# Petition for Writ of Certiorari — Sugarman v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2416%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1949 - **Citation:** 338 U.S. 886 ## Text Subject Index _ Petition for writ of certiorari to the Supreme Court of the ere eee eee eee eee ee ee eee eeeeeeeeeeeeee eee ewe eee tere eee eee ewe eee eee eeeeeeeeereeeeee ee) eee eee eee esas ee 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...... ee ee : 4 EE GU . ivcccccntscecvestbeesedasboces 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 eee eee eee eee eee eee eee eeee eee eet eeeeeeeeeeses 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: a 3, 16 EE ok A cd Aba he's oR A eipee Kb ks edu bikin a> 4 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2416%3A1. Public record. Not legal advice.