Petition for Writ of Certiorari to the Supreme Court of Georgia

    IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

No. 

  

WILLIAM HENRY FURMAN, 

Petitioner, 

EY 

vs. 

STATE OF GEORGIA, 

Respondent. 

  

  

PETITION FOR WRIT OF CERTIORARI TO THE 

SUPREME COURT OF GEORGIA 

  

  

ANDREW J. RYAN, JR. 

ATTORNEY FOR RESPONDENT 

 



  

Bett Gee Weer SoMS Gane Goes Good Gee Sew Bnew wn wees Sewn Goes Wemw 

I hereby certify that I have served copies 

of the attached Response to the application for 

Writ of Certiorari to the Supreme Court of Georgia, 

by United States mail, postage prepaid, address as follows: 

The Honorable Jack Greensberg 
10 Columbus Circle 
New York, New York 10019 

The Honorable Michael Meltsner 

10 Columbus Circle 

New York, New York 10019 

The Honorable Jack Himmelstein 

10 Columbus Circle 

New York, New York 10019 
The Honorable Elizabeth B. DuBois 

10 Columbis Circle 

New York, New York 10019 

The Honorable Anthony G. Amsterdam 
Stanford University Law School 
Stanford, California 94305 

The Honorable B. Clarence Mayfield 
910 West Broad Street 
Savannah, Georgia 31401 

The Honorable Arthur K. Bolton 
Attorney General of Georgia 
Judicial Building 

Atlanta, Georgia 30334 

This 20th day of August, 1969. 

et 372A 
  

District Attokdey Hor the 
Eastern Judicial Circuit of Georgia 

 



  

  

TABLE OF CASES Page 

Witherspoon vs. Illinois 391 U. S. page 510 (1967) 4 

Whitten vs. The State of Georgia 47 Ga. Rep. 298,302 19 

Sims vs. Balkcom, 220 Ga. pg. 7 (1864) 20 

 



  

  

IN THE 
TD he 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969, 

NO, 645 M1SC. 

    

  

  

  

WILLIAM HENRY FURMAN, 
  

Petitioner, 
  

VS. 

  

  

STATE OF GEORGIA, 

| RESPONDENT 
  

  

PETITION FOR WRIT OF CERTIORARI TO THE 

SUPREME COURT OF GEORGIA 

  

  

RESPONSE TO PETITIONER'S PETITION 
  

Now comes the State of Georgia by and throvgh. 

Andrew J. Ryan, Jr., District Attorney for the Eastern 

Judicial Circuit of Georgia, and the prosecuting officer 

for the State of Georgia within said Circuit, and files 

this his response to the petition for Writ of Coviiovunt 

filed by the above named Petitioner, 

Petitioner's petition states three questions 

presented for determination by this Court. Respondent 

will toke each question separately. 

QUESTION NO, I 
  

"Where a prospective juror was improperly 

excluded from Petitioner's Jury in violation of the rule 

of Witherspoon vs. Illinois, 391, U. S. 510 (1967)2" 

 



  

Respondent respectfully directs this Honorable 

Court's attention to the brief of evidence wherein Mr. 

Robert Barker, Assistant District Attorney, questioned 

prospective Juror, Mrs. Weiner, who expressed opposition 

to capital punishment as follows: 

Mr. Borker: "Mrs. Weiner, you state that you are 

opposed, or conscientiously opposed to capital ‘punishment. 

E] Does your answer of yes" mean that you would refuse to 

impose capital punt ehinant in a case regardless of the 

evidence? " 

Mrs. Weiner:"No." 

Mr. Barker: "In other words, you might impose 

capital punishment if the evidence. SO == " 

Mrs. Weiner: "And I may not. " 

Mr. Barker: "And you may not. Do you think that 

your attitude toward the death otRal ty would prevent you 

from making an impartial decision as the defendant's guilt?" 

Mrs. Weiner: "NO" 

The Court: "She is qualified." 3 

Mr. Barker: "Juror upon the prisoner." 

Mr. Mayfield: "Swear the juror." (Brief of Evidence, 

page 2 lines 1 through 17). 

