McLaughlin v. Florida Reply Brief for Appellants

    In t h e

i>uprpmr Court of %  luttrd Utotrs
October T erm, 1964 

No. 11

Dewey McLaughlin, et al.,
Appellants,

F lorida.

ON APPEAL PROM THE SUPREME COURT OP THE STATE OP FLORIDA

REPLY BRIEF FOR APPELLANTS

J ack Greenberg 
J ames M. Nabrit, III 
Leroy D. Clark

10 Columbus Circle 
New York, New York

L ouis H. P ollak 
127 Wall Street 
New Haven, Connecticut

W illiam T. Coleman, Jr.
2735 Fidelity-Philadelphia 
Trust Bldg.
Philadelphia 9, Pennsylvania

G. E. Graves, Jr.
802 N. W. Second Avenue 
Miami, Florida

Attorneys for Appellants



TABLE OF AUTHORITIES

Brown v. Board of Education, 347 U. S. 483 ...........  3
Burnette v. State, 157 So. 2d 65 ................................... 15

Forceier v. State, 133 So. 2d 336 ................................... 15

dominion v. Lightfoot, 364 U. S. 339 ........................... 3

Hamilton v. State, 152 So. 2d 793 ...............................  15
Henderson v. State, 20 So. 2d 649 ......   17

Missouri ex rel. Gaines v. Canada, 305 IT. S. 337 .......  3

Nixon v. Condon, 286 H. S. 73 ....................................... 3
Nixon v. Herndon, 273 U. S. 536 ....................................... 3

Strauder v. West Virginia, 100 U. S. 303 ...................  3

Williams v. Georgia, 349 U. S. 375 ............................... 18

Statutes

Civil Bights Act of 1866, 14 Stat. 2 7 ...................2, 3, 4,12,19

Fla. Stat. Ann. §924.32 (1) .......................................14,15,16

Fla. Stat. Ann. §918.10 ......................................................  13

Other A uthorities

Bickel, “ The Least Dangerous Branch” ...........................

Bickel, “ The Original Understanding and the Seg­
regation Decision, 69 Harv. L. Rev. 1 (1955) ...........

Cong. Globe, 39th Cong. 1st Sess............-........................
2 Florida Jurisprudence (1963) ........ ........ -................ T



In the

§>itpr?m£ GImtrt nf tty United States
October T erm, 1964 

No. 11

Dewey McLaughlin, et al.,

—v.-
Appellants,

F lorida.

ON APPEAL PROM THE SUPREME COURT OE THE STATE OE FLORIDA

REPLY BRIEF FOR APPELLANTS

The purpose of this reply brief is to respond to two 
questions posed by appellee in its brief: the first of these 
is “Whether the Fourteenth Amendment affects the state 
anti-miscegenation statutes” ; the second of these is 
“ Whether the question of the constitutional validity of state 
anti-miscegenation laws is present in the instant case.”

I. “ Whether the Fourteenth Amendment affects the state 
anti-miscegenation s t a t u t e s In pages 10-37 of appellee’s 
brief the argument is thought to be made that the legislative 
history of the Fourteenth Amendment precludes the ap­
plication of the Amendment to state anti-miscegenation 
laws. Specifically, appellee claims to have demonstrated 
(Brief of Appellee, pp. 35-36):

that the purpose of the Amendment was to validate 
— the provisions of the Civil Rights Act [of 1866] and 

place them beyond the power of the Judiciary to nul­
lify, and the power of the Congress to repeal.

It was the opinion of those who spoke in behalf of 
the Civil Rights Act that it had no application to mar­
riage contracts, anti-miscegenation statutes or the right 
of suffrage.



2

In short, appellee’s argument advances in two steps: 
(1) that, the Civil Eights Act of 1866 (which appears as 
Appendix A, infra) was understood to have no impact on 
anti-miscegenation statutes, and (2) that Section 1 of 
the Fourteenth Amendment, was understood to be cotermi­
nous with the Civil Eights Act of 1866.

