Brief of Respondent State of North Carolina in Opposition to Petition for Writ of Certiorari — Grundler v. Carolina
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FILED
CFB 26 1940
FILE COPY —
MET BROWNING. Clerk |
S
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a
ta Supreme Court of The United Ne stag
October Term, 1959 | ts
@ -, No. 672
3 ; i ieee aaaee
ROBERT J. GRUNDLER and JOSEPH LEONID JELLY, , :
id iS * . Petitioner | 3
Vv. vie ”
STATE OF NORTH ‘CAROLINA, :
. _ Respondent.
BRIEF OF RESPONDENT, STATE OF NORTH
sige CAROLINA, IN OPPOSITION TO PETITION i.
FOR. WRIT OF . CERTIORARI. s
MALCOLM B. “SEAWELL 7
ay Ganovel of North Carolina ' cake” Sec
RALPH MOODY
Assistant Attorney General a
° Justice Building
. Raleigh, North Carolina
Counsel! for theState of North Carolina,
Respondent.
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INDEX.
Opinions Below Dees Ho na ee oe siiieelh eeleaaas TE.
| THE PETITION-REPRESENTS AN ATTEMPT
ON THE PART OF THE PETITIONERS TO
HAVE THIS COURT-REVIEW THE MERITS OF
Jurisdi@tion tyes cnenenennntnn Pa "ali Secs iicsisiecrbapmeat: oe
* Constitutional. Provision Involved Le an ee caoneey B
Statutes of North Carolina Involved ca ee oes sianateiintnbabivatont oo oe
Questions ° Presented ees scoipejecoaal ae erent Manne we omen 4
‘Statement of the Case “land cicaeegpeanadiaadencenntaamanen it ©
‘Summary of Argument .......... wh devine icons Pearce Mlhiroe ctr ..
Argument =H. Gitake WOMENS ied cake —, fen "
THE STATE TRIAL ....0.00008-p-eeen viiaesiaceal 4, ee
il THE TRIAL COURT AND THE SUPREME |
COURT OF NORTH CAROLINA DID NOT PASS ~
UPON OR DETERMINE ANY FEDERAL CON.
_ STITUTIONAL QUESTION. 2.01008 mo
lI THE PETITIONERS DID NOT PROPERLY PRE-
- .§ENT ANY QUESTION AS TO THE DEPRIVA-
TI@N OF CONSTITUTIONAL RIGHTS UNDER
THE FOURTEENTH -AMENDMENT, BEFORE ,
- “THE TRIAL COURT OR ‘BEFORE \THE SU- . 4
_ PREME*GOURT OF NORTH CAROLINA\...........--: uw
lV THE PETITIONERS WERE NOT DEPRIVED QF
; ANY CONSTITUTIONAL RIGHTS GUARAN-
o TEED BY, THE FOURTEENTH ‘AMENDMENT, a
* ss IN: THE TRIAL OF THEIR CAUSE ERR
CONCLUSION™ a:n-ieeenssnsee phe decimtaenin lone
TABLE OF CASES - ts |
American Railway Express Co. v: Kentucky, 273 AU. S: 269, °71
Dae OG. 689 oe nteesrneneennneetennnenen PRONG sincuandinne’ By BY, Wg
Bailey v. Anderson, 326,U. S. 203-207, 90 L,/ed. 3, 66 S. T. S.
OE ic ncepacenioninnnanans sa ie scsi ee
Baldwin v; Kansas, 129 U.S. 52, 32 L.sed. 640 --ccnceonncnepeenee 205
Barbour v..Georgia, 249-U. S. 454, 460, 63 L. ed. 704-707, 39'S...
CR SUB ss sonssanscesedesseqnonssgrenanoninnn ede PRR eT ee ~~
i
; ~~
‘Bell Sikeatinn Pe Public Utility beset .
"309 U.-S:°30, 84 LI ed. 563 - ae
__Berea. College v. Kentucky, 211 U. S. 53, 83 L: ved ns
\ Black v. Cutter Laboratories, (31 v. S. 22. 100 L: ed. iss, 76. .
& SE Re Fe RE ORRE he a Te es
| Bliss v. Spencer, 125 Va. 36, 50 99 S. E 593, 5 ‘ALR 619 EEE 19
Pee Danner ¢. Gorman, 213 U. S. 86, . ty ROR a ee — iain , 24
Brooks v. Missouri, 124 U: $. 394, 31 L. ed. 454.02... cg .8 AT, 20
$ Brown v. Allen, 344 U. Ss. 443, 97 L. ed. 469, 13: S. Ct. 397 bie . 13, 14
+ Buthalter v. New York, 319 U. S. 427, 87 L: ed. 1492 63 S. ct .
; VE panto lay ERE TA SERS A | *
‘Carter v, Ilinois, 329 U. $. 173; 91, L, €d. 172 eee enn nen 2B
Central Union Tel. Co. v. ee a U. S. 190, 70°L. ed.
CUE coo chndunuceeomn od. 10 AA Ral ibn! LOE Fe 19.
"7 chicago, 1 & L. R. Co. v. McGuire, 196 v. Ss 1128, 131, 9 a |
Ps a eo Oe 20
“ith CuI. 0. ¥. MeAdory, 325 U. S. 472, 477; 89 L. ed. TAD cee shee
. - Clyatt v. United States, 197 U. S. 207, 221, 222, 49 L. ed. 726, 731, «
732, 25 Sup. Ct. Rep. 429:. satehecibaiahaaepcecaseaeganittininns obsdininenin tig
e 'C. & 0. R. Co.-v. McDonald, 214 U.S. 191, 53 L. oa: _ TN ate
Davis v. Texas, 139 U. ..851, 35 L. ed. 300 4.02.0. eo SER
Dower v. Richards, 151 U. S: 659, 38 L, - ET net se
_ Edelman vy. California, 344 os S. 357, 358, 7 L. ed. 387, 73 -S.
ee RUSE RIOR ate RS
‘Erie R. Co. v. Purdie, 185 u. S. 148, 22 S. Ct! 605, 46 L. ed. ore
Eustis v. Bolles, 150 U. S. 361,970, 37 L. ed. 11D
Ex Parte Siebold, 100 U. $. 371, 25 Le ed. TIT 2. ccoeonnn mies 17
Flournoy ¥. Wiener; 321 U.S. 253, 262, 263, 88 L. ed. 708, 714, |
Fox Film Corp. v Muller 206 U: S. 207 210 80 L. ed. 158 .*....,....... It
Griffin v. Mlinois, 351 U. S. 12; 100 Li ed. 891 ns. 12,13,
Harding v. Hlinois, 196 U.S. 78, 49 Le ed. 898 occ gece 19
Hartford Life Ins. Co.-v. Johnson, 249 U.S. 190, 63 L. ed. 722... 17"
tac 3
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: ; .
r Herb v. Pitcairn, 324 v. ' 117, 125; 126, 89 L. ed. 789, 794, ~,
| BS S.C ABQ a teneeeenennenenentp items ~ gis ;
| * Howard v. Kentucky, 200 U. S. 164, 50 L. ed. 421 . Skeets,
Hulbert v. Chicago, 202 U: S. 275, 50 L. ed. 1026, 26 s. ct 617. _ 18
-° f Irvine v. California, 347 «OU jor 128, 129. “98 L. ed. 561, 74S. Ct
| 8 GON hi Faccnnsnenre-soconennsnesesegeneinnuneeieedtvesenalt g@ceesiantnsnauaeenreorenesantninnawees 12, 15
Jacobi v. Alabama, 187 U. S.: 133, 135, 136, 47 L. ed. 106-108, 23°>
S.Ct AB gener el icaceceaasoonm piasceicuneniie 19
Jennings v. “Minaig 32 V. s. 104, 109. 06 L. ed. 119. 29,¢4 123 ....° 25°
John v. Paullin, 231 U. s. 583, 585, 58 L. ed. 381, 383 ...... - 18
Johnson v. Zerbst, 304 U. S. 458, 464, 82 1. ed. MEY tg 2B
% Keokuk & Hamilton Pate SH Co. v. Minois. ‘175 ‘U.S. 626, 44 L.
