe yk hin bicivatae icant ccecicebiseers 12, 20

Resweber v. Louisiana, 329 U.S. 459. ..............0.00005 20

Statutes

New Federal Judiciary Code:

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Penal Code:

Gotten BES nicks ets. 2, 3, 5, 7, 9, 10, 18, 17, 18, 19, 20

WE NEE of wiesras sickness caeceace 2, 3, 6, 7, 9, 10, 18, 17, 19, 20

Tasie or AutHorities Crrep iii

United States Constitution, Fourteenth Amendment, Sec-

tion 1

Rules

In the Supreme Court

OF THE

United States

oe

OcroBER TERM, 1949

No.

BEN SUGARMAN,

Petitioner,

vs. ,

PEOPLE OF THE STATE OF CALIFORNIA,

In the Matter of the Application of

Ben SucaRMAN for a Writ of Habeas

Corpus,

Respondent.

y,

PETITION FOR WRIT OF CERTIORARI

to the Supreme Court of the State of California.

To the Honorable Fred M. Vinson, Chief Justice of

the United States, and to the Honorable Assoctate

Justices of the Supreme Court of the United

States:

Comes now Ben Sugarman and petitions this Hon-

orable Court for a Writ of Certiorari directed to the

2

Supreme Court of the State of California and for an

Order to the Supreme Court of the State of California

to certify the record of that Court to this Court and

to reverse the decision of the Court below denying the

petitioner, Ben Sugarman, a Writ of Habeas Corpus

for violations of constitutional rights asserted under

the Fourteenth Amendment to the Constitution of the

United States, and particularly challenges as to the

unconstitutionality of Sections 954 and 1098 of the

Penal Code of the State of California, as construed —

and applied in this case, denying petitioner procedural

due process of law guaranteed by the Fourteenth

Amendment.

The petitioner also asks leave to proceed upon certi-

fied typewritten record sent to the Court below along

with this petition, and in respect to these matters

your petitioner, Ben Sugarman, respectfully shows

as follows: ;

OPINION BELOW.

There was no opinion written by the Supreme Court

of California in this case.

The petition before the Supreme Court of the State

of California was denied—two Justices dissenting, to-

wit, Justices Jesse W. Carter and B. Rey Schauer.

The Attorney General of California also stipulated

before the Supreme Court that the questions raised

herein under the Federal Constitution were of funda-

mental importance.

3

JURISDICTION.

Jurisdiction is conferred by Section 2101 New Fed-

eral Judiciary Code and by Rule 38% jRules of the

Supreme Court of the United States.

The petitioner first filed his application for a Writ

of Habeas Corpus in the {Superior Court of the State

of California in and for the County of San Joaquin,

on June 9, 1949. That Court denied the hearing

without opinion on said date. On June 10, 1949, the

petitioner filed a Writ of Habeas Corpus in the Dis-

trict Court of Appeal, Third Appellate District, State

of California, which petition was denied by that Court

on June 15, 1949. Petitioner thereafter, on July 1,

1949, filed a petition for a Writ of Habeas Corpus in

the Supreme Court of the State of California, which

petition was denied on July 14, 1949, the Supreme

Court of California having considered the said peti-

tion on all of the federal grounds asserted first in. the

Superior Court of the State of California in and for

the County of San Joaquin, and again in the District

Court of Appeal, Third Appellate District, State of

California, and again in the Supreme Court. Justices

Jesse W. Carter and B. Rey Schauer both voted for a

hearing in the Supreme Court.

This petition is filed within 90 days of the said de-

nial as provided by Rule 3844 Rules of the Supreme

Court of the United States.

In each of the petitions there was a challenge to

the constitutionality of Section 954 and 1098 of the

Penal Code of the State of California, as construed

4

and applied in this case, under the Federal Constitu-

tion, to-wit, under the Fourteenth Amendment to the

Constitution of the United States. There was also a

challenge as to the invidious treatment in which the

petitioner was singled out. The challenge was denied

by the California Court, two justices dissenting.

This is a companion case to Ben Sugarman vs. The

People of the State of California from the Third

Appellate District.

