Douglas v. Southern California Independent Living Center Brief Amici Curiae
Public Court Documents
August 1, 2011

Cite this item
-
Brief Collection, LDF Court Filings. Dokes v. Arkansas Abstract and Brief for Appellant, 1966. 4e0c07fb-af9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0eb03427-b936-4482-ab36-4b1014f52cae/dokes-v-arkansas-abstract-and-brief-for-appellant. Accessed May 23, 2025.
Copied!
N / Q Supreme Court q f A rkansas John Henry Dokes Sylvia Do k e s ................................. Appellants v. No. 5224 State of A r k a n s a s ............................... Appellee APPEAL FROM PULASKI COUNTY CIRCUIT COURT Hon. W illiam J. Kirby, Judge ABSTRACT AND BRIEF FOR APPELLANT Delector Tiller 2305 Ringo Street Little Rock, Arkansas John W . W alker 1304-B Wright Avenue Little Rock, Arkansas Jack Greenberg James M. Nabrit III Michael Meltsner 10 Columbus Circle New York, New York Attorneys for Appellants PARAG ON PR IN T IN G CO.. L ITTLE ROCK INDEX Page Statement of Case ________________________________________ 1 Points Relied On --------------------------------------------------------------- 3 Abstract of Pleas ------------------------------------------------------------- 5 Plea and Arraignment ------------------------------------------------- 5 Motion to Dismiss ------------------- 5 Motion to Suppress Evidence --------------------------------------- 9 Order Overruling Motion to Dismiss and Motion to Suppress Evidence ------------------------------------------ 10 Testimony For State of Arkansas ------------------------------------- 12 Officer Jim Harris ------------------------- ------------------------- 12 Officer John Terry ---------------------------------------------------- 14 Officer Ralph Parsley ----------------------------------------------- 15 Testimony For Defendants ________________________________ 16 John H. Dokes ------------------------------------------------------------ 16 Sylvia Dokes __________________________________________ 17 Robert Hampton --------------------------------------------------------- 17 Claude Taylor -------------------------------------_--------------------- 18 Trial Verdict and Judgment -------------------------------------------- 21 Motion For New Trial ------------------------------------------------------- 22 Motion For New Trial Overruled --------------------------------------- 25 Argument ___________________________ —----------- >----------------- 26 Conclusion --------------- --------------------------------------------------------- 50 Supreme Court oft A rkansas John Henry Dokes Sylvia Do k e s ..................................Appellants v. No. 5224 State of A rkansas Appellee APPEAL FROM PULASKI COUNTY CIRCUIT COURT Hon. W illiam J. Kirby, Judge ABSTRACT AND BRIEF FOR APPELLANT STATEMENT OF THE CASE Appellants, a married couple, were arrested on January 30, 1965, at their home, 287 Granite Mountain Circle, Little Rock, Arkansas, and charged with contributory delinquency, under §45-239 of Arkansas Stat. Annot., after police officers of the City of Little Rock had entered their apartment without a search or an arrest warrant. 2 After pleading not guilty to the charges against them, appellants were tried in the Mu nicipal Court of Little Rock May 4, 1965, found guilty and fined $25.00 plus $10.50 costs each. On appeal to the Circuit Court of Pulaski County, motions to dismiss the informations and to sup press evidence were overruled by the Circuit Court. Appellants were tried before Hon. William J. Kirby and a jury on April 8, 1966, were found guilty and fined $200.00 each. Motion for New Trial was overruled. 3 POINTS RELIED UPON I Appellants are denied due process of law as guaranteed by the Fourteenth Amendment to- the Constitution of the United States be cause there is no evidence in the record to support their convictions. II The statute under which appellants were con victed is so vague and uncertain as to violate the due process clause of the Fourteenth Amendment to the Constitution of the United States. h i The admission of testimony regarding observa tions by police officers inside a home entered without warrant or probable cause violated the Fourth and Fourteenth Amendments to the Constitution of the United States. 4 The convictions for contributing to the delin quency of a minor violate the due 'process clause of the Fourteenth Amendment to the Constitution of the United States because no alleged delinquent minor was ever identi fied. IV V Appellants have been denied due process of law as guaranteed by the Fourteenth Amend ment to the Constitution of the United States because they were convicted upon an information and charge to the jury drawn from statutes rendered inapplicable by amendment prior to their trial. VI Appellants have been denied their rights under the Fourteenth Amendment to the Constitution of the United States because their arrest and conviction was motivated by racial consid erations. 5 ABSTRACT ; PLEA AND ARRAIGNMENT (T.7) Pulaski Circuit Court — First Division — March Term, 1966, Monday, June 14, 1965. State of Arkansas 64749 vs. 64750 Contributory Delinquency Sylvia Dokes (CF) John Henry Dokes (CM) This day comes the State of Arkansas by Philip Ragsdale, Assistant Prosecuting Attorney, and comes the defendant in proper persons and by their attorney, Delector Tiller, and defendants are called to the bar of the Court and informed of the nature of the charge filed herein, enter their pleas of not guilty thereto, and by agree ment the cases are passed to the September set ting. NOTION TO DISMISS (T .18-19) The defendants hereby make a special ap pearance for the purpose of moving that the charges against them be dismissed for the reasons that follow: 6 1. The alleged. arrest under color of state law of the defendants and any possible conviction connected therewith will constitute a violation of the defendants’ right to peaceably assemble with members of another race in their own home as guaranteed by U. S. Const, amend. 1 & 14 Sec. 1 and Ark. Const. Art. 2 Sec. 4 because there was no legal justification for the arrest but rather the defendants were arrested solely because they per mitted a peaceable inter-racial gathering in their home. 2. The alleged arrest1 under color of state law of the defendants and any possible conviction therewith will constitute a violation of the de fendants’ right to due process of law as guar anteed by U. S. Const, amend. 5 and 14 Sec. 1 and Ark. Const, of Ark. Art. 2 Sec. 2 & 8 because there was no legal justification for the arrest but rather the defendants were arrested solely be cause they permitted a peaceable inter-racial gath ering in their home. 3. The alleged arrest under color of state law of the defendants and any possible convic tion connected therewith will constitute a violation of the defendants’ right to equal protection of the laws as guaranteed by U. S. Const. Amend. 14 Sec. 1 and Ark. Const. Art 2 Sec. 3 because there was no legal justification for the arrest but rather the defendants were arrested solely because they 7 permitted a peaceable inter-racial gathering in their home. 4. The alleged arrest under color of state law of the defendants and any possible convic tion connected therewith will constitute a viola tion of the defendants’ right to be protected against unreasonable search and seizure as guar anteed by U. S. Const amend. 