ed. 298 ..........0--..- ane riaenscntasleanipnimnneiiamatian-- .0. ante 17
1 Layton v. Missouri; 187 U. S. 356, 47 L. ed. 214. once” Seal ae
Louisville & N. R. Co. v- Woodford, 234. U.S. 46, 34 S- Ct. 739, 58
ae Dn 22OQ eee nner 20
Lynch v. New York, 293 U.S. 52,79 L. et. ; ek ee dagen 18
Medberry y. Ohio, 24-How. 413, 16 L. ed. 739. sanathaabapaes eee
ees Miller v. State, 237 N.C. 29, 48,74 S. = | on a
— 6s : 3
Miller ¥. Texas, 153 U - §. 535, 38 L. ot) Ren 23
” Montana ex rel. Haire v. Rice, 204 U. S. 291, 301, 51 L. ed. 490,
+495, 27 Sup. Ct. Rep. 281 . oe ae ee tor OO
Morrison v. Watson, 154-U. S. 111. 315.. 38 L. ed. 927: 929, 14 S.
on aa aE? 13, 2b
- Murdock v. Memphis, 20 Wall. 590, 22 L. ed. “429 a RE
’ PRS Life Ins. Co. of N. Y. v. McGrew, 188 U. 3. 291,47 ‘+ ed.
‘480, 23 S. Ct. 375, 63 LRA 33 hat Seca centendscnctpeneensterasennenniennee "17, 18, 19.
| New York Ex Rel. Cohn v. Graves. .y U. S. 308. i L. ed. 666 . "97
oP oe Noble ¥. Mitchell, 164 U. S. 367, 373, un See |
‘O'Neil v. Vergnont, —_ U. S. 323, 331, 36 Ly ed. 150. 155, 12 S._
, Ct. 698 nanan F ERNE GRIT Mie Se 16.
; 2 ’ . ‘s
| re Oshorne v: Clark, 204.U. S. 565. $678, 51 L. ed. 619... W2
| ; Parker ¥. Hlinois, 333 U.S. 571, & L. ed $86, 68 S.Ct. 708 18. 21
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. Parker vy, McLain, 237 U: 8: 469, ‘50 L, €. 10ST nn th len 17°
Paul v. Neece, 244 N. C: 565, 570, 94 co nines a
Pennsylvania R.Co. v. AMlinois Brick Co., a U. Ss. 447, 462, 463,
ee ES a ees a Lie tiacoacantstanetan tite 21
‘Re Buchanan, "158 U. S. 31, hee Oe 24
_ Reynolds v. Adams,:125, Va. 295, 314, 99'S. E. 695 eco ORE AE
‘Seaboard Air Line R. Co. v,, Duvall, 225 U. S. 477, 485-488, '56 L.
ed. 1171, 1175, 1176, 32 Sup, Ct. Rep. 790 0.2.00... lel ee
~», Seaboard Air Line R. Co. v. . Watson, 287 U. S. 86, 7 L: ed. 180,
SBS. Ct. 32 eect latieeseesnneecennnnnnnnecnennnnssestnscaetenese sdenidichiieandbailt aa
- Spies v. Illinois /123 WS. 131, 31 L. ed. ce ee isin: ae
- State v. Grundler, 249 N. C. 399, 106 S. E. 2d GOD city tt ncmnemnsinh 1, 10.¢14
* State v. Grundler and State v: Jelly, 251°N. C. 177, 111-/S.E.*
2d = pS REN ARE ee ot tnen ene eeeeeeee epsece Pr pebserpeeecerewenes® cecece : S 9
State v. Jones, 242 N. ¢. 383, 564, 89 S. E. 2d 129 .. hiierieinmanss Gat BO
State v. Leak, 90 N.C. Sap SG ee Ren Miao 25
‘Tarrance v. Florida, 188 U. S. 519, 47 Ly 6d. 572 ee cone 19
Thomas v. lowa, 209 U. S. 258, 52 L. ed. (a seed naineione 17:
United States v. - Spector, 313 U. S. 169, 72 S. Ct. 591,96. Le ed. 863 .. 20,
Wadell v. Carson, 245 & C. G69, wid, 97 Ss B. 2d 222 oo eeceeccce ce 11
Ward Lumber Co. v. Henderson-White enn >. 107 Va. 626, 628,
629, 59 S. E. 476, 17 LRA (NS) 324. foncarcscoyoncsnsageecsenete 19°
Ww ¢st-Ohio Gas Co. V: Public Utilities Commission, 294 U. S.
4:9 L. ed. TUTTE vecenbedltacilpin-psadidunpuosiadtichhaalliadiceesiatbies: Mnicianhianbilsadlahieblad caticeataeciae a? 24
Ww hitney Vv. Californ ia, 274 U. 8: 357, 47 S. Ct! 641, 71 L. ed. 1095,
1099. 1100, 1107 seid haaiagieiiads Ricsissilcansencighanntninieasipcleetiiaihestecapulaginiaticlbiia 16, 17
-Wihorg v. United States, 163 U. ‘s. 632, 658-660, a L. an 289, 298,
* . 299, 16 Sup. Ct. Rep. 1127 a VRC ARR Sorat 16
Ww illiams v. Georgias'349 U.S S. 375, 99 L. ed. 1164, 75 S. ch 8141.... 19, 21°
"Williams v. Kaiser, 323 U. S. -— 89 L. ed. 398, 403 65°S-
bed iMiams'y. Norris (US) 12 Wheat. 117, 118, 120. 6 L. ed. : 74, 572 Ble
Wilson v. Cook, 337 U. S. 04, 66 S. Ct. 663, cen el. aM. eae
“Woolsey. v. Best. 299 'U. S. 1, 81 L. éd. 3, 57S Se kB
iv ~
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Worcester Co. Trust Co. Vv. Riley, 302 U. 'S. 292, 82 L. ed. 268 pao “23
Yakus v. Enited stats, 321 U. 5.414, 88 L. ed. %. 64S. Ct. 660 2 16
- Zadig v. Baldpxin, 166, U. $2485, 41. Le de 1087 ee ceceenenserenneneee 18
Ra chee STATUTES Ae ee
28 USC 1257(3) Oa eee T ELE a RET ee Oe ee Sw eo ae ee
i
General Statutes of N, C., ein 12207. TOME an selon Se Oy BR"
&
General Statutes of ‘N.C. See. 15-180 . SAP Eaten BOL wince
General Statutes of -N. C., Sec. . 15p81 styrene ees oo 3
CONSTITUTIO IAL PROVISIONS
Conatitution’ of the United State ‘ Amendment, Art. XIV. a ipa 2
/
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| “MISCELLANEOUS:
nae ME Wetestilte ON Se intend PET ENT Rt LOE
86 ALR 174 Sete ae PTL eS Seater Heine onoraeet SN |
17 LRA (NS) sins ek te OR TN eR SESE Ty
Rule 22, Rules of the Supreme Court of Appeals sosadgsstapeeneneneng use BO.
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2 a
ate 7 Supreme Court of The United States
* Octet Term, 1 959
" - No,-672
/
mae Le
- ROBERT J. GRUNDLER and JOSEPH LEONID JELLY,
.
Petitioners,
Vv.
gs STATE OF NORTH CAROLINA,
| _ Respondent.
' BRIEF SOF -RESPONDENT, STATE OF NORTH
CAROLINA, IN OPPOSITION TO PETITION
FOR WRIT OF: CERTIORARI.
OPINIONS BELOW
. This casé Tae first passed upon by the Supreme Court of
North Carolina at its Fal Term,. 1958, and is reported as
STATE v. GRUNDLER, 249.N. C. 399, 106 S: E. 2d 488. The
Opinion of the Supreme Court of North Carolina appears
also in Appendix A of-the Petitioners’ brief at pp. 20a - 24a.
