Maxwell v. Stephens Appendix to Petition for Writ of Certiorari
Public Court Documents
June 30, 1965

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Brief Collection, LDF Court Filings. Maxwell v. Stephens Appendix to Petition for Writ of Certiorari, 1965. e18ad34a-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1c5c7616-8836-4da1-9a3c-f99c206552c6/maxwell-v-stephens-appendix-to-petition-for-writ-of-certiorari. Accessed June 17, 2025.
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IN THE Supreme Okmrt ai tlje States October Term, 1965 No. ............ WILLIAM L. MAXWELL, v. Petitioner, DAN D. STEPHENS, Superintendent of Arkansas State Penitentiary. APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT GEORGE HOWARD, Jr. 3291/2 Main Street Pine Bluff, Arkansas HAROLD B. ANDERSON 205 Century Building Little Rock, Arkansas JACK GREENBERG JAMES M. NABRIT, III MICHAEL MELTSNER LEROY D. CLARK FRANK H. HEFFRON 10 Columbus Circle New York, New York 10019 ANTHONY G. AMSTERDAM 3400 Chestnut Street Philadelphia, Pennsylvania Attorneys for Petitioner I N D E X PAGE Judgment of Court of Appeals ..................................... - la Opinion of Court of Appeals .... ...................................... 2a Opinion of District Court ............................... ................ 30a Opinion of Supreme Court of Arkansas ....................... 55a Initeti g ’tatra ffinurt of Apprala F ob t h e E ig h t h C ib c u it No. 17,729 September Term, 1964 W il l ia m L. M a x w e l l , vs. Appellant, D an D. S t e p h e n s , Superintendent of Arkansas State Penitentiary. APPEAL FBOM THE UNITED STATES DISTBICT COUBT FOB THE EASTERN DISTBICT OF ARKANSAS Judgment of Court of Appeals This cause came on to be heard on the original files of the United States District Court for the Eastern District of Arkansas, and was argued by counsel. On Consideration Whereof, It is now here Ordered and Adjudged by this Court that the Order of the said District Court entered May 6th, 1964 in this cause, denying peti tion for writ of habeas corpus be, and the same is hereby, affirmed, in accordance with majority opinion of this Court this day filed herein. June 30, 1965. Order entered in accordance with majority opinion:— R obert C. T u c k e r Clerk, U. S. Court of Appeals for the Eighth Circuit. 2a UNITED STATES COURT OF APPEALS F ob t h e E ig h t h : C ir c u it Opinion of Court of Appeals No. 17,729 W il l ia m L. M a x w e l l , v. Appellant, D an D. S t e p h e n s , Superintendent of Arkansas State Penitentiary, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS [June 30, 1965.] Before M a t t h e s , B l a c k m u n , and R idge , Circuit Judges. B l a c k m u n , Circuit Judge. William L. Maxwell, a Negro possessing an eighth grade education, stands convicted by a jury in the Circuit Court of Garland County, Arkansas, of the crime of rape, as de fined by § 41-3401, Arkansas Statutes 1947. The offense was committed on November 3, 1961. Maxwell at the time was 21 years of age. The jury did not “render a verdict 3a of life imprisonment in the State penitentiary at hard labor” , as it had the right to do under §§ 43-2153 and 41-3403, and for which it had been given an alternate ver dict form. As a consequence, and in line with the inter pretation consistently given § 43-2153 by the Supreme Court of Arkansas,1 the death sentence was imposed. On appeal the conviction was affirmed. Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963).1 2 Four days before the execution date which was fixed following that unsuccessful appeal Maxwell filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. Judge Young conducted a hearing on the federal constitutional issues raised by that petition. Briefs were filed. The court wrote a detailed opinion denying the relief requested, Maxwell v. Stephens, 229 F.Supp. 205 (E.D. Ark. 1964), but then granted Maxwell’s petition for a certificate of probable cause, as contempla ted by 28 U.S.C. § 2253, and further stayed execution. Except for an early period prior to the state trial when court appointed attorneys were in the case, Maxwell has been represented through all the state and federal pro ceedings by competent, although different, non-court-ap pointed counsel. 1 Kelley v. State, 133 Ark. 261, 202 S.W. 49, 54 (1918); Bullen v. State, 156 Ark. 148, 245 S.W. 493, 494 (1922); Clark v. State, 169 Ark. 717, 276 S.W. 849, 853-54 (1925); Smith v. State, 205 Ark. 1075, 172 S.W.24 248, 249 (1943); Turner v. State, 224 Ark. 505, 275 S.W.2d 24, 31 (1955); Stewart v. State, 233 Ark. 458, 345 S.W.2d 472, 475 (1961), cert, denied 368 U.S. 935. 2 No petition for certiorari was filed with the Supreme Court of the United States. This of course no longer constitutes a failure to exhaust available state remedies. Fay v. Noia, 372 U.S. 391, 435-38 (1963); Curtis v. Boeger, 331 F.2d 675 (8 Cir. 1964). Opinion of Court of Appeals 4a We note, as we have noted before in other cases of this type,8 that Maxwell’s guilt or innocence is not in issue before us. This is still another situation where, as the United States Supreme Court described the posture of an earlier Arkansas case, “ . . . what we have to deal with is not the petitioners’ innocence or guilt but solely the question whether their constitutional rights have been preserved” . Moore v. Dempsey, 261 U.S. 86, 87-88 (1923). The circumstances and details of the crime are, as usual, sordid. They are set forth in the Arkansas opin ion, pp. 114-16 of 370 S.W.2d, and need not be repeated here. It suffices only to say that the victim was a white woman, 35 years old, who lived with her helpless ninety- year-old father; that their home was entered in the early morning by the assailant’s cutting or breaking a window screen; that in the ensuing struggle the victim bit her assailant and caused bleeding; and that she was assaulted and bruised, her father injured, and the lives of both threatened. Confessions taken from Maxwell were not employed at the trial. The defense presented no evidence. The jury was out several hours. No question is raised as to the sufficiency of the evidence. On this habeas corpus appeal Maxwell presses three issues:3 4 * (1) he was denied due process of law and the 3 Bailey v. Henslee, 287 F.2d 936, 939 (8 Cir. 1961), cert, denied 368 U.S. 877; Henslee v. Stewart, 311 F.2d 691, 692 (8 Cir. 1963), cert, denied 373 U.S. 902. 4 Other issues urged in the district court, see pp. 208-09 and 211-12 of 229 F.Supp., but abandoned on this appeal, were the legality of Maxwell’s arrest, the denial of a motion for change of venue, the validity of con fessions taken from him, and the legality of a search of his person and of the clothing which he was wearing. This search produced or revealed a hair, a nylon thread, and blood and seminal stains which tended to identify him as the intruder-assailant. Opinion of Court of Appeals equal protection of the laws, guaranteed by the Fourteenth Amendment, because he was sentenced under statutes wThich are discriminatorily enforced against Negroes; (2) he was denied due process and equal protection because the Garland County jury lists revealed race and were compiled from racially designated poll tax books; and (3) the taking of his coat while he was in custody, and refer ences to it in testimony at the trial,5 violated rights guar anteed to him under the Fourth, Fifth, and Fourteenth Amendments. A. The statute’s enforcement. The argument here is that § 41-3403, which prescribes the death penalty for rape, and § 43-2153, which, since its enactment as Acts 1915, No. 187, § 1, permits a jury in a death punishment case to render a verdict of life imprisonment, although perhaps constitutionally valid on their face, have been discriminatorily enforced against members of the Negro race and in favor of members of the white race. It is claimed that in practice “ Negroes remain liable to the supreme penalty for the crime of rape, but whites, with very rare exceptions, suffer lesser punishments” ; that “there is reason to believe that every person suffering the death penalty has been convicted of a crime against a white woman” ; that “All but two of the men executed for rape since 1913 have been Negroes” ; that Negro de fendants are more likely to be sentenced to death and 6 6 No point is apparently made about the fact the eoat itself (despite a contrary statement in the Maxwell brief) was not introduced in evi dence. In view of this, we do not raise the point on our own accord. We assume that, for present purposes, questions of admissibility are as applicable to testimony concerning the coat as to the coat itself. McGinnis v. United States, 227 F.2d 598, 603 (1 Cir. 1955); Williams v. United States, 263 F.2d 487, 488-89 (D.C. Cir. 1959). See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92 (1920), and Wong Sun v. United States, 371 U.S. 471, 484 (1963). 5a Opinion of Court of Appeals 6a only white women are protected by the deterrence of the supreme penalty; that in Garland County (Hot Springs), Pulaski County (Little Rock), and Jefferson County (Pine Bluff), in the decade beginning January 1, 1954, only three charges were lodged against white men for the rape of Negro women; that one of these resulted in an acquit tal and the other two in reduced charges; that in the same period seven Negroes were charged with raping white women; that of these, two were sentenced to death, three to life imprisonment, one dismissed, and one n.ot apprehended; that “ This history raises serious doubts about the fairness of Arkansas’ system of criminal jus tice” ; that the figures are not to be explained by the pro portion of Negroes in the state’s total population nor by any claim that the crime rate is higher among Negroes, for in the three counties about two-thirds of the rape charges were against white persons; that the proportion of Negroes who receive the death penalty “ cries out for an explanation” ; that race is the answer; and that the state should be required to come forward with a rational explanation. It is further argued that there is no basis for assuming a Negro’s victims have better character than the victims of whites; that differing sentences for Negroes and whites are consistent with Arkansas’ system of justice; that re sponsibility for administration of penalties in rape cases lies with other officials besides juries; that “ it is not what public officials say but what they do which must be deter minative when discrimination is at issue” ; that in Max well’s state court proceedings “ several occurrences under scored the presence of the racial factor” , namely, the use of the term “nigger” , the excuse or successful challenge of the nine Negroes who were called for jury service, and Opinion of Court of Appeals the prosecutor’s reference to the race of the defendant and the victim three times during the state trial “under the guise of requesting the jurors to dismiss the fact from their minds” ; that the state’s laws on segregation and the history of the resistance to desegregation of schools in Little Rock are consistent with the contention that race is a factor in the disposition of rape cases and the im position of the death penalty; that the court erred in re stricting the defense proof of race figures to the three counties; and that, finally, the imposition of the death penalty for rape violates due process in that it is a cruel and unusual punishment. This question of unconstitutionality in application -was raised both in the Supreme Court of Arkansas and in the United States district court. Each tribunal decided the issue adversely to Maxwell. Pp. 117-18 of 370 S.W.2d; pp. 216-17 of 229 F.Supp. There can be no doubt that the equal protection clause of the Fourteenth Amendment and 42 U.S.C. § 1981,6 which implements it, (and, it would appear, Art. 2, § 3, of the Arkansas Constitution)7 operate to invalidate any state statute which would differentiate punishment solely on the basis of race. Virginia, v. Rives, 100 U.S. 313, 318 (1879); Strauder v. West Virginia, 100 U.S. 303, 307 (1879); McLaughlin, v. Florida, 379 U.S. 184, 192-94 (1964); see Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). We recognize, too, that a statute’s discriminatory admin 6 Section 1981. “All persons within the jurisdiction of the United States . . . shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions o f every kind, and to no other.” 7 “ The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity, nor exempted from any burden or duty, on account of race, color or previous condition.” ( a Opinion of Court of Appeals 8a istration or enforcement, dictated solely by considerations of race, runs afoul of the equal protection clause, Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); see Snowden v. Hughes, 321 U.S. 1, 8 (1944). This court has not been insensitive to constitutional claims based upon race. See, for example, Aaron v. Cooper, 257 F.2d 33 (8 Cir. 1958), aff’d 358 U.S. 1; Bailey v. Henslee, 287 F.2d 936 (8 Cir. 1961), cert, denied 368 U.S. 877; and Henslee v. Stewart, 311 F.2d 691 (8 Cir. 1963), cert, denied 373 U.S. 902. “But purposeful dis crimination may not be assumed or merely asserted . . . It must be proven. . . .” , and the burden is on the one asserting discrimination. Swain v. Alabama, 380 U.S. 202, 205, 209 (1965); Tar ranee v. Florida, 188 U.S. 519, 520 (1903). A meticulous review of the entire record in the United States district court and of the entire record in the state court convinces us that no federally unconstitutional ap plication of the Arkansas rape statutes to this defendant has been demonstrated. We reach this result upon the following considerations: 1. The statistical argument is not at all persuasive. The evidence as to the state at large showed that, in the 50 years since 1913, 21 men have been executed for the crime of rape; that 19 of these were Negroes and two were white;8 that the victims of the 19 convicted Negroes were white females; and that the victims of the two con victed whites were also white females. As to Garland County, for the decade beginning January 1, 1954, Max well’s evidence was to the effect that seven whites were 8 Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949) ; Fields v. State, 235 Ark. 986, 363 S.W.2d 905 (1963). Opinion of Court of Appeals 9a charged with rape (two of white women and the race of the other victims not disclosed), with four whites not prosecuted and three sentenced on reduced charges; that three Negroes were charged with rape, with one of a Negro woman not prosecuted and another of a Negro re ceiving a reduced sentence, and the third, the present de fendant, receiving the death penalty. With respect to Pulaski County for the same decade, there were 11. whites (two twice) and 10 Negroes charged, with the race of the victim of two whites and one Negro not disclosed. Three whites received a life sentence. One white was acquitted of rape of a Negro woman. One received a sentence on a reduced charge, two were dismissed, two cases remained pending, one was not prosecuted, and the last was ex ecuted on a conviction for murder.9 Of the Negroes, three with white victims and two with