Because all of the questions in the direct appeal

from the judgment itself were not asserted under the

Fourteenth Amendment to the Constitution of the

United States, those questions were again reasserted

on the Habeas Corpus proceedings herein and the

entire record of the case of People vs. Ben Sugarman

was made a part of the record of this proceeding in

each of the applications for the Writ of Habeas

Corpus before the State of California. Therefore, the

State of California has squarely passed upon each

and all of the issues under the challenge that the

petitioner’s rights under the Fourteenth Amendment

to the Constitution of the United States were asserted

in the State of California and denied by that Court.

Jurisdiction, therefore, is conferred under the New

Judiciary Code, Section 2102, and by Rule 38% of the

Supreme Court of the United States.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED.

The Fourteenth Amendment to the Constitution of

the United States, Section 1, provides as follows:

‘¢All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.”’

Section 954 of the Penal Code of California provides

as follows:

‘‘ An indictment, information, or complaint may

charge two or more different offenses connected

together in their commission, or different state-

ments of the same offense or two or more differ-

ent offenses of the same class of crimes or offenses

under separate counts, and if two or more indict-

ments or informations are filed in such cases the

court may order them to be consolidated. The

prosecution is not required to elect between the

different offenses or counts set forth in the in-

dictment or information, but the defendant may

be convicted of any number of the offenses

charged, and each offense upon which the de-

fendant is convicted must be stated in the verdict;

provided, that the court in the interest of justice

and for good cause shown, may, in its discretion,

order that the different offenses or counts set

forth in the indictment or information be tried

6

separately, or divided into two or more groups

and each of said groups tried separately. A ver-

dict of acquittal of one or more counts shall not

be deemed or held to be an acquittal of any other

count.”’

Section 1098 of the Penal Code of California provides

as follows:

‘“‘When two or more defendants are jointly

charged with any public offense, whether felony

or misdemeanor, they must be tried jointly, un-

less the court order separate trials. In ordering

separate trials, the Court in its discretion may

order a separate trial as to one or more defend-

ants, and a joint trial as to the others, or may

order any number of the defendants to be tried at

one trial, and any number of the others at differ-

ent trials, or may order a separate trial for each

defendant. If the defendants are tried jointly, the

state and the defendants shall be entitled to the

number of challenges prescribed by Section 1070

of this code, which challenges on the part of the

defendants must be exercised jointly. Each de-

fendant shall also be entitled to five additional

challenges which may be exercised separately ; the

state shall also be entitled to additional challenges

equal to the number of all the additionai separate

challenges allowed the defendants.’’

~" SUMMARY STATEMENT OF THE FACTS.

As all of the facts surrounding the case are set out

in the Statement of Facts in the Petition for the

Writ of Certiorari from the judgment in the District

7

Court of Appeal, State of California, we readopt that

statement by reference as though fully set forth here.

In addition thereto, however, we set out the pro-

cedure and our reasons for seeking a writ of habeas

corpus.

The petitioner, Ben Sugarman, was sentenced -to

the State Prison under the judgment of the District

Court of Appeal, Third Appellate District, from which

we sought a writ of certiorari. Since the Supreme

Court of California did not pass upon the issues here,

nor did the Third Appellate District pass upon the

issues under the challenge of unconstitutionality of the

statute itself, and since we wanted to present every

phase of the issue of unconstitutionality under the

Fourteenth Amendment to the Constitution of the

United States, we sought in this case, as we did in

Ttsenba v. California, 314 U.S. 166, a writ of habeas

corpus to challenge the constitutionality of Sections

954 and 1098 of the Penal Code of the State of Cali-

fornia as construed and applied in this case.

We not only challenge the constitutionality of the

statutes as construed and applied, but we also chal-

lenge the trial as being unfair under the construction

of the Fourteenth Amendment to the Constitution of

the United States under the facts of this case, and

also that the defendant was singled out for invidious

treatment by the State of California, in violation of

due process of law guaranteed by the Fourteenth

Amendment to the Constitution of the United States.

We presented the issues to the State of California

as to whether a person charged individually with an

individual crime or offense and a conspiracy with

another individual may be tried en masse before the

same jury with other persons separately charged

with separate conspiracies and separate crimes.