At, the Fall Term, 1959, the Supreme Court of North Caro-
lina again passed upon this case, and the same is reported as
' STATE v. GRUNDLER and STATE v. JELLY, 251-N. C. 177,
111 S. E: 2d'1. The Opinion in the case also appears’ in the
Appendix to Petitioners’ bens atepp. ‘la - 20a. ;
:. The order and Judgment of the Superior Court of New
Hanover. County, ‘which is a Court. of general jurisdiction,
and from which the Petitioners appealed to the Supreme
v
2.
Court of North Carolina, where same was heard at the Spring .
Term, 1959, appears in the Appendix to Petitioners’ brief at
. Pp., 25a- 34a. and also appears in Volume II of the State
Record certified to this Court, beginning at p. 22.
¢ .
" JURISDICTION ?
“The Respondent, State of North Carolina, admits that a
petition for re-hearing is not allowed in criminal cases in this
State. The Petitioners invoke the jurisdiction of this Court
under 28 USC 1257 (3) pertaining to Writs of Certiorari. The
Respondent will endeavor to show later on in this brief that °
the validity of a statute of this State is not drawn in question
as being repugnant to the Federal Constitution and that no
title, right, privilege or- immunity has been specially set-up
by the Petitioners or claimed by them under the Consthution
of the United Statés. ,
CONSTITUTIONAL PROVISION INVOLVED
The Petitioners attempt to bring their case within a portion
_ of the Fourteenth Amendment of the Constitution of the
United States as » savas below:
_ Constitution of United States, Amendment, Article XIV:
—e © ©\5e state shall make or enforce any law: which
shall abridge. the privileges or immunities of citizens of
- the United States; nor shall any State deprive-any per-
son of life, liberty or property, without due process of
law; nor deny to any person within its jurisdiction the .-
equal protection of the laws.”
‘STATUTES OF NORTH CAROLINA |
INVOLVED
1-220. Mistake, surprise, excusable neglect.—The
jane shall, upon such terms as may be just, at any time
within gne year after notice thereof, relieve a party from .
a judgment, order, verdict or. other proceeding taken —
-against him through his mistake, inadvertence, surprise,
or excusable neglect, and.may supply an omission in
any proceeding. The clerk may ‘hear and pass upon
, 3
. : e . :
motions to set aside judgments rendered by him, whether
for irregularity of under this section, and an appeal from
his order on such motion shall liێ to the judge at the
next term, who shall hear and pass upon such motion
de novo: Provided, however, nothing in this Section
_ shall be construed to affect the rights of innocent pur-.
chasers for value-in foreclosure proceedings where per-
sonal service is obtained.” . e
~ “See. 15-180. Appeal by defendant'ta Supreme Court.—In
all cases of conviction in the superi@ court for any crim-
- inal offense, the defendant, shall have the right to appeal,
on giving adequate security to abide the sentence, judg- —
ment or decree of the Supreme Court; and the appéal
shall be perfected and the case for the Supreme Court
settled, as provided in civil actions.” og
“Sec. 15-181. Defendant may appeal without security for
costs.—In all cases of conviction in, the superior: courts,
the defendant shall have the right to appeal without
giving security for-costs, upon filing an affidavit that he
is wholly unable to give security for the costs, and is ad-
vised by counsel that he has reasonable cause for the
appeal prayed, and that the application is in good faith.
Where the judge of the superior court has made an
order allowing the.appellant to appeal as a pauper and
the appeal has been filed in the Supreme Court, and an
error or omission has been made in the affidavit or certi-
ficate of counsel, and the error is called to the attention
of the court before the hearing of: the argunient of the
case, the court shall permit an amended affidavit or certi-
ficate to be-filed correcting the error or omission, *
“And where it’shall appear to the presiding judge that-a
defendant who-has been convicted of a capital felony, or
having been tried upon a bill of indictment charging a
capital felony, has been convicted of a less offense, and
who has prayed an appeal to the Supreme Court from the
sentence of death or other sentence pronounced against
him, upon such conviction, is unable to defray the cost
of perfecting his appeal.on account of his poverty, it
shall be the duty of the county in which the alleged
capital felony. was committed, upon. the order of such
judge, to pay the necessary cost of obtaining a transcript
of the proceedings had and the evidence offered onthe
trial from the court reporter for the use of the defendant
‘and the necessary cost of preparing the requisite copies
of the record and briefs which the defendant is required”
to file in the Supreme Court under the rules of said court. .
a
4
‘The judge may fix the reasonable value of the services
rendered in furnishing such transcfipt and preparing
such copies of the record and briefs, and said copies of
the record and briefs shall be prepared in the manner _.
prescribed by the rules of the Supreme Court in pauper
appeals. Provided, ‘that this paragraph shall apply only
to those cases in which counsel has been — by the
court.”
QUESTIONS PRESENTED os
’ The Respondent: State of North Carolina, submits the fol-
lowing as the questions presented by this Petition for Writ of
Certiorari: o
(1) Did the Petitioners draw in question, specially set up
-or claim any constitutional right, privilege or immunity guar-
anteed by the Fourteenth Amendment of. the Constitution of
the United States?
(2) Did the Petitioners properly raise any Federal Con-
stitutional question according to State procedure and practice
_*that was passed upon by the Trial Court. and the Supreme.
Court of North Carolina?
(3) Were the Petitioners at.any time during their trial de-.
- prived of any constitutional rights and was-their trial infected
-with fundamental unfairness contrary to the provisions of
the Fourteenth Amendment of the Constitution of:the United
States?
STATEMENT OF THE CASE
The Respondent, State of North Carolina. here gives a brief
statement of the history of this case without any comment
on ae merits which is reserv ed for the argument, as follows:
(1) Petitioners Grundler and Jelly were indicted by the
Grand Jury of New Hanover County, North Carolina, on Feb-
ruary’ 1, 1958,-for the rape of Opral Morris. (Vol. II, pp. 37,
. 38;-Vol. IIL, pp. 224, 225). Any references to Vols. I, II or IIL. .
are made to the three volumes of the State Record certified by
9)
the Clerk of the Supreme Court of North Carolina to the Clerk
of the Supreme Court of the United States, and our references
throughout this brief te the State Record so certified will be
to one of these three volumes with the appropriate page
number.
The” Petitioners state in their. brief that the indictments
were consolidated for trial, which is true, but they also state
that the Trial Gourt refused to grant a motion for separate
trial but the Suprenie Court of North Carolina which had. the
full trial reeord before it, states: .
“Defendants contend the Court was inverrox n consolid-
ating the cases for trial. They insist theré should have
been a severance. The record does not disclose that defén-° .
~ dants excepted to the consolidation or ‘that they moved
’ for a severance.” (STATE v. GRUNDLER and STATE
v. JELLY, 251 N. C. 177, 191; 111 S. E. - 1)
(2) Trial of the Petitioners before a judge — a jury ‘was.
duly conducted, and on March 8, 1958, the Petitioners were _
- convicted, of. the.crime-of rape with recommendation of life
imprisonment (Vol. 1, pp. 42-43; Vol III, p. 231). This being
a capital offense under the law of North Carolina when the
verdict is accompanied by a recommendation of life jmprison-
ment it is mandatory that the judge give a sentence Of life
imprisonment instead of death. |
(3) The Pétitioners were represented by counsel of their
own choice, the same being: Mr. Aaron Goldberg and _ Mr.
’ David Sinclair, and after the jydgment and sentence of the
Court counsel.caused the appropriate motions and appeal
entries to be entered in the record, and the Trial Judge signed.
orders allowing both Petitioners ‘to appeal to the Supreme
Court of North Carolina without paying any costs and ordered .-
the County to pay for the necessary transcript of the record,
evidence, and to pay. the necessary, costs of preparing the ©
requisite copies of the record andsthe briefs which Petitioners
are required: to file under the Rules of the Supreme Court of
North Carolina. In other words, the Petitioners were allowed
to appeal to the highest court of the State with all necessary
" oan jek
~ records, transcripts and briefs and the ‘cost of same being
furnished free (Vol. I, pp. 43-52; Vol. III,-pp. 231-239). The
. Court further ordered counsel to continue to appear for the
Petitioners in the prosecution of the appeal.