Appellants acknowledge the force of the first proposition. 
But appellants take strong issue with the second proposi­
tion.

The simplest way to test the second proposition—under 
which appellee would precisely equate the guarantees of the 
Civil Eights Act of 1866 and those of Section 1 of the Four­
teenth Amendment—is to inquire whether or not there are 
other forms of state-ordained racial discrimination which, 
like anti-miscegenation statutes, are plainly outside the 
ambit of the Civil Eights Act but which have been declared 
by this Court to be proscribed by the Amendment.

To make this test it would be appropriate to refer to 
the speech made by Congressman James F. Wilson of Iowa, 
manager of the Civil Eights bill in the House, when he 
brought the bill up for discussion on March 1, 1866. Con­
gressman Wilson had this to say of Section 1 of the bill as 
it was originally proposed (Cong. Globe, 39th Cong., 1st 
Sess. 1117):

This part of the bill . . . provides for the equality of 
citizens of the United States in the enjoyment of “ civil 
rights and immunities.” What do these terms mean! 
Do they mean that in all things civil, social, political, 
all citizens without distinction of race or color, shall 
be equal? By no means can they be so construed. Do 
they mean that all citizens shall vote in the several 
states? No. . . . Nor do they mean that all citizens 
shall sit on the juries, or that their children shall 
attend the same schools.



3

As the March debates wore on the wording of the bill was 
somewhat altered; but its substantial meaning, in the re­
spects already noted by Congressman Wilson, did not 
change. On the last day of the House debate Congressman 
Wilson, speaking of the bill as it was finally enacted into 
law, again reiterated its limited impact (id. at 1294-95):

My friend . . . knows, as every man knows, that this 
bill refers to those rights which belong to men as 
citizens of the United States and none other; and when 
he talks of setting aside the school laws and jury laws 
and franchise laws of the States by the bill . . .  he 
steps beyond what he must know to be the rule of con­
struction which must apply here, and as a result of 
which this bill can only relate to matters within the 
control of Congress.

Thus, as authoritatively expounded, the Civil Eights Act 
of 1866 was not to “mean that all citizens shall vote in the 
several States,” nor “ that all citizens shall sit on the juries, 
or that their children shall attend the same schools.” For 
the Act would not have the effect “ of setting aside the 
school laws and jury laws and franchise laws of the States. 
. . . ” However, and this is the decisive point, Section 1 of 
the Fourteenth Amendment, which appellee seeks to equate 
exactly with the Civil Rights Act of 1866, has operated to 
set aside “ the school laws” (Missouri ex rel. Gaines v. Can­
ada, 305 IT. S. 337; Brown v. Board of Education, 347 U. S. 
483) and “ jury laws” (Strauder v. West Virginia, 100 U. S. 
303), and “ franchise laws” (Nixon v. Herndon, 273 U. S. 
536; Nixon v. Condon, 286 U. S. 73; cf. Gomillion v. Light- 
foot, 364 U. S. 339, 349 [concurring opinion of Whittaker, 
J .] ) “ of the States-----”

In short, this Court has for decades applied the Four­
teenth Amendment to problems of discrimination which



4

were manifestly outside the ambit of the Civil Eights Act 
of 1866. And so appellee’s attempt to equate the limited 
and particularistic guarantees of the Civil Eights Act with 
the spacious rights enshrined in the Fourteenth Amendment 
must fail—unless, of course, the legislative history of 
the Amendment, properly understood, leads to the con­
clusion that this Court fell into fundamental error in each 
of these historic interpretations of the Amendment,

