Wallace v. Lee Petition for Writ of Certiorari

    Supreme (Cmtrt nf the huitcii States
October Term, 1964 

No.............

E dward W ard, Charles Cage, W illiam Chevalier,
and E arl Davis,

Petitioners,
— v . —

L ouisiana.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF LOUISIANA

J ames M. Nabrit, III 
10 Columbus Circle 
New York, N. Y. 10019

R ussell E. Gahagan 
P. 0. Box 70 
Natchitoches, Louisiana

Attorneys for Petitioners



I N D E X

Opinion Below ................................................................... 1

Jurisdiction ......................................................................... 1

Questions Presented .........................................................  2

Constitutional and Statutory Provisions Involved....... 2

Statement ............................................................................  4

Reasons for Granting the W r it ........................................ 13
I. This Petition Presents Issues Identical to 

Those Pending Before This Court in An­
other Case in Which Certiorari Has Been 
Granted .............................................................  13

II. The Public Prosecutor’s Racial Use of Per­
emptory Challenges to Exclude Negroes 
From Jury Service Violated Petitioners’ 
Rights to Due Process and Equal Protec­
tion of the Laws ............................................... 14

III. Petitioners Cage, Chevalier and Davis Were 
Convicted of Murder on a Record Contain­
ing No Evidence of Their Guilt in Violation 
of the Due Process Clause of the Four­
teenth Amendment .......................................... 17

Conclusion ...................................................................................... 25

A ppendix ..........................................................................................  la

PAGE



11

T able of Cases

Barr v. Columbia, 378 U. S. 146......................................  24
Bouie v. Columbia, 378 U. S. 347 ....................................  24

Carter v. Texas, 177 U. S. 442, 447 ..................................  14
Coleman v. Alabama, 377 U. S. 129..................................  17

Eubanks v. Louisiana, 356 U. S. 584 ..............................  14

Garner v. Louisiana, 368 U. S. 157.............................. -12, 24
Gomillion v. Lightfoot, 364 U. S. 339 .......................... 15,16

Hall v. United States, 168 F. 2d 161 (D. C. Cir. 1948),
cert. den. 334 U. S. 853 .................................................. 16

Hayes v. Missouri, 120 U. S. 580 ......................................  16

Norris v. Alabama, 294 U. S. 587 ......................................  14

Shelley v. Kraemer, 334 U. S. 1 ...................................... 13
Smith v. Texas, 311 U. S. 128 .......................................... 16
State v. Capaci, 179 La. 462, 154 So. 419 (1934) ...........  18
State v. Nomey, 204 La. 667, 16 So. 2d 226 (1943) .......  23
State v. Poynier, 36 La. Ann. 572 (1884) ......................  18
State v. Rodesta, 173 La. 623, 138 So. 124 (1931) .........  18
State v. Sbisa, 233 La. 961, 95 So. 2d 619 (1957) ........... 23
State y. Sims, 197 La. 347,1 So. 2d 541 (1941) ............... 18
State v. Wooderson, 213 La. 40, 34 So. 2d 369 (1948) .... 23
Strauder v. West Virginia, 100 U. S. 303 ......................  14
Swain v. Alabama, No. 64, Oct. Term, 1964 (33 U. S. L. 

Week 3216) ..................................................................... 13

Taylor v. Louisiana, 376 U. S. 154..................................  24
Thompson v. Louisville, 362 U. S. 199 ..........................  24

PAGE



Trustees of Monroe Ave. Church of Christ v. Perkins,
334 U. S. 813 ................................................................... 13

United States ex rel. Dukes v. Sain, 297 P. 2d 799 (7th 
Cir. 1962) ......................................................................... 10

Wright v. Georgia, 373 U. S. 284 .......................................  24

Statutes I nvolved

Constitution of Louisiana, Art. 1, §10 ............................  2

LSA-R.S. 15:354 .................  3,14

LSA-R.S. 14:30 .................................................................  3

LSA-R.S. 14:24 ........................................................... 3,18,23

28 U. S. C. §1257(3) .........................................................  2

Miscellaneous:

U. S. Commission on Civil Rights Report, Yol. V 
(1961) .............................................................................14,15

Ill

PAGE



I n  t h e

g’upronp (Cmirt of tin’ luttfii States
October Term, 1964 

No.............

E dward W ard, Charles Cage, W illiam Chevalier,
and E arl Davis,

Petitioners,
—v.—

L ouisiana.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF LOUISIANA

Petitioners pray that a Writ of Certiorari issue to review 
the judgment of the Supreme Court of Louisiana, entered 
in the above-entitled case on July 1, 1964, rehearing of 
which was denied October 7, 1964.

Citation to Opinion Below

The opinion of the Supreme Court of Louisiana is re­
ported at 167 So. 2d 359.

Jurisdiction

The judgment of the Supreme Court of Louisiana affirm­
ing petitioners’ convictions and sentences was entered on 
July 1, 1964, and rehearing was denied October 7, 1964.1

1 In the certified record the notation “Rehearing refused October 
7, 1964,” appears stamped on p. 6 of the opinion below and also 
on the last page of the application for rehearing which is attached 
to the opinion below in the certified record.



2

The jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1257(3), petitioners having1 asserted below, and 
asserting here, the deprivation of rights, privileges, and 
immunities secured to them by the Constitution of the 
United States.

Questions Presented

1. Whether the rights of petitioners Ward, Cage, Cheva­
lier and Davis under the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitution 
of the United States were violated at their trial for the 
crime of murder in a Louisiana court where the prosecutor 
excluded all Negroes from jury service by using peremptory 
challenges on the basis of race?

2. Whether the rights of petitioners Cage, Chevalier and 
Davis under the due process clause of the Fourteenth 
Amendment to the United States Constitution were violated 
in that they were convicted of murder on a record containing 
no evidence of their guilt and no evidence that they partici­
pated in, had prior knowledge of, or were able to prevent 
any act of violence toward the alleged murder victim?

Constitutional Provisions and Statutes Involved

1. Section I of the Fourteenth Amendment to the Con­
stitution of the United States.

2. Louisiana Statutes Annotated, Constitution, Art. 1, 
§10 (Constitution, Volume 1, p. 153):

§10. Criminal prosecutions; information as to accusa­
tion; peremptory challenges

Section 10. In all criminal prosecutions, the accused 
shall be informed of the nature and cause of the accusa­



3

tion against him; and when tried by jury shall have the 
right to challenge jurors peremptorily, the number of 
challenges to be fixed by law.

3. Louisiana Revised Statutes Annotated, R. S. 15:354 
(Volume 11, p. 117):

§354. Number of peremptory challenges allowed

In all trials for any crime punishable with death, or 
necessarily with imprisonment at hard labor, each de­
fendant shall be entitled to challenge peremptorily 
twelve jurors, and the prosecution twelve for each de­
fendant. In all other criminal cases each defendant 
shall have six peremptory challenges and the state six 
for each defendant.