(4) Thereafter, William Henry Grundler, the father of the
° Petitioner Robert J. Grundler, and the. Petitioner Grunger,
appeared before the Court and signed a written statement
stating that they desired to withdraw the appeal which had
been entered in the casé in behalf of Robert J. Grundler (Vol.
II, p. 14)! Thereafter, Raymond F. Jelly, the brother ‘of
Petitioner Joseph L.. Jelly, and Joseph L. Jelly, Petitioner,
appeared before the Court and signed a statement that they.
desired the appeal to be withdrawn.as to Joseph L. Jelly (Vol. .
IL, p. 17). The Clerk of the Superior Court testified that he
“was present when Mr. Jelly and Mr. Grundler_signed-the”
withdraWal of their appealsand he asked them if they under- *
- _=stood-What they were signing and they said that they did.
The Clerk also. testified that he was present in the Court
when the defendants were ordered to.stand up and tell the
Judge if they wished to’ abandon their appeals and that they
apparently knew what they were doing (Vol. H, pp. 59-60).
An account.of all of these proceedings as to the withdraw al of
the appeal will be found under the following references: Vol.
I, pp. 43-51, Vol. II, pp. 10-17, and Vol. III, pp. 231-239. The
‘evidence of Mr. Goldberg, who appeared: for the Petitioner
Grundier, as to the withdrawal of the appeal will be-fourid re-
ported in Vol. II, pp. 52-55; the evidence of ‘Mr. David Sin-
- clair, who represented Jelly. as to the withdrawal of the ap-
peal will be found in Vol. IT, pp. 55-59. The evidence.of Gold-
berg, Counsel for Petitioner Grundler, and, the evidence of |
Sinclair, Counsel for Petitioner Jelly, as well as the evidence -
of the prosecuting officer, John J. Burney, Jr., in question and
-answ er form will be found in ver. III, PP. 294-326.
(5) The trial judge, after examining’ Petitioners in open
court, their counsel being present, ordered that the appeals
_ be withdrawn, and thereafter the Petitioners filed an applica-,
‘tioh to set’ aside this w ithdraw ‘al and abandonment of appeal
~ {Vol.-1, pps 2-8: Vol. III, pp. 240(1)-240(5) ).
7
ae
.
- (6) The matter was heard and all the proceedings in con-
‘nection with this motion or application are set out in Vol. I .
- of the State Record certified to this Court, and on pp. 8-11 °
will be found the Order of the Judge of the Superior Court,
entered the 10th day of June, 1958, from which it will be seen
that the. judge refused to-hear the motion onthe ground that
hé*had no authority.
(7) Thereafter, the Petitionérs appealed the matter to the .
Supreme Court of North Carolina, and the Supreme Court, of
North Carolina in an opinion entered on January 14, 1959
ruléd that the Superior Court’ jidge did have authority to
hear the motion and to determine whether the order ailowing
withdrawal or abandonment of appeals should be set aside
because’ of mistake, inadvertence or excusable neglect. This.’
-. Opinion is found in.the Appendix to Petitioners’ brief; begin-
ning on p. 20a. ya
(8) Thereafter, the matter was heard before another judge
of the Superior Court, and all of these proceedings appear in
Vol. II of the State Records certified to this Court. The Peti-
tioners were fully heard before the trial judge, and the trial
judge refused to set aside the order withdrawing and aband-
oning the appeals, and this order with its findings of fact will,
be found: in Vol. II, pp. 22-28.
(9) From this order the Petitioners again appealed to the
- Supreme Court of North Carolina,-and on the 11th of Novem-
~ ty”
ber, 1959, the Supreme Court of .North Carolina “filed its |
opinion upholding -the order of the trial judge, and this
opinion appears in the Appendix to the Petitioners’ brief at _
_ pp: la-20a. Petitioners then filed this application for certiorari
which is now before this court.
hes SUMMARY OF ARGUMENT
yo ‘ ~ , é ‘
The Respondent, State of North Carolina, will argue that
the Supreme Court of North Carolina did not pass,upon er
- determine any Federal constitutional question but limited
- . its decision to the issue stipulated and agreed upon by the
. 8 |
. parties that “The only issue is whether or not the order re-
voking. the order granting a right to appeal in forma pauperis,
signed by the Hon. Burgwyn, J., should be set aside for mis-
take, inadvertence, surprise or excusable neglect.” This stip-
ulation-appears on p. 31 of Vol. II; 1st paragraph of the State
-——~~ Record. Likewise, the ‘trial court did not pass upon.or deter-
‘mine any Federal constitutional question, and this is made
clear by the tenth paragraph of the findings of fact made by |
the trial judge (see Vol. II, p. 25).
The Respondent will also argue that the Petitioners did not. @®
raise, specially set up, or draw in question, any right, privilege
.or immunity protected by the Federal Constitution. The first
, ' mention of a constitutional question is in the sixth Assign-
ment of Error on p. 74 of Vol, II, and it is-not based upon any
exception reserved at the trial, and the trial court did not
-ae pass upon any Federal constitutional question, if. indeed. the
simple assignment of error does not show what rights were
‘infringed or in what manner.
_ The Petitioners filed a Supplemental Petition for a Writ of —
Certiorari in the Supreme Court of North Carolina on April
17, 1959, and in this Petition they, asserted that Petitioners
- were deprived of their rights contrary to the Fifth and Four-
teentlk Amendments and that they were denied equal protec-
tion of the law hut they did not allege’in what manner this’
took place nor did ‘astash give "v rensone. (see ‘Par. 24,.Vol.
IIT, p. 41). ae.
Last of all, “the enentanit will argue that the aia
trial record shows that no constitutional rights of the Peti-
tioners guaranteed by the Federal Constitution have been
, | infringed at all but ‘that the. matter was tried according to
the procedure and practice of the State of North Carolina, the
Petitioners consciously and knowingly when accompanied by
cofinsel and relatives withdrew their right of appeal and
thereafter under the State practice attempted to have this
withdrawal set aside. :
9,
ARGUMENT |
7" ; I = ‘ .
THE PETITION REPRESENTS. AN ATTEMPT ON THE »
PART OF THE. PETITIONERS TO HAVE THIS
COURT REVIEW THE MERITS OF THE STATE
TRIAL. cr wares
|
|
This Court will notice from the statement of the case in the
>. ‘@etitioners’ brief, beginning on p. 3, that the Petitioners go ~
_ into the facts of the case and the merits and quote consider-
_ able evidence in question and answer form which they con-
’ sider to be’ in their favor. The’ Petitioners ‘also argue the
question as to the competency of some of thes¢ questions and
answers. All of this shows that Petitioners are trying to retry
the case on its merits before this Court. - —
As to the merits of the case*there was ample evidence to
be submitted to the jury, and we only ask the Court, if itis,
interested in the merits, to read the evidence of the State in
narrative form, beginning on p. 55 of Vol:-I and extending to
the middle of p. 66. The Supreme Court of ‘North Carolina
gives a succinct statement of the State’s evidence in STATE
‘ vy. GRUNDLER and-STATE v. JELLY, 251 N. C. 177, 189.
‘The State’s evidence in question and answer form. will be
found, beginning on p. 46 of Vol. III and’exténding through |
p. 100. It is sufficient to say that there was ample evidence
that the Petitioners, two marines stationed at Camp Lejeune, ’: .