Negro victims received life. One case was dismissed, one was not arrested, two with Negro victims were sentenced on reduced charges, and one, Bailey, with a white victim, was sentenced to death. In Jefferson County eight Negroes were charged, with the cases against five dismissed, another dismissed when convicted on a murder charge, and two receiving sentences on reduced charges. Sixteen whites were charged. One was charged three times with respect to Negro victims and as to two of these charges received five years suspended on a guilty plea. Two others re ceived three year sentences. One is pending, one was 9 Leggett v. State, 227 Ark. 393, 299 S.W.2d 59 (1957); Leggett v. State, 228 Ark. 977, 311 S.W.2d 521 (1958), cert, denied 357 U.S. 942; Leggett v. Ilenslee, 230 Ark. 183, 321 S.W.2d 764 (1959), cert, denied 361 U.S. 865; Leggett v. State, 231 Ark. 7, 328 S.W.2d 250 (1959) ; Leggett v. State, 231 Ark. 13, 328 S.W.2d 252 (1959) ; Leggett v. Kirby, 231 Ark. 576, 331 S.W.2d 267 (1960). Opinion of Court of Appeals 10a executed,10 and the rest were dismissed. The race of four defendants was not disclosed; three of these cases were dismissed and one is pending. The complaint as to the federal court’s restricting the statistical inquiry to three counties was not preserved by objection or offer of proof and there is no claim here that material from the State’s remaining counties would be any more significant than that of the three counties pre sented. These facts do not seem to us to establish a pattern or something specific or useful here, or to provide anything other than a weak basis for suspicion on the part of the defense. The figures certainly do not prove current dis crimination in Arkansas, for in the last fourteen years the men executed for rape have been two whites and two Negroes. The circumstances of each rape case have par ticular pertinency. We are given no information as to how many Negroes and how many whites, after investiga tion, were not charged. Note Hamm v. State, 214 Ark. 171, 214 S.W.2d 917 ((1948), where a Negro convicted of rape of a white woman received a life sentence. Turning to the three county statistics, we find no death sentence at all in Garland County in the 1954-1963 decade until Maxwell’s case. We also find that of the two other Negroes charged, one was not prosecuted and the other was sentenced on a reduced charge. In Pulaski County we have about the same number of whites and Negroes charged, with only one death penalty, albeit in an inter racial case, and one acquittal, also in an interracial case. But members of both races, three whites and five Negroes (three interracial), received life sentences. In Jefferson Opinion of Court of Appeals 10 Fields v. State, supra, 235 Ark. 986, 363 S.W.2d 905 (1963). 11a Comity we find few convictions for either race but one white man with a white victim was executed. 2. The defense argument goes too far and would, if taken literally, make prosecution of a Negro impossible in Arkansas today because of the existence in the past of standards which are now questionable. This would effect discrimination in reverse. The fact that this court has concluded that certain Arkansas procedures did not meet constitutional standards as interpreted by the Supreme Court (see Bailey v. Henslee, supra, 287 F.2d 936, and Henslee v. Stewart, supra, 311 F.2d 691, but compare Moore v. Henslee, 276 F,2d 876 (8 Cir. I960)) does not mean that this former defect must permeate all subse quent proceedings in the state so as to render them un constitutional. We pointed this out, as to jury selection, in Bailey v. Henslee, supra, p. 943 of 287 F.2d, where we said, “ Discriminatory selection in prior years does not nullify a present conviction if the selection of the jury for the current term is on a proper basis” , and where we noted the Supreme Court’s comment, in Brown v. Allen, 344 U.S. 443, 479 (1953), that “ Former errors cannot in validate future trials” . 3. The “ nigger” references, while unfortunate, are only two in number and no objection was made to either. Both were at the state court hearing on defense motions when no jury was present. One was by the then superintendent of the state penitentiary. The other was the prosecutor’s reference to “white persons or nigger persons” . Through out the balance of that hearing, throughout the entire state court trial, and throughout the federal habeas corpus Opinion of Court of Appeals 12a proceeding, although race is necessarily mentioned many times, not one other instance of this kind appears. 4. The other race references, complained of by the de fense, are three in number. The first was in the prose cutor’s opening statement to the jury: “ I want to ask you first and tell you that it is your duty, and the Court will so instruct you, to put from your mind any thought of race. Ladies and Gentlemen, race has nothing to do with it . . .” . The other two were of like import in his clos ing argument. We find no error in these three references. On their face they are as indicative of complete fairness as of unfairness. No point is raised as to tone of voice, attitude, or demeanor. The race of both the victim, who testified, and of Maxwell, who of course was present in court, was obvious. The comments, as we read them in context in the cold record, could well be deserving of com mendation, rather than condemnation. 5. The fact that in this particular case the nine Negroes who appeared for jury service were all excused for cause by the court (three) or peremptorily challenged by the prosecution (six) and, as a consequence, the petit jury was all white, is not an unconstitutional result. Swain v. Alabama, supra, 380 U.S. 202, 209-22 (1965); Hall v. United States, 168 F.2d 161, 164 (D.C. Cir. 1948), cert, denied 334 U.S. 853; United States ex rel. Dukes v. Sain, 297 F.2d 799 (7 Cir. 1962), cert, denied 369 U.S. 868. See Frazier v. United States, 335 U.S. 497, 507 (1948). 6. We are aware of the comments of three Justices, at 375 U.S. 889-91, dissenting from the Supreme Court’s de nial of certiorari in Rudolph v. Alabama, 275 Ala. 115, 152 Opinion of Court of Appeals 13a So.2d 662 (1963). The dissenters would have had the Court consider in that case whether the Eighth Amend ment,11 with its prohibition of “ cruel and unusual punish ments” , and the Fourteenth “ permit the imposition of the death penalty on a convicted rapist who has neither taken nor endangered human life” . It is to be observed that the record before us reveals that the rapist of the victim here was evidently not one who failed to endanger human life. He struck and injured a helpless and aged man, he bruised the victim and he threatened to kill both. Despite whatever personal attitudes lower federal court judges as individuals might have toward capital punish ment for rape, any judicial determination that a state’s (in this case, Arkansas’ ) long existent death-for-rape stat ute (it has been on the books since December 14, 1842) imposes punishment which is cruel and unusual, within the language of the Eighth Amendment and, by refer enced inclusion, violative of due process within the mean ing of the Fourteenth Amendment, must be for the Su preme Court in the first instance and not for us. See Ralph v. Pepersack, 335 F.2d 128, 141 (4 Cir. 1964). B. The selection of the petit jury. The defense argu ment here is that due process and equal protection have been denied Maxwell because the petit jury list was com piled from a racially designated poll tax book and be cause the jury list itself indicated race. This argument was not advanced in the state court proceedings. In Arkansas petit jurors are selected from electors. Ark. Stat. 1947, § 39-208. Electors are persons who cur- 11 11 The Arkansas Constitution, Art. 2, § 9, also reads: “ Excessive bail shall not be required, nor shall excessive fines be im posed; nor shall cruel or unusual punishment be inflicted; nor wit nesses be unreasonably detained.” Opinion of Court of Appeals 14a rently have paid the State’s poll tax. Ark. Const., Art. 3, § 1; Ark. Stat. § 3-104.2. The statutes require that the official list, bound as a book, of a county’s poll tax payers, § 3-118, and the poll tax receipts, § 3-227(b), specify color. In contrast to the situation in the district court, pp. 213-16 of 229 F.Supp., no issue is raised here as to any deficiency in the efforts or methods of the jury commis sioners, as to underrepresentation of the Negro race in the Gerland County jury lists, or as to any pattern of Negro repeaters on the juries. In Bailey v. Henslee, supra, p. 940 of 287 F.2d, we out lined at footnote 5 the methods prescribed by the Arkan sas Statutes for the selection of jury commissioners and of jurors and, at pp. 941-45, we set forth, with extensive citations, the applicable general principles relative to race in jury selection. We cited four United States Supreme Court cases of particular pertinence. Norris v. Alabama, 294 U.S. 587 (1935); Smith v. Texas, 311 U.S. 128 (1940) ; Avery v. Georgia, 345 U.S. 559 (1953); and Eubanks v. Louisiana, 356 U.S. 584 (1958). In Henslee v. Stewart, supra, p. 694 of 311 F.2d, we again referred to the same principles and the same cases. To that list of four Su preme Court opinions one should now add Arnold v. North Carolina, 376 U.S. 773 (1964), where, with a substantial proportion of Negroes in the county and on the poll tax list but only one on a grand jury in 24 years, the Court held that a prima facie case of equal protection denial had been established, and Swam v. Alabama, supra, 380 U.S. 202, 205-09 (1965), where the Court held that there was no “ forbidden token inclusion” and that a prima facie case of discrimination had not been made out when Negro representation on jury panels was existent though less than the percentage of Negro males in the county, when Opinion of Court of Appeals 15a there was an average of six to seven Negroes on petit jury venires in criminal cases although no Negro had actually served on a petit jury since 1950, and when an identifiable group in a community is underrepresented by as much as ten percent. See, also, Coleman v. Alabama, 377 U.S. 129 (1964). In both Bailey and Stewart we concluded that the facts, in the aggregate, established a prima facie case of im proper limitation of Negroes in the selection of a petit jury panel. Among the several factors which led to our conclusion in both Bailey and Stewart were the circum stances that the poll tax receipt carried, with other in formation, the color of the taxpayer and that the jury commissioners themselves affixed race identification marks to their lists. We mentioned, p. 947 of 287 F.2d, p. 695 of 311 F.2d, that this presented “a device for race identi fication with its possibility of abuse” . We do not reach the same conclusion here. Our reasons are the following: (1) There is no proof that the jury list was compiled from the poll tax list. Each jury com missioner specifically testified otherwise and asserted that a proposed list was first independently prepared and that the racially designated poll tax book was consulted only thereafter. It had to be consulted, of course, in order to ascertain that the persons tentatively selected were quali fied electors. (2) Although the list of petit jurors formally transmitted by the jury commissioners to the clerk of court possessed, at the time of the habeas corpus hearing, a small handwritten “c” after eight of the 36 names thereon, exclusive of alternates, there was no positive evidence as to when those leters were affixed or by whom. The list had been compiled two months before the crime with which Maxwell was charged. Each commissioner Opinion of Court of Appeals 16a denied making the identifying marks. (3) The clerk testified that he had no personal recollection whether, when he opened the list, it had any marks as to color; that he was not certain he had placed the marks on the list; that sometimes he did this for his own information and for newspapers; and that on most lists the jury com missioners did indicate race. Even the defense attorneys here had examined this particular list prior to the habeas corpus hearing. (4) None of the commissioners recalled the presence of race marks in the poll tax books. Each justified this conclusion on the ground that the marks were insignificant and unimpressive. (5) for what it is worth, one of the jury commissioners here was a Negro. The clerk testified that, with the exception of one or two terms, there has been a Negro jury commissioner for every term of court in Garland County in the last nine years. In the light of these facts, we cannot conclude that the selection of this particular petit jury was unconstitution ally discriminatory. The use of race identification marks is, of course, under principles presently espoused, and as we noted in Bailey and again in Stewart, most disturbing. Whether the Arkansas statutory provisions requiring race identification on poll tax receipts and on the poll tax books are unconstitutional is a question not yet finally resolved. Hamm v. Virginia State Bd. of Elections, 230 F.Supp. 156, 157-58 (E.D. Va. 1964), summarily aff’d. sub nom. Tancil v. Woolls, 379 U.8. 