4. Louisiana Revised Statutes Annotated, R. S. 14:24 
(Volume 9, p. 86):

§24. Principals

All persons concerned in the commission of a crime, 
whether present or absent, and whether they directly 
commit the act constituting the offense, aid and abet 
in its commission, or directly or indirectly counsel or 
procure another to commit the crime are principals.

5. Louisiana Revised Statutes Annotated, R. S. 14:30 
(Volume 9, p. 352):

§30. Murder

Murder is the killing of a human being.

(1) When the offender has a specific intent to kill or 
to inflict great bodily harm; or

(2) When the offender is engaged in the perpetra­
tion or attempted perpetration of aggravated arson,



4

aggravated burglary, aggravated kidnapping, aggra­
vated rape, armed robbery, or simple robbery, even 
though he has no intent to kill.

Whoever commits the crime of murder shall be pun­
ished by death.

Statement

Petitioners Edward Ward, Charles Cage, William Cheva­
lier and Earl Davis were indicted on March 5, 1963, and 
charged with murdering one John Fisher on or about No­
vember 11, 1962 (R. 28). Petitioners were tried together 
before a jury in the Tenth Judicial District Court, Parish 
of Natchitoches, Louisiana on April 1-6, 1963. On April 6, 
1963, petitioner Edward Ward was found “ guilty as 
charged” and petitioners Cage, Chevalier and Davis were 
found “guilty as charged without capital punishment” (R. 
24, 28). Edward Ward was sentenced to suffer the death 
penalty by electrocution (R. 26). William Chevalier, Earl 
Davis and Charles Cage were sentenced to confinement in 
the state penitentiary at hard labor for life (R. 26).

Petitioners appealed to the Supreme Court of Louisiana 
which affirmed in an opinion filed July 1, 1964. Rehearing 
was denied October 7, 1964. The Supreme Court of Louisi­
ana stayed the execution of its judgment as to petitioner 
Ward for a period of 90 days from October 7, 1964, to en­
able petitioners to seek review in this Court.

The evidence adduced at the trial is summarized below.

On November 10, 1962, Northwestern College located in 
Natchitoches, Louisiana was having its Homecoming Cele­
bration (R. 359). After a football game that day, a party 
was held at the apartment of five students from that college, 
one of whom was John Fisher (R. 354). The party started



5

in the early evening and there were numerous guests (R. 
342, 354). Liquor was served and most of the male guests 
were drinking (R. 190, 351). James Larry Weeks came to 
this party at about midnight and there met Daniel J. Brup- 
bacher (R. 129). According to the testimony of Weeks, 
Brupbacher was intoxicated (R. 155, 190). They decided to 
go to the Circle Cafe, which was located about one block 
from Fisher’s apartment, to get some food (R. 130).

With their arms around each other, Brupbacher and 
Weeks walked down the street to the Circle Cafe (R. 155). 
Brupbacher was talking loudly and cursing (R. 156).2 As 
they approached the Circle Cafe, they observed a group of 
Negro boys and men standing in front of the colored en­
trance (R. 156, 263). Weeks told Brupbacher to quiet down 
(R. 156). Three of the young men in front of the Cafe were 
petitioners Charles Cage, William Chevalier and Earl 
Davis. A fourth boy was W. C. Courtney (R. 802). These 
four young boys were emerging from the colored section of 
the Cafe (R. 802). Previously, they had been out driving a 
car borrowed from petitioner Edward Ward, for whom 
Chevalier, Cage and Davis worked (R. 736, 871).

Weeks testified that as he and Brupbacher approached 
the young Negro boys, he bumped into Chevalier (R. 158, 
263, 740). Edward Ward testified that Chevalier was under 
the impression that it had been done intentionally (R. 872). 
Heated words were exchanged between Weeks and Brup­
bacher and some of the young Negro boys (R. 740, 802). 
Weeks and Brupbacher began backing toward the door of 
the Circle Cafe (R. 159, 263). At that time, a group of 
white men emerged from the Circle Cafe and came to the 
rescue of Weeks and Brupbacher (R. 171).

2 Testimony of Weeks.



6

Charles Cage, Earl Davis, William Chevalier and W. C. 
Courtney began to run (R. 168). Courtney was separated 
from petitioners Chevalier, Cage and Davis who fled to­
ward the car of petitioner Ward (R. 168). Courtney picked 
up a stone lying in the street and, as he fled, hurled it at 
Brnpbacher and Weeks (R. 159, 162). The stone missed 
both of them; ricocheted from the door of the Circle Cafe; 
and fell onto the sidewalk (R. 162). Weeks, emboldened by 
the presence of the newly arrived whites, went in pursuit of 
petitioners, who had fled to their car (R. 162, 169, 172). 
Weeks stated that as they drove past, he picked up the 
rock which Courtney had thrown and hurled it through the 
windshield of the car in which the three petitioners were at­
tempting to escape (R. 132,169). Petitioner Chevalier, who 
was driving, was cut on the side of the head (R. 804).

W. C. Courtney ran into the colored section of the Circle 
Cafe (R. 166). Weeks, who testified that he was by this 
time enraged, went with his friends in pursuit of Courtney 
(R. 162, 167, 233). He was stopped at the entrance of the 
Circle Cafe by the waitress (R. 226). The police were called 
and arrived shortly afterwards. Weeks described what had 
occurred to the officers (R. 388). They arrested Courtney 
and took him to the police station “ pending” the swearing 
out of a warrant by Weeks (R. 389).

Weeks and Brupbacher ate at the Cafe and eventually 
returned to the party around 1 :00 p.m. on the morning of 
November 11, 1962.

Meanwhile, petitioners Chevalier, Cage and Davis were 
looking for Ward. Cage testified that they were concerned 
about the damage to Ward’s car, a 1956 Buick, and had de­
cided that they would pay for the damage to it (R. 818). 
Eventually, they located Edward Ward at the Casa Grande 
Club, some distance from the scene of the incident (R. 819).



7

Cage and Davis were too young to enter the Club, so Wil­
liam Chevalier went in alone (R. 744, 820).