North Carolina, seized the prosecuting witness, a young
woman whose husband was also a marifie.and was stationed
. overseas, forced her into their automobile, droye away, and
yeach .one committed an act of rape. upon her. During the
process of forcing her into the car, she, screamed, and the
scream was heard by two Air Force men; these two service: ~
men saw Jelly strike her and drag her into the car and im-
mediately reported the matter to the police. As a result of the
blows inflicted upon her ‘the prosecuting witness had a swol- °
len jaw,three loose teeth and her cheekbone was fractured
in three places.
; 10
—,
+
quote out of context statements made by the judge in his”
contentions for the State when instructing the jur¥. In ordér
to be fair to'the trial judge the whole charge should be read: |
it begins on p. 198/of Vol. III and extends to'p. 223. This
Court will see a beginning on p. 215 of this Volume the
trial. judge gave’full cont@ntions for the defendants to the
effect that they had intercourse with the prosecuting witness
with her consent, with further contentions as to their good
character, as well as contentions as.to their evidence that the
prosecuting witness left the cafe with them voluntarily and
voluntarily got into their automobile. .
“Il
THE TRIAL COURT AND. THE SUPREME COURT OF
‘NORTH CAROLINA DID NOT PASS UPON OR DE-
TERMINE “ANY FEDERAL CONSTITUTIONAL -
QUESTION.
A casual reading of the two opinions of the Supreme Court
of North Carolina will show that that Court did not pass upon
or determine any Federal constitutional question. The first
opinion, dated January 14, 1959, and reported as STATE v.
GRUNDLER, 249 N. C. 399, 106 S: E. 2d 488, will show that -
the Supreme Court of North Carolina merely decided’ thet
‘under Sec. 1-220 of the North Carolina General Statutes the
trial court did have jurisdiction to héar the application of the
_ Petitioners, that the order of withdrawal of appeal should) be
set aside upon the grounds of mistake, inadvertence and ex-
cusable neglect. This is clearly a matter of State law and. ldcal
State practice. \ | : Le Ie ri
. In the second opinion Of the Supreme. Court of North
Carolina, reported as STATE v. GRUNDLER and ‘STATE v.
JELLY, 251 N. C. 177; 111 S.-E. 2d 1, it’is clear that the
Supreme Court of North Carolina confined itself to the issue
that was stipulated and agreed upon between the parties.
This stipulation will be found in Vol. II; p. 31, and is as
follows: ; :
- ‘On p. 22 of| Petitioners’ brief Counsel for the Petitioners
11
“It was stipulated Yhat the Defendant, Joseph Leonid .
- Jelly, may adopt the original petition filed by Robert a.
® Grundler in the-original cause and.that the State may
. use the same answer as to Jelly as in the Grundler case.
and it was further stipulated that the only issue is
@vhether or not the order revoking the order granting 2 .
right’ to appeal in forma pauperis, signed by the Hon.
Burgwyn, J., should be set aside for mistake, inadver-
_ tence; surprise or excusable neglect.” 4
Oni p. 25 of Vol. II in the order and judgment of the trial
judge this Court will.see in‘Paragraph 10 of the Findings of
- Fact that this same stipulation is found as a fact by the trial
judge. :
Upon this theory of the case the Supreme Court of North
Carolina in its opinion, whichis now under review before thi-
Court, said: *
“However, in this case the-State and the defendants stip- -
ulated that the Court should inquire only as to whether
the order of dismissal should be set aside for mistake, .
‘ inadvertence, surprise or excusable neglect. It is clear
that’ the parties brought themselves within the frame
_work of G. S. 1-220. The matter will be considered here
upon’ the same theory as that adopted by the parties
below. WADELL v. CARSON, 245 N. C. 669, 673.97 S.
E. 2d 222: PAUL v. NEECE, 244 N. C69. 570, 94 S. E.
2d 596.” pos | Ge
On p. 187 of the official report of this opinion the Supreme
~ Court of North Carolina comments on. the fact that Petition-
ers did not raise any constitutional questions below, ‘saying:
“A careful.scrutiny of the record discloses that no such
question. was raised in defendants’ petition or at any
time during the hearing bélow. This matter was injected
for the first time on appeal. The assignnfent of-error
reférs to no exception taken and to no ruling of the court.
Furthermore, defendants entered into a stipulation at
_ the hearing ‘that the only issue is whether or not the
- order .. . should be set aside for mistake, inadvertence,
surprise or excusable neglect.’ * * * =:
| “The pur rted question was injected for the first time.
on appeal. The attempt to smuggle in new questions 1s. .
°
-” “Wengen,
- not ‘ak IRVINE Vv. CALIFORNIA, 347 U. S. 128,
_ 129. Appellate courts will not ordinarily pass upon a
.constitutional question -unless it affirmatively appears
that such question was raised and passed upon in the -
trial court. STATE v. JONES, 242 N. C. 563, 564, 89 S. E. -
2d 129. This is in'accord with the dectsions of the Sup-
reme Court of the United States. EDELMAN v. CALI- .
FORNIA, 344 U. S. 357, 358.” - © re
It is true that the Supreme Court of North Carolina. did
‘discuss the case of GRIFFIN v. ILLINOIS, 351 U. S. 12, 100
L. ed. 891, but this was merely for the purpose of saying that
the case had no application. The Griffin Case,.of course, could ~
not apply because the. trial judge ordered the Petitioners
furnished with all necessary records without cost to them
and ordered counsel] sto. proceed to perfect the ‘appeal; arid,
therefore, it would have no application because the Petition-
ers in a valid fnanneér withdrew their appeal, and, therefore,
waived such right. hae
The. mere fact that the Supréme’ Court of North Carolina
made reference to Petitioners’ constitutional argument raised
in the Supreme Court of North Carolina for the first time
does not mean that the State Court decided a Federal ques-
’ “tion. This is clearly explained by.Mr. Justice Holmes in’ the
_case of OSBORNE y. CLARK, 204 U. S. 565, 567-8, 51 L. ed
619, where the court of.chancery appeals of the state clearly
placed its decision on local state law but” referted to the
Dartmouth College Case as determinative of the fact that the
educational institution was a private —— In that
- case this: Court said: : .
“The court of chancery appeals states the violations of
the state Constitution set up in the bill, summarizes thé:
questions presented -by the bill and demurrer, and then
addresses itself to answering those questions, suggesting
no others, and saying nothing about the Constitution of -
the United States. After a statemertt of historical. facts,
it says that if the act authorizing the lease is constitution-,
al, and the subject-matter of the act was under the con-
trol of the state, the case is at an end. If Carrick Academy
is a public corporation, the state is assumed to have con-
trol. If it is a private cor ration, the state Constitution
is’ assumed to inv. alidate the statute by one of the clauses °°
ge.
13 9. |
set up in the bill. The judge, speaking for himself, would
.regard the academy as a public corporation, but he yields
to the weight of the decision in the Dartmouth College
Case, or, at least, to the principle of that case, according
.to which, as he conceives, the academy is.a privatp cor-
poration, and thereforé exempt from a diversion from its,
original charter purposes, such as the act authorizing the .
Jease is assumed. to. effect, The objections to such a
diversion that he is considering are those that he has
stated as presented by tue bill. The reme court, after ~
stating the nature of the corporat and the relations
_ and course of —- of the state with it, and citing cases
to prove that Carrick Academy is a public agency, refers —
to the decision below and the citation there of the Dart-
mouth Gollege Case only in order to show that that case.
was mgapplied. (Emphasis ours) . |
The same principle is adhered to by this Court in BLACK
“vy. CUTTER LABORATORIES. 391 U.S. 292, 100 T.. ed. 1188.