We have found no case that holds that such proee-

dure and proceedings is due process of law within the

United States; and, for the first time a State Court

has held that joinder of parties may be had, although

the defendants are separately accused of separate al-

leged crimes and offenses. Thus, the accused herein

had to sit through a prolonged trial in which 75% or

more of the evidence was against other defendants

on other charges. This procedure and proceeding was

challenged in the highest Court of the State of Cali-

fornia as being in violation of due process of law,

which guarantees to every accused in the United States

a fair trial by proper American standards. This chal-

lenge was denied by the highest Court of the State of

California, Justices Jesse W. Carter and B. Rey

Schauer, however, voting for hearing.

The Attorney General of the State of California

recognized the importance of the fundamental ques-

tions herein and stipulated that they were of funda-

mental importance and should be decided by a high

Court.

The petition became highly controversial in Cali-

fornia, various district attorneys opposing any deci-

sion or hearing on the matter and various public

defenders, who represent indigent defendants, urging

the hearing on the ground that it would affect a large

number of persons they represent.

The record of the trial Court in the trial itself was

placed in evidence in this habeas corpus case by refer-

ence and is before this Court, having been filed in the

proceedings of Ben Sugarman vs. People of the State

of California, in the appeal from the judgment.

Thus, every remedy in the State of California has

been exhausted both directly from the judgment and

by habeas corpus attack, and both Sections 954 and

1098 of the Penal Code of the State of California

have been challenged as unconstitutional under the

Fourteenth Amendment to the Constitution of the

United States and that challenge denied by the highest

Court of the State of California, two justices voting

for a hearing and the Attorney General of the State

agreeing that the question is one of fundamental im-

portance.

STAGES AT WHICH THE DUE PROCESS QUESTION

WAS RAISED.

The Due Process Question under the Fourteenth

Amendment to the Constitution of the United States

in this Habeas Corpus proceeding was first raised in

the Superior Court of the State of California in and

for the County of San Joaquin on June 9, 1949, and

the challenge therein denied by that Court. It was

again raised in the District Court of Appeal, Third

Appellate District, State of California, on June 10,

1949, and denied by that Court on June 15, 1949. It

was again raised in the Supreme Court of the State of

California on July 1, 1949, and denied by that Court

on July 14, 1949, Justices Carter and Schauer voting

for the issuance of the Writ of Habeas Corpus.

10

QUESTIONS PRESENTED BY THIS WRIT.

I.

Wuerner Sections 954 anp 1098 oF THE PENAL

Cope oF THE STATE OF CALIFORNIA, AS CONSTRUED AND

APPLIED IN THis CasE, PERMITTING Mass TRIALS OF

DEFENDANTS SEPARATELY CHARGED WITH DIFFERENT

OFFENsSEs TO BE TRIED BEFORE ONE AND THE SAME

Jury En Masse Vio.atTes Dug Process or Law Guak-

ANTEED BY THE FOURTEENTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATEs.

II.

WHETHER SucH PROCEDURE AND PROCEEDINGS ViOo-

LATE A Farr TRIAL GUARANTEED BY THE FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF THE UNITED

STaTEs,

IIT.

WHETHER THE PETITIONER BEN SvuGaARMAN Was

DENIED THE EQUAL PROTECTION OF THE Laws GuaR-

ANTEED BY THE F‘OURTEENTH AMENDMENT TO THE CON-

STITUTION OF THE Untrep States IN THat He Was

SrInGLED Out For Invipious TREATMENT BY THE STATE

oF CALIFORNIA.

REASONS FOR ALLOWING THE WRIT.

This case involves fundamental questions of crim-

inal law and procedure affecting that fundamental

concept which is inherent and at the base of all of our

institutions and must govern all of the States of the

United States.

il

The fundamental question in this case is whether in

the United States of America there can constitutionally

be a mass trial in any state before the same jury of

separate conspiracies, separately stated, and separate

offenses against separate individuals, separately

stated, all combined in one trial before the same jury;

and, whether such procedure ts so offensive to due

process of law as to require reversal of the judgments

below?

This case also involves the question whether a State

may single out an individual for invidious treatment

and unfair trial as was done tn this case?

This Court has been solicitous of the rights of per-

sons accused of crime to receive fair trial and to be

tried in accordance with humane and ethical standards

of justice which inhere in the base of our institutions.

We have set an example and are trying to set an

example for the world of proper and humane and fair

conduct in such trials. The present trial denied that

conduct and raised legal questions as to the right to try

multiple conspiracies before the same jury in any

State of the United States.