Ward stated that Chevalier approached him in the Casa 
Grande Club and told him of the damage and of the boys’ 
intention to pay for it (R. 872). Noticing the cut on Cheva­
lier’s head, Ward began to question him more closely as to 
what had happened. Chevalier explained and the two went 
outside to where Cage and Davis were waiting and there 
talked further of the incident (R. 873). Ward testified that 
he was angered by what had been done to the boys and to 
his car (R. 875). He testified also that he told the boys to 
get into the second of his cars, a white 1960 Ford Station 
Wagon, and to wait there for him (R. 805, 873). He stated 
at trial that it was his intention to go and see about the 
damage (R. 875). The boys started toward the Ford Sta­
tion Wagon (R. 805). Ward returned alone to the Casa 
Grande Club to take leave of his friends there and explain 
his mission (R. 805, 873).3 Ward testified that he was coun­
seled by various people in the Club of the danger of ap­
proaching an unruly crowd of white men without any pro­
tection (R. 873, 875). He stated at trial that because of 
their advice he procured a gun from the owner of the club 
(R. 874). Ward testified that he then approached the car 
in which the boys were waiting and, as he did so, held the 
gun close to himself, concealing it from their vision (R. 
874-5). He testified also that on getting into the car, he 
slipped the gun under the driver’s seat out of the sight of 
petitioners Chevalier, Cage and Davis (R. 874). Ward did 
not intend that the boys see the gun, and, they did not, in 
fact, see it (R. 746, 808).4

3 Testimony of Charles Cage and Edward Ward.
4 Testimony of Charles Cage and Earl Davis.



8

Ward began to drive toward the scene of the incident in 
which the car was damaged (E. 806-7, 876-7).

Shortly after Weeks and Brnpbacher returned to the 
party, a violent scene erupted. Donald Bates, one of the 
guests at the party, began to quarrel with and make un­
seemly remarks to and about his date, Gloria Millington 
(E. 138-9, 177-8). John Fisher told Bates that he would not 
tolerate such conduct in his house and asked him to leave. 
This Bates refused to do. A  struggle resulted when Fisher 
attempted to force Bates from his apartment (E. 138-9, 
176). The struggle resulted in Fisher’s bodily carrying 
Bates from the apartment (E. 139). Many of the men at 
the party accompanied the struggling pair as they went 
from the apartment into the street (E. 140, 268). One of 
this group was Brupbacher (E. 140, 268).

At that moment, Ward and the boys were approaching 
the corner on which the crowd from the party was stand­
ing (E. 877). Ward was heading for the Circle Cafe (E.
877) . Ward testified that on sighting the group of white 
men, he asked the boys whether these were the men who 
had damaged the car (E. 877-8). See also E. 808. They 
replied that they thought it was some of the men (E. 808,
878) .5 Ward pulled his car abreast of the group. Ward, 
Cage and Davis all testified that someone from the group 
ran towards the car in a threatening manner (E. 749, 808, 
841, 878). Ward testified that the man challenged him with 
the statement, “ You black son-of-a-bitch. Do you want to 
fight?” (E. 878). Ward, Cage and Davis testified that 
Ward responded, “Yes, I ’ll fight, goddammit,” and reached 
under the seat, grabbed the gun and fired two shots at the 
approaching man (E. 749-50, 808, 879; see also E. 335). 
Ward, Cage and Davis testified that they did not recognize

5 Testimony of Charles Cage and Edward Ward.



9

who the approaching man was and that they were not 
aware of the consequences of the firing (R. 755, 809, 879). 
They drove off (R. 843).

John Fisher, who was standing in the crowd on the 
street, was killed by one of the shots. Subsequently, Ward 
and the three boys were arrested and indicted for the 
murder of John Fisher. The three boys were indicted for 
murder as principals on the theory that they aided and 
abetted Edward Ward in the killing (R. 100, 105).

After trial petitioners filed a motion for new trial setting 
forth as one ground that:

. . .  all of those members of your defendants’ race who 
were interrogated as prospective jurors, who did not 
disqualify themselves, were pre-emptorily challenged 
by the District Attorney and consequently no member 
of their race was on the jury that convicted them 
(R. 963).

The court overruled the motion (R. 25). The objection was 
reiterated in a bill of exceptions before the trial court (R. 
1072-73). Apparently the district attorney did not contest 
the factual assertion by petitioners, and the trial judge, 
assuming the truth of the allegation, ruled in a per curiam 
that:

The State, in excusing negroes from service on the 
jury was exercising and utilizing pre-emptory chal­
lenges, which it had a right to do (R. 1075).

On appeal the Supreme Court of Louisiana held that no 
rights of petitioners under the Fourteenth Amendment to 
the Constitution of the United States had been violated, 
stating:



10

The defendants contend that the district attorney’s 
peremptorily challenging of members of the Negro 
race denied to them their constitutional rights because 
it constituted a systematic exclusion of Negroes from 
the petit jury which tried them. Defendants offered no 
proof whatever of these allegations, and for all intents 
and purposes this should end the matter. But their 
allegations, even if accepted as true, would not show a 
violation of their constitutional rights so as to entitle 
them to a new trial.

The right of peremptory challenge is guaranteed to 
an accused by the Constitution of this state, Art. 1, 
Sec. 10, and the number of peremptory challenges to 
the State and to the defendant is fixed by statute, La. 
Code Crim. Proc. Art. 354. The right of peremptory 
challenge is a right not to select, but to reject, and this 
right of rejection may be exercised without assignment 
of any cause or reason or inquiry into the motive. It 
was said many years ago by this court that neither the 
State nor the defendant has any right to complain of 
peremptory challenges tendered by the other. See 
State v. Durr, 39 La. Ann. 751, 2 So. 546 (p. 6a, Ap­
pendix).

The court below also relied on United States ex ret. 
Dukes v. Sain, 297 F. 2d 799 (7th Cir. 1962), stating that 
the defendant in that case “ complained there, as do the 
defendants in this case, that the state’s attorney had used 
his peremptory challenges to exclude all Negroes from the 
jury which tried him, thereby denying him due process and 
equal protection of the laws” (p. 7a, Appendix).

The claim that there was no evidence to support the con­
viction of petitioners Cage, Chevalier and Davis was made 
in the motion for new trial, asserting (R. 964) :



11

That the verdict is contrary to the law and evidence:
M . JI, Jf,
■Jp W  •vv* W  "7P

b. As to yonr defendants, Charles Cage, William 
Chevalier, and Earl Davis, in that the testimony shows 
that neither of them fired the pistol, that they did not 
know that Edward Ward even had a pistol or gun of 
any kind, and that there was no conspiracy to kill 
existing between them.

The objection was reiterated in a bill of exceptions pre­
sented to the trial court (R. 1073). The trial court’s per 
curiam apparently did not discuss this contention as its 
remarks seemingly refer only to petitioner Edward Ward.6

On appeal, petitioners argued the same point (see Brief 
of Appellants in Supreme Court of Louisiana, pp. 7, 17).7 
The Supreme Court’s opinion, however, made no mention 
of this argument.

Thus while petitioners Cage, Chevalier and Davis plainly 
claimed that they were convicted on a record containing 
no evidence of their guilt, the no evidence claim was not 
specifically related by their motion to the due process

6 The court apparently referring only to Ward, said:
“ This court, after hearing the testimony and the evidence, 

finds that testimony worthy of belief does not substantiate 
the defendant’s version of what transpired, and this court 
is of the opinion that the verdict of the jury is completely 
justified by the evidence adduced at the trial and is in ac­
cordance with the law of this State” (R. 1075-76).

