Douglas v. Southern California Independent Living Center Brief Amici Curiae

    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