This Court is now called upon to pass on whether

such procedure is due process in the United States.

The matter is of great importance in the administra-

tion of justice in the United States. It was recognized

as such by the Public Defenders of the State of Cali-

fornia—both of Los Angeles and of San Francisco—

who urged the California Court to pass squarely upon

these issues which may largely affect a great number

of poor persons who could all be herded together and

12

consolidated into one trial. Various District Attorneys

of the State thought it was proper procedure and they

controversially opposed such a determination, since

under the Ruling of the California Court they could

now proceed en masse against many persons before one

jury. The importance of the question was recognized

by the Attorney General of the State of California—

the highest non-judicial officer of the state—who stipu-

lated that the questions involved were of fundamental

importance and should be determined by a high Court.

We think, therefore, that this Honorable Court

should grant a hearing herein and determine the limits

to which a State may go in trying persons en masse

before one jury.

CASES BELIEVED TO SUSTAIN JURISDICTION.

Pointer v. United States, 151 U.S. 396, 399, 404;

Optner v. United States, 13 Fed. (2d) 11, 12;

Ashe v. United States, 2 Fed. (2d) 735;

Krulewttch v. United States, 93 L.Ed. 623;

Re Oliver, 333 U.S. 257;

Kotteakos v. United States, 328 U.S. 750, 90

L.Ed. 1557;

MoElroy v. United States, 164 U.S. 76, 41 L.Ed.

355 5

Carter v. Illinots, 329 U.S. 173, 91 L.Ed. 172;

Buchalter v. New York, 319 U.S. 427, 87 L.Ed.

1492;

Tisenba v. California, 314 U.S. 219, 86 L.Ed.

1166;

13

Mooney v. Holohan, 294 U.S. 103, 79 L.Ed. 791;

People v. Brower, 207 Pac. (2d) 571.

Wherefore, for the violation of fundamental and

fair procedure guaranteed by the due process clause

of the Fourteenth Amendment to the Constitution of

the United States, and for other reasons set out in

this petition, your petitioner respectfully prays that

this Court issue its Writ of Certiorari to the Court

below, and that it hold that Sections 954 and 1098 of

the Penal Code of the State of California as con-

strued and applied in this case are unconstitutional

and that the defendant was singled out for invidious

treatment in denial of the equal protection of the laws,

guaranteed by the Fourteenth Amendment to the Con-

stitution of the United States; that, therefore, the

judgments and each of them as to the petitioner here-

in below be reversed.

Dated, Los Angeles, California,

September 21, 1949.

Respectfully submitted,

Morris LAvVINE,

Attorney for Petitioner.

Max WILLENS,

Of WILLENS AND Bosooe,

Of Counsel.

OcroBER TERM, 1949

‘No.

ag

Ben Svcarman, )

Bias Petitioner,

i. Vs.

' Prortz or THE Stare oF CALIFORNIA,

| In the Matter of the Application of

| Ben Suaarman for a Writ of Habeas

. Corpus,

—~—

= Respondent.

BRIEF IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI.

: OPINION BELOW.

_ . There was no opinion below in the Habeas Corpus

| proceedings. The Petition for Writ of Habeas Corpus

was denied by the Supreme Court of the State of

| California, without decision on July 14, 1949, Justices

| Jesse W. Carter and B. Rey Schauer voting for the

% g.

16

This is a companion case of the Petition for Cer-

tiorari in the ease of Ben Sugarman vs. People of the

State of California, we give that citation, which is

People of the State of California v. Don Burton, et al.,

91 A.C.A. 817, 205 Pac. (2d) 1065.

JURISDICTIONAL STATEMENT.

Jurisdiction is conferred by Section 2101 New Fed-

eral Judiciary Code and by Rule 3814 Rules of the

Supreme Court of the United States,

The Petition for Writ of Habeas Corpus was filed in

the Superior Court of the State of California in and

for the County of San Joaquin, pursuant to California

habeas corpus proceeding on June 9, 1949 and denied

by that Court on that date. On June 10, 1949, the

petition for writ of habeas corpus was filed in the

District Court of Appeal, Third Appellate District,

State of California, and denied by that Court on June

15, 1949.