7 The brief in the court below argued at p. 17 that:
“We further urge the Court that the verdict in this case 

is contrary to the law and evidence. The record will show 
such facts as to conclusively prove that Edward Ward 
was provoked to the extent as to remove the killing by 
him of John Fisher from the category of murder to that 
of manslaughter, and it will also show beyond any reason­
able doubt that the other three defendants, who are fuzzy- 
faced boys, were guilty of no crime in connection with the 
killing”  (Emphasis supplied.)



12

clause of the Fourteenth Amendment. But it is submitted 
that where a no evidence claim—inherently a matter of due 
process—is plainly presented, it should not matter that 
the pleading filed makes no specific reference to the due 
process clause. Indeed, the form of the motion for new 
trial in this case, which alleged that the verdict was con­
trary to the law and evidence and then made the no evidence 
claim by reference to the facts, is very similar to the motion 
for new trial filed in Garner v. Louisiana, 368 U. S. 157 
(Garner record, pp. 39-40). The motion in the Garner case 
did, in a separate paragraph, mention the Fourteenth 
Amendment and generally assert a denial of due process. 
But in the Garner motion there was no articulated connec­
tion between the no evidence claim in one paragraph and 
the general reliance on the due process clause in another. 
And, of course, as this Court noted in Garner, a claim that 
there is no evidence to support a conviction presents an is­
sue of law reviewable by the Supreme Court of Louisiana 
(368 U. S. at 161, n. 6).



13

REASONS FOR GRANTING THE WRIT

I.

This Petition Presents Issues Similar to Those Pend­
ing Before This Court in Another Case in Which Cer­
tiorari Has Been Granted.

This petition presents the issue of the propriety, under 
the equal protection clause of the Fourteenth Amendment, 
of a state prosecutor’s use of peremptory challenges to ex­
clude Negroes, because of race or color, from service on a 
jury trying a criminal case involving Negro defendants. 
The Supreme Court of Louisiana held that even if it was 
shown that the peremptory challenge was being used sys­
tematically to exclude Negroes from serving on juries, this 
“would not [he] a violation of [defendants’] constitutional 
rights so as to entitle them to a new trial” (p. 5a, Appendix).

In the case of Robert Swain v. Alabama, No. 64, October 
Term, 1964, argued December 8, 1964 (33 U. S. L. Week 
3216), one of the questions before this Court is whether a 
state may use peremptory challenges systematically to ex­
clude Negroes from jury service. The Swain case has not 
yet been decided.

Since one of the questions presented in this petition is 
similar or identical to a question raised in another petition 
which has been granted and is pending before this Court, 
the issue is assumedly of such importance that it would 
merit the granting of this petition by this Court. Compare 
Trustees of Monroe Ave. Church of Christ v. Perkins, 334 
U. S. 813, with Shelley v. Kraemer, 334 U. S. 1.



14

II.

The Public Prosecutor’ s Racial Use of Peremptory 
Challenges to Exclude Negroes From Jury Service Vio­
lated Petitioners’ Rights to Due Process and Equal Pro­
tection of the Laws.

This Court has held in an unbroken line of cases since 
Strcinder v. West Virginia, 100 U. S. 303, that the sys­
tematic exclusion of Negroes from jury service violated 
the Fourteenth Amendment rights of defendants in crimi­
nal cases. The rule is not qualified by the form or the per­
petrator of the exclusion (Eubanks v. Louisiana, 356 U. S. 
584, 587), and the Constitution is violated “ by any action of 
a state, whether through its legislature, through its courts, 
or through its executive or administrative officers” which 
results in the exclusion of Negroes “ from serving”  on juries. 
Carter v. Texas, 177 U. S. 442, 447 (emphasis supplied); 
Norris v. Alabama, 294 U. S. 587, 589.

This case presents the question whether, in practice, the 
settled rules against jury discrimination can be totally 
avoided by the states through the public prosecutor’s use of 
peremptory challenges on a racial basis. The resolution of 
this question will effectively determine whether the right 
declared in Strauder, and ever since, will be anything more 
than a theoretical right in areas which resist the doctrine. 
It is quite plain that in most communities, given a suffi­
ciently large number of peremptory challenges by the legis­
lature8 and an absolute discretion to use them on a racial 
basis, a public prosecutor can indeed prevent Negroes 
from serving on criminal juries.9

8 See LSA-R.S. 15:354 (Vol. 11, p. 117), supra, p. 3.
9 The United States Civil Rights Commission noted the problem:

“ [A ]s  the more obvious practices of excluding racial groups 
from juries have been outlawed, they have gradually been



15

The court below viewed the peremptory challenge as 
granting such an absolute discretion to the prosecutor (as 
well as to the defendant), and viewed the law as “ preclud­
ing inquiry into the motives or mental attitudes of the one 
to whom the right is given” (p. 6a, Appendix). Peti­
tioners submit that this absolutist view of the law as to 
peremptory challenges too greatly restricts the impact of 
the Fourteenth Amendment upon public officials. The 
Amendment places limitations on the conduct of state 
officers even in areas where they normally exercise wide 
discretion and power. For example, this Court said in 
Gomillion v. Lightfoot, 364 U. S. 339, 344-345, that, “Legis­
lative control of municipalities, no less than other state 
power, lies within the scope of relevant limitations imposed 
by the United States Constitution.” “When a State exer­
cises power wholly within the domain of state interest, it 
is insulated from federal judicial review. But such insula­
tion is not carried over when state power is used as an 
instrument for circumventing a federally protected right.” 
(Id. at 364 U. S. 347.)

Petitioners submit that, if the rule against jury discrimi­
nation is to be meaningful, the principle that peremptory 
challenges (as used by state officers) may be exercised for

supplanted by more subtle means. One of these more sophis­
ticated methods already mentioned is the summoning of 
Negroes for jury service without placing them on the panels; 
the Negroes are summoned but never sit. Another method 
used to keep Negroes off a petit jury is agreement between 
counsel. The staff learned from a number of white attor­
neys and a Federal judge in Alabama in March 1961, that 
the prosecution (sometimes even the local United States 
Attorney) and defense counsel frequently agree to chal­
lenge any Negroes who appear on petit jury panels. And 
one State judge in the Birmingham area was reported to 
ask counsel as a matter of custom at the beginning of crimi­
nal proceedings: ‘Gentlemen, I presume you wish to ex­
clude any Negroes from the jury.’ ”  (Vol. 5, 1961 U. S. 
Commission on Civil Rights Report, p. 99.)



16

any reason must be subjected to the qualification that they 
cannot be used on a racial basis to exclude Negroes qua 
Negroes from jury service. As Mr. Justice Frankfurter 
wrote in Gomillion v. Lightfoot, supra:

Particularly in dealing with claims under broad pro­
visions of the Constitution, which derive content by 
an interpretive process of inclusion and exclusion, it 
is imperative that generalizations, based on and quali­
fied by the concrete situations that gave rise to them, 
must not be applied out of context in disregard of 
variant controlling facts.