19, appears to cast some doubt on their validity. Yet that opinion also states that race designations in certain records may serve a useful and lawful purpose. Until these Arkansas statutory require ments are nullified or repealed it is to be presumed that local officials must and will comply with them. The pres Opinion of Court of Appeals 17a ent action is not one to restrain such compliance. Per sons desiring that result have the right to seek it. In the meantime, we cannot say that, because the poll tax re ceipts and books designate race, it necessarily follows that every jury list in Arkansas is automatically uncon stitutional. So to conclude would ignore the important possibility of initial selection being made, as here, inde pendent of the poll tax list. The Arkansas system may presently be imperfect but “an imperfect system is not equivalent to purposeful discrimination based on race” . Swain v. Alabama, supra, p. 209 of 380 U.S. We hold that the manner of selecting this particular petit jury list avoided any constitutional obstacle which might be in herent in the state statutes requiring race identification. This makes it unnecessary to consider the argument (strenuously urged by Stephens and upheld by the Dis trict Court, pp. 212-13 of 229 F.Supp., as an alternative ground) that Maxwell waived any objection to the petit jury panel and did so within the permitted scope of Fay v. Noia, supra, 372 U.S. 391, 438-40 (1963). C. The coat. As has been noted, the controversial coat was not introduced in evidence at the state court trial. Witnesses, however, made references to it in their testi mony. Maxwell, of course, has standing to complain of these references. Jones v. United States, 362 U.S. 257, 265-67 (1960). The facts here are important: The offense took place at approximately three o’clock in the morning of November 3, 1961. It was raining and wet. The victim was promptly taken by the police to a hospital. At the hospital she de scribed her assailant to Captain Crain of the Hot Springs Opinion of Court of Appeals 18a Police Department and to Officer 0. D. Pettus, a Negro. She stated that the man had told her he was Willie C. Washington. Two persons with that name, senior and junior, were brought before her but she identified neither. She described her attacker in greater detail. Pettus there upon suggested that it might have been Maxwell. Officer Childress, who was on car patrol duty and in uniform at the time, was directed by radio to pick up Maxwell. He went to the Maxwell home. The defendant’s mother, then age 38, answered his knock. He told her he wanted to talk to William. She let him enter, checked to see if her son was in, and led Childress to the bedroom occupied by Maxwell and two younger sons. Childress told Maxwell he wanted to talk to him down town and asked him to dress. Childress testified that Maxwell went to the closet for clothes that were hanging there in a wrapper, and that he asked him “ to put on these other clothes here that he had on” . The latter were wet. Maxwell testified that he was told to put on the clothes he had on that night, that he went to the closet to get these, that he was then told to put on the clothes folded on the chair, that he was going to takes those clothes to the cleaners, and that they were not his. Maxwell was taken to the hospital and before the vic tim. She at first did not identify him as her attacker but witnesses described her as visibly disturbed and shak ing when he stood before her. She later said she had recognized him but feared for her life if she identified him. Maxwell was taken from the hospital to the police station. Both sides admit that the exact times and place of Maxwell’s arrest “ is not entirely clear from the record” . Opinion of Court of Appeals 19a It might have been at the home at about four a.m. or shortly thereafter at the hospital. Captain Crain, with Officer Timms, went to the Maxwell home about five a.m. to get, as he testified at the habeas corpus hearing, “ some more clothes that we thought might help us in our investigation of this ease” or, as he testi fied at the trial, “I was looking for a particular object . . . I wanted what he was wearing that night” . They had no search warrant. Mrs. Maxwell permitted them to enter. They were in uniform. The testimony is in con flict as to whether Mrs. Maxwell was then informed of any charge against her son; Crain said he so advised her but she stated, “He didn’t say nothing about no rape case” . (The district court found she had been so ad vised). She directed the officers to the clothes closet. The blue coat in question was obtained from that closet. It was eventually sent to the FBI laboratory. At the trial there was expert testimony that fibers in the coat matched others found on the victim’s pajamas and on part of a nylon stocking picked up near the scene of the crime, and that fibers in the pajamas matched those found on the coat. Mrs. Maxwell was understandably upset at the times the officers called at her home. In the margin we quote her testimony as to both the first call12 and the second * I Opinion of Court of Appeals 12 “ . . . it was late and I was asleep and someone knocked on the door and I woke up and I asked who was it and he said the policeman and I went to the door to let him in. He asked me did I have a son here by the name of William and I told him yes and he just come on in, he didn’t have a search warrant or anything and I let him. I didn’t know any better myself but I—I didn’t know that he—you know, everything was all right, my children were at home and all and I just let him in.” 20a call.13 Maxwell’s father worked at night and was not home when the officers called. At the habeas corpus hearing Maxwell admitted that he had been adjudged guilty of two counts of petit larceny in 1958 and of federal post office charges in the same year. We thus have a situation where the Maxwell home was twice visited by officers within two hours after the very crime was committed, where the second visit was within an hour of the first, where the officers were in uniform, where they were permitted access to the home by the mother, where on the second visit she pointed out the closet where the coat was, and where the accused, with his brothers, was still living with his parents in that home. The district court held, pp. 209-211 of 229 F.Supp., that the taking of the coat violated no Fourth Amendment rights of Maxwell because his mother freely gave her con sent and had the authority so to consent and because, upon all the circumstances, any search and seizure here was reasonable. The parties are agreed, of course, that the Fourth Amendment’s restraints against unreasonable searches and seizures are now applicable to the states under the due process clause of the Fourteenth Amendment and are to be measured by standards which govern federal cases, Mapp v. Ohio, 367 U.S. 643 (1961); K er v. Cali fornia, 374 U.S. 23, 33 (1963); Aguilar v. Texas, 378 U.S. 108, 110 (1964) ; Linkletter v. Walker, . . . U.S____(1965), I 13 “ I opened the door and I was afraid to not let them in because— you know— when they said they were police officers—well, you just—I’ve just always— I just let the poliee officers in because I just feel like he is for peace and all, and I just—I don't know, I didn’t know anything— I never been in anything like this and I just let them in and I still didn’t think anything, didn’t any of those officer have any search warrant or anything, didn’t show me anything like that.” Opinion of Court of Appeals 21a and that the Fifth Amendment’s guaranty against self incrimination, through the Fourteenth, is also applicable to the states and upon federal standards.14 Malloy v. Hogan, 378 U.S. 1, 8, 11 (1964). The parties are not in agreement, however, as to whether what was done here was incident to a lawful ar rest, see Preston v. United States, 376 U.S. 364 (1964), or, if not, as to whether it was justified because of emer gency or exceptional circumstances. We pass these is sues and move on to the questions whether there was a consent by Mrs. Maxwell and, if so, whether her consent was a curative factor. Although a consent freely and intelligently given by the proper person may operate to eliminate any question otherwise existing as to the propriety of a search, Honig v. United States, 208 F.2d 916, 919 (8 Cir. 1953); Burge v. United States, 332 F.2d 171, 173 (8 Cir. 1964), cert, denied 379 U.S. 883; Burnside v. Nebraska, . . . F.2d . . . (8 Cir. 1965), the defense argues that there is a presumption that a consent is coerced unless proved otherwise by the government and that the facts here—the early morning calls at the Maxwell home, the presence of men clothed with the uniform of authority, the confrontation of a Negro mother by white police, and her obvious concern Opinion of Court of Appeals 14 The Fifth-Fourteenth Amendment argument as to self-incrimination, although possibly embraced in the language of the first amendment to the petition for writ of habeas corpus (where it was alleged that the police searched Maxwell’s room “and obtained clothing belonging to petitioner without a search warrant, without the consent of petitioner and without the consent of petitioner’s parents” ), was apparently not pressed before the district court and is really asserted for the first time only on this appeal. Because of this we could choose to ignore it here. Sutton v. Settle, 302 F.2d 286, 288 (8 Cir. 1962), cert, denied 372 U.S. 930; Hunting- ton v. Michigan, 334 F.2d 615, 616 (6 Cir. 1964); Trujillo v. Tinsley, 333 F.2d 185 (10 Cir. 1964). But this is a capital case and, without our doing so regarded as a precedent, we consider this point on the merits. 22a and confusion— “militate against finding voluntary con sent” . We recognize that it has been said that the government has the burden to establish the legal sufficiency of a con sent. Judd v. United States, 190 F.2d 649, 651 (D.C. Cir. 1951); United States v. Page, 302 F.2d 81, 83-84 (9 Cir. 1962). Nevertheless, the existence and voluntariness of a consent is a question of fact. United States v. Page, supra, p. 83 of 302 F.2d. And Judge Young specifically found that there was a consent here and that it was volun tary. We cannot say that his finding was either errone ous or unsupported by substantial evidence. United States v. Page, supra, p. 85 of 302 F.2d; Davis v. United States, 328 U.S. 582, 593 (1946); United States v. Ziemer, 291 F.2d 100, 102 (7 Cir. 1961), cert, denied 368 U.S. 877; McDonald v. United States, 307 F.2d 272, 275 (10 Cir. 1962). The record clearly discloses no concealment of identity, no discourtesy, no abuse or threat, and no ruse or force exerted by the officers. It contains testimony that Mrs. Maxwell showed and directed them to the closet where her son’s clothes were. On cross-examination she herself conceded that she permitted the officers to enter and to obtain the coat. She fully cooperated. She and her husband were both present throughout the state court trial, sat with their son at the counsel table, and heard, with no indication of opposition, the testimony of the officers as to how the coat was obtained with her permis sion. All this adequately supports the court’s finding of voluntary consent. Roberts v. United States, 332 F.2d 892, 897 (8 Cir. 1964). The factual situation is different than that of Pekar v. United States, 315 F.2d 319, 325 (5 Cir. 1963), urged by Maxwell here, or the implied coercion Opinion of Court of Appeals 23a referred to in Amos v. United States, 255 U.S. 313, 317 (1921). What, then, is the effect of this voluntary consent on the part of Maxwell’s mother! We recognize, of course, that constitutional rights are not to depend upon “ subtle distinctions, developed and refined by the common law in evolving the body of private property law” . Jones v. United States, supra, 362 U.S. 257, 266 (1960). But this is not a case of property right distinctions. The defense concedes that Mrs. Maxwell possessed a proprietary in terest in the house; that Maxwell himself only shared a room there with his two younger brothers; and that no landlord-tenant relationship existed between Maxwell and his parents. Mrs. Maxwell had control of the premises, undiminished by any kind of a less-than-fee interest pos sessed by Maxwell. This fact stands in contrast to the hotel or rental situations.16 See Stoner v. California, 376 U.S. 483 (1964); United States v. Jeffers, 342 U.S. 48 (1951); Lustig v. United States, 338 U.S. 74 (1949); Chap man v. United States, 365 U.S. 610 (1961); McDonald v. United States, 335 U.S. 451 (1948); Klee v. United States, 53 F.2d 58 (9 Cir. 1931). The situation strikes us as being no different, factually, than if Mrs. Maxwell herself had brought the coat, it being properly in her possession, to the authorities. They came to the home, it is true, but they obtained the coat by freely allowed access to the house, by freely given directions as to its location, and by freely permitted acquisition of it by the officers and de parture with it in their hands. Roberts v. United States, 16 But even in these situations abandonment (not present here) while the rental term is not yet expired overcomes any obstacle presented by a rental relationship. Abel v. United States, 362 U.S. 217, 240-41 (1960); Feguer v. United States, 302 F.2d 214, 248-49 (8 Cir. 1962), cert, denied 371 U.S. 872; Roberts v. United Stat&s, 332 F.2d 892, 898 (8 Cir. 1964). Opinion of Court of Appeals 24a supra, 332 F.2d 892, 896-97 (8 Cir. 1964); Burge v. United States, 342 F.2d 408, 413-14 (9 Cir. 1965); Rees v. Peyton, 341 F.2d 859, 861-63 (4 Cir. 1965); United States v. Guido, 251 F.2d 1, 3-4 (7 Cir. 1958), cert, denied 356 U.S. 950; Woodard v. United States, 254 F.2d 312 (D.C. Cir. 1958), cert, denied 357 U.S. 930; Fredrickson v. United States, 266 F.2d 463, 464 (D.C. Cir. 1959); Morales v. United States, . . . F.2d . . . (9 Cir. 1965); United States ex rel. McKenna v. Myers, 232 F.Supp. 65, 66 (E.D. Pa. 1964). See United States v. Maroney, 220 F.Supp. 801, 805-06 (W.D. Pa. 1963); Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769 (1923) ; Irvin v. State, . . . Fla. . . ., 66 So.2d 288, 293 (1953), cert, denied 346 U.S. 927. But the defense argues that this coat was Maxwell’s personal effect and clothing; that it could not be picked up or acquired in any manner, even with a valid search warrant, without his consent; and that it was evidentiary material not the proper subject of a search. Gouled v. United States, 255 U.S. 298 (1921) and Holzhey v. United States, 223 F.2d 823 (5 Cir. 1955) are particularly cited. Whatever force might otherwise lie in the facts that the coat was clothing personal to Maxwell (and thus presum ably an “ effect” within the meaning of the Fourth Amendment), that it was not contraband or an article the possession of which is illegal, or an instrumentality or fruit of the crime, or capable of possible use to effect his escape, see Harris v. United States, 331 U.S. 145, 154 (1947); United States v. Lefkowitz, 285 U.S. 452, 463-66 (1932); Agnello v. United States, 269 U.S. 20, 30 (1925); Honig v. United States, supra, pp. 919-20 of 208 F.2d, this argument overlooks the consent to the officers’ acquisition of the coat by a person having the proprietary interest in the premises where it was. If there was a search here at Opinion of Court of Appeals 25a all, it was not a general search, and certainly it was not a search violative of a locked container or the like. Rob erts v. United States, supra, p. 898 of 332 F.2d. Compare United States v. Blok, 188 F.2d 1019, 1021 (D.C. Cir. 1951); Holzhey v. United States, supra, p. 826 of 223 F.2d. It was an item which freely came into the hands of the authorities by one who had the right to make it available to them. See Haas v. United States, 344 F.2d 56, 57-60 (8 Cir. 1965), where this court upheld the seizure, in a search pursuant to a lawful arrest, of a defendant’s grey suit which fit the description of clothing worn by a bandit and Irvin v. State, supra, p. 293 of 66 So. 2d. Compare Williams v. United States, supra, 263 F.2d 487. The situation therefore appears to us to be one not involving any unreasonable search or seizure within the prohibition of the Fourth, Fifth, and Fourteenth Amendments. Reasonableness, after all, is the applicable standard. United States v. Rabinoivitz, 339 U.S. 56, 63 (1950) ; Sartain v. United States, 303 F.2d 859, 862-63 (9 Cir. 1962), cert, denied 371 U.S. 894. Neither are we impressed with any suggestion that the testimonial references to the coat were in any way a fur ther violation of Maxwell’s right not to be compelled physically to be a witness against himself, within the meaning of the Fifth and Fourteenth Amendments. The description of the coat and what was found on it wms ob jective evidence from the mouths of witnesses who saw or who investigated. The coat is in no different category than the contours of Maxwell’s face, the color of his hair, the description and the nature and condition of the clothes he wrnre, and his very size and color. Holt v. United States, 218 U.S. 245, 252-53 (1910); Caldwell v. United States, 338 F.2d 385, 389 (8 Cir. 1964). Opinion of Court of Appeals 26a The district court’s denial of the petition for habeas corpus is therefore affirmed. Where life is concerned a conclusion of this kind may involve a personal reluctance for judges. We deal, however, with statutory provisions which are not our province, at least not yet (see Rudolph v. Alabama, supra, 375 U.S. 889), to change. Maxwell’s life therefore must depend upon different views enter tained by the Supreme Court of the United States or upon the exercise of executive clemency. Opinion of Court of Appeals R idge, dissenting: I agree with the disposition made in the majority opin ion of appellant’s assignments of error 1 and 2, as raised in this appeal. I cannot agree with the ruling and disposition made in respect to assignment of error 3, i.e. the search and seiz ure issue. . . the taking of appellant’s “ coat” from his place of abode by police officers under the factual circum stances related in the majority opinion. As I view the facts in the majority opinion and those appearing in Maxwell v. State, 370 S.W.2d 113 (Ark., 1963); and Maxwell v. Stephens, 229 F.Supp. 205 (E.D. Ark., 1964), I think it is readily apparent that the search of appellant’s place of abode and seizure of his “blue coat” were made under factual circumstances which reveal the same to be in violation of his Fourth Amendment rights made obligatory on the States by the Fourteenth Amendment to enforce. I find fortification for that conclusion from the opinion and decision of the Court of Appeals of Kentucky, as made in Elmore v. Commonwealth (Ky.), 138 S.W.2d 956 (1940), where that Court considered a factual situation in 27a a rape ease, which are on all fours with those appearing in the case at bar and ruled the seizure there made to be unlawful under federal constitutional standards. In adjudging the validity of the search and seizure issue here, the starting point begins with appellant’s arrest. Hence I consider the constitutionality thereof must be measured by a consideration of the following facts: When Police Officer Childress first went to appellant’s home he did so for the purpose of taking appellant into custody. At that time he told appellant, “he (Childress) wanted to talk to him downtown, and asked him to dress . . .” and “to put on (the) clothes he had on” previously that night, “which were wet.” Under compulsion of Chil dress’ command, appellant dressed. I find no reasonable ground for hesitancy in determining Maxwell was then placed under arrest, cf. State v. King, 84 N.J. Super. 297, 201 A.2d 758. Concededly, no search was then made by Officer Childress to seize appellant’s coat incident to his arrest. That appellant did not voluntarily leave his home in company with Officer Childress is manifest, cf. Judd v. United States, 190 F.2d 649 (D.C. 1951). One or two hours thereafter, Capt. Crain and Officer Timms went to the Maxwell home, without a search war rant, and took possession of appellant’s “blue coat” under circumstances as related in the majority opinion. The conversation those two police officers then had with appellant’s mother does not raise a question of credibility. The only issue presented thereby is whether “consent” as claimed by the State was freely given to those officers to search the Maxwell home, and whether appellant’s mother had power of possession to release appellant’s per sonal belongings to the custody of such officers. Opinion of Court of Appeals 28a I do not consider the conversation appellant’s mother had with Capt. Crain and Officer Timms to have any pro bative value in making a determination of the validity of the search and seizure made by those officers. Mere ac quiescence in the apparent authority of a police officer is not usually considered consent, cf. Dukes v. United States, 275 Fed. 142 (4 Cir., 1921); United States v. Marquette, 271 Fed. 120 (N.D. Calif., 1920). What was then said by appellant’s mother “was but showing her respect for and obedience to the law and she was not consenting to the search regardless (of lack of a) search warrant.” Stroud v. Commomvealth (Ky.), 175 S.W.2d 368, 370, citing Amos v. United States, 255 U.S. 313 (1921); and Elmore v. Com monwealth, supra. As the majority opinion notes, the validity of arrest and search and seizure here must be determined by reasonableness in light of the particular circumstances revealed. I consider the factual circum stances in the case at bar reveal “ implied coercion.” Admittedly, the coat that was seized was the personal property of appellant. Being under arrest at the time he was taken from the place of his abode, where the coat was then situate, the only reasonable inference is that he did not voluntarily place possession of his coat in his mother or anyone else. No one can waive his constitutional right to assert his right of possession thereof. The search here made was not incident to his arrest. To be legal, the seizure of appellant’s coat could only have been validly made without a search warrant at the time appellant was arrested by Officer Childress. His other clothing was so seized. Respondent’s argument that this search and seizure was lawful because of possible destruction of evidence, and “ inability to secure issuance of a search warrant,” is hoi- Opinion of Court of Appeals 29a Opinion of Court of Appeals low, indeed. Appellant was then under arrest. There is no evidence that his mother had any knowledge that his coat might be material to any offense for which her son was arrested. The only possible inference I can make is that she first gleaned knowledge of the cause of his arrest from Capt. Crain or Officer Timms during the time the illegal search and seizure here considered was made. It is not contended that Childress told her why appellant was being taken “downtown” , cf. Foster v. United States (8 Cir., 1960), 281 F.2d 310. I would reverse the judgment below. IN THE UNITED STATES DISTRICT COURT E aste rn D is tr ic t of A r k a n sa s P in e B l u f f D iv isio n No. PB 64 C 4 Opinion of District Court W il l ia m L. M a x w e l l , -v - Petitioner, D a n D . S t e p h e n s , Superintendent of Arkansas State Penitentiary, Respondent. M e m o r a n d u m of O p in io n This habeas corpus proceeding is brought by William L. Maxwell, a Negro male, age 24, who was convicted for the crime of rape in the Circuit Court of Garland County, Arkansas, on March 21, 1962, and sentenced to death. The conviction was affirmed by the Arkansas Supreme Court in the case of Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963), and following a denial of petition for rehearing the date of execution was scheduled for January 24, 1964. No application for certiorari was made to the United States Supreme Court. The instant action was filed on January 20, 1964, alleging that the state court conviction was ob tained in violation of petitioner’s constitutional rights guaranteed by the Fourteenth Amendment to the United States Constitution. Petitioner was permitted to amend 31a his petition twice and a hearing was held on the petition, as amended, on February 12, 1964, as well as on February 27, 1964, at which time the testimony was concluded. Peti tioner and respondent have submitted briefs in support of their respective contentions. Throughout the state court proceedings, petitioner was represented by Mr. Christopher C. Mercer, Jr., a capable attorney experienced in this type of litigation.1 Subsequent to the state court proceedings, and prior to this action, pe titioner obtained the services of his present counsel who now represent petitioner in this habeas corpus proceeding. The question of Maxwell’s guilt is not now before this court. Cf. Henslee v. Stewart, 311 F.2d 691 (8th Cir. 1963) ; Bailey v. Henslee, 287 F.2d 936, 939 (8th Cir. 1961). The circumstances of the crime and the evidence against Max well are fully discussed by the Arkansas Supreme Court in Maxwell v. State, supra, 236 Ark. 696-700, 370 S.W.2d 114-116. The only issue which now confronts this court is whether Maxwell’s federal constitutional rights, in the particulars relied upon, were preserved in the state court action. The alleged violations of petitioner’s constitutional rights, in substance, are that: (1) Petitioner was illegally arrested and there was an unlawful search and seizure of his home and person; (2) Petitioner was tried in a hostile atmosphere; (3) Racial discrimination was practiced in the selection of the jury which tried petitioner; (4) There has been an unconstitutional application and enforcement of Ark.Stat. § 41-3403 (1947) against petitioner, and the death 1 Mr. Mercer is a graduate of the University of Arkansas School of Law and was one o f the attorneys who represented Lonnie Mitchell in a habeas corpus proceeding. Mitchell v. Henslee, 208 F.Supp. 533 (E.D.Ark. 1962) rev’d per curiam Case No. 17,208, 332 F.2d 16 (8th Cir. May 4, 1964). Opinion of District Court 32a penalty upon conviction for rape provided by this statute is a “cruel and unusual” punishment contrary to the basic concepts of a civilized society. In this opinion, the Court will deal with these issues in the order mentioned. I . T h e A rrest an d S earch The offense with which petitioner was charged occurred about three o’clock in the morning of November 3, 1961. Approximately one hour later, petitioner was taken into custody by police officers at his parents’ home where he lived. This was done on the basis of information and de scriptions given by the victim to a Negro police officer, O. D. Pettis, now deceased. Sometime around five o’clock that morning police officers Captain Crain and Officer Timms made a trip back to petitioner’s home in order to obtain some clothing belonging to petitioner allegedly worn during the commission of the offense; and another trip was made by Office Timms later that same morning in order to obtain a change of clothing for petitioner since arrange ments had been made for the clothes allegedly worn by petitioner during the rape, and which petitioner put on when taken into custody, to be sent to the laboratory of the Federal Bureau of Investigation in Washington, D. C. When petitioner was taken into custody he was viewed by the victim at a local hospital and subsequently identified as the assailant. Thereupon, petitioner was incarcerated in the City Jail and held until later during the afternoon or evening of November 3rd, when he was taken to the County Jail in nearby Malvern, where petitioner remained until November 6th. Petitioner signed a written confession while at the County Jail in Malvern and made another confes sion later in Hot Springs. Petitioner was then returned to the city of Hot Springs, where on November 7, he was Opinion of District Court 33a formally charged by information with the crime of rape under Ark.Stat. §41-3401 (1947). No warrant for petitioner’s arrest was issued prior to November 7th when petitioner was formally charged, and a warrant to search petitioner’s home was never procured. On November 3rd, while petitioner was held at the Hot Springs City Jail, police officers combed petitioner’s hair and obtained a nylon thread from his hair, as well as a specimen of his hair. The police officers obtained clothing from petitioner’s person, as well as his home. Petitioner was not permitted to see his parents or a lawyer, and ac cording to petitioner, he was mistreated and coerced into signing a confession. Petitioner now argues that the ar rest, and the search of his person and home were illegal and constitute a violation of his constitutional rights. (a) Petitioner’s Arrest Without A Warrant [1] The lawfulness of petitioner’s arrest without a war rant must be determined by the law of Arkansas, subject to the test of reasonableness under the Fourth and Four teenth Amendments to the United States Constitution. Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1962). In Arkansas, it is provided by statute that an arrest without a warrant is authorized where the arresting officer has reasonable grounds for believing that the person arrested has committed a felony. See Ark.Stat. § 43-403 (1947). The Arkansas Supreme Court has held that where a felony has in fact been committed, an arrest without a warrant may be made where the officer has reasonable grounds to suspect the particular person arrested. Carr v. State, 43 Ark. 99 (1884). Knight v. State, 171 Ark. 882, 286 S.W. 1013 (1926). Lane v. State, 217 Ark. 114, 229 Opinion of District Court 34a S.W.2d 43 (195(X). Trotter and Harris v. State, 237 Ark. 820, 377 S.W.2d 14 (1964). At the time of petitioner’s arrest, the fact that a felony had been committed was clearly established. Miss Stella Spoon had been brutally raped and her 90 year old father with whom she resided had been mercilessly struck and left bleeding when he attempted to aid her. Miss Spoon had given a description of her assailant to Officer Pettis, the Negro city policeman, and had further told him that her assailant had said that his name was “Willie C. Wash ington” .2 The first suspects brought to the hospital for Miss Spoon to identify were Willie C. Washington, Sr., Willie C. Washington, Jr., and another Negro. Miss Spoon told Officer Pettis that none of these individuals was her assailant, but she gave Pettis some additional descriptions which she was better able to do by comparison of her attacker with Willie C. Washington, Jr. Officer Pettis then indicated to Miss Spoon and the other policemen in her room that he knew the identity of her assailant. Petitioner was then taken into custody and was the next person brought to Miss Spoon’s hospital room for her to identify. When petitioner was brought into Miss Spoon’s hospital room, according to the testimony of Officer Timms at the state court trial, Miss Spoon “ * * * started shaking and drawing herself up and shaking real bad,” 3 but she did not then identify petitioner as her attacker. When asked by petitioner’s counsel in the state court trial why she did not immediately in her room identify petitioner as her as sailant, Miss Spoon responded: “Because I had been 2 The details of the identification are set out in the transcript of Miss Spoon’s testimony taken at the hearing on the habeas corpus proceeding. See also Record, Vol. II, pp. 286-290, Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963) (hereinafter cited as State Court Record). 3 State Court Record, Vol. II, pp. 312 and 313. Opinion of District Court 35a threatened, my father had been threatened. I don’t know legal procedure, I didn’t know whether they could hold him or not, and if he happened to break and get loose or some thing, he would do like he said he would, just get a gun and come back and kill us. I didn’t know how long I wras going to stay in that hospital.” * On direct examination, Miss Spoon testified that there was not any possible doubt in her mind that petitioner was her attacker.6 [2] The conclusion is compelling that petitioner was ar rested with reasonable cause and that therefore the arrest without a warrant was lawful under the circumstances. The police were benefited by a description given by Miss Spoon as to the size, complexion and clothes of her assailant. Officer Pettis was undoubtedly familiar with the Negro community. He had seen petitioner that night on the avenue and his description matched the one given by Miss Spoon. Petitioner, known to the police as “Plunk” , had previously experienced difficulties with the police, and peti tioner personally knew Officer Pettis. His home was near the place of attack, as well as the victim’s home. (b) The Search of Petitioner’s Person [3, 4] It is settled law that a search of the person or premises incident to a lawful arrest is permissible. Preston v. United States, 84 S.Ct. 881 (1964). Iver v. California, supra. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948). United States v. Iacullo, 226 F.2d 788 (7th Cir. 1955). See also Commonwealth v. Holmes, 344 Mass. 524, 183 N.E.2d 279 (1962), and cases collected in Annot., 89 A.L.R.2d 715, 780-801 (1963). Since 4 5 Opinion of District Court 4 State Court Record, Yol. II, p. 280. 5 State Court Record, Yol. II, pp. 263, 264, and 268. 36a the arrest without a warrant was lawful under the circum stances, it follows that the evidence obtained from the clothes removed from petitioner’s body and the thread and hair taken from petitioner’s head were not illegally ob tained. See United States v. Iacullo, supra, 226 F.2d at 792, discussing United States v. Di Re, 332 U. S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); and Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958). United States v. Cole, 311 F.2d 500 (7th Cir. 1963), cert, denied 372 U.S. 967, 83 S.Ct. 1092, 10 L.Ed.2d 130 (1963). The items obtained from petitioner at the Hot Springs City Jail, i. e., a hair from his head, a strand of nylon thread found in his hair, and his clothing, were necessary to a thorough investigation of the offense with which peti tioner was charged and the obtaining of these items in the course of the investigation was a reasonable procedure un der the circumstances. According to Miss Spoon’s report, her attacker had worn a nylon stocking on his head which came off as the attacker attempted to pull it over his face. The police had found a nylon stocking near the victim’s house in the vicinity where the attack had occurred. Fur thermore, the clothing worn by petitioner had seminal stains, as well as blood stains. These items, along with others, were sent to the Federal Bureau of Investigation laboratories in Washington, D. C., for scientific analysis. (c) The Search of Petitioner’s Home Petitioner argues that the police officers conducted an illegal search and seizure in obtaining a blue coat from his home after petitioner was arrested. The coat was ob tained by Captain Crain from petitioner’s mother and it was used as evidence in the state court trial. (Certain clothes obtained by Officer Timms from petitioner’s mother Opinion of District Court 37a on a second trip back to the house were merely a con venient change of clothes for the ones obtained from peti tioner at the City Jail and were not used as evidence.) Admittedly, the blue coat was obtained without a search warrant. In the state court trial, Captain Crain testified that he obtained the coat with the permission of petitioner’s mother, and this was not disputed at the state court trial despite the fact that petitioner’s mother was in the court room and heard this testimony.6 At the hearing on the instant peti tion, Captain Crain again testified that he explained to petitioner’s mother that he wished to get the clothes worn by petitioner that night and that she took him to peti tioner’s room and showed him the closet where the coat was hanging. Captain Crain informed petitioner’s mother that petitioner had been accused of committing rape. Peti tioner’s mother, age 40, testified that petitioner lived there with his parents and occupied a room with his two brothers. At the time of the search, petitioner’s father was at work and petitioner’s two brothers were in bed asleep. Peti tioner’s mother further stated in substance at the hearing on the instant petition that she did not know anything about a search warrant and did not object to the police coming into her home since she did not think anything was wrong and there was no reason not to cooperate. On cross- examination, petitioner’s mother stated: “I didn’t never say that I didn’t grant permission.” The evidence not only reflects that petitioner’s mother freely and voluntarily consented to the police officer taking the coat, but she also cooperated with the officer to the extent that she showed the officer where the coat was lo Opinion of District Court 6 State Court Record, Vol. II, pp. 333 and 334. 38a cated. The coat was obtained less than an hour after peti tioner was arrested. The search itself was not a general exploratory search of the entire house, nor was it a rigorous search. The police officer simply requested to see the clothes which petitioner had worn that night and petitioner’s mother permitted the police to enter her house and accom panied the police to petitioner’s room and directed them to the closet. The analysis made by the Federal Bureau of Investigation at the laboratory in Washington, D. C., es tablished that the blue-black woolen fibers in the nylon stocking found near Miss Spoon’s house, as well as the blueblack fibers found in Miss Spoon’s pajamas, came from this coat taken from the closet.7 [5-7] Of course, petitioner’s state court conviction can not be based upon evidence obtained in violation of the Fourth Amendment to the United States Constitution and contravening the Fourteenth Amendment due process clause. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, the protection of the Fourth Amendment prohibits only those searches which are “ unreasonable” . United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); and a search and seizure are not deemed to be unreasonable and therefore unlawful if based upon a valid consent freely and understandably given. Foster v. United States, 281 F. 2d 310 (8th Cir. 1960). See also United States v. Roberts, 223 F.Supp. 49 (E.D.Ark.1963). Yet, ultimately, the reasonableness of any search depends upon the facts and circumstances of each case. United States v. Rabinowitz, supra, 339 U.S. at 63, 70 S.Ct, 430, 94 L.Ed. 653. Opinion of District Court 7 State Court Record, Vol. II, p. 359. 39a It would unduly burden this opinion to attempt to analyze the many cases involving consent to a search and seizure of property or evidentiary material. These cases are fully discussed by Chief Judge Henley in United States v. Rob erts, supra, 223 F.Supp. at 58 and 59, in which the court ob serves that there is no hard and fast rule but rather the determination in each case is based upon a consideration of all of the surrounding facts and circumstances, includ ing the validity of the consent. Only recently, the United States Supreme Court in Stoner v. California, 84 S.Ct. 889 (1964) rejected the argument that the search of a hotel room, although conducted without the consent of the ac cused, was lawful because it was conducted with the consent of the hotel clerk. Similarly, the Supreme Court has refused to permit the unlawful search of a hotel room to rest upon the consent of the hotel proprietor, Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949), or a hotel manager, United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); and a search of a tenant’s room with the consent of the owner of the house has been held un constitutional, Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), as well as a search of an occupant’s room in a boarding house, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). However, all of these cases are distinguishable from the instant case in which petitioner merely shared a room with his two brothers in his parents’ home. In Stoner v. California, supra, the Supreme Court dis cussed the argument that the search of the defendant’s room was justified by the hotel clerk’s consent and con cluded : “ It is important to bear in mind that it was the peti tioner’s constitutional right which was at stake here, Opinion of District Court 40a and not the night clerk’s nor the hotel’s. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis what soever to believe that the night clerk had been author ised by the petitioner to permit the police to search the petitioner’s room.” (emphasis added) [8] The evidence adduced at the hearing on this peti tion, as well as the record from the state court trial, clearly and positively establishes that petitioner’s mother freely, voluntarily, intelligently and understandingly consented to and authorized the search made by Captain Crain to obtain the blue coat. The search was made in her home at a time when the premises were under her sole control and she had the right to exclude whomever she chose, even including the petitioner. Petitioner’s mother had the authority to permit the police or anyone else to enter petitioner’s room and examine the clothes in the closet. In the language of the Supreme Court in Stoner, the police did have a “basis * * * to believe that * * * [petitioner’s mother] *' * * had been authorized by the petitioner to permit the police to search the petitioner’s room.” This is true not because of any agency based upon the mother-son relationship, but rather because petitioner’s mother, unlike petitioner himself, had the sole control, power and, at the time, the superior right to exclude others from not only her home but also from the very room which petitioner shared with his two brothers, and it was her free and voluntary choice to permit the po lice to enter and search the closet. Opinion of District Court 41a It is the holding of this Court that the blue coat taken by Captain Crain was obtained by a lawful search and seizure, and petitioner’s contention to the contrary is rejected. However, the propriety of the search and seizure need not rest solely upon the consent given by petitioner’s mother. The lawfulness of this search and seizure is based upon a consideration of all of the facts and circumstances sur rounding the search and seizure which, in the opinion of the Court, establish that from a realistic and practical standpoint there was nothing unfair, unreasonable or op pressive in the conduct of the police in the performance of the search and seizure of the blue coat. The consent given by petitioner’s mother, the demeanor and actions of Captain Crain in informing petitioner’s mother of exactly what was sought, as well as informing her of the charge against petitioner, the orderly investigation of only the closet in her presence without any protest whatsoever— all of these things taken in the aggregate compel this Court to the conclusion that the police acted fairly and reasonably, and did not violate petitioner’s constitutionally protected rights against an unreasonable search and seizure. (d) The Alleged Mistreatment and Coerced Confessions [9] It is true, as now argued, that when petitioner was taken into custody and incarcerated in the City Jail he was not permitted to see his parents or a lawyer. Maximum precautions were taken by the police primarily because the City Jail was a converted military jail which furnished poor security and there had been numerous escapes from this jail in the past. In fact, part of the jail was secured merely by a cyclone fence. Petitioner testified at the hear ing on the instant petition that he was mistreated by the police officers and that he was coerced into making a con Opinion of District Court 42a fession in Hot Springs, as well as one in Malvern. This statement that the confessions were coerced was sharply disputed by the testimony of the police officers. Neither confession was used as evidence in the state court trial and all of the evidence there relied on was obtained prior to the time when petitioner allegedly made either of the two confessions. Petitioner’s conviction was in no way based upon any confession or information obtained there from. Therefore, any attempt to determine whether the confessions were voluntary is unnecessary.8 II. A dverse A tm o sp h e r e [10] Petitioner relies principally on the testimony of Kenneth Adair to support the contention that the atmos phere which existed in Garland County prior to and during the trial was so hostile and adverse that petitioner did not receive a fair trial. Mr. Adair, a Negro newspaper pub lisher in the city of Hot Springs who followed petitioner’s trial daily and who contributed funds for the bringing of this habeas corpus proceeding, testified that there was a “ tense atmosphere and some talk of mob violence.” Irving S. Stephenson, a Negro businessman and former Garland County jury commissioner called as a witness by respon dent, also testified that there was an “ adverse atmosphere” . On the other hand, Darfus Henry, a Negro businessman who was one of the jury commissioners for the jury em paneled for the trial of petitioner’s case in state court, testi fied that there wras not a hostile atmosphere at the time. In the state court proceeding, petitioner requested a change of venue on the alleged ground that he could not 8 Neither of these confessions were introduced into evidence at the hear ing on the instant petition. Opinion of District Court 43a obtain a fair and impartiai trial in Garland Comity. Ac cordingly, a hearing was scheduled and Dan Wolf, Mayor of the City of Hot Springs, and Diiffie Searcy, the Sheriff of Garland County, were called by petitioner to testify at the hearing, which was held pursuant to Ark.Stat. § 43-1502 (1947). Mayor Wolf, a resident of Hot Springs off and on for about thirty years, stated that he had talked to “ both the colored people and the white people” in the area and it was his opinion that petitioner could get a fair and im partial trial in Garland County.9 Similarly, Sheriff Searcy, a resident of Garland County for fifty-one years, stated that petitioner could get a fair and impartial trial in Garland County.10 These were the only witnesses called to testify at the hearing, and the request for a change of venue was denied. Obviously such a heinous crime as perpetrated against Miss Spoon would arouse some public sentiment. How ever, the evidence produced at the hearing on this petition falls far short of the contention now urged in this regard. Cf. Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923). On the contrary, the undisputed evidence at the state court hearing established that petitioner could get a fair and impartial trial in Garland County, and the volu minous record of the state court proceeding reflects that petitioner did in fact receive such a trial. III. S elec tio n of t h e J u ry Petitioner contends that there was racial discrimination practiced in the selection of the jury which was empaneled to try his case in the state court. This argument was not raised at any time in the state court proceeding, notwith 9 State Court Record, Vol. I, p. 97. 