But the legislative history of the Amendment, properly 
understood, yields no such conclusion. The definitive study 
of that history is, of course, the article published by Pro­
fessor Alexander M. Bickel in November, 1955, entitled 
“ The Original Understanding and the Segregation Deci­
sion,” 69 Harv. L. Rev. 1. In his “ Summary and Conclu­
sion,” Professor Bickel traces the limited goals of the 
abortive Freedmen’s Bureau Bill and the ultimately enacted 
Civil Eights Act. Then he states the case for the oft-as­
serted equation—repeated in the Brief of Appellee— of the 
Civil Eights Act with the Fourteenth Amendment. And 
then he shows why the attempt to tie the generalized provi­
sions of the Amendment to the particularized provisions 
of the statute will not hold water. So cogent is Professor 
Bickel’s analysis of this massive problem of constitutional 
interpretation that appellants take the liberty of quoting 
here some extended excerpts from the closing pages of 
Professor Bickel’s article (69 Harv. L. Rev. at 56-65 [foot­
notes not included]) :

As we have seen, the first approach made by the 39th 
Congress toward dealing with racial discrimination 
turned on the “civil rights” formula. The Senate 
Moderates, led by Trumbull and Fessenden, who spon­
sored this formula, assigned a limited and well-defined 
meaning to it. In their view it covered the right to con­
tract, sue, give evidence in court, and inherit, hold,



and dispose of real and personal property; also a right 
to equal protection in the literal sense of benefiting 
equally from laws for the security of person and prop­
erty, including presumably laws permitting ownership 
of firearms, and to equality in the penalties and burdens 
provided by law. Certainly able men such as Trumbull 
and Fessenden realized that each of the seemingly 
well-bounded rights they enumerated carried about it, 
like an upper atmosphere, an area in which its force 
was uncertain. Thus it is clear that the Moderates 
wished also to protect rights of free movement, and a 
right to engage in occupations of one’s choice. They 
doubtless considered that their enumeration somehow 
accomplished this purpose. Similarly, the Moderates 
often argued that one of the imperative needs of the 
time was to educate, to “ elevate,” to “ Christianize” 
the Negro; indeed, this was almost universally-held 
doctrine, from which even Conservatives like Cowan 
and Democrats like Rogers did not dissent. Hence one 
may surmise that the Moderates believed they were 
guaranteeing a right to equal benefits from state edu­
cational systems supported by general tax funds. But 
there is no evidence whatever showing that for its 
sponsors the civil rights formula had anything to do 
with unsegregated public schools; Wilson, its sponsor 
in the House, specifically disclaimed any such notion. 
Similarly, it is plain that the Moderates did not intend 
to confer any right of intermarriage, the right to sit 
on juries, or the right to vote.

The Civil Rights Bill itself, as brought from the 
Senate to the House, split the alliance of various shades 
of Moderates and Radicals which constituted the Re­
publican majority. The bill was presented to the House 
as a measure of limited objectives, following Trum-



6

bull’s views. But a substantial number of Republicans 
were troubled by the issue of constitutionality. Others 
were uneasy on policy grounds about the reach of sec­
tion I, but inclined to believe that the bill could be 
rendered constitutional by amendment, and, in any 
event, out of mixed motives at which one can only guess, 
conquered their apprehensions and voted for it in the 
end. Bingham, whose position was in this instance en­
tirely self-consistent, thought the bill incurably un­
constitutional, its enforcement provisions monstrous, 
and the civil rights guaranty of very broad application 
and unwise. The concession these Republicans wrung 
from the leadership was the elimination of the civil 
rights formula and thus the avoidance of possible 
“ latitudinarian” construction. The Moderate position 
that the bill dealt only with a distinct and limited set of 
rights was conclusively validated.

Against this backdrop, the Joint Committee on Re­
construction began framing the fourteenth amendment. 
In drafting section I, it vacillated between the civil 
rights formula and language proposed by Bingham, 
finally adopting the latter. Stevens’ speech opening 
debate on the amendment in the House presented sec­
tion I in terms quite similar to the Moderate position 
on the Civil Rights Bill, though there was a rather 
notable absence of the disclaimers of wider coverage 
which usually accompanied the Moderates’ statements 
of objectives. A few remarks made in the Senate 
sounded in the same vein. For the rest, however, sec­
tion I was not really debated. Rogers, whose remarks 
are always subject to heavy discount, considering his 
shaky position in the affections of his own party col­
leagues, raised “ latitudinarian” alarms. One or two 
other Democrats in the House did so also. But more 
and more, debate turned on section 3 and not much 
else. The focus of attention is well indicated by Stevens’



7

brief address immediately before the first vote in the 
House. In this atmosphere, section 1 became the sub­
ject of a stock generalization: it was dismissed as em­
bodying and, in one sense for the Republicans, in an­
other for the Democrats and Conservatives, “ constitu­
tionalizing” the Civil Rights Act.