The grant of peremptory challenges to the State is sub­
ject to restriction “by the necessity of having an impartial 
jury” and the “ constitutional right of the accused” under 
the Fourteenth Amendment. Hayes v. Missouri, 120 U. S. 
580. The State cannot grant any of its agents (the prose­
cutor included) power to use juries unrepresentative of 
the community so as to distort “basic concepts of a demo­
cratic society and a representative government.” Smith 
v. Texas, 311 U. S. 128, 130.

That the type of discrimination practiced here is sophis­
ticated and not easy to detect is all the more reason that 
it should be condemned unequivocally. As Judge Edgerton 
wrote in a dissenting opinion in Hall v. United States, 16S 
F. 2d 161. 166 (D. C. Cir. 1918), cert. den. 331 U. S. 853. 
"The rule against excluding Negroes from the panel has no 
value if all who get on the panel may be systematically 
kept off the jury.”

Although the Supreme Court of Louisiana found that 
petitioners had not offered proof that Negroes were sys­
tematically excluded by use of the State's peremptory chal­
lenges, the Court chose to disregard this conclusion, exer­
cised its discretion and decided petitioners' constitutional



17

claim as if the allegations with respect to use of peremp­
tory challenges were true.10 In denying petitioners’ claim 
on the merits, the Supreme Court of Louisiana broadly 
approved unrestricted use of peremptory challenges even 
if the State thereby systematically excludes Negroes from 
jury service. Such delineation of the constitutional obliga­
tions of prosecuting attorneys, in a state where persistent 
exclusion of Negroes from jury service is a flagrant viola­
tion of the Constitution and decisions of this Court, clearly 
presents a question of gravity for consideration of this 
Court on writ of certiorari.

III.

Petitioners Cage, Chevalier and Davis Were Convicted 
of Murder on a Record Containing No Evidence of 
Their Guilt in Violation of the Due Process Clause of 
the Fourteenth Amendment.

4
Petitioners Cage, Chevalier and Davis were tried, con­

victed and sentenced to life imprisonment under an indict­
ment charging that they did:

. . .  on or about the 11th day of November in the year 
of Our Lord One Thousand Nine Hundred and Sixty- 
Two, . . . unlawfully murder John Fisher, contrary 
to the form of the Statute of the State of Louisiana . . . 
(R. 93-94).

They were prosecuted on the theory that they aided 
and abetted Edward Ward in the slaying, it never having

10 Petitioners’ constitutional claim is. therefore, squarely pre­
sented to this Court for review, Cohman v. Alabama. 377 l . 8. 
129,133.



18

been asserted that either of these three petitioners shot 
or in any way harmed the victim.11 The indictment charg­
ing petitioners as principals is authorized by LSA-R.S. 
14:24, quoted supra at p. 3.12

Under the Louisiana decision, “ aiding and abetting” 
means the active and knowing participation of a defendant 
in the criminal act of another person. State v. Poynier, 
36 La. Ann. 572 (1884); State v. Rodesta, 173 La. 623, 138 
So. 124 (1931); State v. Sims, 197 La. 347, 1 So.2d 541 
(1941); State v. Capaci, 179 La. 462, 154 So. 419 (1934).

The record in this case contains no evidence of any 
active and knowing participation by Chevalier, Cage and 
Davis in the killing of John Fisher. Indeed, all of the evi­
dence is to the contrary. Briefly characterized, the evidence 
merely established that Cage, Chevalier and Davis were 
present in an automobile driven by Ward when the latter 
shot John Fisher. But there was no evidence that any of 
the three alleged aiders and abetters knew of or had any 
reason to know either that Ward had a weapon or that 
he would use it. Neither is there any evidence that either 
of these three young boys encouraged Ward to shoot Fisher 
or actually participated in the shooting.

All of the evidence about the involvement of Cage, Cheval­
ier and Davis will be summarized below. They are young

11 That the prosecution case rested on an aiding and abetting 
theory is clear from the district attorney’s opening and closing 
statements (R. 106-8; 923).

12 In 1932 Louisiana “ sought to simplify its criminal law and 
procedure by abolishing the common law distinction between 
principals and accessories before the fact.” (LSA-R.S. 14:24, Re­
porter’s Comment.) However, this change has no real bearing 
on petitioners’ cases, for their presence at the scene of the slaying 
was admitted. Even at common law persons who were present at 
the commission of a felony and who aided, assisted or encouraged 
the commission of felony were considered principals.



19

boys.13 On the night of November 10, 1962, they had bor­
rowed and were using the car of petitioner Edward Ward 
who was Charles Cage’s uncle (R. 736, 831). They became 
involved in a slight incident with several white men which 
resulted in the breaking of the windshield of their bor­
rowed car (R. 132, 162, 169). Worried about the damage 
to the car, they sought Edward Ward with the intention 
of paying and did in fact offer to pay Edward Ward for 
the damage (R. 818, 872). Ward ordered them into another 
car which he owned and they obeyed and went to the car 
(R. 805, 873); Ward then entered a nearby cafe and was 
there counseled to and did procure a gun (R. 873-75); 
Ward concealed the gun from the sight and knowledge of 
petitioners Cage, Chevalier and Davis.14 None of these

13 At trial Davis was 19 (R. 733), Cage wTas 18 (R. 799) and 
Chevalier was described as a “youngster” (R. 870).

14 Testimony of petitioner Edward Ward on direct examination 
(R. 874-75) :

“ I got into the car— in the meantime I had the revolver in 
my right hand, at my side, and I opened the door of the sta- 
tionwagon and got in and I just put it under the seat.

#  #  *  #  *

“ Q. Now, did you show any of these boys that gun? A. 
No, Sir. There may have been a possibility of Bill [William 
Chevalier] seeing the gun.

Q. Insofar as you know, did any of them see the gun? A. I 
couldn’t truthfully say.

Q. Yes, or no, you don’t know whether they did or not? A. 
I ’m almost positive— it would have almost been impossible, 
not only impossible for the boys in the back seat [Cage and 
Davis] to see me get in with something and slide down like 
I did.

Q. Did you— were you showing the gun around then? A. 
No, Sir.”

On cross-examination petitioner Ward testified (R. 885-86) :
“A. No, Sir, I got in the car— do you want me to give you a 
demonstration ?

Q. Yes. A. I approached the vehicle in this manner. This 
is the driver’s seat; this is my car right here; this is the door; 
I hugged the gun to my body like this. The door on a Ford 
is a pushbutton. You push the button to open the door. I



20

petitioners knew that Ward had a gnn or any instrument 
of violence.15 Petitioners knew only that Ward was going

slid right in and shoved the gun under the seat just like—  
all in one motion of getting into the automobile.