4 & 14 Sec. 1 and Ark. Const. Art. 2 Sec. 15 because there was no legal justification for the arrest but rather the defendants were arrested solely because they per mitted a peaceable inter-racial gathering in their home. 5. The alleged arrest under state law of the defendants was invalid because (s) no warrant of arrest was issued or deliever to any peace o ffi cer prior to the alleged arrest; (2) the defendants did not commit any public offense in the presence of any peace officer; and (3) no peace officer had any reasonable ground to believe that defendants had committed a felony. See Ark. Stats. Ann. Sec. 43-403 (Repl. 1964). 6. The alleged arrest under color of state law of the defendants was invalid because: (1) the persons who made the alleged arrest did not inform the defendants of their authority; (2) the persons who made the alleged arrest did not in form defendants of the offense charged against 8 them; (8) the persons who made the alleged arrest were not acting on a warrant of arrest and did not give information thereof or show any warrant of arrest. See Ark. Stats. Ann. Sec. 43-416 (Repl. 1964). 6. The alleged arrest under the color of state law of the defendants was made without an arrest warrant and the defendants were not car ried forthwith before the most convenient magis trate of the county where the alleged arrest was made, and the grounds on which the alleged ar rest was made were not statjd to the magistrate. See Ark. Stats. Ann. Sec. 4;f-601 (Repl.). Dated: April 8, 1966 s / Delector Tiller Delector Tiller, Attorney for Defendants 2305 Ringo St. LRA FR 6-2132 Filed: May 23, 1966 Roger McNair, Circuit Clerk — 9 MOTION TO SUPPRESS EVIDENCE (T.20) The defendants captioned above hereby make special appearance for the purpose of moving to suppress and exclude any evidence obtained from the premises at 287 Granit Mountain Circle, Little Rock, Arkansas, on or about January 30, 1965, for the following reasons: (a) The evidence that was obtained was obtained in violation of the statutory and com mon law of Arkansas and is thereby inadmissa- ble because (1) no search warrant was executed by a public officer as required by Ark. Stats. Annotated Sec. 43-201 (Repl. 1964) or any other statute nor was any search warrant directed to a peace officer as required by Ark. Stats. Ann. Sec. 43-202 (Repl. 1964) or any other statute, nor was any search warrant served pursuant to law authorizing any search of the premises or seizure of evidence; and (2) no lawful arrest was made in connection with the search and seizure as required by Ark. Stats. Ann. Sec. 42- 403 (Repl. 1964). (b) The evidence that was obtained was obtained in violation of the defendants’ consti tutional guarantee against unreasonable search and seizure as provided in Ark. Const. Art. 2 Sec. 14 and is thereby inadmissable. 10 (c) The evidence that was obtained was obtained in violation of the defendants’ constitu tional immunity against unreasonable searches and seizure as provided in U. S. Const. Amend. 4 and 14 Sec. 1 and is thereby inadmissable. Date: A p ril8,1966. s / Delector Tiller Delector Tiller, Attorney for defendants Filed: May 23, 1966 Roger McNair, Circuit Clerk By: s / D. L. Shook, Deputy Clerk ORDER OVERRULING MOTION TO DISMISS AND MOTION TO SUPPRESS EVIDENCE (T.20-A) Pulaski Circuit Court — First Division — March Term, 1966, Wednesday, May 23, 1966 State of Arkansas 64749 vs. 64750 Contributory Delinquency Sylvia Dokes (CF) John Henry Dokes (CM) This day comes the State of Arkansas by Philip Ragsdale, assistant Prosecuting Attorney, 11 and comes the defendants in proper persons and by their attorney, Delector Tiller, and Motion to Suppress evidence and Motion to Dismiss are filed and heard, and overruled, and the Defend ants’ Exceptions are saved. 12 ABSTRACT OF TESTIMONY Given at trial in the Pulaski Circuit Court, April 8, 1966 (T.22-91). I. TESTIMONY FOR THE STATE OF ARKANSAS O f f ic e r J im H a r r is (T .24-38): I am a member of the Little Rock Police De partment and also employed as a night watchman for the Little Rock Housing Authority (T .25). On January 30, 1965, a Saturday night, I was in my own automobile at the edge of the Booker Home Project (T.25) where I could observe all traffic entering or leaving the project (T .30-31). About 11:00 p. m. my attention was attracted by a string of cars with white occupants entering the project (T.25, 35-36). I was not certain that they were breaking any law by entering the project but I felt it was my duty to investigate (T .32). If it had been Negroes entering the project my attention would not have been at tracted to the point of making as thorough an investigation (T .35-36). I I also saw what appeared to be white teen agers go into a liquor store about 200 yards away and then return to the project. I spoke to the owner of the store (T.26) who told me that they had purchased a bottle of rum and some beer 13 (T .33). I then ascertained that the cars I had seen entering the project were parked just o ff Granite Mountain Circle. I returned to the liquor store and telephoned the Vice Squad (T. 26-27). Officers Terry and Parsley came to the project and we went to the apartment where I thought there was a congregation (T .27). No complaint of disturbance had been made, al though there were other families living next to the apartment (T .35). We saw two white males and a colored female come out of the apartment. We identified ourselves as police officers. The colored female we met outside the apartment, Sylvia Dokes, made no objection to our going in to the apartment (T .27). We had no search war rant (T .35). I do not recall whether I said to her, “ Take me to the party” (T .31). There were twenty-two people, both colored and white, in the apartment (T .28). There were several people singing into a tape recorder (T .34 ). I heard no cursing or obscene language and no one was loud or rowdy (T.35). I do not know whether there were any unescorted females in the apartment (T .34). There were cans of beer in various locations about the apartment and apparently mixed drinks in the kitchen (T .28). I did not see any minor take a drink of whiskey, or any of the defendants give a drink of whiskey to a minor 14 (T .37). I did not see the defendants drink any whiskey (T.37). We talked to various boys and girls to get their names and ages and we took all 22 persons in the apartment to police headquarters (T.29- 30). Officer John Terry (T. 39-51): I was a member of the Little Rock police force on January 30, 1965 (T .39). On that date I was called to the Granite Mountain Project by Officer Harris (T .39). Officer Parsley and I met him in front of the liquor store across the street from the project and we went to 287 Granite Mountain Circle. We found three people coming out of the apartment at that ad dress and “ we stopped them and took them back to the apartment” (T .40), Mrs. Dokes ad mitted us to the apartment after I identified my self as a police officer (T .41). When I went into the apartment I saw Schlitz beer in the kitchen and in the living room (T.41, 45). Several people were singing (T. 41). I saw a young girl sitting on a couch with a glass containing ice and liquor in her hand (T .41). Her name was Janet Kirspel, a 