The obvious conclusion to which the evidence, thus 
summarized, easily leads is that section 1 of the 
fourteenth amendment, like section 1 of the Civil 
Rights Act of 1866, carried out the relatively nar­
row objectives of the Moderates, and hence, as origi­
nally understood, was meant to apply neither to jury 
service, nor suffrage, nor antimiscegenation statutes, 
nor segregation. . . .

I f  the fourteenth amendment were a statute, a court 
might very well hold, on the basis of what has been said 
so far, that it was foreclosed from applying it to segre­
gation in public schools. The evidence of congressional 
purpose is as clear as such evidence is likely to be, and 
no language barrier stands in the way of construing the 
section in conformity with it. Rut we are dealing with a 
constitutional amendment, not a statute. The tradition 
of a broadly worded organic law not frequently or 
lightly amended was well-established by 1866, and, de­
spite the somewhat revolutionary fervor with which the 
Radicals were pressing their changes, it cannot be as­
sumed that they or anyone else expected or wished the 
future role of the Constitution in the scheme of Ameri­
can government to differ from the past. Should not the 
search for congressional purpose, therefore, properly 
be twofold? One inquiry should be directed at the con­
gressional understanding of the immediate effect of the 
enactment on conditions then present. Another should 
aim to discover what if any thought was given to the 
long-range effect, under future circumstances, of pro­
visions necessarily intended for permanence.



8

That the Court saw the need for two such inquiries with 
respect to the original understanding on segregation is 
clearly indicated by the questions it propounded at the 1952 
Term. The Court asked first whether Congress and the 
state legislatures contemplated that the fourteenth amend­
ment would abolish segregation in public schools. It next 
asked whether, assuming that the immediate abolition of 
segregation was not contemplated, the framers neverthe­
less understood that Congress acting under section 5, or 
the Court in the exercise of the judicial function would, in 
light of future conditions, have power to abolish segre­
gation.

With this double aspect of the inquiry in mind, certain 
other features of the legislative history—not inconsistent 
with the conclusion earlier stated, but complementary to it—• 
became significant. Thus, section 1 of the fourteenth amend­
ment, on its face, deals not only with racial discrimination, 
but also with discrimination whether or not based on color. 
This cannot have been accidental, since the alternative con­
sidered by the Joint Committee, the civil rights formula, 
did apply only to racial discrimination. Everyone’s imme­
diate preoccupation in the 39th Congress—insofar as it did 
not go to partisan questions—was, of course, with hardships 
being visited on the colored race. Yet the fact that the 
proposed constitutional amendment was couched in more 
general terms could not have escaped those who voted for 
it. And this feature of it could not have been deemed to be 
included in the standard identification of section 1 with 
the Civil Rights Act. Again, when it rejected the civil 
rights formula in reporting out the abortive Bingham 
amendment, the Joint Committee elected to submit an equal 
protection clause limited to the rights of life, liberty, and



9

property, supplemented by a necessary and proper clause. 
Now the choice was in favor of a due process clause lim­
ited the way the equal protection clause had been in the 
earlier draft, but of an equal protection clause not so lim­
ited: equal protection “ of the laws.” Presumably the lesson 
taught by the defeat of the Bingham amendment had been 
learned. Congress was not to have unlimited discretion, and 
it was not to have the leeway represented by “ necessary and 
proper” power. One would have to assume a lack of fa­
miliarity with the English language to conclude that a fur­
ther difference between the Bingham amendment and the 
new proposal was not also perceived, namely, the difference 
between equal protection in the rights of life, liberty, and 
property, a phrase which so aptly evoked the evils upper­
most in men’s minds at the time, and equal protection of 
the laws, a clause which is plainly capable of being applied 
to all subjects of state legislation... .