Q. Now, was that between your legs then that you— under 
the seat— or was it to the left side? A. It couldn’t be specifi­
cally to my— it couldn’t be to my left if I was going into the 
car from the right, but whether I put it between my legs—  
I would say it would be to the right of my right leg.

Q. To the right of your right leg. Well, that, then would 
have placed the gun between you and Chevalier would it not? 
A. Yes, it would, to a certain extent. But there is a transmis­
sion housing that’s located in the vehicle. It doesn’t make that 
Chevalier would have to see me have the gun in there. Know­
ing that I had put it in there, I don’t know that he could 
state that I positively put a gun in there, or what.”

15 On direct examination, petitioner Cage testified (R. 807-09): 
“A. Well, w7hen we got to the intersection of Lafayette and 
Second Streets, these boys were standing on the corner.

Q. White or colored? A. They was white.
Q. All right, go ahead. A. At that time my uncle asked if 

that was the boy involved in the rock-throwing incident, and 
we said we believe it was, . . . And the boys looked around, 
and one of them started saying something and started walking 
towards the car. I can’t recall what he said, because the 
window was rolled up in the back, and I couldn’t understand 
what he had— what he was saying, and at that time, I heard 
my uncle say, ‘Yes, I ’ll fight you.’ And . . .

Q. Go ahead. A. And then, that’s when I seen the gun. 
He had picked the gun up.

Q. Now, when you say, ‘He had picked the gun up,’ who 
do you mean picked the gun up ? A. My uncle, Edward Ward.

Q. Had you seen the gun before? A. No, Sir.
Q. Did you know your uncle had the gun until then? A. 

No, Sir.
Q. Were you living with your uncle and your aunt on Fifth 

Street? A. Yes, Sir. I was.
Q. Had you ever seen a gun in his home? A. No, Sir.
Q. Had you ever seen a gun in his car? A. No, Sir.
Q. Had you ever seen him with a gun any time any place

until you saw him pull the gun then? A. No, Sir.
Q. That’s the first time you knew he had the gun? A.

Yes, Sir.”

Petitioner Davis testified on cross-examination (R. 749-50) :
“A. He turned into Lafayette Street and stopped and asked 
us was that some of the boys. We said, ‘Yes, we think that’s



21

“ to see about” the damage that had been done to his car 
(R. 760, 873). None of petitioners Cage, Chevalier or Davis 
had ever known Ward to carry or own a gun (R. 808, 746). 
None of petitioners knew what Ward intended to do on 
encountering the young men who had damaged his car;* 16 
on approaching the scene of the earlier incident, they ob­
served a group of white men standing in the street (R. 808, 
877-78); Ward asked petitioners Cage, Chevalier and Davis 
whether these were some of the men who had damaged his 
car and some or all of petitioners replied that they thought

some of them.’ And one of the boys started towards the car 
and said something to Mr. Ward. And I heard Mr. Ward say, 
T il  fight you all,’ and I saw a gun in W ard’s hand.

Q. Where did this gun come from? A. I don’t know, be­
cause I didn’t know he had it until it was in the window and 
fired.

Q. You hadn’t seen that gun earlier in the evening? A. 
No, Sir.

Q. What did this boy say? A. I didn’t understand what 
he said, because the back window was wound up in the car. I 
was sitting on the right-hand side. But I did hear him saying 
something.”

On direct examination petitioner Davis testified (R. 746) :
“ Q. And you had no gun? A. No, Sir.
Q. And you didn’t see any gun? A. I didn’t see any gun.
Q. During the time you had worked for Ward at his store, 

which you said was September until through November 10th, 
had you ever seen him with a gun? A. No, Sir.

Q. Had you ever seen either of the other boys, either Cage 
or Chevalier with a gun? A. No, Sir.

Q. Had you ever packed a gun? A. No, Sir.”
16 On cross-examination, petitioner Davis testified (R. 829) :

“ Q. Now, what did you all talk about— what did you all talk 
about out front then besides the breaking of the windshield 
and W ard’s asking Chevalier how his head was, what else did 
you talk about when Ward was there? A. That’s all.

Q. You didn’t talk about anything else? A. No, Sir.
#  #  #  #  *

“ Q. Now, when he got in— since you didn’t talk about any­
thing else, then, when you got in the stationwagon, did Ward



22

it was (Ibid.). On stopping in front of the group, one of 
the men in the group ran toward the car stating to Ward, 
“ Yon black bastard, do yon want to fight?” (R. 878). Ward 
then pulled the gun from its place of concealment and

tell you where you were going? A. No, Sir, he didn’t. I 
didn’t have any. . . .

Q. Did you have any idea where you were going? A. Well, 
I figured we was probably going to the police station or maybe 
to the hospital.

■A" W  W  W  W

“ Q. Was there any conversation as you went out Dixie 
Street to Texas Street?

*  * *  *  #  #

“A. I f there was any conversation, it was about the place 
up on Bill’s head— Chevalier’s head” (R. 831).

•JfeW  W  -A* W  W

“A. I remember a conversation about Chevalier’s head.
Q. Chevalier’s head? A. And a conversation him asking 

where it had happened.
Q. W ill you repeat that? A. And then he asked us where 

did this incident happen.
Q. And where were you at that point? A. We was on 

Church Street if I remember right— Church Street or the 
corner that comes in Church Street or somewhere in the middle 
of the block”  (R. 832).

Petitioner Earl Davis testified on direct examination (R. 746) :
“ Q. Now, from the time you left the inn and wdiile you were 

driving towards downtown Natchitoches, where did you think 
you were going? A. I figured we was going to the police 
station or somewhere or the hospital because Chevalier was 
still bleeding, and Mr. Ward had seen that his head was still 
bleeding, so he thought it was pretty bad, so he asked Chevalier 
about his head, was his head doing all right.”

Petitioner Davis further testified on direct examination:
“A. Well, I ’m not familiar with the streets. A ll I know is 
that we came back out on Texas Street— wTe made a left-hand 
turn on Texas Street, until we got to Fifth Street, and then 
a right-hand turn and went straight up until we got to some 
street— Church Street.

Q. All right. A. And made a left-hand turn on Church 
Street. Ihen Bill’s ["William Chevalier's] head was still bleed­
ing a little then and my uncle, Edward Ward, asked him how 
was his head, and he told him that his head w'as doing a little



23

replying, “ Yes, I ’ll fight, goddammit,” fired at the man who 
approached his car (R. 449-50, 808, 879). John Fisher 
standing on the street at the scene was killed (R. 330). 
Petitioners Cage, Chevalier and Davis had no opportunity 
to prevent Ward from firing as he did (R. 748-51, 807-09).