19- year-old white girl (T .42). I picked up the glass and asked her if it were hers, but Sylvia Dokes stated to me that it was her (Mrs. Dokes’ ) 15 drink (T .42 ). I did not observe Mr. or Mrs. Dokes ask any minors who were present to leave their apartment; nor did I observe them take any beer away from any minors (T .49). I did not see any person in the apartment take a drink of any whiskey and I did not see any defendant give a minor a drink of whiskey (T.46, 48). Some of the minors had the odor of alco hol on their breath when I was questioning them (T .50). After occupants of the apartment were interviewed at police headquarters (T .43). The minors were charged with possessing alcoholic beverages and the adults were charged with con tributing to the delinquency of minors (T.43, 44). Officer Ralph Parsley (T .51-56): I was a member of the Little Rock Police De partment on January 31, 1965 (T .52). On that evening, I answered a call from the Booker Home Project. When I arrived at the apartment of Mr. and Mrs. Dokes I observed beer and mixed drinks and heard music (T .52). We had no search warrant nor arrest warrant (T .55). Some of those in the apartment were minors. The youngest person was a 14-year-old girl, who had an odor of alcohol on her breath (T.53). Robert Hampton, an adult, stated that he had been drinking (T.53). In the time I was in the 16 apartment I did not see Mr. and Mrs. Dokes bar any minor from coming into the apartment or take any alcoholic beverages away from them (T .54). I did not see any of the defendants give any of the minors any whiskey (T .56). II. TESTIMONY FOR DEFENDANTS John H. Dokes (T .58-67): I was trying to get a Negro singing group together and two friends who worked with me, James Charton and Paul Schmolke, asked if they could listen to us rehearse, and if they could bring dates. I said it would be all right (T.58- 59). I was expecting them on January 30, 1965 but Charton’s younger brother and a friend both showed up with dates even before James Charton came, and they asked to come in (T .59). I didn’t turn them down because of their race. Later during the evening other whites came over, all friends of Charton and Schmolke (T. 59). All the whites had dates (T .65). I didn’t invite them, but only James Charton and Paul Schmolke (T .67). I didn’t ask any of them to leave be cause I had no reason to. My house is open to visitors T.66). There were twenty-two people in the apartment (T .64). I don’t know how old the guests were and I did not ask them (T.63). James Charton went out and brought back some beer which he put in my icebox. Another 17 white male adult came with a partly empty bot tle of rum (T .60). My singing group, which was just getting started and did not have a name yet (T.62) was singing into a tape recorder in the pantry (T .61). I did not see any minors with whiskey nor did I give whiskey to any minor (T .63 ). Sylvia Dokes (T .68-72): The people were at my apartment that night to listen to my husband’s group practice (T .68). I knew that Miss Kirspel was 19 but I didn’t know the age of Jenifer Brewer or Susan Brewer (T .69). I couldn’t tell the ages of the white girls (T .70). I did not see any minors drinking (T .71). I neither gave them any drinks nor ordered them out of my house (T .70). The police told me to take them back where I came from (T .71). I did not invite the offi cers into the house and I did not demand to see a warrant (T .72). Robert Hampton (T .81-86): I went to the Dokes’ apartment on January 30 to attend a rehearsal of the singing group (T. 81). I was singing most of the evening (T.84). I had never met most of the people before other than the members of the group (T.85). I did not see the Dokes ask any of the people to leave 18 (T .84). I did not see any minors drinking. I did not see any adult give any minor beer or whiskey (T .84). Claude Taylor (T .86-88): I was not a member of the singing group but I came as an advisor. I had my own singing group at the time and was under contract with a recording company (T .87). The State’s Requested Instruction No. 1 (T .73-74) Any person who shall, by any act, cause, en courage or contribute to the dependency or de linquency of a child, as these terms with reference to children are defined by this act, or who shall, for any cause, be responsible therefor, shall be guilty of a misdemeanor and may be tried by any court in this State having jurisdiction to try and determine misdemeanors and, upon conviction therefor, shall be fined in a sum not to exceed five hundred dollars ($500.00), or imprisonment in the county jail for a period not exceeding one (1) year, or by both such fine and imprisonment. When the charge against any person under this act concerns the dependency of a child or children, the offense, for convenience, may be termed con tributory dependency; and when it concerns the delinquency of a child or children, for convenience it may be termed contributory delinquency. Pro 19 vided, however, that the court may suspend any sentence, stay or postpone the enforcement of execution or release from custody any person found guilty in any case under this act when, in the judgment of the court, such suspension or postponement may be for the welfare of any de pendent, neglected or delinquent child as these terms are defined by this act, such suspension or postponement to be entirely under the control of the court as to conditions and limitations. The Court gave the State’s Requested Instruction No. 1. The defendants objected to the action of the Court in giving the State’s Requested Instruction No. 1, and at the time asked that their exceptions be noted of record, which was accordingly done. The State’s Requested Instruction No. 2 (T .75-76) The words “ delinquent child” shall mean any child, whether married or single, who, while under the age of eighteen (18) years, violates a law of this State; or is incorrigible, or knowing ly associates with thieves, vicious or immoral persons; or without just cause and without the consent of its parents, guardian or custodian ab sents itself from its home or place of abode, or is 20 growing up in idleness or crime; or knowingly fre quently visits a house of ill-repute; or knowingly frequently visits any policy shop or place where any gaming device is operated; or patronizes, visits or frequents any saloon or dram shop where intoxicating liquors are sold; or patronizes or visits any public pool room where the game of pool or billiards is being carried on for pay or hire; or who wanders about the streets in the nighttime without being on any lawful business or lawful occupation; or habitually wanders about any railroad yards or tracks or jumps or attempts to jump on any moving train, or enters any car or engine without lawful authority, or writes or uses vile, obscene, vulgar, profane or indecent language or smokes cigarettes about any public place or about any schoolhouse, or is guilty of indecent, immoral or lascivious conduct; any child committing any of these acts shall be deemed a delinquent child. The Court gave the State’s Requested Instruction No. 2. The defendants objected to the action of the Court in giving the State’s Re quested Instruction No. 2, and at the time asked that their exceptions be noted of record, which was accordingly done. 21 