Subsequent to the above Juror, Mr. Alvin W. Anchors, 

Sr., expressed opposition to capital pinishuont and was 

questioned as follows by Mr. Barker: 

Mr. Barker: " Mr. Anchors, I would ask you the 

same question, sir. You've stated that you were against - 

 



  

opposed to capital punishment. Does your answer of 'yes' 

mean that you would refuse to impose capital punishment 

in a case regardless of the evidence?" Mr. Anchors:"I 

believe I would." 

Mr. Barker: "Do you think that your attitude 

toward the death penalty would prevent you from making 

an impartiol decision as to the Defendant's guilt?" 

Mr. Anchors: (Inaudible) 

Mr. Barker: "Pordon me, sir?" 

Mr. Anchors: "I said I am opposed --" 

Mr. Barker: "Would this opposition to the death 

penalty affect your decision as to a defendant's guilt?" 

Mr, Anchors: "1 think i%t would.” 

(Brief of evidence, pages 4 lines 18 through 21, and page 5 

lines 1 through 14). 

It can clearly be seen when Mrs. Weiner was 

questioned as to her position to capital punishment, she 

stoted that it would depend on the evidence as to whether 

she would or would not impose the death penalty even though 

she was opposed to same. It can furihey be seen that Mrs. 

Weiner stated that her attitude toward the death penalty 

would not prevent her from making an impartial decision 

as to Petitioner's innocence or guilt, 

The above is not so with Mr. Anchors. Mr. Anchors 

stated that he believed his attitude toward capital punishment 

would be such that he would never impose the death penalty.® 

When asked if this opposition to the death penalty would 

affect his decision as to the Petitioner's innocence or 

 



  

guilt, he answered: "I think it would." (Brief of Evidence, 

page 5 line 14). 

Respondent respectfully oot tends that the trial 

Court properly included Mrs. Weiner and properly excluded 

Mr. Anchors. 

Respondent cites to this Court the Gass of 

Witherspoon vs. Illinois, 391, U. S., page 510, (1967), 

(21 page 522), wherein the Court stated: 

"We repeat, however, that nothing we say today 

bears upon the power of a State to execute a defendant 

sentenced to death by a jury from which the only veniremen 

who were in fact excluded for cause were those who made 

unmistakably clear (1) that they would automatically vote 

"against the imposition of capital punishment without regard 

to any evidinte that might be developed at the trial of the 

case before them, or (2) that their attitude toward the | 

death penalty would prevent them from making an impartial 

decision as to the defendant's guilt." (Emphasis ours). 

Respondent contends that the Witherspoon decision 

(Supra) stands for the proposition that a Juror would not 

be excluded sinpiy because he was opposed to capital punish- 

ment on a broad basis. 

Respondent contends that by a review of the 

Brief of Evidence it is made clear that Mrs. Weiner, pros- 

pective juror, while she was opposed to capital punishment, 

a 

her opposition to capital punishment was not such as would 

have prevented her from considering the death penolty if 

 



  

the facts of the case and cldunstonces warranted same. 

From a review of the Brief of Evidence ve 

contend that Mr. Anchors unmistokably said he would not 

impose the death penalty rasardless of the facts and 

circumstances as they would develop through the trial, and 

further, that his cttitude toward the death penalty was such 

that it would affect his determination of the innocence or 

guilt of petitioner. 

We direct this Honorable Court's attention to 

the Witherspoon decision (Supra) at page 522, wherein this 

Court held: 

"We hold that a sentence of death can not be 

carried out if the jury that imposed or recommended it 

was chosas by excluding veriremen for cause simply because 

they voiced general objections to the death penalty or 
  

expressed conscientious or religious scruples against its 

infliction,” (Emphasis ours). 

We further direct this Court's attention to 

footnote 21 of the Witherspoon decision Supra page 522, 

where the Court stated: | 

"The most that can be demanded of a veniremen 

in this regard (capital punishment) is that he be willing 

to consider all of the penalties provided by State law, and _ 

. that he not be irrevocably committed, before the trial has 
  

begun, to vote against the penalty of death regardless of 
  

the facts and circumstances that might emerge in the course. 
  

of the proceedings.” (Emphosis ours). 
  