These bits and pieces of additional evidence do not contra­
dict and could not in any event override the direct proof 
showing the specific evils at which the great body of con­
gressional opinion thought it was striking. But perhaps 
they provide sufficient basis for the formulation of an addi­
tional hypothesis. It remains true that an explicit provi­
sion going further than the Civil Bights Act could not 
have been carried in the 39th Congress; also that a plenary 
grant of legislative power such as the Bingham amendment 
would not have mustered the necessary majority. But may 
it not be that the Moderates and the Radicals reached a 
compromise permitting them to go to the country with 
language which they could, where necessary, defend against 
damaging alarms raised by the opposition, but which at the 
same time was sufficiently elastic to permit reasonable 
future advances ? This is thoroughly consistent with rejec­
tion of the civil rights formula and its implications. That 
formula could not serve the purpose of such a compromise.



10

It had been under heavy attack at this session, and among 
those who had expressed fears concerning its reach were 
Republicans who would have to go forth and stand on the 
platform of the fourteenth amendment. Bingham, of course, 
was one of these men, and he could not be required to go 
on the hustings and risk being made to eat his own words. 
If the party was to unite behind a compromise which con­
sisted neither of an exclusive listing of a limited series 
of rights, nor of a formulation dangerously vulnerable to 
attacks pandering to the prejudices of the people, new lan­
guage had to be found. Bingham himself supplied it. It 
had both sweep and the appearance of a careful enumera­
tion of rights, and it had a ring to echo in the national 
memory of libertarian beginnings. To put it another way, 
the Moderates, with a bit of timely assistance from Fessen­
den’s varioloid, consolidated the victory they had achieved 
in the Civil Rights Act debate. They could go forth and 
honestly defend themselves against charges that on the 
day after ratification Negroes were going to become white 
men’s “ social equals,” marry their daughters, vote in their 
elections, sit on their juries, and attend schools with their 
children. The Radicals (though they had to compromise 
once more on section 3) obtained what early in the session 
had seemed a very uncertain prize indeed: a firm alliance, 
under Radical leadership, with the Moderates in the strug­
gle against the President, and thus a good, clear chance 
at increasing and prolonging their political power. In the 
future, the Radicals could, in one way or another, put 
through such further civil rights provisions as they thought 
the country would take, without being subject to the sort 
of effective constitutional objections which haunted them 
when they were forced to operate under the thirteenth 
amendment.. . .

It is such a reading as this of the original understanding, 
in response to the second of the questions propounded by



11

the Court, that the Chief Justice must have had in mind 
when he termed the materials “ inconclusive.” For up to this 
point they tell a clear story and are anything but incon­
clusive. From this point on the word is apt, since the 
interpretation of the evidence just set out comes only to 
this, that the question of giving greater protection than was 
extended by the Civil Rights Act was deferred, was left 
open, to be decided another day under a constitutional 
provision with more scope than the unserviceable thirteenth 
amendment. Some no doubt felt more certain than others 
that the new amendment would make possible further 
strides toward the ideal of equality. That remained to be 
decided, and there is no indication of the way in which 
anyone thought the decision would go on any specific issue. 
It depended a good deal on the trend in public opinion. 
Actually, one of the things the Radicals had contended for 
throughout the session, and doubtless considered that they 
gained by the final compromise, was time and the chance 
to educate the public. Such expectations as the Radicals 
had were centered quite clearly on legislative action. At 
least this holds true for Stevens. These men were aware 
of the power the Court could exercise. They were for the 
most part bitterly aware of it, having long fought such 
decisions as the Dred Scott case. Most probably they had 
little hope that the Court would play a role in furthering 
their long-range objectives. But the relevant point is that 
the Radical leadership succeeded in obtaining a provision 
whose future effect Avas left to future determination. The 
fact that they themselves expected such a future deter­
mination to be made in Congress is not controlling. It 
merely reflects their estimate that men of their view were 
more likely to prevail in the legislature than in other 
branches of the government. It indicates no judgment 
about the powers and functions properly to be exercised by 
the other branches.