76 S. Ct. 824, where this:Court held that the judgment of the
state court rested on an adequate state ground irrespective of
the reference to Federal decisions, In the Black Case this
Court said: - a He te
“This Court, however, reviews judgments, not ‘statement.
in opinions. Herb v, Piteairn, 324 U. S. 117, 125. 126, 89
L. ed..789, 794, 795, 65 S. Ct. 459; Morrison v. Watson,
154 U. S. 111, 1S, 38 L. ed. 927, 929, 14 S. Ct. 995. See
also Williams v. Norris (US) 12 Wheat. 117. 118. 120, 6
L..ed. 571, 572. At times, the atmosphere in which an
opinion is written may ‘become so surcharged that .un-
'. necessarily broad statements are made..In such a case, it
is our duty to look beyond the broad sweep of the langue .
age and determine for ourselves precisély the ground on:
-which the judgment rests. This means no.more than that
‘we should not pass on federal questions discussed in the
opinien where it appearsthat the judgment rests on
adequate State grounds. Herb.v. Pitcairn (US) supra: .
Williams v. Kaiser, 323 U. S. 471, 477, 89 L: ed. 398, 403; +
- 65S. Ct. 363.” iy sce: Blt ;
It is clear; that the Supreme Court of. North Carolina refer-
red to the case of GRIFFIN v. ILLINOIS. supra; for the
purpose, of Ghowing that counsel for petitioners had mis-
#plied the case and that North Carolina had fully met its .
requirements. Likewise. the Court’cited BROWN v. ALLEN.
&
5 14
344 U.S. 43, 97 L. ed. 469, 73,8. Ct. 397, for ce ea
* showing counsel] for.the petitioners that his view or concept
of GRIFFIN v. ILLINOIS, supra, had been misapplied in
* that-the petitioners argued that this case stood. for the prin-
ciple that the petitioners were entitled to appeal at any time,
whereas, BROW Nv. ALLEN, supra, clearly. held that a
period of limitation ‘bey ond which appeals. to a state’ supreme,
couyt could not be perfected, w vas valid and constitutional.
:
Since the parties stipulated that the sole i issue was whether ©
or not the order revoking and declaring the appeal to. be
abandoned should or should not be set aside for mistake, in-
_ advertence, surprise or excusable neglect and since the whole ~
case Was disposed-of upon’ that issue it is clear that. the judg-
‘ ment of the Supreme Court of North Carolina rests upon a
nonkederal ground which is-independent, adequate and ten-
- able and that. was not resorted to for the mére purpose of
trying to evade | "ederal jurisdiction,
EUSTIS v. BOLLES, 150 U. S$. 361, 370, 57 L. ed. 1011;
BEREA COLLEGE v. Keng 211 U, 8. 53, 53 i‘.
ed. 81;
'. FOX -FILM CORP. \ Vv. - MULLER. 296 U. S. 207, 210, 80
L, ed. 158;
HERB v. PITCAIRN, 324 U. S. 117, 125-126, 89 L. ed.
‘789.
a ee
THE PETITIONERS .DID NOT PROPERLY. PRESENT
ANY QUESTION AS TO THE DEPRIVATION OF
CONSTITUTIONAL RIGHTS UNDER. THE FOUR-
TEENTH , AMENDMENT BEFORE THE TRIAL
COURT OR BEFORE THE SUPREME COURT OF
NORTH CAROLINA.
©
When this matter was heard for the first time: by the ”
Supreme Court of North Carolina at its Fall: Term, 1958
; ““ASTATE v. GRUNDLER, 249 N. C. 399, 106 S. E. 2d 488), it
’
e 2
is very clear that there Was not even an attempt to, present
any constitutional question: (see also Vol. I of the State
Record). In the second hearing upon the sole stipulated issue
‘as to whether the order w ithdrawing the appeal should be set
aside because of surprise or excusable neglect the case was
heard and again appealed to the Supreme Court. These
_ proceedings have been certified to this Court as Vol. Il. If ©
the Court will examine Vol. II it will find that at no time was
there presented to the trial court any Federal constitutional
‘question or any allegation that Petitioners had been dejrived °
of constitutional rights contrary to the Fourteenth Amend-
ment because of fundamental unfairness in the trial. The
first mention of any@alleged deprivation of constitutiona!
“rights appears in the’ Petitioners’ Assignments of Error,
Paragraph No. 6, p: 74 of Vol. II, and this merely alleges a
deprivation of liberty without due process of law and a denial
of equal protection of the law all as guaranteed by the Fifth
and’ Fourteenth Amendments to the United ‘States Constitu-
tion. The same allegation.was made in the Petition for Cer-
tiorari filed witl® the SuprNne Court of North Carolina but
this was merely an allegatioh, and when the case actually
came before the Court we have a situation where-the question
appears for the first tinte in an assignment-of error which
Was not based upon any exception or upon any’ ruling made.
by the trial court. Thé Supreme Court of North Carolina does
not review constitutional questions unless they are properly
raised and passed upon by the trial court (STATE v. JONES. .
242 N. C. 563, 564,'89 S. FE. 2d 129). It is believed that this
Caurt has the same rule (EDELMAN v. CALIFORNIA. 344
U. S. 357, 97 L. ed: 387, 73 S. Ct. 293). As pointed out by the
Supreme Court of North Carolina in its Opinion. this Court
does not approve an attempt to smuggle in constitutional :
questions for the first time on an appeal (IRVINE vo CARI,
FORNIA, 347 Us S, 128, 129, 98 &. ed. 561, 74S. Ct. OSTF.
_™ It is beyond doubt that North Carolina’s criminal code and
its criminal procedure piv. ide an adéquate opportunity: te
raise constitutional questions since the procedure of North
Carolina has been before this Court several times. There can-
not be ahy question about the right of the Petitioners to raise
a . +. :
Bes ° b . P
w“—
the
the
a
é
question if they so deSire, nor is there any showing in
Record that State officers prevented the Petitioners from
raising such constitutional questions.
It is submitted, therefore, that all of these things must be
‘raised in the courts’ below befgre this Court will give them
consideration for this Court will only consider questions that
‘have been adjudicated below. In WHITNEY v. CALIFOR-
NIA, 274 U. S. 357, 47 S. Ct. 641, 71 L. ed. 1095, Mr. Justice
Brandeis explained the reviewing power of this Court in his
concurring opinion, as follows:
é
“Our power of review in this case is limited not only to
the question whether a right guaranteed by the Federal
Constitution was denied ( Murdock v. Memphis, 20 Wall.
590, 22 L. ed: 429; Montana ex rel.-Haire v. Rice, 204 U.
-§. 291, 301, 51 L. ed. 490, 495, 27 Sup. Ct. Rep. 281); but
tu the particular claims duly made below, and denied
* (Seaboard Air Line R. Co. v. Duvall, 225 U. S. 477, 485- °
488, 56 L. ed. 1171, 1175, 1176, 32 Sup. Ct. Rep. 790). We
lack here the power occasionally exercised on review of
_ judgments of lower federal courts to_correct in criminal
cases with.errors, although the objection was not taken
in the trial court. ‘Wiborg v. United States, 163 U. S. 632,
658-660, 41 Is. ed. 289, 298, 299, 16 Sup. Ct. Rep.- 1127,
1197; Clyatt v. United States, 197 U. S. 207, 221, 222, 49
L. ed. 726, 731, 732, 25 Sup. Ct. Rep, 429. This is a writ
of error. toa state court. Because we fay not inquire into
the errors now alleged, I concur in affirming the judg-
ment of the state.court.” : “
In YAKUS v. UNITED. STATES’ 321 U. S. 414, 88 Lived. ”
M6
rod,
64S. Ct. 660, in speaking of the timely assertion of al-
leged_ constitutional rights. this Court said:
“No procedural principle is more familiar to this Court
. than that{a constitutional right may be forfeited in crim-
inal as well as ciyil cases by the failure to make timely
assertion of the right before a triburial Having jurisdic-
tion to determine it. O’Neal v. Vermont. 144 U. S. 323,
331, 36 L. ed. 450, 455, 12 S. Ct. 693; Barbour v. Georgia
249 U.S. 454, 460, 63 L. ed. 704, 707, 39 S. Ct. 316; Whit-
ney v. California, 274 U: S. 357, 360. 362, 580, 71 L. ed.