 



  

Respondent contends that Juror Anchors, was not 

excluded simply because of his position to capital punish- 

ment but was excluded because his opposition to capital 

punishment was such that he would never impose same and 

his attitude toward capital punishment was such that the 

innocence or guilt of petitioner could not be decided 

fairly. All respondent asks 4s that we be allowed to 

place jurors in the jury box who will consider all of the 

penalties provided by the State of Georgia and will not 

exclude any penalties before the trial has begun. We ask 

nothing more than what this Court has stated should be 

given us. 

By way of information we state that Mrs. Weiner 

did serve on this Jury that imposed the capital punishment. 

Under the laws of our State in order for a person 

to be convicted of any criminal offense the Jury must return 

0 unanimous deoision.: 

QUESTION NO, II 
  

Does Georgia practice in allowing capital trial 

jurors absolute discretion in imposing the death penalty, 

uncontrolled by standards or discretions of any kind, 

violate the due process clause of the Fourteenth Amendment? 

In response to Petitioner's second question, does 

Georgia practice of allowing capital trial jurors absolute 

discretion in imposing the death penalty or coptiol punishment 

uncontrolled by standards or discretions of any kind, violate 

the due process clause of the Fourteenth Amendment. Respondent 

takes the following position. The State of Georgia has held 

 



  

in numerous decisions thot have been quoted by petitioner 

that a Jury has completely within their discretion the 

right to fix the punishment after determining the ouilt 

of the Defendant in any given cose. In the present case, 

Respondent respectfully requests this Honorable Court's 

attention to the charge given by the Honorable Dunbar 

Harrison, Judge who presided at the Petitioner's trial, 

in which he charged the Jury on the various aspects of 

the laws of Georgia. The Honorable Dunbar Harrison in his 

charge instructed the Jury as follows: 

"You members of the Jury, the Defendant, William 

Henry Furman, is on trial for the offense of murder. 

The indictment charges the Defendant with 

having on August 11, 1967, with force and arms, .did unlaw- 

fully and with malice aforethought kill and murder Williom 

J. Micke with a pistol contrary to the laws of the State of 

Georgia, the good order, peace and dignity thereof. To 

this charge the Defendant has entered a plea of not guilty 

and that forms the issue that you are to try: 

I charge you that the Dgfendant entered upon 

the trial of this case with the presumption of innocence 

in his favor, and that presumption remains with him 

throughout the trial of the case until it is shown by 

competent evidence that he is guilty to ao moral and 

reasonable certainty and beyond a reasonable doubt. 

4 

Now, a reasonable doubt is a doubt for which you can give 

a reason. It means just what it says. It is the doubt of 

a fair-minded, impartial juror honestly seeking the truth; 

wf 

 



  

4 not an arbitrary or a capricious doubt, but a doubt arising 

from the consideration of the eviderice, or from the lack of 

evidence, or from a conflict in the evidence or from the 

statement of the defendant himself. Now.if, after consid- 

ering all the facts and circumstances of the case giving 

to the defendant's statement just such weight and credit 

as you think it is entitled to receive, your minds are 

wavering, unsettled and unsatisfied, then that is the 

doubt of the law and you should acquit the defendant, Bob 

if that doubt does not exist in your minds as to the guilt 

of the defendant then it would be your duty to convict him. 

Now, the defendant has made a statement in this 

case, as the law gave him the right to do. The law 

provides that in every criminal case the defendant may 

make to the Court and jury just such statement as he sees 

proper in his own defense. It is not under oath and shall 

have such force only as the jury think right to give it. 

You may believe it, if you see proper to do so in preference 

to the sworn testimony in the case. You may believe it all 

if you see proper to do so. You may disbelieve it all. You 

may believe a part and disbelieve a part, The force, effect 

and credit to be given to the defendant's statement is a 

matter eotizely for the consideration and determination 

of the jury. 

I charge you further that where in any given case 

the substantial part of the dase is dependent on circumstantial 

evidence, that is, where there are no actual eye witnesses 

to the homicide and that proof of the possible guilt of the 

 



  

defendant is dependent on facts and circumstances which the 

State contends establishes his guilt, in such a case the 

burden is upon the State, not only to prove his guilt 

beyond a reasonable doubt, but to prove his guilt to the 

exclusion of every other reasonable hypothesis save that 

of the guilt of the accused. 