10 State Court Record, Vol. I, p. 102. Opinion of District Court 44a standing the fact that the record in this proceeding dis closes the attorney who represented petitioner throughout the state court action, Mr. Chris Mercer, was well aware of the constitutional right against jury discrimination on the basis of race, and checked the jury list, ascertained the identity of the jury commissioners, knew the percentage of Negroes in the area, noticed some repeaters, knew about the racial designations on some of the names, was fully familiar with the practice of quashing jury panels on the ground of racial discrimination, and, in fact, discussed the jury panel with petitioner, and, further, filed several mo tions directed at other aspects of alleged unconstitutionality of the state court proceeding. [11] It would reasonably appear that it was, in the language of Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the “ considered choice” of petitioner deliberately not to raise this argument of jury discrimina tion, and, therefore, there was a waiver of the right to make this argument now. In Fay v. Noia, supra, 372 U.S. at 438 and 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837, the United States Supreme Court stated: “ * * * The federal habeas judge may in his discretion deny relief to an applicant who has deliberately by passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. “ * * If a habeas applicant, after consultation with competent counsel or otherwise, understanding^ and knowingly forewent the privilege of seeking to vin dicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state Opinion of District Court 45a procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits—though of course only after the federal court has satisfied it self, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default, (cita tion omitted) At all events we wish it clearly under stood that the standard here put forth depends on the considered choice of the petitioner. * * * ” (empha sis added) However, even assuming arguendo that petitioner has not waived the right to present this argument, it is the view of this Court that this argument that there was racial dis crimination in the selection of the jury panel in petitioner’s state court trial is without merit. [12, 13] Petitioner’s right to a trial by “ impartial jury” is guaranteed, Ark. Const. Art, 2, § 10; and discrimination on the basis of race or ancestry in the selection of persons for service on grand or petit jury panels is clearly violative of the equal protection clause of the Fourteenth Amend ment to the United States Constitution. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950). The ques tion of whether or not racial discrimination has been prac ticed in the selection of a jury panel is a question of fact, and it is the duty of a federal court to make independent inquiry into such alleged discrimination and determine whether a federal right has been denied. Bailey v. Henslee, supra, 287 F.2d at 943. In Bailey v. Henslee, supra, Judge Blackmun discussed at length the alleged jury discrimination practiced in Pulaski County Circuit Court, enumerating some nine fac tors, and, on page 947 of 287 F.2d concluded: Opinion of District Court 46a “ * * * Here there appears to be a definite pattern of race selection; here there is a device for race iden tification with its possibility of abuse; here there is ex clusion from the alternate panels and from the special panels actually used; here there is an element of recur rence of the same Negro names; and here there is the additional factor, for what atmosphere it may provide, of exclusion from the civil divisions’ panels.” It is the position of petitioner that the “ racial discrimina tion in the selection of jurors in Garland County, Arkansas, presents a stronger case than the evidence presented in the Bailey case.” Few, if any, of the items enumerated by Judge Blackmun in Bailey appear in the selection of the jury which tried petitioner in state court. The regular jury panel present for the trial consisted of 27 people, two of whom were Ne groes, and the alternate panel present also consisted of 27 people, seven of whom were Negroes. All of these jurors had been selected by three capable jury commissioners: Mr. Jeff Davis Bradley, a lifelong resident of Garland County and grocer in a rural community; Mr. Wayne R. Chitwood, a lifelong resident and local businessman who operated an automobile agency; and Mr. Darfus Henry, a local Negro businessman who operated a barber shop in the Negro business district of the City of Hot Springs. There had always been at least one Negro jury commis sioner for the past few years. According to the testimony of Mr. Darfus Henry, the Negro Jury Commissioner, the jury panel which served at petitioner’s trial, and which was selected for the Septem ber 1961 term of the Garland County Court approximately two months before the crime was committed, was selected Opinion of District Court Opinion of District Court by each jury commissioner making a list of names of per sons who in the judgment of the respective jury commis sioner were suitable for jury service.11 The jury commis sioner then checked the lists of names against the poll tax books in order to determine whether or not the prospective jurors were qualified voters.11 12 Finally, the lists were cheeked against a list of jurors who had served within the past two years to make sure that they were not disqualified to serve for that reason.13 Mr. Henry stated that he se lected some of the Negroes on the jury panel and the other commissioners selected some more. This testimony was cor roborated by the other two jury commissioners, Mr. Brad ley and Mr. Chitwood. The jury commissioners testified that they did not recall that the poll tax book furnished them had any racial desig nation of electors, i. e., the letter “ c” . While they appar ently are in error about this fact,14 it certainly seems that in the procedure used by them in selecting the jury panel it fairly appears that the racial designation did not affect in any way their selection of the jurors who served on the jury panels. The petit jury list from petitioner’s state court trial re flects racial designations by the letter “ c” following the names of some, but not all, of the Negroes on the list. The jury commissioners testified that this designation was not made by them. Mr. Sherlon Hilliard, the Circuit Court Clerk, could not state positively that he had placed the racial designations on the list but he did testify that he 11 Qualifications of jurors are generally set out in Ark.Stat.Ann. § 39-101—39-116 (1947). 12 Ark.Stat.Ann. § 39-101 (1947). 13 Ark.Stat.Ann. § 39-225 (1947). 14 Ark.Stat.Ann. § 3-227(b) (1947) requires the racial designation on the poll tax records. 48a often so designated the race of the jurors listed after the lists were prepared because he nearly always had requests from the local newspapermen, as well as attorneys, as to the Negro jurors on the panel. The jury commissioners further testified that they each selected Negroes, along with other prospective jurors, whom they knew and felt would be suitable for jury ser vice, but that they made no special effort to acquaint them selves with other Negroes of Garland County who may have been qualified to serve as jurors. Petitioner points to this fact as evidence of discrimination and cites Cassell v. Texas, supra, wherein Mr. Justice Reed stated at page 289 of 339 U.S., at page 633 of 70 S.Ct., 94 L.Ed. 839. “When the commissioners were appointed * * * it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors # * * without regard to race and color. * * * ” (emphasis added) Petitioner would lead this Court to believe that since the jury commissioners did not make a special effort to ac quaint themselves with the qualified Negro electors, they did not discharge “their duty to familiarize themselves fairly with the qualifications of eligible jurors.” This con clusion is a non sequitur since if the jury commissioners had singled out a particular group on the basis of race there clearly would have been a selection of jurors with regard to race instead of without regard to race. It is the view of this Court that in the selection of the jury em paneled to serve at the trial of petitioner’s case, the lan guage of Mr. Justice Reed in Cassell v. Texas, supra, was fulfilled to the letter and the spirit by the jury commis sioners, Mr. Bradley, Mr. Chitwood and Mr. Henry, who each in their varied occupations had a wide acquaintance of Garland County, and by force of their varied occupa Opinion of District Court 49a tions were reasonably familiar with the residents of Gar land County, both those who were qualified electors and those not qualified; and, the Court is of the opinion that the jury commissioners did in fact select a jury panel “without regard to race or color” . It was clearly stated in Bailey by Judge Blackmun that “ * * * Discriminatory selection in prior years does not nul lify a present conviction if the selection of the jury for the current term is on a proper basis. ‘Former errors cannot invalidate future trials.’ [citing Brown v. Allen, 344 U. S. 443, 479, 73 S.Ct. 397, 418, 97 L.Ed. 469 (1953)]” Bailey v. Henslee, supra 284 F,2d at 943. However, in order to avail petitioner of every reasonable opportunity to estab lish the alleged jury discrimination, petitioner was per mitted to introduce into evidence at the hearing on the instant petition copies of the jury records of Garland County, Arkansas, for the past 28 consecutive terms of the Garland County Circuit Court, dating from the March 1949 term to the September 1963 term. It would unduly burden this opinion to attempt to discuss in detail these records. It is the view of this Court that the exhibits summarizing these records do not establish the racial dis crimination in the selection of the jury, as petitioner now' argues. [14] The figures compiled by petitioner, and quoted in his brief on page seven, indicate that almost 14% of the persons who served on the regular petit jury panels from March 1949 to September 1963 in the Garland County Circuit Court were Negroes. However, this figure is based on the number of Negroes so designated by race, and it is undisputed that not all Negro jurors were designated by race. Hence, even the figure of 14% represents slightly Opinion of District Court 50a less than the actual percentage of Negroes participating in jury service. Unlike many counties in Eastern Arkan sas, Garland County is not heavily populated by Negroes. Petitioner established by the testimony of Mr. Floyd Bryan, an accountant in the Auditor’s Office of the State of Arkansas, that the percentage of qualified Negro electors residing in Garland County has numbered from 10% to 11% over the years. [15] Admittedly, proportional representation of races on a jury is not a constitutional requisite, Cassell v. Texas, supra at 286 of 339 U.S., 70 S.Ct. 629, 94 L.Ed. 839 and a disproportion in the number selected does not even estab lish racial discrimination in the selection of a jury. Bailey v. Henslee, supra, 287 F.2d at 942, citing Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945). Now, petitioner in support of his argument of jury dis crimination urges this Court to consider statistics which reflect the proportionate number of Negroes available for jury service in comparison with the proportionate number of Negroes who actually served as jurors, i. e., 10%—11% :14%. In short, a far greater proportion of qualified Negroes have served as jurors in Garland County for the past 28 consecutive terms of court than actually, in fact, reside there. Obviously, it does not follow from these statistics that Negroes have been racially discriminated against in the selection of jurors during this period. Petitioner further argues that from these records cover ing 28 consecutive terms of court, there is a recurrence of Negroes on the juries, and this evidence of “repeaters” establishes a pattern of limiting the participation of Negro electors for jury duty. Undoubtedly, over a period of 28 consecutive terms there might be a recurrence of some Opinion of District Court 51a individuals serving as jurors, particularly in a county no larger than Garland County.15 16 The fact that Mr. Darfus Henry, as well as Mr. Emmett Harris, served as a juror for three terms over his period of approximately fourteen years, and further that some Negroes from the same im mediate family were called during the same term do not establish, as petitioner contends, any pattern of limiting the Negro participation in jury service. Petitioner has failed to furnish an accurate picture of the existence of repeaters generally, assumming there are others, as com pared to Negro repeaters; and hence the significance, if any, of petitioner’s statistics cannot be fairly determined. The proof falls far short of establishing what petitioner now argues in this regard. I V . A lleged I I n c o n s t it u t io n a l it y of t h e A r k a n sa s R ape S ta tu te [16] Petitioner argues the unconstitutionality of the statute under which he was convicted. This statute, Ark. Stat. § 41-3403 (1947), provides in substance that any person convicted of rape shall suffer the punishment of death or life imprisonment. It is petitioner’s contention that this statute has been so applied in Arkansas that Negro men who are convicted of rape upon white women “usually” receive the death sentence, whereas white men and Negro men who commit rape upon Negro women “usually” receive a lesser sentence than death. Thus, petitioner con tends that Negro men are denied equal protection of the law, and cites Pace v. Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207 (1882), and People v. Friedman, 341 U.S. 15 According to the statistics furnished by Mr. Floyd Bryan, an account ant employed in the State Auditor’s office, the total number of qualified electors in Garland County was slightly less than 20,000 for each of the years 1957 and 1959. Opinion of District Court 52a 907, 71 S.Ct. 623, 95 L. Ed. 1345 (1951), both of which were discussed briefly by the Arkansas Supreme Court when this argument was made on appeal and decided adversely to petitioner. Maxwell v. State, supra, 236 Ark. at 701 and 702, 370 S.W.2d at 117 and 118. In the state court proceeding, prior to the trial, a hear ing was held on petitioner’s motion to declare Ark.Stat. § 41-3403 (1947) unconstitutional in its application. In support of its motion petitioner relied on the Arkansas State Penitentiary records of criminal executions from September 5, 1913 through October 28, I960.16 At the hearing held on the instant petition, petitioner was also permitted to introduce evidence from the Circuit Clerks, the Prosecuting Attorneys, and the Sheriffs of Garland, Jefferson, and Pulaski County, Arkansas, as to the number of rape prosecutions in these counties and the disposition of these prosecutions for the period of January 1, 1954, through January 1, 1964. Petitioner now relies on all of this evidence to establish the unconstitutionality of this statute, as alleged. It would serve no useful purpose to discuss the exhaus tive statistics compiled by petitioner regarding the rape prosecutions as shown by the records examined of the three counties. While the court records are complete, the information obtained from the prosecuting attorney’s office and from the sheriff’s office of these counties is not, due to the fact that such records for an extended period of time have not been preserved in these offices. However, considering all of the documentary evidence introduced by petitioner, as well as the testimony offered, and giving 16 These statistics are detailed in the record and discussed fully by the Arkansas Supreme Court in Maxwell v. State, 236 Ark. 694, 701, 370 S.W.2d 113 (1963). Opinion of District Court 53a the petitioner every favorable inference reasonable from this evidence, it is the view of this Court that petitioner has failed to establish the unconstitutional application of Ark.Stat. §41-3403 (1947). [17] Assuming that it is true, as petitioner contends, that Negro men in these three counties for the period in question who were convicted for raping a white woman were sentenced to death, whereas white men and Negro men who allegedly raped Negro women were either not charged or given a lesser charge than rape, the fact re mains that the choice of punishment in a capital case is within the province of the jury, Ark.Stat. Ann. § 43-2153 (1947). It is a matter of common knowledge that the legal defense of consent is always an obstacle to a rape prose cution and the moral character of the prosecuting witness is almost always in issue. The statistics compiled by peti tioner represent a rather naive attempt to ascertain why a rape conviction was sought in one case and yet not in another. Petitioner apparently does not now contend that jury verdicts in rape prosecutions are based on racial discrimination, and there is certainly no evidence in the record to warrant this conclusion. On the contrary, each of the prosecuting attorneys called as a witness by peti tioner stated under oath that thej ̂ have prosecuted all cases, including charges of rape, without regard to race. It is the view of this court that petitioner has failed to establish that Ark.Stat. §41-3403 (1947) is unconstitu tional in its application, as alleged. Ironically enough, petitioner and one Charles Franklin Fields, a white man whose conviction for the crime of rape under this statute was affirmed by the Arkansas Supreme Court in Fields v. State, 235 Ark. 986, 363 S.W.2d 905 (1963), were both scheduled to be executed at the Arkansas State Peniten Opinion of District Court 54a tiary on January 24, 1964. Fields was executed on that day. [18] Finally, petitioner has contended that the imposi tion of the death penalty on a charge of rape contravenes the Eighth and Fourteenth Amendments to the United States Constitution for the reason that such a penalty conflicts with the basic concepts of fairness and right to civilized societies. Petitioner relies solely on the dissent ing opinion in the denial of certiorari by the United States Supreme Court in Rudolph v. Alabama, 275 Ala. 115, 152 So.2d 662 (1963), cert, denied 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963). Suffice it to say that the alleged unconstitutionality, on the theory advanced, must rest upon the pronouncement of the majority and not the dissent. The petition will be denied. Opinion of District Court 55a Opinion of Supreme Court of Arkansas W il l ia m L. M a x w e l l , Appellant, v. T h e S ta te of A b k a n s a s , Appellee. No. 5057 Supreme Court of Arkansas. May 27, 1963. O sbo C obb, Special Associate Justice. 1. This is a criminal case wherein appellant was charged, under Ark.Stat.Ann.1947, See. 41-3401, with the commis sion of the offense of rape. Prior to 1915 conviction for this offense carried a mandatory death penalty. By Act No. 187 of 1915 (Ark.Stat.Ann.1947, Sec. 43-2153) the mandatory death penalty wras removed as to all capital offenses and the jury trying the accused was authorized to bring in a verdict of guilty and life imprisonment in the State penitentiary in lieu of the death penalty, if it so desired. 2. At the conclusion of this trial the court provided the jury with three forms of verdicts, as follows: (1) Not guilty; (2) Guilty with life imprisonment; (3) Guilty as charged. After several hours of deliberation the jury re turned verdict No. 3, making the death sentence manda tory. Such a sentence was pronounced upon the appellant 56a on April 5, 1962. Execution of appellant has been stayed pending review of the case here on appeal. [1] 3. We have painstakingly examined the entire record. We have considered on its merits every motion made on behalf of appellant and denied by the trial court and we have considered on its merits every objection inter posed by counsel for appellant to which adverse rulings were made by the court. In capital cases the formal saving of exceptions to adverse rulings is unnecessary. Ark.Stat. Ann.1947, Sec. 43-2723. I . S u f f ic ie n c y of t h e E vidence [2] The offense involved was committed on November 3, 1961. Within a matter of hours appellant was taken into custody. State and Federal authorities collaborated in a thorough investigation of the crime and on November 7, 1961, appellant was formally charged by the filing of a criminal information. Appellant makes no complaint as to the circumstances of his arrest or as to the promptness of the State’s attorney in filing the information against him. Miss Stella Spoon, age 35, lived with her aged and helpless father at 108 Nichols Street in the city of Hot Springs, in Garland County. Near 3:00 a. m. on November 3, 1961, she was aroused by an unusual noise. Clad only in her pajamas, she went into the living room. She saw the form of a man at the window engaged in cutting or breaking the screen. She warned the intruder to leave or she would call the police. The man kept trying to force the screen and she ran to her telephone in the same room to call the police. Almost in the same instant the man burst through the window. Miss Spoon had dialed the operator before she was violently seized and the receiver Opinion of Supreme Court of Arkansas 57a knocked from her hand. The telephone operator, hearing the screams, connected the line to police headquarters, where an officer heard the screams and the struggle, traced the call, and dispatched officers to the scene. Once inside the home, the intruder subjected Miss Spoon to a literal nighmare of brutality and abuse. She fought and struggled, but to no avail. She struck the intruder with a purse. When he forced his hand over her mouth to silence her screams she bit his finger, causing it to bleed. Her helpless father tried to aid her, but was struck and left bleeding. She tried to escape through the front door, but was caught. Her attacker kept threatening to kill her and her father as well. She was dragged and forced out side the house without shoes, and while clad only in her pajamas was forced to a remote spot some two blocks from her home, where battered, bruised, bleeding and exhausted she was overpowered and compelled against her will to suffer a deliberate and calculated rape of her person. After the ravage of her person had been accomplished, and be fore fleeing, her attacker threatened to kill her and her father if she told. Testimony establishing the identity of appellant as the attacker is clear and emphatic. At the window he had a part of a nylon stocking on his head, with a knot in it. When he appeared to try to quickly jerk it down over his face it came off. A piece of nylon hose was found near the home of the victim and the FBI Laboratory at Wash ington, D. C., found in said nylon hose specimens of hair similar in every detail to that of appellant. A thread of nylon combed from appellant’s head was found to be exact in all details with the threads of the hose found near victim’s house. Negroid hair found in the home of the victim corresponded exactly with hair of appellant. Opinion of Supreme Court of Arkansas 58a Officers working on the case were quick to note the fresh injury to appellant’s finger and the condition of the clothes he was then wearing. Officers were dispatched to his mother’s home, where appellant resided, and she was ad vised that her son was in trouble. They asked permission to examine his clothes and his mother consented thereto, taking the officers to the clothes closet and permitting them to take a change of clothes and also a blue coat and a trench coat belonging to appellant. The officers forwarded to the FBI Lab in Washington, D. C., the clothing removed from the person of the appellant, his blue suit coat, his trench coat; the victim’s pajamas and the strands of hair, nylon thread and hose previously mentioned. The repeated and violent contact between the pajamas worn by the victim and the clothing of appellant left their telltale marks on both garments. Robert Duckett, Special Agent, FBI Laboratory, whose qualifications were admitted as an expert on hairs, fibers, textiles and related materials, testified: “ It has been my experience that when clothing comes in contact with other clothing or objects fibers will be interchanged or deposited. Now working on this assumption, I removed the foreign debris adhering to the T shirt that was submitted to me, the suit that was submitted to me, and the trench coat that was submitted to me * * * I mounted the foreign fibers and I compared those foreign fibers that I had re covered from the debris from the garments with the fibers composing the red pajamas. In the debris of the T shirt, in the debris of the suit coat and in the debris of the trench coat, I found red cotton fibers that matched the fibers composing the pajamas. * * * ” He also testified in detail as to the matching hair and nylon thread and hose speci mens examined as set out above. Opinion of Supreme Court of Arkansas 59a Allison Simms, Special Agent, FBI Laboratory, whose qualifications as an expert in analysis of blood stains and body fluids were admitted, testified: “ I was examining these articles for the purpose of blood stains and seminal stains. Seminal stains are stains which consist of semen and semen is the male reproductive fluid which contains the male reproductive cell. I examined the pajama bottoms and tested these stains chemically and determined that these reddish brown stains consisted of blood—human blood. In the crotch of the pajamas I identified seminal stains—also on the front portion of both legs of the trousers I identified seminal stains which contained spermatozoa. On the shirt I did not find any semen but there were blood stains present which were human blood. * * * ” Miss Spoon struggled with her unmasked attacker in the light of her living room and having never seen him before made a special effort to remember his face. She testified: “Q. Is that the man? (indicating appellant, then standing to be observed by the witness) “A. Yes, sir, it is. “ Q. Is there any possible doubt in your mind? “A. No, sir.” Dr. James H. French (professional qualifications ad mitted by appellant) examined the victim shortly after the crime in the emergency room of a Hot Springs hospital. He testified: “ The patient had numerous bruises, cuts about her person. She had the undersurface of her left toe torn, the greater part of the skin was torn. She had a bruise on her right hip, both wrists had abrasions circling the wrist, she had bruises of both forearms, she had a Opinion of Supreme Court of Arkansas 60a bruise and swelling of the lower lip, she appeared emo tionally upset. I did an internal examination and obtained a smear from the mouth of the womb and found living spermatozoa of the male germ cells in the secretion.” The evidence in this case met in overwhelming fashion all of the requirements for conviction for the offense of rape (Ark.Stat.Ann.1947, Sec. 41-3402). McDonald v. State, 225 Ark. 38, 279 S.W.2d 44. I I . M o tion to Q u a sh I n f o r m a tio n [3] This criminal information was tiled under authority of Amendment No. 21 to the Constitution of Arkansas. Ap pellant requested and was granted additional time by the court in which to enter his plea to the charge. A bill of particulars was provided appellant and his counsel, no objection being interposed thereto. After arraignment and plea of not guilty appellant requested and was given addi tional time in which to prepare his defense. When appel lant was finally placed upon trial he and his counsel knew with particularity the exact nature of the charge. Counsel for appellant and appellant were present in open court on February 5, 1962, when the motion for continuance was granted and an agreed trial date of the case, beginning on March 19, 1962 was set. No additional time was re quested for preparation for trial. Hearings on preliminary motions were ended on March 16, 1962, and the court at that time asked counsel for appellant if there was any reason why the trial could not commence on March 19, 1962, as set, and was advised “ The defense will be ready.” The rights of the accused were fully protected. This Court and the Supreme Court of the United States have many times held such prosecutions by information valid. Wash Opinion of Supreme Court of Arkansas 61a ington v. State, 213 Ark. 218, 210 S.W.2d 307; Moore v. State, 229 Ark. 335, 315 S.W.2d 907, cert, denied, 358 U.S. 946, 79 S.Ct. 356, 3 L.Ed.2d 353; Hurtado v. Cal., 110 U.S. 516, 4 S.Ct. I l l , 28 L.Ed. 232; Gaines v. Washington, 277 IT.S. 81, 48 S.Ct. 468, 72 L.Ed. 793; Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 27. Denial of the mo tion of appellant to quash was proper. III. M otion to D eclare S ta t u t e U n c o n s t it u t io n a l in A p p lic a t io n [4] In this motion appellant concedes that our penalty statute for rape (Ark.Stat.Ann.1947, Sec. 41-3403) is not unconstitutional on its face, but contends that in its appli cation to appellant and all other members of the Negro race it is unconstitutional for the reason that in Arkansas it is the practice and custom of juries to impose the death penalty upon Negro men who rape white women, without inflicting the same punishment upon other offenders. The court heard evidence on the motion. Lee Henslee, Super intendent, Arkansas State Penitentiary, testified, on call by appellant, that between the dates of September 5, 1913, and October 28, 1960, the records of the penitentiary re flected that there had been 168 executions, broken down by charge and race as follows: Negro for rape 19 Negro for murder 108 White for rape 1 White for murder 38 Indian for murder 2 This bare listing of the number of executions does not pre tend to cover the total number of such offenses by race or otherwise, nor does it cover trials resulting in acquittals, imposition of life sentences, or cover the intervention of Opinion of Supreme Court of Arkansas 62a executive clemency.1 Certainly there was no evidence of fered even remotely suggesting that the ratio of violent crimes by Negroes and Whites was different from the ratio of the executions. There was no testimony suggesting that the State’s attorneys in the various judicial districts had not been asking for the death penalty in their prosecutions for rape, whether the accused be black or white. In any event, the jury alone could determine the death penalty. The attack therefore appears to be directed against trial by jury. We have carefully reviewed the decisions of the Supreme Court of the United States cited by appellant in support of his position. We comment briefly as to same. Pace v. Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207. Here an Alabama statute was upheld as not in conflict with the Constitution of the United States, although it prescribed penalties more severe for adultery between persons of different races than for members of the same race. A n ri in Friedman v. People, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345, the case was dismissed upon motion for want of a substantial Federal question. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. In this case it was admitted that discrimination was being practiced against certain persons (Chinese) in denying them permits to operate laundries, although possessed of all qualifications set forth in the city ordinance under review. Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, is one of 1 Most of the opinions of this Court do not identify the race of the defendant, and it is impossible to obtain accurate information without reviewing the transcripts, which may or may not reflect the race of the accused. Appellant has listed only one execution of a white man for rape (which happened a few years ago), and this Court, only a few months ago, affirmed the conviction of another white man, with death penalty, on this charge. See Fields v. State, 235 Ark. 986, 363 S.W.2d 905. Opinion of Supreme Court of Arkansas Opinion of Supreme Court of Arkansas several cases involving discrimination as to race in jury- service. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281, involved abuses in voter registration. Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, is a crim inal case where the conviction was reversed because of long days of confinement and mistreatment before the filing of charges and where confessions were obtained by coercion. We fail to find any support in the above cases for appel lant’s position. Striking down our criminal statutes as to a large segment of the population upon the tenuous grounds urged by appellant is illogical. It could only result in chaos in the difficult job of law enforcement for the pro tection of the people. This Court concurs emphatically with other appellant courts of the United States in holding that justice should be administered equally and fairly as to all citizens regardless of race or color. Our penal stat ute for rape applies equally to all citizens of all races. On the record before us we find no basis whatever to declare our penal statute for rape unconstitutional in any respect of verbage or application. Appellant’s motion was properly overruled. I V . M o tio n fob C h a n g e of V en u e [5,6] The burden was on appellant (Ark.Stat.Ann.1947, Sec. 43-1502) to make credible proof to support his motion. A hearing was had. All of the witnesses called by counsel for appellant testified squarely against his position. Inci dentally, we note here that in appellant’s listing of execu tions for rape that not a single such case appears to have originated from Garland County, where this case was tried. There was no abuse of discretion by the trial court in over ruling the motion for change of venue. Speer v. State, 130 64a Ark. 457, 198 S.W. 113; Adams v. State, 179 Ark. 1047, 20 S.W.2d 130. V. M o tion to R em ove to F ederal C ourt [7] Ordinarily such motions are filed directly in Federal Court. No cause was shown justifying such removal, and the trial court properly refused to surrender its jurisdic tion. Rand v. State, 191 F.Supp. 20 (D.C., Ark., 1961). VI. O b je c t io n s R e l a t in g to V oir D ire [8] The trial court had the advantage of observing and appraising the demeanor and answers of all prospective jurors. He allowed appellant’s counsel the greatest lati tude in examining the jurors before they were approved by the court for duty in the case. Indeed, we think the court proceeded in an exemplary manner in securing a jury free from actual or implied bias or prejudice. The objections of appellant concerning the selection of the jury were properly overruled. Polk v. State, 45 Ark. 165; Ma- roney v. State, 177 Ark. 355, 6 S.W.2d 299; 50 C. J.S. Juries § 275 a (l) . VII. O b je c tio n s as to L im it a t io n s of E x a m in a t io n of W itn esses [9] We find from the record that the court conducted the trial of this case in such a manner as to provide counsel for appellant every reasonable and legitimate latitude in cross- examination of witnesses—no witnesses having been put on by appellant. All objections of this character are found to be without merit and properly overruled. Opinion of Supreme Court of Arkansas 65a VIII. A p p e l l a n t ’ s V ario us M o tio n s to E xclu d e A ll E vidence A dduced by P ro secu tio n C o n c e r n in g I te m s of C l o t h in g and O t h e r M ater ials E x a m in e d at FBI L aboratory , W a s h in g t o n , I). C. [10] When the police authorities sent in for examina tion the clothing of appellant, the pajamas of the victim, and the other items, as previously mentioned, such action could have helped to exonerate appellant rather than help to convict him, depending upon the findings at the labora tory. In this case the findings pinpointed the guilt of appellant. The clothing removed from the person of appellant as an incident of his arrest for the crime under investigation was properly obtained. Jones v. U. S., 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Drayton v. IT. S., 5 Cir., 205 F.2d 35. [11] As to items taken from the home of appellant’s mother, with whom appellant resided, the evidence clearly shows that the mother not only consented to the search, but assisted the officers in same. She was present at the trial but did not testify. Neither was a motion filed to quash the evidence obtained at the home. The proof by the State met the burden upon the State in proceeding as it did without a search warrant. Rigby v. U. S., 101 U.S. App.D.C. 178, 247 F.2d 584; Cantrell v. U. S., 5 Cir., 15 F.2d 953, cert, denied, 273 U.S. 768, 47 S.Ct. 572, 71 L.Ed. 882. “ The consent of a householder to the search of the house dispenses with the necessity for a search warrant, * * * where his mother, with whom defendant was living, con sented to the search, though defendant objected to the Opinion of Supreme Court of Arkansas 66a search of his room.” Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769. [12] The right to object to evidence on ground of illegal seizure is waived unless there is a timely motion to sup press the evidence. Morton v. U. S., 79 U.S.App.D.C. 329, 147 F.2d 28, cert, denied, 324 U.S. 875, 65 S.Ct. 1015, 89 L.Ed. 1428; Butler v. U. S., 10 Cir., 153 F.2d 993. No motion to suppress was filed as to any item sent to the FBI Laboratory [13] Lieutenant Crain was examined and cross-examined concerning a blue coat obtained at the home, without any objection being made as to the admissibility of such evi dence. The admissibility of said evidence was waived. Sandusky v. Warren, 177 Ark. 271, 6 S.W.2d 15. [14] The objections stated by counsel for appellant to the items sent to the FBI Lab were always made in blanket or in all inclusive form, with no breakdown as to any given item. Such objections are of no avail where any one of several items covered in the blanket objection was lawfully and properly obtained. Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S.W. 681; Haney v. Caldwell, 35 Ark. 156; Martin v. Monger, 112 Ark. 394, 166 S.W. 566. Appellant, in his various motions to strike all evidence introduced concerning the articles sent to the FBI Labora tory, has relied almost exclusively upon Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081, a leading case in which judicial developments as to search and seizure were reviewed comprehensively. In the Mapp case, Dollree Mapp was within her own home. Officers appeared and demanded admittance. She refused because they did not produce a search warrant. After some three hours, and without a search warrant, the officers forcibly entered the home, Opinion of Supreme Court of Arkansas 67a. searching for and obtaining evidence in the form of lewd photographs, subsequently used in evidence. There is no similarity of facts in the instant case with the Mapp case, supra, and the action of the Supreme Court of the United States in reversing Mapp v. Ohio, supra, is inapplicable here. [15] The items in question, examined by the FBI Lab, were in court during trial, in their original containers from the FBI. They were described in detail in oral testimony of witnesses who had been in custody of or had examined same at the laboratory. The items were not passed to the jury for personal inspection nor were they listed as formal exhibits to the oral testimony adduced concerning same. The direct examination of FBI Special Agent Duckett; his cross-examination and the direct examination of FBI Spe cial Agent Simms had been completed before any objec tion was made seeking to strike all of their testimony. Counsel for appellant in making an objection told the court that the articles themselves had been introduced in evidence, although improperly. The crux of the evidence as to the items given laboratory examination was the find ings as to the stains, body fluids, similarity of hairs, nylon thread, etc. This evidence was susceptible, absent a stipu lation of counsel, to introduction solely in oral form. Even if it had been possible to conduct the laboratory tests in the presence of the jury, such testing would have been worthless as evidence without oral testimony explaining the results and findings. [16] Physical objects explained to the jury may be used in presenting evidence without formal introduction. Meyer v. State, 218 Ark. 440, 236 S.W.2d 996; Gordy v. State, 159 Opinion of Supreme Court of Arkansas 68a Tex.Cr.R. 390, 264 S.W.2d 103; Underhill Criminal Evi dence, 5th Ed., See. 110. In Featherston v. Jackson, 183 Ark. 373, 36 S.W.2d 405, this Court said: “ On the trial a rough sketch, or map, showing tracks or ruts in highway was used by appellee in examining his witnesses. Appellant objected to use of said map. It was not introduced in evidence, but the day after the trial was over, he filed a motion to require appel lee to file the map. This came too late and the court cor rectly denied the motion.” At no time in this case did appellant ask for the formal introduction into evidence of the items examined by the FBI Laboratory. We therefore conclude that the trial court did not com mit error in refusing to strike the testimony of the special agents of the FBI. All other motions of appellant to strike testimony were likewise properly denied. I X . I n str u c tio n s [17] Appellant complains that certain instructions re quested by him were not given. An examination of the record discloses that the subject matter of such requested instructions was fully covered in other instructions given by the court. We have consistently held that it is not error to refuse an instruction where the matters are fully covered by instructions already given. Griffin v. State, 210 Ark. 388, 196 S.W.2d 484. X . A r g u m e n t of C o u n sel [18] Appellant objected to the following remarks of the prosecuting attorney during argument: “ * * * He could have choked her to death as easily as not. Opinion of Supreme Court of Arkansas 69a * # * He could liave had a knife in his pocket and pulled it out and she did tell you, I believe, that he had some instrument when he was breaking in the screen. He could have pulled a knife out of his pocket and cut her throat from ear to ear. “ The Court: He is referring to why she was in fear of her life. Your motion is overruled.” Once inside the home of the victim appellant had access to all the kitchen knives and other possible weapons there in. He repeatedly threatened to kill both the victim and her father. Under the proof in the case we see no impro priety in the ruling of the court. In his opening statement counsel for appellant stated: “ It is the position of the Defense, and the Defense will prove, both by cross-examination of the witnesses that the State will call and by evidence that it will produce itself that this alleged crime as described by Mr. Whit tington could not, and in fact did not take place as he stated. * * * That if in fact an assault did take place that certainly it was not rape, that if any assault did take place it was free and voluntary on her part. I think you will find that the evidence as adduced here in the Court, both the evidence produced by the prose cution and by the evidence adduced by the defendant that if in fact an assault did take place it was a free and voluntary act. * * * ” An objection was made during closing argument of prosecution and is set out as follows: “ Mr. Whittington: May it please the Court, ladies and gentlemen, when the counsel for the defense made Opinion of Supreme Court of Arkansas 70a his opening statement he told you that he would prove to you that this matter did not take place as I had told you in my opening statement, that it was a free and voluntary act, and he would prove that it was a free and voluntary act on the part of Stella Spoon, Now, ladies and gentlemen— “ The Court: One moment, Mr. Whittington, Mr. Mercer wants to interpose an objection. “ (Out of hearing of the Jury) “Mr. Mercer: Court please, I object to the prose cuting attorney in his argument to the Jury talking about anything the defendant has to prove because the defendant doesn’t have to prove anything. “ The Court: Well, he is repeating what you said in your opening statement. I think he has a right to refer to it and comment on it. “ Mr. Mercer: Court please, it is not incumbent upon the defendant to prove anything. “The Court: I understand. “ (Mr. Whittington continues argument:) “Now, ladies and gentlemen, while it is not incum bent upon the defendant to prove anything, the defen dant’s attorney got up here and he told you they were going to prove some things. They don’t have to prove anything, I am the one that has to prove the case, let’s get that clear. The Court so instructed you. But he told you what all he was going to prove and I am still waiting to hear any of that proof. I haven’t heard a word of it. We have people who must have known where the defendant was that night, if he wasn’t where he was supposed to be, I haven’t heard any of them say he wasn’t there. * * * ” Opinion of Supreme Court of Arkansas 71a Opinion of Supreme Court of Arkansas Remarks of the prosecuting attorney were well within proper limits, and we find no error in same. Ark. Power & L. Co. v. Hoover, 182 Ark. 1065, 34 S.W.2d 464; Cul- breath v. State, 96 Ark. 177, 131 S.W. 676. XI. S u m m a r y The verdict reached and the sentence imposed do not appear to offend the Constitutions of the State of Arkansas or of the United States; the statutes of Arkansas and decisions heretofore rendered by this Court. Appellant received a fair and impartial trial in every respect. Judgment is affirmed. H o l t , J., disqualified and not participating. MEILEN PRESS INC. — N. Y. C .« £ P » > a i»