TRIAL VERDICT AND JUDGMENT (T.10) Pulaski Circuit Court — First Division March Term, 1966 Friday, April 8, 1966 State of Arkansas G4749 & 64750 Contributory Delinquency Sylvia Dokes (CF) John Henry Dokes (CM) This day comes the State of Arkansas by Mrs. Virginia Ham, Assistant Prosecuting At torney, and come the defendants in proper per sons and by their attorney, Delector Tiller, and pleas of not guilty having previously been entered parties announce ready for trial, thereupon comes twelve qualified electors of Pulaski County, viz: Tom Oakley, Roy Beard, H. C. McDonald, R. C. Dempsey, Harry M. Johnson, Lawson Harris, R. F. Miller, L. D. Payne, George Tyler, James B. Pfeifer, C. M. Measel and Jack Wilson, who are empanelled and sworn as a trial Jury in this case, and after hearing the testimony of the wit nesses, the instructions of the Court, and the argument of Counsel, the Jury doth retire to consider arriving at a verdict, and after delibera tion thereon doth return into open Court with the following verdicts, “ We, the Jury, find the 22 defendant, Sylvia Dokes, guilty of Contributory Delinquency, as charged, and fix her punishment at a fine of Two Hundred Dollars. C. M. Measel, Foreman.” “ We, the Jury, find the defendant, John Henry Dokes, guilty of Contributory De linquency, as charged, and fix his punishment at a fine of Two Hundred Dollars. C. M. Measel, Foreman.” Whereupon the Court doth discharge the Jury from these cases and each defendant is given fifteen days in which to file Motion for New Trial and bond is set at Two Hundred Dol lars for each defendant. MOTION FOR NEW TRIAL Come the defendants by their attorney, Delec tor Tiller, and move this Court for a new trial, and for their cause, state: 1 1. The Little Rock City Police gained en trance into the dwelling house of defendants on January 30, 1965, in the nighttime around 11:30 p.m., without an arrest warrant, without any reason to suspect that a felony had been com mitted, without a search warrant, by either arti fice, the weight of the influence of their authority as plain clothes policemen, or by indimidation; and did then and there commence to search the entire premises of defendants and to make ar rests of the 22 persons present without having seen any one of the 7 adults present give or offer a single minor a drink of alcoholic beverage or without having seen a single minor solicit or take a drink of same, 2. The search was unreasonable and in violation of the Constitution of Arkansas Ar. 2, Sec. 15; and in violation of the 4th and 14th Amendments to the Constitution of the United States. 3. The arrests were unlawful in that no felony was charged and no misdemeanor was com mitted in the presence of the officers. The ar rests were in violation of Ark. Stats. Annotated (1947) Sec. 43-403, and in violation of the equal protection and due process clauses of the Arkan sas Constitution Art. 2, Sec. 8, and of the equal protection and due process clauses of the 5th and 14th Amendments to the Constitution of the United States. 4. The verdict of the jury was contrary to law in that the instruction to the jury stated in effect that in order for a minor to be delinquent, he or she had to be 18 years of age or less. The evidence and the record show that Janet Kirspel, a 19 year old white girl, was the only person whose breath smelled of alcohol and who set a glass of rum, beer, or whiskey down on the table, as the officers walked into the house. 5. Because of the nature of the case, cus tom, usage, long standing mores, and the attend ant wide spread publicity given to the case, it 23 24 was an abuse of judicial discretion for the trial judge to deny defendants request to examine the jurors separately for the purpose of forming a basis for exercising their 3 peremptory challenges for cause under the authority of Ark. Stats. An notated (1947) Sec. 39-226; and this,is especial ly true since the c a p it a l c it iz e n s c o u n c il , P. 0. Box 1977, Little Rock, Arkansas, printed, pub lished, and circulated extensively a “ h a n d b i l l ” calculated'to prejudice the case against all of the defendants and to arouse the ire of the s e g r e g a t io n is t s . It is apparent that the printing, pub lishing, and circulation was done in this manner to circumvent Ark. Stats. Annotated (1947) Sec. 45-205. The “ h a n d b i l l ” is attached hereto and made a part hereof. 1 ■' V - y . , ; rH ,j7 ,J 8. The Court erred in refusing to allow defendant to show what cases had been dismissed below. Wherefore, defendants pray that the verdict of the jury be set aside and a new trial granted. s / Delector Tiller Delector Tiller, Attorney for defendants Filed May, 3, 1966 Roger McNair, Circuit Clerk By D. L. Shook, D. C. 25 MOTION FOR NEW TRIAL OVERRULED (Tr.17) Pulaski Circuit Court — First Division —- March Term, 1966, Wednesday, May 4, 1966. ; . i ....... / K v l , State of, Arkansas ( • "> vu\., •1 64749 & 64750 Contributory Delinquency Sylvia Dokes (CF) John Henry Dokes (CM) This day comes the State of Arkansas by Philip Ragsdale, Assistant Prosecuting Attorney, and comes the defendants in proper persons and by their attorney, Delector Tiller, and motion for new trial having previously been filed hearing is had and the Court doth overrule said motion and defendants exceptions were saved and an appeal is prayed and defendants are given forty five days (45) in which to file Bill of Exceptions, and allowed to remain on same bond pending appeal. 26 ARGUMENT I Appellants are denied, due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States be cause there is no evidence in the record to support their convictions. Appellants were convicted of contributory delinquency under a statute which defined that term as encouraging, aiding or contributing by some act to any of more than fifteen kinds of behavior on the part of a child under eighteen years of age1. The particular charge against appellants, although never clearly expressed by the State, is apparently that they were resopnsible for the alleged violation of Arkansas liquor laws 1 Under the version of Ark. Stat. Annot. §45-204 which formed the basis for the judge’s charge, a child is delinquent if he: (1) violates state law; (2) is incorrigible; (3) knowingly associates with thieves; (4) knowingly associates with vicious or immoral persons; (5) without cause or parental consent absents himself from his home; (6) is growing up in idleness or crime; (7) knowingly frequents a house of ill-repute; (8) knowingly frequents any policy shop; (9) knowingly frequents any place where any gaming device is operated; (10) patronizes, visits or frequents any saloon or dram shop where intoxicating liuqors are sold; (11) patronizes or visits any public pool room where the game of pool or billiards is carried on for pay or hire; (12) wanders about the streets in the nighttime without being on any lawful business or occupation; (13) habitually wanders about any railroad yards or tracks; (14) jumps or attempts to jump on any moving train; (15) enters any car or engine without lawful authority; (16) smokes cigarettes about any public place or schoolhouse; (17) is guilty of indecent, im moral or lascivious conduct. 