12

Had the Court in the Segregation Cases stopped 
short of the inconclusive answer to the second of its 
questions handed down at the previous term, it would 
have been faced with one of two unfortunate choices. 
It could have deemed itself bound by the legislative 
history showing the immediate objectives to which sec­
tion I of the fourteenth amendment was addressed, and 
rather clearly demonstrating that it was not expected 
in 1866 to apply to segregation. The Court would in 
that event also have repudiated much of the provision’s 
“ line of growth.” For it is as clear that section I was 
not deemed in 1866 to deal with jury service and other 
matters “ implicit in . . . ordered liberty” to which the 
Court has since applied it. Secondly, the Court could 
have faced the embarrassment of going counter to what 
it took to be the original understanding, and of formu­
lating, as it has not often needed to do in the past, an 
explicit theory rationalizing such a course. The Court, 
of course, made neither choice. It was able to avoid the 
dilemma because the record of history, properly under­
stood, left the way open to, in fact invited, a decision 
based on the moral and material state of the nation in 
1954, not 1866.

The present relevance of Professor Bickel’s masterly 
study is abundantly clear: The Civil Rights Act of 1886 
was not intended to apply to laws excluding Negroes from 
juries or from the franchise, denying them admission to 
public schools or relegating them to segregated schools, 
or forbidding them to marry their white fellow-citizens. 
But this Court has found— and properly so—that racial 
discriminations in jury service, the franchise, and public 
schools are all proscribed by the Fourteenth Amendment. 
The instant case calls for the application of the Amend­
ment to antimiscegenation statutes. And, as Professor 
Bickel pointed out only two years ago, “ the constitutionality 
of antimiscegenation statutes . . . would surely seem to be



13

governed by the principle of the Segregation Cases. . . . ” 
Bickel, The Least Dangerous Branch, p. 71.

II. “ Whether the Question of the Constitutional Validity 
of State Anti-Miscegenation Laivs Is Present in the Instant 
Case.”  Appellants do not propose, in this reply brief, to 
devote further attention to the question whether there was 
testimony on the basis of which the jury could have con­
cluded—had the trial judge’s instruction not taken the issue 
out of the case—that appellants had contracted a common 
law marriage. Although opinions may differ as to how com­
pelling the relevant testimony was, appellee’s own brief 
makes it plain that a juror hearing the testimony of Mrs. 
Goodniek and Mrs. Kaabe might reasonably have concluded 
that appellants were married— or that, at the very least, 
the prosecution had not proved the non-existence of a matri­
monial relationship beyond a reasonable doubt.

What appellants wish briefly to address themselves to 
is appellee’s ambiguous intimation that the constitutional 
correctness of the trial judge’s instruction ruling out the 
issue of common law marriage is not properly before this 
Court.

Appellee’s intimation to this effect appears at pages 52 
to 53 of its brief. Appellee there relies on Section 918.10 
of the Florida Statutes for the suggestion that the validity 
of the instruction was not before the Florida Supreme 
Court (and hence is not before this Court) because it had 
not been expressly challenged “before the jury retire [d] 
to consider its verdict.”

The ambiguity of appellee’s intimation arises from appel­
lee’s apparent contrary concession on page 6 of its brief:



14

Appropriate appeal was taken to the Florida Su­
preme Court (R. 1). Suck appeal initially raised all 
errors presently submitted to this Court (R. 12); how­
ever, in briefing the questions and in petitioning for 
rehearing, the appellants abandoned their position that 
the statute under which they were prosecuted was vague 
and indefinite (R. 103). (See also appendix “ A ” to 
appellee’s brief wherein there is contained a photo­
static copy of the only brief presented to the Florida 
Supreme Court by the appellants.)