The object of all legal investigations is the 

discovery of the truth. Direct evidence is that which 

points immediately to the question at issue. Indirect 

or circumstantial evidence is that which only tends to 

establish the issue by proof of various facts sustaining 

by their consistency the hypothesis claimed. To warrant 

a conviction on circumstantial evidence the proved facts 

shall not only be consistent with the hypothesis of guilt, 

but shall exclude every other reasonable hypothesis save 

that of the guilt of the accused. 

In the investigation of all matters, civil as well 

as criminal, the true function of the Court and jury is in 

the ascertainment of the truth. This defendant is presumed: 

to be innocent and that presumption continues with hin 

throughout the trial of the entire case and until his guilt 

has been made to appear to you by evidence which you can 

believe to a reasonable and moral ccertainty and Goyand a 

reasonable doubt. 

'I charge you further that where there are two 

theories or conclusions, that the evidence might point to, 

one of the theories being consistent with the guilt of the 

defendant and the other being consistent with his innocence, 

 



  

and if you find this to be a fact, and that reasonable 

deductions lead to his guilt on one hand and that reasonable 

deductions lead to his innocence on the other, the justice 

and humanity of the law compel you to accept the theory 

which is consistent with his innocence and give the defendant 

the benefit of the doubt and accept the theory that would 

indicate the innocence of the defendant. 

I charge you that an admission, as applied to 

a criminal cute is the avowal of a fact or circumstance by 

the defendant, not amounting to a confession of guilt but, 

tending to prove the offense and from which guilt may be 

“inferred. An incriminating stotement is one made by the 

defendant which tends to establish the guilt of the accused 

or one from which, together with other proven facts, if any, 

coils nay be inferred, or one which tends to disprove some 

defense set up by the accused. Admissions and therinthating 

stotenents are not direct, but circumstantial. evidence 

and should be scanned with care and received with great 

caution. The jury may believe admissions or incriminatory 

stotendnts in whole or in part, believing that which they 

find to be true and rejecting that which they find to be 

untrue, unless the State relies solely upon such admissions 

or statements. Admissions must be freely and voluntarily 

made and made without he llhvess hope of benefit or 

remetest fear of injury. Unless thus made they must not 

be considered. 

The charge against the defendant is that of murder. 

“10. 

 



  

Murder is the ondawiol killing of a human being in the 

peace of the State, by a person of sound memory and 

discretion, with malice aforetborght, either express or 

implied. Express malice is that deliberate intention 

unlawfully to take away the life of a fellow creature, 

which is manifested by external circumstances capable of 

proof. Implied malice may exist and there may be no 

evidence of express malice, WILE a be implied. 

Implied malice, says the law, is where no considerable 

provocation appears and where all of the circumstances of 

the killing show an abandoned and malignant heart. Now an 

abandoned and malignant heart, in the sense of the law, is 

commonly held to be evinced by a weapon likely to produce 

death and by a brutal and bloodthirsty use of the same. 

Whether or not a given instrument is a weapon likely to 

produce death, when used in the manner in which it was used, 

is in every instance a question for the jury. In other words, 

murder is the intentional killing of a human being, or the 

killing of a human being by the intentional use of a weapon 

that as used is likely to kill and &@ killing without justifi- 

cation, mitigation or excuse. The punishment for persons 

convicted of murder shall be death, but may be confinement 

in the penitentiary for life if the jury trying the case shall 

so recommend. | 

I charge you that involuntary manslaughter shall 

consist in the killing of a human being without intention 

to do so, but in the commission of an unlawful act, or a 

lawful act, which probably might produce such consequence 

 



  

in an unlawful manner provided, that where such involuntary 

killing shall happen in the commission of an unlawful act 

which in its consequences naturally tends to destroy the 

life of a human being or is committed in the prosecution 

of a crime punishable by death or confinement in the 

penitentiary, the offense shall be deemed and adjudged 

to be that of murder. 

I charge you that burglary is the breaking and 

entering into the dwelling, mansion, or storehouse or sther 

place of business of another wiohavaluoble goods, wares, 

produce, or any other article of value are contained or 

stored, with intent to commit a felony or a larceny. There 

are several ingredients in the offense of burglary. It must 

be a dwelling or place of business of another. There must 

be both a breaking and entering into the dwelling or place 

of business, and such breaking and entering must be with intent 

to commit a felony or a larceny. Any . removal of those things 

which are usually found in buildings to protect them from 

intruders on the outside would be a breaking within the law. 

