Maxwell v. Stephens Appendix to Petition for Writ of Certiorari

    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.



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