Thus none of the essential elements of aiding and abet­
ting under Louisiana law were established. There was no 
evidence to establish their guilt of any crime in connection 
with Fisher’s death, and no evidence inconsistent with their 
innocence.

The trial judge never defined aiding and abetting for 
the jury in his charge. He merely read LSA-R.S. 14:24 
to the jury (R. 956), without explaining any of the terms 
used.* 17 The trial judge’s per curiam overruling the no 
evidence objection did not discuss the evidence as to these 
three petitioners in even a general or conclusory manner. 
And despite a host of decisions declaring that a no evidence 
claim is one which the Louisiana Supreme Court “ must 
decide” (State v. Nomey, 204 La. 667, 16 So.2d 226, 227 
(1943), and cases collected; State v. Wooderson, 213 La. 
40, 34 So.2d 369 (1948); State v. Sbisa, 233 La. 961, 95 
So.2d 619, 622 (1957)), that court affirmed without corn-

better. I mean, that it was doing all right. And so then he 
asked him, say, ‘Where was the place that this happened at?’

Q. Now, just a moment. Where were you when your uncle 
asked you that? A. We were on— we were either making the 
turn on Church Street or in the middle of the block. I ’m not 
sure where it was, but. . . .

Q. Had your uncle asked you that at any time previously? 
A. No, Sir.

Q. Was that the first time he asked that? A. Yes, Sir” 
(R. 806-07).

17 The potential confusion of a layman hearing a reading of LSA- 
R.S. 14 :24 is enormous. One might even be misled to believe that 
merely being “ concerned in the commission of a crime” without 
more is enough to convict.



24

ment upon petitioners’ arguments that there was no evi­
dence to support the conviction.

This is a plain case for application of the rule of Thomp­
son v. Louisville, 362 U. S. 199, that a conviction without 
evidence denies due process as protected by the Fourteenth 
Amendment.18

Following Thompson, this Court has applied the same 
rule in Garner v. Louisiana, 368 U. S. 157; Taylor v. Lou­
isiana, 376 U. S. 154; and Barr v. Columbia, 378 U. S. 146, 
all cases involving misdemeanor convictions.19 This rare 
and unusual case presents the no evidence issue in the con­
text of a capital felony and three sentences of life imprison­
ment. It is submitted that the severity of the punishments 
involved and the unusual clarity of petitioners’ innocence 
in the record militates in favor of this Court’s exercising 
its certiorari jurisdiction in this case.

18 In Thompson there was no provision for an appeal of the 
conviction in the state courts. Here the state trial and appellate 
courts simply never discussed the issue in their opinions.

19 These “ no evidence” decisions are somewhat akin to several 
decisions based on the “ due process vagueness”  ground such as 
Wright v. Georgia, 373 U. S. 284, and Bouie v. Columbia, 378 
U. S. 347. The Bouie decision might have been directly applicable 
to the instant case if the Louisiana Supreme Court had discussed 
the merits of the no evidence argument and attempted to expan­
sively construe its law on aiding and abetting felonies to cover 
the facts of this case.



25

CONCLUSION

W herefore, for  the foregoing reasons it is respectfully 
submitted that the petition for certiorari should be granted.

Respectfully submitted,

J ames M. Nabrit, III 
10 Columbus Circle 
New York, N. Y. 10019

R ussell E. Gahagan 
P. 0. Box 70 
Natchitoches, Louisiana

Attorneys for Petitioners



A P P E N D I X



A P P E N D I X

Opinion B elow

Wednesday Jul 11964 

SUPREME COURT OF LOUISIANA 

No. 47122

State oe L ouisiana,

Versus

E dward W ard, Charles Cage, W illiam Chevalier, 
and E arl Davis.

Appeal from the Tenth Judicial District Court, Parish of 
Natchitoches; the Honorable Julian E. Bailes, Judge.

H awthorne, J.

Edward Ward, Charles Cage, William Chevalier, and 
Earl Davis, charged with the crime of murder, were jointly 
tried. Ward was found guilty as charged and sentenced 
to death, and the others were found guilty as charged with­
out capital punishment and sentenced to imprisonment in 
the state penitentiary at hard labor for life. The errors 
complained of on this appeal are presented to us by means 
of bills of exception which were timely reserved and per­
fected.

The indictment charging these defendants with the mur­
der of John Fisher was returned by the grand jury on 
March 5, 1963. On March 14 they were arraigned in open 
court. Each, represented by qualified and competent coun­
sel of his choice, pleaded not guilty, and the case was fixed 
for trial for April 1. On the day the case was fixed for



2a

trial, and when the petit jury venire was present, counsel 
for the accused filed a motion to withdraw the pleas of not 
guilty in order to file certain motions. One of these was a 
motion to quash the indictment on the alleged ground that 
the district attorney and other unauthorized persons were 
present during the deliberations of the grand jury which 
returned the indictment against these defendants. The 
trial judge denied the motion to withdraw the pleas of not 
guilty as having been filed too late. In overruling the mo­
tion the judge stated:

“ On the morning of the trial and before the trial 
started, defendants filed a motion to quash the bill of 
indictment. This motion was based on the ground that 
the District Attorney and other unauthorized persons 
were present in the Grand Jury room during its de­
liberations.

“ To have heard this motion it would have required 
the taking of testimony, preceded by the summoning 
of witnesses, preparation on the part of both defend­
ants and the State. Obviously, it could not have been 
disposed of prior to commencement of the trial on 
April 1, 1963.

“ The court ruled that the defendants were dilatory 
in the filing of the motion; that the court would have 
permitted the defendant to have withdrawn their plea 
to the indictment and have heard the motion had the 
motion been filed timely; that the court was available 
to the defendants for an earlier filing and hearing at 
any time during the previous two weeks.”

Article 284 of the Code of Criminal Procedure provides 
that every objection to an indictment shall be taken by 
demurrer or motion to quash before arraignment, and hence 
counsel in the instant case in order to file his motion to 
quash sought first to withdraw the pleas of not guilty



3 a

previously entered. Article 265 of the Code of Criminal 
Procedure provides that a defendant may at any time with 
the consent of the court withdraw his plea of not guilty 
and then move to quash the indictment. To permit the with­
drawal of the plea of not guilty in order to file such a 
motion, however, is discretionary with the trial judge, and 
his ruling will not be disturbed unless an abuse of discre­
tion is shown. State v. Dawson, 186 La. 900, 173 So. 524; 
State v. Verdin, 192 La. 275, 187 So. 666. The motion to 
withdraw the pleas in the instant case does not give any 
explanation of why the motion to quash was not timely 
filed, and under these circumstances we cannot say that the 
trial judge abused his discretion.

Even if he did abuse his discretion, however, it was not 
reversible error because defendants were later given an 
opportunity to prove the allegation forming the basis of 
their motion to quash. In their motion for a new trial they 
reiterated the allegation that the district attorney and 
other unauthorized persons were present in the grand jury 
room during the jury’s deliberations. This motion was 
fixed for hearing, and the judge heard evidence on this 
allegation before overruling the motion.