It is a breaking within the law of burglary to raise a 

window that is found down. It is a breaking to break a glass 

of a window and raise the latch and raise the windows after- 

wards. It ts a breaking to turn the knob of a door and enter 

by that means. It must be tosh force as used as would be 

necessary to break into a house and which destroys or puts. 

out of the way those safequards about a house that are intended 

to protect the house from intruders from without and there 

«} Zw 

 



  

must be an entering after the bEGahang, There must be 

an entering into the house. This breaking and entering 

must be done with intent to commit either a felony or a 

larceny. Burglary is punishable by imprisonment in the 

penitentiary for not less than one nor more than twenty 

years. If you believe beyond a reasonable doubt that the 

defendant broke and entered the dwelling of the deceased with 

intent to commit a felony cor a larceny and that after so 

breaking and entering with such intent, the defendant killed 

the deceased in the manner set forth in the indictment, and 

if you find that such killing was the natural, reasonable 

and probable consequence of such breaking and entering then, 

I instruct you that under such circumstances, you would be 

awihorized to convict the defendant of nar dat and this you 

would be authorized to do whether the defendant intended to 

kill the deceased or not. 

Take this case, take the rules of law I have given 

you and apply them to the evidence in the case. If you find 

the defendant guilty as charged in the indictment, if you are 

satisfied beyond a reasonable dove that he is guilty of 

murder, you should so find, and the form of your verdict 

would be, 'We, the jury, find the defendant guilty.’ Now 

that, without more, would mean that the Court would, of 

necessity, sentence the defendant to the extreme penalty 

of the law which would be death by electrocution. If you 

find the defendant guilty of murder and in the exercise of 

the discretion which is left you by the law you should 

lB 

 



  

recommend mercy, thon the form of your verdict would be, 

*we,the jury find the defendant guilty and recommend mercy." 

That form of verdict would Sorel as the punishment imprisonment 

in the penitentiary for life. 

I charge you that the punishment for murder is 

death by s180iracetion, but you, the jury, have the right 

in your discretion to recommend him to the mercy of the Court 

and fix the punishment for Life. olthes of which actions by 

you would be binding upon the Court. The jury does not have 

to give any reason for its action in fixing the punishment 

at life or death. It does not even have to find that there 

were extenuating circumstances. The punishment is an alter- 

native punishment and may be one or the other as the jury 

sees fit. 

Now, if you do not believe the det onduny guilty, 

or if you have a reasonable doubt In your minds as to his 

guilt, it would be the duty of the jury to give the defendant 

the benefit of that doubt and to find him not guilty, in which 

event the form of your verdict would be, "We, the jury, find 

the defendant not guilty." 

Now, whatever your verdict might be it must be 

vnhanimous, in writing, dated, signed by one of you as foreman 

and returned into Court. You will write out your verdict on 

the back of the indictment and return it into Court. 

You may now retire and consider your verdict. " 

4 

(The jury withdrew to the jury room at 3:35 o'clock P. M.) 

(The Jury returned to the jury box at 4:10 o'clock P. M.) 

 



  

THE COURT: "Some question you want to ask me? " 

JUROR: "Yes, Your Honor. ” 

THE COURT: "Is it oo question of lov or a question of fact?” 

JUROR: "It's a question of law." 

THE COURT+ UAL} right.”   

7 1 i . . . . 

JUROR: "It's - among the jurors .. a difference of opinion 

on the verdict that we can render. Can we render a verdict, 

11] 

leaving it to the discretion of the Court -- 

THE COURT: "No sir. I have given you the forms of the   

verdicts. It's up to the jury to determine. 

JUROR: "That's all we need. " 

END OF CHARGE. (Brief of Evidence pages 110 through 119). 

This honorable Court can well see that the charge 

of the trial Court was a thorough, impartial, completely 

inclusive charge, giving the jury several alternative verdicts 

they might return. Each of the alternative verdicts was Si . 

completely and clearly described to the Jury and we feel 

that this is guide line enough by which Jurors may intelligently 

apply both the law and the evidence; one against the other, 

and return a just verdict. 