27 by certain minors. The evidence presented on behalf of the State was designed to show that on the evening of January 30, 1965, there were sev eral minors within a group of 22 persons in ap pellants’ home. At the same time, there were also cans of beer and at least one mixed whiskey drink in the apartment. The record is barren, however, of any evi dence showing or tending to show a violation of the Arkansas Alcoholic Beverage Control Act by any minor present at that time, to which appel lants might have contributed. Officer Harris testified on behalf of the State that he had not seen any minor take a drink of beer or whiskey; nor had he seen either of the appellants give beer or whiskey to any minor; nor had he seen appellants drinking. Further, Harris heard no cursing or obscenity; no one in the apartment was loud or rowdy. Officer Terry stated that he did not see anyone in the apart ment take a drink; nor did he see defendants give any drinks to any minors. Officer Parsley also testified that he did not see the defendants give any minor any liquor, and made no reference in his testimony to seeing anyone, minor or adult, drinking. There is no evidence in the record that any minor possessed any intoxicating beverage, with the exception of Miss Janet Kirspel, who it was 28 contended was holding a glass containing ice and liquor. The same police officer who testified that he saw Miss Kirspel holding the glass also testified, however, that she was nineteen years of age at that time. The statutes relating to the crime of contributory delinquency in Arkansas speak to acts committed by minors under the age of eighteen. Thus, even if the jury believed the police officers’ testimony regarding Miss Kirspel, they could not consider this as evidence related to the charges against appellants. Furthermore, the officers’ testimony re garding the beer in the apartment is inconclusive, since the State failed to establish that it was of a type within the coverage of the Arkansas Bev erage Control Act. §48-107, Ark. Stat. Annot. which provides: . . . Beer containing not more than five (5 % ) per centum of alcohol by weight and all other malt beverages containing not more than five (5 % ) per centum of alcohol by weight are not defined as malt liquors, and are excepted from each and every provision of this Act. The State did, however, elicit the testimony that the beer in the cans was Schlitz beer (T. 45). This Court may take judicial notice of the fact that Schlitz beer does not contain 5% alco hol by weight. 29 There is thus not a scintilla of evidence in the record to affirmatively connect any minor who could have been “ delinquent” under Arkansas law with any liquor subject to the penal provi sions of Arkansas’ Beverage Control Act, except evidence to the effect that such minors were present, together with many adults, in an apart ment in which a glass containing intoxicating liquors was found in the hands of someone above the age limit of the Arkansas delinquent child statute. To equate this situation with “ posses sion” of the liquor by minors subject to the act, or with their drinking it, would be to deny ap pellants due process of law as much as “ convic tion upon a charge not made would be sheer denial of due process,” DeJonge V. Oregon, 299 U.S. 353, 362 (1937). There is not a scintilla of evidence in the record to affirmatively connect any violation of any law by any minor with appellants, except evidence that there were minors in appellants’ apartment. It would be an unwarranted inter ference with appellants’ freedom of association to allow this single fact to sustain a conviction on charges that appellants contributed to unlaw ful activity by children. The minors had not been invited to a party; to the contrary, the record shows that appellants did not even invite them to hear the rehearsal, but that the minors came at the invitation of others. Furthermore, 30 John Dokes’ testimony, which was not rebutted, established that neither he nor his wife brought the whiskey into their apartment, but that it was carried by a white adult guest. This statement is supported by the testimony of one of the police officers that a bottle of rum was purchased that evening by the very white person who had first drawn the officer’s attention to the liquor store across the street from the housing project. Thus, appellants’ convictions for contributory delinquency based on some theory that they sup plied liquor to minors under the age of eighteen, are completely without evidentiary foundation and must be reversed. Shuttlesworth y. Birm ingham, 382 U.S. 87 (1965); Barr v. City of Columbia, 378 U.S. 146 (1964); Fields v. Fair- field, 375 U.S. 248 (1963); Taylor y. Louisiana, 370 U.S. 154 (1962); Garner v. Louisiana, 368 U.S. 157 (1961); Thompson v. City of Louisville, 362 U.S. 199 (1960). II The statute under ivhich appellants were con victed is so vague and uncertain as to violate the due process clause of the Fourteenth Amendment to the Constitution of the United States. Assuming arguendo that the former version of Ark. Stat. Annot. §45-239, under which appel- 31 lants were tried and convicted, may be given a narrow and restricted interpretation in order to save its constitutionality, these prosecutions must fail because of the complete lack of evidence to support the judgments of conviction (see I supra). There is, however, no constitutional reading of this statute (and its companion pro vision, §45-204) which would bring appellants’ conduct within its scope. It is fundamental that in order to comply with the minimum requirements of due process, state criminal statutes must provide fair notice of the acts which they encompass, and definite criteria to be applied by the determiner of guilt: . . . No one may be required at peril of life, liberty or property to speculate as to the_ meaning of penal statutes. All are entitled to be informed as to what the state commands or forbids . . . Lametta v. New Jersey, 306 U.S. 451, 453 (1938); see also Winters v. New York, 333 U.S. 507, 515-16 (1948). The statutes under which appellants were convicted fail to meet these minimum standards. First of all, they fail to delineate with any clarity the acts which are made subject to punishment. §45-239 refers to any act which causes, encour ages or contributes to the delinquency of any child. While the same statute refers by impli 32 cation to §45-204 to furnish the meaning of the words “ delinquent child,” no such guidance ap pears regarding “ cause, encourage or contribute to.” The exact relationship between the adult’s act and the child’s delinquency which will suffice for conviction is never intimated. It is left to the unfettered discretion of the trier to determine the scope and meaning of the law. There do not seem to be any Arkansas decisions limiting this discretion in any manner, but even if there are, the trial judge failed to impart whatever guid ance they might provide the jury. The statutes were given verbatim as instructions without defi nition or explanation. §45-204, which attempts to define “ delin quent child,” is broader and more uncertain, if anything. Referring to more than fifteen kinds of behavior which render a child delinquent (see fotnote 1 supra), it fails to make the adult’s re sponsibility under §45-239 any clearer. It pen alizes children for being “ incorrigible,” (with out elucidation of that term’s meaning). This in itself would appear