In short, appellee there acknowledges that all the ques­
tions now urged by appellants were properly raised by an 
“ appropriate appeal” . And the only one of those questions 
said to have fallen by the wayside at a later stage was the 
vagueness problem, and that only by non-inclusion in the 
brief and the petition for rehearing. Moreover, the brief 
filed by appellants in the Florida Supreme Court—which 
appellee has added as an appendix to its brief in this Court 
— argued the invalidity of the instruction at length (Brief 
of Appellee, Appendix A  pages 13-17). Finally, it may be 
noted that in opposing appellant’s petition for rehearing in 
the Florida Supreme Court, appellee expressly urged that 
Court to rule that the validity of the challenged instruction 
was not properly before it— and the Florida Supreme Court 
denied rehearing without opinion.

If, nevertheless, appellee is to be understood as still urg­
ing that Section 918.10 of the Florida Statutes does bar 
consideration of the challenged instruction—and hence of 
the anti-miscegenation statutory and constitutional provi­
sions on which it rests—it then seems appropriate to point 
out that Section 918.10 does not stand alone:

Section 924.32 (1) of the Florida Statutes provides as 
follows:



15

Upon an appeal by either the State or the defendant 
the appellate court shall review all rulings and orders 
appearing in the appeal papers insofar as it is neces­
sary to do so in order to pass upon the grounds of 
appeal. The court shall also review all instructions to 
which an objection was made and which are alleged as a 
ground of appeal, and the sentence where there is an 
appeal therefrom. The court may also in its discretion, 
if it deems the interests of justice to require, review 
any other thing said or done in the cause which appears 
in the appeal papers including instructions to the jury. 
The reception of evidence to which no objection was 
made shall not be construed to constitute a ruling by 
the court.

The discretionary authority conferred on an appellate 
court by the last-quoted statutory provision has recently 
been commented on by the Florida Supreme Court in Bur­
nette v. State, 157 So. 2d 65, 67, and by the Florida District 
Court of Appeal in Hamilton v. State, 152 So. 2d 793, 795 
and in Forceier v. State, 133 So. 2d 336, 337. The way in 
which this discretion is utilized by the Florida courts is 
indicated by the following commentary appearing in the 
section on “ Appeals” in volume 2 of Florida Jurisprudence 
(1963) pp. 422-23 (footnotes omitted):

The giving of instructions is subject to the rule that 
while timely objection should be made, errors of the 
trial court in this regard may be reviewed on appeal in 
the absence of an objection if the error is so funda­
mental as to justify such action, or when the appellate 
court, in its discretion, deems the interests of justice 
to so require. Whether the omission of the court to 
instruct on a particular point will be regarded as funda­
mental depends on the evidence in the case and the seri­



16

ousness of the charge involved. Thus, the failure to 
instruct the jury on the weight to be given a confes­
sion in a capital case, where the conviction rests pri­
marily on that confession, may justify reversal though 
no objection was interposed thereto. On the other hand, 
the failure to give such an instruction in an armed 
robbery case, where there is evidence other than the 
confession in support of the conviction, will not compel 
a reversal if no objection thereto was raised at the 
trial. But where the instructions given by the court 
erroneously take from the jury an essential element of 
the crime charged by the prosecution, the error is so 
fundamental that the conviction should be reversed even 
though no objection was made at the time they were 
given.

Appellants submit that the instant case exactly fits within 
the last sentence of the quoted paragraph from Florida 
Jurisprudence. For the trial court’s instruction removing 
the common law marriage issue from the jury’s considera­
tion followed immediately after the trial court had in­
structed the jury that it was incumbent on the State to 
prove, inter alia, “ that defendants were not married to 
each other at the time of the alleged offense” (R. 93). 
Thus, if, as appellants contend, the instruction excluding 
the common law marriage issue rested upon the unconstitu­
tional premise that Florida’s anti-miscegenation laws were 
valid, the present case is exactly one in which “ the Court 
erroneously [took] from the jury an essential element of 
the crime charged by the prosecution . . . ” In such a situa­
tion Section 924.32 (1) makes it at least proper for a Florida 
appellate court to review the challenged instruction without 
regard for whether it was specifically objected to before