Article 215 of the Code of Criminal Procedure provides 
that the district attorney as the legal adviser of the grand 
jury shall have free access to sessions of that body. This 
right of access, however, is limited by the provision of 
Article 19 of that Code that “ * * * no district attorney or 
other person shall be present during the deliberations of 
the grand jury on their findings” . Article 507 of the Code 
states that every motion for a new trial must specify the 
ground upon which relief is sought, and that the pi oof 
must correspond with the allegations of the motion. In 
State v. Slack, 227 La. 598, 80 So.2d 89, this court after 
quoting that article said:



4a

u * * * Conformably with this provision, it was held 
in State v. Washington, 169 La. 595, 125 So. 629, that 
if the allegations of a motion for a new trial are not 
supported by proof, it is properly overruled. See also 
State v. Martin, 151 La. 780, 92 So. 334.”

The question presented, therefore, is whether defendants 
have proved these allegations found in the motion. If so, 
the motion would have merit.

At the hearing nine members of the grand jury which 
returned the indictment testified, and it was stipulated that 
the testimony of the other three would be substantially the 
same as that given by one of the grand jurors who did 
testify. The district attorney also testified. The trial judge 
denied the motion, stating:

“ After hearing the testimony, the court concluded 
there was no merit whatever to this ground urged for 
a new trial by defendants. The court found there were 
no unauthorized persons in the Grand Jury room dur­
ing deliberations, and that the District Attorney was 
called for by the Grand Jury and admitted to the room 
for the purpose of further instructing the Grand Jury 
on the law, but that no deliberations by the Grand Jury 
were conducted during his presence.”

After reading the testimony taken on the hearing of the 
motion we conclude that defendants have utterly failed to 
prove the allegations of their motion, and that the trial 
judge was therefore correct. Counsel for the accused relies 
solely on the testimony of one of the grand jurors, but 
his testimony clearly shows that he was confused about 
the meaning of the term “ deliberations” as used in the 
statute.

During the trial of the case the State offered in evidence 
both oral and written statements or confessions made by



5a

all defendants. Counsel for defendants objected to the 
offering of these statements in evidence on two grounds: 
(1) That the proper foundation had not been laid for their 
admission, and (2) that the statements of each defendant 
were not made in the presence of the remaining defendants 
and for that reason were hearsay and inadmissible. In brief 
filed in this court counsel cites no law in support of his 
contentions, but merely states that in admitting the con­
fessions the court was in error.

As to the first ground, in laying the foundation for the 
admission of these statements or confessions the State 
established that they were given freely and voluntarily by 
each defendant and were not made under the influence of 
fear, duress, intimidation, menaces, inducement, or prom­
ises; and under these circumstances they were properly 
admitted by the trial judge. In fact, counsel did not con­
tend in argument before this court that they were not freely 
and voluntarily made.

As to the second ground, upon the admission in evidence 
of each statement or confession the trial judge properly 
instructed the jury that it must not consider the confession 
as evidence against any defendant except the defendant 
who made the confession; and the presumption is that the 
jury followed the judge’s instructions. State v. Johnson, 
47 La. Ann. 1225, 17 So. 789; State v. Sims and Mays, 106 
La. 453, 31 So. 71; State v. Harris and Nellum, 27 La. Ann. 
572. Moreover, the instructions to the jury were properly 
given in view of the fact that these defendants were jointly 
tried, counsel not having requested a severance for any 
one of them.

The confessions were therefore properly admitted into 
evidence.

Defendants seek a new trial “ On the further ground that 
your defendants are members of the colored race, and that 
even though members of their race were on the regular



6a

venire, on the venire of tales jurors and among the by­
standers summoned by the Sheriff as prospective jurors 
after both the general venire and the venire of tales jurors 
had been depleted, all of those members of your defendants’ 
race who were interrogated as prospective jurors, who did 
not disqualify themselves, were peremptorily challenged by 
the District Attorney and consequently no member of their 
race was on the jury that convicted them” .

The defendants contend that the district attorney’s per­
emptorily challenging of members of the Negro race denied 
to them their constitutional rights because it constituted 
a systematic exclusion of Negroes from the petit jury which 
tried them. Defendants offered no proof whatever of these 
allegations, and for all intents and purposes this should 
end the matter. But their allegations, even if accepted as 
true, would not show a violation of their constitutional 
rights so as to entitle them to a new trial.

The right of peremptory challenge is guaranteed to an 
accused by the Constitution of this state, Art. 1, Sec. 10, 
and the number of peremptory challenges to the State 
and to the defendant is fixed by statute, La. Code Crim. 
Proc. Art. 354. The right of peremptory challenge is a 
right not to select, but to reject, and this right of rejection 
may be exercised without assignment of any cause or rea­
son or inquiry into the motive. It was said many years 
ago by this court that neither the State nor the defendant 
has any right to complain of peremptory challenges tend­
ered by the other. See State v. Durr, 39 La. Ann. 751, 2 
So. 546.

Counsel for the accused cites and relies on Eubanks v. 
Louisiana, 356 U. S. 584, 78 S. Ct. 970, 2 L. ed. 2d 991, and 
Hernandez v. Texas, 347 U. S. 475, 74 S. Ct. 667, 98 L. ed. 
866, which are authority for the proposition that defendant 
is denied the equal protection of the laws guaranteed by



7a

the Fourteenth Amendment if he is indicted by a grand jury 
or tried by a petit jury from which members of his race 
have been excluded because of their race. Counsel for the 
State calls to our attention that the United States Court of 
Appeals for the Seventh Circuit specifically rejected the 
contention that those cases were authority for the argument 
that the use of the right of peremptory challenge given by 
a state statute to challenge members of a defendant’s race 
could be a deprivation of a defendant’s constitutional rights. 
The court recognized the traditional concept of the nature 
of the peremptory challenge as absolute and as precluding 
inquiry into the motives or mental attitudes of the one to 
whom the right is given. Writs were refused by the United 
States Supreme Court. United States ex rel. Dukes v. Sain, 
297 F. 2d 799 (1962), writs denied 369 U. S. 868, 82 S. Ct. 
1035, rehearing denied 370 U. S. 920, 82 S. Ct. 1558.

The defendant in that case, like the defendant Ward in 
the instant case, was a Negro sentenced to death for murder. 
After his conviction and sentence had been upheld by the 
Illinois Supreme Court, he applied for relief by writ of 
habeas corpus in the federal courts. He complained there, 
as do the defendants in this case, that the state’s attorney 
had used his peremptory challenges to exclude all Negroes 
from the jury which tried him, thereby denying him due 
process and equal protection of the laws.

For the reasons assigned the convictions and sentences 
are affirmed.

Rehearing Refused Oct 7 1964.



38