1095, 1099, 1100, 1107, 47 S. Ct. 641. Courts may for that
reason refuse to consider a constitutional objection even’
WW
though a like objection had previously been sustained in
a case im which it was properly taken. Seaboard Air I
K. Co. v. Watson, 287 U.S. 86.77 L. ed. 180, 53S. Ct. 32.
86 ALR 174. While this Court in its discretion tae Ba
departs from this rule in cases from lower federal courts,
‘it invariably adheres to it in cases from state courts,see— we
Brandeis, J. coneurring in/Whitney v. California, supra
' (274 U.S. 380, 71 L. ed. 1107, 47 S. Ct. 641), and it.could
hardly be maintained that it is beyond legislative power
to make the rule inflexible in all cases. Co cs Wool-
sey v. Best, 299 U. S. 1, 81 L. ed. 3, 57 S. 2, with Ex
parte Siebold, 100 U. S. 371, 25 L. ed. 717.”
The rights, privileges, or immunities claimed must be set
up in the State Court and: denied by its decision. ‘.
BROOKS v. “MISSOURI, 1240. S. 394, 31 L. ed. 454:
HARTFORD LIFE INS. CO. v. JOHNSON, 249 U. S
490, 63 L. ed. 722: Te le |
KEOKUK & HAMILTON BRIDGE CO. vy. ILLINOIS.
175 U. S. 626, 44 L. ed. 299;
MUTUAL LIFE INS. 'CO. OF NEW YORK v. McGREW,
188 U. S. 291,47 L. ed. 480;
PARKER v. McLAIN., 237 U.S. 469, 59 L. edd. 1051:
THOMAS v. IOWA, 209 U.S. 258, 52 L. ed. 782;
NEW YORK EX REL: COHN v. GRAVES, 300. U. S308,
81 L. ed. 666.
In PARKER. v. McLAIN, 237 U. S. 469, 59 L. ed. 1051: on.
p. 471, it is vem
“Our jurisdiction to review the judgment of the highest
- eburt of a state turns upon’ whether a Federal right was
specially set up or claimed in that court and denied by
its decision.”
A claim of jurisdiction in the Supreme Court of the United
States to review a decision of a state court cannot be sustain-
_ ed by reference to briefs and statements which are not a part
of the record.
18 Dia ag ots
ZADIG v. BALDWIN, 166 U. S. 485, 41 L. ed. 1087:
MEDBERRY v. OHIO, 24 How. 413, 16,L. ed. 739;
LYNCH v. NEW YORK, 293 U. S. 52, 79 L. ed. 191.
Of course, a-state must furnish Tair and reasonable proce-
dure to raise Federal constitutional questions but when the
state does furnish such procedure the appellants must use
this procedure. This is made clear in the case of EDELMAN
vy. CALIFORNIA, 344 U. S. 397, 97 L. ed. 387, 73 S. Ct. 293,
where’ this Coan said:
“It is ane that this Court is without power ‘to decide
whether constitutional rights have been violated when: :
. the federal questions are not .seasonably raised jn ac-
cordance.with the requirements of state law. HULBERT
v. CHICAGO, 202 U. S. 275, 50. L. ed. 1026, 26 S. Ct. 617
(1906); MUTUAL LIFE INS. CO. v. McGREW, 188 U. S.
291. 308, 47 L. ed. 480, 484, 23 S. Ct. 375, 63 LRA 33
(1903). Noncompliance with such local law can thus be
an adequate state ground for a decision below.”
Even if it can be said that the Petitioners raised a Federal
question in the trial court, such’ question must. be pursued
on appeal to the State’s highest court in the mapner required
by local State practice: *
Under ices circumstances we think the Ey of the
. Court'in the case of JOHN v. PAULLIN, 231 U.S. 583, 585.55
L. ed. 331, 383, is appropriate. This Court there sr
“Without any doubt it rests with each state to prescribe
the jurisdiction of its appellate courts, the mode and time
of invoking that jurisdiction, and the rules of practice to
be applied in its exercise; and the state law and practice
in this regard are no less applicable when Federal rights
are in controversy than when the case turns entirely
upon questions of local or general law.”
See nee
ay 0. v. Me ADORY, 320 U.S. 472, 477, 89 L. ed. 1741;
PARKER v. ILLINOIS, ayes U. S: 571, 92 L. ed. 886;
» 19 -
CENTRAL UNION TEL. CO. v. EDWARDSVILLE, 269
U.S. 190, 70,L. ed. 229; uae ,
: C.&O. R. CO. v. MCDONALD, 214 U: S. 191, 53 L. ed. 963;
HARDING v. ILLINOIS, 196 U. S. 78, 49 L. ed. 394.
In TARRANCE v. FLORIDA, 188 U. S. 519, 47 L. ed. 572,
it was held that where the State practice required a plea in
abatement instead of a motion to quash that this Court would
follow the State practice.
{
’ In BAILEY v. ANDERSON, 326 U. S. 203, 207-7, 90 L. ed.
3, this Court said: . .
“Inspection of the record does not show that, in denying
the writ of error, the state court passed upon any con-
stitutional question not raised or passed upon: in the
course of the proceedings below. Such appears not ‘to be
its practice. Rule 22 of the Rules of the Supreme Court of
Appeals, 181. Va Ixxv: cf, Ward Lumber Co. v. Hender-_
son-White Mfg. Co. 107-Va. 626, 628..629,.59 S$. . 406.14
LRA (NS) 324; Bliss v. Spencer, 125 Va. 36, 50, 99 S. E.
593, 5 ALR 619; Reynolds v. Adams; 125 Vat 295, 514, 99
S. E. 695. On this record we cannot say that the interest
claimed was not included in the award, or, if it was not.
that the Supreme Court of Appeals of Virginia, by deny-
Pz ing writ of error, passed upon any question of .the con-
stitutionality of such denial of interest,-not. raised on the
record or passed upon below. Unless this affirmatively
appears upon the record brought here for review on ay
peal, this court is without jurisdiction of the appeal.
Jacobi v. Alabama, 187 U. S. 133, 135, 136, 47 L. ed. 106-
108, 23 S. Ct. 48; Mutual L. Ins. Co. v. McGrew, 188 U. S.
291, 309, 47 -L. ed. 480, 485, 23 S. Ct. 375, 63 LRA 3:3;
Chicago. I & L. R. Co.'v. McGuire. 196 U. So 128, 151. 49
L. ed. 413, 415, 25 S. Ct. 200. See Flournoy v. Wiener. 321
U. S. 253, 262, 263, 88 L. ed.°708, 714, 715; 64S: Ct. 548, °
and cases cited.” Re . ;
‘In WILLIAMS v. GEORGIA, 349 U. 8. 375..99 L. ed. 1161,
this Court said: ' .
“A state procedural rule which forbids the raising of fed-
- eral questions:-at late stages in the case, or by any other
20
than a prescrib.d method, has been recognized as a oe
exercise of ‘state — ‘a ie of
____See. also, the’ following cases: Le
LAYTON.v. MISSOURI, 187 U. S. 356, 47 L. ed. “214;
MORRISON v. WATSON, 154 U. S.111, 38 L. ed. 927;
; BALDWIN v. KANSAS, 129 U. S. 52, 32 L.. ed. 640; . «
BROOKS v. MISSOURI, 124 U. S. 394, 31 L. ed. 454;.
SPIES v. ILLINOIS, 123 U. S. 131, 31 L. ed. 80.
We will not burden this brief with further discussion of
this question. but we do refer the Court to certain: cases which
sustain our position. that the State Court must be given an .
opportunity to pass upon constitutional questions before this
Court will charge it with any errors in — to such. matters.
See:
‘UNITED STATES v. eae 343 U. S. 169, 72 S. CT.
591, 96 L. ed. 863;
SPIES v. ILLINOIS, 123 U. S. 143, 3,85. Ct. ‘a, 31 L. ed.