17

the jury retired to consider its verdict. Indeed it may well 
be incumbent upon a Florida appellate court to exercise 
this revisory authority where the trial judge’s intrusion 
upon the jury’s domain is as flagrant as it was in the in­
stant case. This may be the teaching of the Florida Su­
preme Court in the case of Henderson v. State, 20 So. 2d 
649, 651:

This instruction invaded the province of the jury to 
the extent of taking from it the determination of every 
element of the offense charged except that of the in­
tent of the accused. It is elementary that every element 
of a criminal offense must be proved sufficiently to 
satisfy the jury (not the court) of its existence.

It is contended by the State that while the charge 
supra is clearly erroneous, the error is waived by rea­
son of the provisions of . . . subparagraph 4, Sec. 
918.10, Florida Statutes 1941, same F. S. A.

We cannot agree with this view. We must bear in 
mind the due process clause of both our State and Fed­
eral Constitutions. We are convinced that due process 
of law contemplates trial in a criminal ease by a fair 
jury, with full evidence and correct charges or instruc­
tions to the jury as to the law. Of these elements of 
fundamental safeguard, an accused may not be deprived 
either by statute or rule of court. See Lawson v. State, 
125 Fla. 335, 169 So. 739, and cases there cited.

When the provisions of statutes collide with provi­
sions of the Constitution the statute must give way.

At all events, whether or not it would have been incum­
bent on a Florida appellate court to review so crucial an 
instruction, even though not objected to, it is manifest from



18

the foregoing discussion that a Florida appellate court 
has ample discretionary authority to review the instruction 
in such an instance. Cf. Williams v. Georgia, 349 U. S. 375.

Respectfully submitted,

Jack Greenberg 
J ames M. Nabrit, III 
L eroy I). Clark

10 Columbus Circle 
New York, New York

Louis H. P ollak 
127 Wall Street 
New Haven, Connecticut

W illiam T. Coleman, J r.
2735 Fidelity-Philadelphia 
Trust Bldg.
Philadelphia 9, Pennsylvania

G. E. Graves, J r .
802 N. W. Second Avenue 
Miami, Florida

Attorneys for Appellants



A P P E N D I X



APPENDIX A

Civil E ights A ct of 1868 

14 Stat. 27

Chap. X X X I.—An Act to protect all Persons in the United 
States in their Civil Eights, and furnish the 
Means of their Vindication.

Be it enacted by the Senate and House of Eepresenta- 
tives of the United States of America in Congress as­
sembled, That all persons born in the United States and 
not subject to any foreign power, excluding Indians not 
taxed, are hereby declared to be citizens of the United 
States; and such citizens, of every race and color, without 
regard to any previous condition of slavery or involuntary 
servitude, except as a punishment for crime whereof the 
party shall have been duly convicted, shall have the same 
right, in every State and Territory in the United States, 
to make and enforce contracts, to sue, be parties, and give 
evidence, to inherit, purchase, lease, sell, hold, and convey 
real and personal property, and to full and equal benefit of 
all laws and proceedings for the security of person and 
property, as is enjoyed by white citizens, and shall be sub­
ject to like punishment, pains, and penalties, and to none 
other, any law, statute, ordinance, regulation, or custom, 
to the contrary notwithstanding.

Sec. 2. And be it further enacted, That any person who, 
under color of any law, statute, ordinance, regulation, or 
custom, shall subject, or cause to be subjected, an}̂  inhabi­
tant of any State or Territory to the deprivation of any 
right secured or protected by this act, or to different pun­
ishment, pains, or penalties on account of such person 
having at any time been held in a condition of slavery or



2a

involuntary servitude, except as a punishment for crime 
whereof the party shall have been duly convicted, or by 
reason of his color or race, than is prescribed for the pun­
ishment of white persons, shall be deemed guilty of a mis­
demeanor, and, on conviction, shall be punished by fine not 
exceeding one thousand dollars, or imprisonment not ex­
ceeding one year, or both, in the discretion of the court. . . .



rs

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