The Petition for Writ of Habeas Corpus was then

filed in the Supreme Court of the State of California

on July 1, 1949, and denied by that Court on July

14, 1949, two justices, Jesse W. Carter and B. Rey

Schauer, voting for a hearing. The Attorney General

of the State of California, being the highest non-

judicial officer of the State, also stipulated that the

questions raised herein were of fundamental im-

portance.

Petition for Certiorari is being filed in this Court

within the 90 days permitted by the Statutes.

17

STATUTES INVOLVED.

The Statutes are set out in the petition ante.

SUMMARY STATEMENT OF THE FACTS AND THE

ISSUES INVOLVED.

The facts which lead to the petition for certiorari

in the case itself are set out in the Petition for a

Writ of Certiorari in the case of Ben Sugarman vs.

People of the State of California, and are therefore

incorporated herein by reference. However, in this

Habeas Corpus proceeding before this Court we set

out that the defendant was placed upon trial upon a

separate conspiracy, while other conspiracies sepa-

rately charged, against two codefendants and other

separate and distinct crimes charged against said co-

defendants were all joined and linked in the same

indictment and tried before the same jury; that 75%

or more of the evidence in the case was wholly unre-

lated to this defendant involving separate charges and

separate conspiracies against separate defendants and

at different times and against different alleged victims.

This is undenied in any return.

The Petition for the Writ also asserts that Sections

954 and 1098 of the Penal Code permitting such a pro-

cedure, as thus construed and thus applied, is uncon-

stitutional and in violation of the Fourteenth Amend-

ment to the Constitution of the United States. That

mass trials as such ought not to be permitted in the

United States.

18

SPECIFICATION OF ERRORS PRESENTED BY THE

WRIT OF CERTIORARI.

(1) The Supreme Court of the State of California

erred in construing and applying Sections 954 and

1098 of the Penal Code of the State of California in

this case in a manner that would permit the trial

en masse of the defendant on a separate and distinct

charge of conspiracy with two other defendants sep-

arately charged with separate and distinct other con-

spiracies and other offenses, and to place those issues

before one and the same jury and be tried all at one

time wherein seventy-five per cent or more of the

evidence was in no way related to the petitioner.

(2) The Supreme Court of the State of California

erred in holding that such a procedure and proceeding

constituted fair trial guaranteed by the Fourteenth

Amendment to the Constitution of the United States.

(3) The defendant was singled out for invidious

treatment by the State of California since in all other

cases heretofore it was held that such procedure is not

permitted.

19

THE SUPREME COURT OF THE STATE OF CALIFORNIA ERRED

IN CONSTRUING AND APPLYING SECTIONS 954 AND 1098

OF THE PENAL CODE OF THE STATE OF CALIFORNIA IN

THIS CASE IN A MANNER THAT WOULD PERMIT THE

TRIAL EN MASSE OF THE DEFENDANT ON A SEPARATE

AND DISTINCT CHARGE OF OONSPIRACY WITH TWO

OTHER DEFENDANTS SEPARATELY CHARGED WITH SEP-

ARATE AND DISTINCT OTHER CONSPIRACIES AND OTHER

OFFENSES, AND TO PLACE THOSE ISSUES BEFORE ONE

AND THE SAME JURY TO BE TRIED ALL AT ONE TIME

WHEREIN SEVENTY-FIVE PER CENT OR MORE OF THE

EVIDENCE WAS IN NO WAY RELATED TO THE PETI-

TIONER. SUCH STATUTES, AS THUS CONSTRUED AND

APPLIED, VIOLATE THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.

It is highly important that this Court grant a hear-

ing to determine the fundamental issues of criminal

law and procedure involving due process within the

United States as raised by this case. The Attorney

General of California, being the highest non-judicial

officer of the State, recognized the importance of this

issue and urged that it be judicially determined.

Various public defenders of the State of California

did likewise. District Attorneys of different counties

opposed such a hearing as they wanted the law to re-

main as now construed by the highest Court of the

State of California.

Thus, the fundamental question in this case ought to

be determined by this Court, namely, whether a State

may, under the concept of due process of law guar-

anteed by the Fourteenth Amendment to the Constitu-

tion of the United States, adopt such unfair trial pro-

cedure and practice as to result in unfair trial from

mass trials of a person accused with other persons in

one conspiracy where other persons are charged in

other and separate and distinct conspiracies.