. 80;
BROOKS v. MISSOURI, 124 U. S. 394, 8 S. Ct. 443, 31 L
ed. 454; <1
BALDWIN v. KANSAS, 129 U. ‘Ss. 52, 9 S. Ct. 193, 32 L.
ed. 640; |
MORRISON v. WATSON, 154 U. S. 111, 14S. Ct. 995, 38 .
L. ed. 927;
ERIE R. CO: v. PURDIE, 185 U. S. 148, 22 S. Ct. 605, 46
L. ed. 847;
LAYTON v. MISSOURI, 187 U. S. “356, 23 S. Ct. 137, 47
L. ed. 214; 7
LOUISVILLE & N. R. CO. v. WOODFORD, 234 v. S. 46,
34 S. Ce. 739, 58 L. ed. 1202; : ;
“on
- :
WILSON v. COOK, 327 U. S. 474, 66 S. Ct. 663, 90°L. -
ct. st OG ene ene eins
eee ss
Bye
WILLIAMS v. GEORGIA; uae. S. 375, 99 L. at 1161, a
75 S. Ct: 814;
PARKER v. ILLNOIS, 333 U.S. 571, 92 L. ed. 886, £8 S.
Ct. 708; -
PENNSYLVANIA R. CO. v. ILLINOIS BRICK CO., 297
U. S. 447, 462,.463, 80 L. ed. 769;
_ BAILEY v. ANDERSON, 326 U. S. 203,-90 L. ed. 3, 66 S. 3
Ct. 66.
IV
THE PETITIONERS WERE NOT DEPRIVED OF ANY |
CONSTITUTIONAL RIGHTS GUARANTEED BY THE
FOURTEENTH AMENDMENT IN THE TRIAL OF
- THEIR CAUSE.
As we previously pointed out, the tenor of Petitioners’ al-
legations and brief in support of same seems to be that they
wish this Court to review the whole State trial and pass upon:
the rulings of the State trial judge as to the competency or
incompetency of evidence and the legality of: the trial court’ s
statement of contentions and instructions to the trial jury.
‘The. Petitioners in their statement of the case repeatedly
quote questions and answers which they say were: improper-
ly admitted or questions which they say were improperly
ruled upon as to the answers. They find fault also with the
trial court’s instructions. Let it be said at once that there is .
no evidence whatsoever of a hostile atmosphere suroundify
the trial of the Petitioners. In fact. two members of the Air
Force testified against Petitioners while other members of |
the Marine- Corps ‘testified or .were. offered as witnesses in
their favor. We cannot escape thé fact that the ‘prosecuting
witness was cruelly treated, beaten, had three loose teeth
and her cheekbone was fractured in three places. The two
witnesses that belonged to the Air Force saw these blow-
" . inflicted. _The chief complaint. therefore. of the Petitioners
~
_
—_._ a
a oe
22
is really not that they were deprived of any constitutional
rights but’ that they were a: convicted and commences
to prison. ?
We have never thought that it was the function of this
' Court to pass upon the competency of evidence. in state trials
_ or the validity ofa trial court’s instructions. There is an ex- °
ception as to confessions whith is not involved here.
The very same point as raised by the Petitioners in this
case was “er by this Court in BUCHALTER v. NEW
- YORK, 319 U. S. 427, 87 L. ed. 1492, 63 S. Ct. 1129, where
this Court pips on this point, the following:
“The petitioners insist that the rulings upon evidence
and instructions to the jury, when taken in their totality,
indicaté that, whatever the intention of the trial judge,
his rulings and attitude precluded a fair consideration
of the case. The Court. of Appeals held that certain of |
the challenged rulings and instructions, were erroneous
but that the errors were not eae oe in the sense that
they affected the ability of the jury to render an impar-
tial verdict, and that others of the alleged errors were
not such under the law of New York. As already stated,
the due process clause of the Fourteenth Amendment
does not enable us to review errors of state law however
material under that law. We are unable to find that the
‘rulings and instructions under attack constituted more
than.errors as to state law. We cannot say that they were .
such as to deprive the petitioners of a trial according to
the accepted course of legal proceedings.”
In AMERICAN RAILWAY EXPRESS CO. v. KENTUCKY;
273 U.S. 269, 71 L. ed. 639, it is said at p. 273: |
“It.is firmly -stablished that a merely erroneous decision
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.”
Errors of a state court in interpreting tad applying’ the
laws of that state furnish no basis for the claim that there
has been a-denial of due process of law. guaranteed by the
Fourteenth Amendment to the Federal Constitution. The
\
23
Constitution of the United States does, not- guarantee that
the decisions of state courts shall be free from eérror or re-—
quire that their pronouncements shall be consistent.
DAVIS v. TEXAS, 139 U. S. 651, 35 L. ed. 300;
HOWARD v. KENTUCKY,.200 U: S. 164; 50 L. ed. 421;
WORCESTER COUNTY TRUST CO. v. RILEY, 302
U. S. 292; 82 L. ed. 268; /.
MILLER v. TEXAS, 153 U. S. 535, 38 L. ed. 812: .
CARTER v. ILLINOIS, 329 U. S. 173, 91 L. ed. 172.
When a state court judicially determines ‘that there is suf-
ficient evidence of a fact to be submitted to a jury, its deci-
sion 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, 2
U. S. 269, 71 L. ed. 639;
_BELL TELEPHONE CO. v. PENNSYLVANI A PUBLIC
UTILITY COMMISSION, 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. 965,
it is stated in a ‘per curiam opinion:
“As to the first contention, it ap ars that the state court
heard the mar judicially and decided that there was
evidence justif fying the finding of the Commission of
‘unreasonable’ discrimination: in the transaction of its
intrastate business. In the absence of other constitution-
al objections, it cannot be said that a state court deniés
due process when on appropriate hearing it determines
that there is evidence to sustain a finding of-the viola-
tion of state law with respect to the conduct of local af-
- fairs. The contention that such»a decision, is erroneous
“ does not present a federal question.”
The following paragraph from the opinion of Justice White
24
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 corpora-
tion. 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
e . 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 BUCHAN- —
\AN, 158 U. S. 31 (39:884).” .
If it shotild be determined that the Supreme Court of North
Carclina 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 decision 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 COM-
MISSION, 294 U. S63, 79 L. ed. 761.
CONCLUSION
This case may be ‘summarized ‘as follows: The Petitioners,
knowingly and consciously in open court and by signing’ a
written statement, Waived their. right to appeal and asked
that they be allowed to abandon their appeal. The Petitioners
and their relatives had decided that if they perfected their
appeal and gajned a new trial they would again be tried for
a capital offense which might result in death, and they did >
‘not wish to take such a chance. It was only after the father
of one of the petitioners and the brother of the other petition-
er had returned to ‘their- home state that they consulted other.
counsel arid then changed their minds as to the course of ac-
tion they had previously taken. The waiver made. by Petition-
\
RRR ie ee
ers” meets. all oe requirements of this Court, as stated in
JOHNSON v. ZERBST, 304 U. S. 458, 464, 82.L. ed. 1461, and
JENNINGS v. ILLINOIS; 342 U. S. 104, 109, 96 L. ed. 119, -
72 S. Ct: 123. The same rule prevails in North Carolina as .
' shown by MILLER v. STATE, 237 N. C. 29, 48,.74 S. E. 2d
513. The appeal was withdrawn under the strict requirements:
of the North Carolina practice as shown in STATE v. LEAK,
90 N. C. 655, and the. trial judge was careful to see that the
Petitioners not: only advisedly consented to but opines and
directed that their ——— be withdrawn.
We submit, therefore, that this Application for Certiorari
does not raise any substantial Federal question; in fact, it
raises no Federal question at all, and the same should. be.
dismissed. ae 7
ame Be emai
. . MALCOLM B. SEAWELL
‘Attorney General of North Carolina
RALPH MOODY
. Assistant Attorney General
_ Justice Building
_ Raleigh, North Carolina
Counsel for the State of North Carolina, |
Respondent
iz
~—S
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