to be a plainly prohibited attempt to make criminal a “ status,” see Robin son v. California, 370 U.S. 660 (1926). A child who is guilty of “ immoral” conduct is likewise a delinquent, but no particular canons of morality are ordained by the statutes. Taken together, the statutes fail to indicate whether the adult offender must have knowledge of the child’s be 33 havior, or that some act of his has contributed to that behavior. The State legislature, apparently conscious of the infirmities of these provisions, amended them by act approved March 20, 1965. The present versions are somewhat more definite in their scope and application and do provide guid ance for a jury by requiring the indictment or information to state the specific act the defendant is charged to have committed (see footnote 2 post). The defect in these statutes is apparent in their use in this case to penalize the parties for the exercise of constitutional rights of association and privacy. The statutes are capable of being used and were here used by state officials to pro mote racial segregation; it is apparent on the record that the real reason for the arrest of ap pellants was the interracial gathering in their apartment (T .35-36). This “ sweeping and im proper application” of the statute, NAACP v. Button, 371 U.S. 415, 433 (1963), its “harsh and discriminatory enforcement by local prosecut ing officials, against particular groups deemed to merit their displeasure . . . ,” Thornhill v. Ala bama, 310 U.S. 88, 97-98 (1940), is clearly be yond the bounds of due process. 34 ill The admission of testimony regarding observa tions by police officers inside a home entered without warrant or probable cause violated the Fourth and Fourteenth Amendments to the Constitution of the United States. The Fourth Amendment’s restrictions upon search and seizure apply through the due process clause of the Fourteenth Amendment to state and local law enforcement officers. Mapp v. Ohio, 367 U.S. 643 (1961). Their conduct is required to satisfy the same standards as were developed in federal criminal cases interpreting the Fourth Amendment. Ker v. California, 374 U.S. 23 (1963). The Constitution requires that government officials obtain a search warrant before entering and inspecting private property in all but a limited number of situations. Weeks V. United States, 232 U.S. 383 (1914). (The State con cedes that the Little Rock policemen had no search warrant at the time they entered the Dokes’ apartment). There are but three classes of exceptions to the requirement of a warrant: searches of moving vehicles upon probable cause, e.g. Carroll v. United States, 267 U.S. 132 (1925); searches justified by the necessity of an 35 emergency, such as the threatened destruction of evidence, Johnson v. United States, 333 U.S. 10, 15 (1948) (d ictum ); or searches incident to a lawful arrest, e.g., United States v. Rabinowitz, 339 U.S. 56 (1950). Only the third category may be fairly said to have a possible application to this case. There was no emergency making impracticable the procurement of a search war rant, no threat of destruction of evidence, as shown by Officer Harris’ delay (while his fellow officers arrived at the project) in proceeding to the Dokes’ apartment. However, the arrests made by the police of ficers were in no way lawful arrests. The testi mony of Officer Parsley shows that they had no arrest warrant. No crime was committed in their presence which would justify a warrantless arrest; nor did they have reason to suspect that they would apprehend a felon in Dokes’ apart ment. Much of what they saw took place prior to the arrest. The State apparently seeks to justify the arrest on the basis of what the police allegedly saw once within the apartment. This it plainly may not do. In Johnson V. United States, 333 U.S. 10 (1948), a Seattle police detective, accompanied by federal narcotics agents, smelled burning opium and knocked at the door of a hotel room from which the odor emanated. At the same 36 time, the men announced themselves as police officers. The door was opened, the only occu pant in the room was placed under arrest, and a search was made which turned up incriminating opium and smoking apparatus which was still warm, apparently from recent use. The district court refused to suppress the evidence, the defend ant was convicted and the conviction affirmed by the Circuit Court of Appeals. The Supreme Court reversed (333 U.S. at 15-17). The Government contends, however, that this search without warrant must be held valid because incident to an arrest. This alleged ground of validity requires examination of the facts to determine whether the arrest itself was lawful. Since it was without a warrant, it could be valid only if for a crime committed in the presence of the arresting officer or for a felony of which he had reasonable cause to believe defendant guilty. The Government, in effect, concedes that the arresting officer did not have probable cause to arrest petitioner until he had entered her room and found her to be the sole occupant. . . Thus the Government quite properly stakes the right to arrest, not on the informer’s tip and the smell the officers recognized before entry, but on the knowledge that she was alone in the room, gained only after, and wholly by reason of, their entry of her home. It was therefore their observations inside of her quarters, after they had obtained admission under 37 color of their police authority, on which they made the arrest. Thus the Government is obliged to justify the arrest by the search and at the same time to justify the search by the ar rest. This will not do. An officer gain ing access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion. Any other rule would undermine “ the right of the people to be secure in their persons, houses, papers and effects,” and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law. Nor may the search be justified by the con flicting testimony concerning Mrs. Dokes’ al leged consent. As one officer stated “ we stopped them and took them back to the apartment” (T. 40). Even when there is conflicting testimony, consent to enter a home is not easily found. In the Johnson case (333 U.S. at 13) the Court found: Entry to defendant’s living quarters, which was the beginning of the search, was demanded under color of office. It was granted in submission to authority rather than as an understanding and in tentional waiver of a constitutional right. Cf. Amos V. United States, 255 U.S. 313. 