In this Habeas Corpus proceeding, we specifically

challenge the constitutionality of Sections 954 and

1098 of the Penal Code of California as construed and

applied in this case, and the highest Court of the State

of California denied our challenge.

CASES BELIEVED TO SUSTAIN OUR SPECIFICATIONS.

Pointer v. United States, 151 U.S. 396, 399, 404;

Optner v. United States, 13 Fed. (2d) 11, 12;

Ashe v. United States, 2 Fed. (2d) 735;

Krulewitch v. United States, 93 L.Ed. 623;

Re Oliver, 333 U.S. 257;

Kotteakos v. United States, 328 U.S. 750, 90

L.Ed. 1557 ;

McElroy v. United States, 164 U.S. 76, 41 L.Ed.

355 ;

Carter v. Illinois, 329 U.S. 173, 91 L.Ed. 172;

Buchalter v. New York, 319 U.S. 427, 87 L.Ed.

1492;

Resweber v. Louisiana, 329 U.S. 459;

Tisenba v. California, 314 U.S. 219, 86 L.Ed.

166;

Mooney v. Holohan, 294 U.S. 103, 79 L.Ed. 791;

De Jonge v. Oregony299 U.S. 353;

Heber v. Louisiana, 272 U.S. 312;

People v. Davis, 42 Cal. App. (2d) 70;

People v. Brower, 207 Pac. (2d) 571.

ae

In People v. Davis, 42 Cal. App. (2d) 70 at 75, it is

stated :

‘every case that we have found involving a situa-

tion similar to that here presented has resulted

in a reversal on the ground that error was preju-

dicial. (Brimie v. United States, 200 Fed. 726

[119 C.C.A. 170] ; Coco v. United States, 289 Fed.

33; Callahan v. United States, 299 Fed. 172;

Zedd v. United States, 11 Fed. (2d) 96; Castellins

v. Umted States, 64 Fed. (2d) 636; Cutjak v.

United States, 53 Fed. (2d) 554.) There is a good

discussion of the various types of factual situa-

tions that may be presented in United States v.

Ashe, 2 Fed. (2d) 735, 738.”’

Except for the fact that we specifically challenge

the constitutionality of the Statutes in this proceeding,

as construed and applied, and the fact that the case

was thus presented to the highest Court of the State

of California (the Supreme Court of the State of

California) our basic argument throughout this case

is identical with that of our Petition for Certiorari

in the case of People vs. Sugarman from the judg-

ment itself. Therefore, in the interest of economy of

time and the convenience of the Court, we adopt by

reference here all the arguments presented in that

petition as though fully set forth herein.

The questions in each of the cases are substantial

and the two cases should no doubt be heard together

and consolidated as were the appeals from the judg-

ment in the case of Insenba v. California and from the

habeas corpus proceeding in that case (314 U.S. 219,

86 L.Ed. 1492).

Wherefore, the petitioner prays that this Honorable

Court grant the writ of certiorari and reverse the —

judgments of the Court below. :

Dated, Los Angeles, California,

September 21, 1949.

Respectfully submitted,

Morris LAvVINe,

Attorney for Petitioner,

Max WILLENs,

Of WILLENS AND Bosooe,

Of Counsel.

In the Supreme Court

Rnited States

OcroBER TERM, 1949

No.

Ben Sucarman, )

4 Petitioner,

, Vs.

"Prope OF THE StaTe OF CALIFORNIA,

_ In the Matter of the Application of

_ Ben Sugarman for a Writ of Habeas

_ Corpus,

Respondent.

MOTION FOR PERMISSION TO DISPENSE WITH THE

PRINTING OF THE RECORD.

_ Comes now, the petitioner Ben Sugarman and moves

this Honorable Court to dispense with the printing of

ithe record on the Petition for Certiorari and on the

hearing thereof. The typewritten certified copy of the

‘record has been furnished to this Court.

24

The petitioner is in prison at San Quentin, Cali-

fornia and therefore requests the dispensing of the

costs in connection with the printing of the record.

Dated, Los Angeles, California,

September 21, 1949.

Morris LavVINE,

Attorney for Petitioner,

Max WIENS,

Of WILLENS AND Bosoor,

Of Counsel.