38 The Court’s words are equally applicable to this case. When no emergency circumstances exist to justify a search without a warrant and regu lar processes are available to obtain search war rants, the courts should not readily sanction an alternative method of search. This is especial ly true when the alternative method so easily lends itself to abuse through both the deliberate action of the police and the fear of individuals in the face of authority. For these reasons the presumption has always been that consent is coerced unless proven otherwise by the police. Judd v. United States, 190 F. 2d 649 (D.C. Cir. 1951); United States V. Roberts, 223 F. Supp. 49, 58 (E.D. Ark. 1963). The Johnson case is controlling. Clearly, appellants’ Motion to Suppress the evidence ob tained by the police officers should have been granted. The denial of the motion taints the convictions with evidence obtained in violation of the Constitution and requires their reversal. The evidence obtained by the illegal entry in this case was the only evidence introduced by the State and thus obviously the conviction must fall. 39 IV The convictions for contributing to the delin quency of a minor violate the due process clause of the Fourteenth Amendment to the Constitution of the United States because no alleged delinquent minor was ever identi fied. Appellants were charged with the crime of contributory delinquency, which was defined by the trial court as causing, encouraging or con tributing to the delinquency of a child. The con ditions under which a child was to be considered delinquent were also stated by the trial court in instruction No. 2. A verdict of guilty was re turned by the jury against both defendants. The trial and the subsequent verdicts were defective in that the State never established at any stage the minor or minors who were alleged to have become delinquent as a result of appel lants’ actions. Appellants were never informed and the jury was never instructed as to the minor or minors whose conduct it should consider in de termining the guilt of appellants. Although there was testimony in the record that several minors were present in appellants’ apartment on the evening of January 30, 1965, there was no evidence (a) that any particular minor was de linquent, (b) that appellants were charged with 40 having contributed to the delinquency of any specific minor, or (c) that the actions of the ap pellants were responsible for the alleged delin quency of any minor. The jury cannot be permitted to draw what ever inferences it desires regarding an essential element of a crime. There must be some evidence to prove every element of that crime Thompson V. City of Louisville, 362 U.S. 199 (1960). In Barr V. Columbia, 378 U.S. 146 (1964) , defendants were convicted in the courts of South Carolina on charges of breach of the peace and trespass. The record established that the Negro defendants had entered a department store and sat down at the lunch counter. They were told by the store manager that he would not serve them, and he asked them to leave. They re mained quietly seated at the counter and were arrested. There was no evidence that they be came violent or disorderly. The Supreme Court reversed: Turning to the merits, the only evi dence to which the city refers to justify the breach-of-peace convictions here, and the only possibly relevant evidence which we have been able to find in the record, is a suggestion that petitioners’ mere presence seated at the counter might possibly have tended to move onlookers to commit acts of violence. . . . Accordingly, we are un- 41 willing to assume and find it hard to be lieve that the State Supreme Court if it had passed on the point would have held that petitioners could be punished for tres pass and for breach of the peace as well, based on the single fact that they had re mained after they had been ordered to leave.. . . Since there was no evidence to support the breach-of-peace convictions, they should not stand. Thompson V. City of Louisville. . . . (378 U.S. at 150-51.) In the instant case, there is no suggestion that the minors in appellants’ home on January 30, 1965, were made delinquent by appellants’ actions. To sustain the convictions under these circumstances would be equivalent to making the mere presence on one occasion of a minor under eighteen years of age in a home in which there is also liquor, conclusive evidence of contributory delinquency on the part of the homeowner. The evidence here shows only that Mr. and Mrs. Dokes tolerated the presence of a number of adults and minors in their apartment. No noise, rowdyism or discourtesy of any kind was found by the of ficers. The appellants did not even offer liquor to their guests who, the record shows, brought their own. 42 V Appellants have been denied due process of law as guaranteed by the Fourteenth Amend ment to the Constitution of the United States because they were convicted upon an information and charge to the jury drawn from statutes rendered inapplicable by amendment prior to their trial. At appellants’ trial in the Circuit Court of Pulaski County on April 8, 1986, the judge in structed the jury, over the objections of the de fense, in accordance with the State’s requested instructions numbers 1 and 2: [No. 1] Any person who shall, by an act, cause, encourage or contribute to the dependency or delinquency of a child, as these terms with reference to children are defined by this act, or who shall, for any cause, be responsible therefor, shall be guilty of a misdemeanor and may be tried by any court in this State having jurisdic tion to try and determine misdemeanors and, upon conviction therefor, shall be fined in a sum not to exceed five hundred dollars ($500.00), or imprisonment in the county jail for a period not exceeding one (1 ) year, or by both such fine and im prisonment. When the charge against 43 any person under this act concerns the de pendency of a child or children, the offense, for convenience, may be termed contribu tory delinquency. Provided, however, that the court may suspend any sentence, stay or postpone the enforcement of execu tion or release from custody any person found guilty in any case under this act when, in the judgment of the court, such suspension or postponement may be for the welfare of any dependent, neglected or de linquent child as these terms are defined by this act, such suspension or postpone ment to be- entirely under the control of the court as to conditions and limitations. [No. 2] T h e words “ delinquent child” shall mean any child, whether mar ried or single, who, while under the age of eighteen (18) years, violates a law of this State; or is incorrigible or knowingly as sociates with thieves, vicious or immoral persons; or without just cause and with out the consent of its parents, guardian or custodian absents itself from its home or place of abode, or is growing up in idleness or crime; or knowingly frequently visits a house of ill-repute; or knowingly frequent ly visits any policy shop or place where any gaming device is operated; or patronizes, visits or frequents any saloon or dram shop 44 where intoxicating liquors are sold; or patronizes or visits any public pool room where the game of pool or billiards is being carried on for pay or hire; or who wanders about the streets in the nighttime without being on any lawful business or lawful oc cupation; or habitually wanders about any railroad yards or tracks or jumps or at- temps to jump on any moving train, or enters any car or engine without lawful authority, or writes or uses vile, obscene, vulgar, profane or indecent language or smokes cigarettes about any public place or about any schoolhouse, or is guilty of in decent, immoral or lascivious conduct; any child committing any of these acts shall be deemed a delinquent child. (T. pp. 73-76) The State’s requested instructions were taken verbatim from former Ark. Stat. Annot. §§45- 239 and 45-204, respectively. However, after the filing of charges against appellants but well before trial, the applicable statutes had been sub 45 stantially revised by the Legislature (Acts 1965, No. 418, approved March 20, 1965).2 2 The statutes now read as follows: §45-239. Persons contributing to delinquency. Any person who shall cause, aid, or encourage any person under eighteen (18) years of age to do or perform any act which if done or performed would make such person under eighteen (18) years of age a “delinquent child” as that term is defined herein, shall be quilty of a misdemeanor. Provided that when any person is charged by indictment or information with a violation of this Act, such indictment or information shall state the specific act with which the defendant is charged to have committed in violation of this Act. Any person convicted of a violation of this section shall be punished by imprison ment for not less than sixty (60) days nor more than one (1) year, and by a fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00). Pro vided, the court may suspend or postpone enforcement of all or any part of the sentence or fine levied under this section if in the judgment of the court such suspension or postponement is in the best interest of any dependent, neglected or delinquent child as these terms are defined in this act. §45-204. Delinquent child. The term “delinquent child” shall mean and include any person under eighteen (18) years of age: (a) Who does any act which, if done by a person eighteen (18) years of age or older, would render such person subject to prosecution for a felony or a misdemeanor; (b) Who has deserted his or her home without good or sufficient cause or who habitually absents himself or herself from his or her home without the consent of his or her parent, step-parent, foster parent, guardian, or other lawful custodian; (c) Who, being required by law to attend school, habitually absents himself or herself therefrom; or (d) Who is habitually disobedient to the reasonable and lawful commands of his or her parent, step-parent, foster parent, guardian or other lawful custodian. Any reputable person may initiate proceedings against a person under eighteen (18) years of age under this Act by filing a petition therefor with the juvenile court. All such proceedings shall be on behalf of the State and in the interest of the child and the State and due regard shall be given to the rights and duties of parents and others, and any person so proceeded against shall be dealt with, protected or cared for by the county court as a ward of the State in the manner hereinafter provided. 46 Appellants have a right to a trial which ac cords in every way with the laws of the State of Arkansas. This right is denied when repealed statutes determine the standards of guilt in a criminal prosecution. Statutory revision is an expression of legislative dissatisfaction with the prior rule and makes mandatory the operation of the new rule in all pending cases. The trial court is not permitted to choose between statutes when one has been repealed for it is the duty of courts to apply the existing law to current cases, and to take cognizance of changes in the law, whether such changes are the result of judicial or legislative action. Clear statute law requires no less. Ark. Stat. Annot. §1-104 provides: No action, plea, prosecution or pro ceeding, civil or criminal, pending at the time any statutory provision shall be re pealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provision had not been re pealed, (except that all proceedings had after the taking effect of the revised stat utes, shall be conducted according to the provisions of such statutes, and shall be, in all respects, subject to the provisions there 47 of, so far as they are applicable.3 (em phasis supplied). Even had the statutes been amended after the entry of judgment in this action, it would be the duty of this Court to reverse and remand the cause for a new trial. In American law, as Mr. Chief Justice Marshall observed long ago, It is in the general true that the province of an appellate court is only to enquire whether a judgment when ren dered was erroneous or not. But if sub sequent to the judgment and before the decision of the appellate court, a law inter venes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be consti tutional . . . I know of no court which can contest its obligation . . . In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside. ( United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1 8 0 1 )); 3 There is no inconsistency between §§1-104 and 1-103 (set forth below), since the latter section is operative only upon statutes which have been completely repealed rather than revised. [§1-1031 When any criminal or penal statute shall be repealed, all offenses committed or forfeitures accrued under it while it was in force shall be punished or en forced as if it were in force, and notwithstanding such repeal, unless otherwise expressly provided in the repealing statute. 48 See also Durnii v. -J. E. Dunn Constr. Co., 186 F. 2d 27, 29 (8th Cir. 1951). As the Court of Appeals for the Fourth Circuit put it in a recent case: “ until a case has been finally adjudicated on direct appeal it is controlled by the most recent statutory and decisional law.” Smith V. Hamp ton Training School, 360 F. 2d 577, 580 (1966). Appellants were entitled to a trial based on existing law. By its failure to apply existing law instead of a repealed statute the trial court committed error and the judgment below should be reversed. VI Appellants have been denied their rights under the Fourteenth Amendment to the Constitution of the United States because their arrest and conviction was motivated by racial consid erations. Police officer Harris, who was responsible for the investigation and arrest of appellants, testified frankly that it was the fact that whites were entering a segregated Negro housing proj ect which motivated his interest. He would have done little or nothing if what he had seen was merely several cars filled with Negroes driv ing onto the grounds of the project (T .35-36). 49 The State is not permitted to accord dif ferent treatment to citizens of different races, cf. Hamilton v. Alabama, 876 U.S. 650 (1964), discussed in Bell v. Maryland, 378 U.S. 226, 248 f.n. 4 (1964) (Douglas, J. concurring). The Fourteenth Amendment restricts state officers or instrumentalities from using their official powers to coerce adherence to segregated customs or practices. Lombard V. Louisiana,, 373 U.S. 267 (1963). Appellants’ rights to the privacy of their home and their right to associate with others of their own choosing, are likewise guar anteed them by the Fourteenth Amendment. Griswold V. Connecticut, 381 U.S. 479 (1965). Appellants’ convictions must, therefore, be reversed, since it is clear that the sole purpose of their arrest and prosecution was to discourage interracial gatherings of any sort, and to deny them the freedom of their home. 50 CONCLUSION Wherefore, for all the foregoing reasons, appellants respectfully submit that the judg ments of the trial court should be reversed and dismissed. Respectfully submitted, D e l e c t o r T il l e r 2305 Ringo Street Little Rock, Arkansas J o h n W . W a l k e r 1304-B Wright Avenue Little Rock, Arkansas J a c k G r e e n b e r g J a m e s M . N a b r it III M ic h a e l M e l t s n e r 10 Columbus Circle New York, New York Attorneys for Appellants