What Forthes guide lines Petitioner can possibly 

want the trial Court to furnish the Jury is completely 

beyond the imagination of Respondent. It can readily be 

seen by the charge of the Court that the Jury had the 

opportunity if they found. the defendant guilty of murder 

to return a verdict with a recommendation of mercy which 

would have demanded life imprisonment. However, the Jury 

in this case applying the fact that Petitioner was in the 

 



  

4 act of committing a felony, to wit: a burglary, in the 

middle of the night at the time he maliciously and without 

cause shot and killed William J. Micke, was not entitled 

to life imprisonment. 

We feel that it is not unreasonable to allow each 

and every case to stand on its own merits and allow the Jury 

to deistmine if the crime was holous enough to bring back 

a death penalty. 

Not only in murder cases in the State of Georgia 

but in cases involving any crime the Jury has a right to 

return a verdict of guilty and state the sentence within 

certain limits as prescribed by law. This would indicate 

that the very purpose of this method is to allow the Jury 

discretion to punish guilty persons Gocording to the 

severity of their crimes. 

Respondent respectfully argues that the second 

ground in Petitioner's petition is completely without merit. 

GROUND NO, III 
  

Does the punishment of death by electrocution 

pursuant to provisions of Georgia Law for the crime of murder 

constitute cruel and unusual punishment in violation of the 

Eighth and Fourteenth Amendments? 

Respondent has completely searched the laws of this 

Nation and nowhere can he find a Supreme Court decision to 

the effect that death is a cruel and inhumane punishment. 

Death for the commission of a crime has not been and is 

not now prohibited by the Constitution of the United States 

or the Constitution of the State of Georgia. 

 



  

Petitioner has cited to this Court NETS 

articles and polls wherein people have expressed their 

opposition to eapitaol punishment. Be it remembered 

by this Hononzable Court that our statutes of this State 

are all written by people and the laws are passed by 

people who constitute our Legislature representing all 

the citizens of the State of Georgia. If Solis Eshcuer 

that they indicate the majority of people as being opposed 

to capital punishment the place for change is in the 

Legislature. : 

Respondent shows that our Jurors are now colbon ed 

of people fron all walks of life and sections of the 

community and from all types of businesses. So the 

question of having been a "Hanging Jury" no longer exists. 

The main purpose of the Witherspoon decision, and rightly 

so, was to eliminate a "hanging Jury" and to olimineie 15 

Jury "hell bent" on sending a person to the olsdtilc chair. 

This fact is emphasized by the fact that Mrs. Weiner, a 

person opposed to capital punishment, sat on, deliberated, 

and returned the announced verdict.ogainst Petitioner finding 

hin guilty of murder without recommendation for mercy. 

As above stated under the law of the State of 

Georgia each case and the facts and circumstances of 

that case must rest on its own, ond if o Jury in a particular 

case believes that thé crime and circumstances surrounding 

that crime demand and call for capital punishment it 

should be the right of the State to have that punishment 

imposed. 

-17- 

 



  

Our laws are constituted so that a person convicted 

of the offense of murder may receive the death penalty or 

may, at the discretion of the Jury, receive life imprisonment. 

In Petitioner's petition he stated the following: 

"It is Petitioner's contention, in sum, that his 

sentence of death constitute a cruel and unusual punishment 

because it affronts contemporary standards of decency, 

universally felt, that would condemn the use of death as a 

penalty for the crime of murder if such a penalty were 

uniformly, regularly and evenhandedly applied eines to. 

all those quilty of murder or to any non-arbitrarily selected 

sub-class thereof." | 

Respondent feels that Petitioner's position as 

quoted is Eonslately. untoundeds It is Respondent's position 

that there are few death penalties now handed down by Jurors 

of this State and/or all other states in this country th 

comparison to the number of murders, rapes, robberies and 

other heinous crimes which do and should carry the death 

penalty. Petitions further contends that it is not an 

arbitrary position the Jury takes in returning the death 

sentence but is a position reached only through long and 

tedious thought and deliberation of each case. In the 

instant case it is the contention that the Jury felt that 

Petitioner showed disregard for the right of the deceased 

to be secure and safe in his own home, with his own family, 

and to live ao normal and secure life. Petitioner violated 

practically all of the constitutional rights of the deceased 

<15. 

 



  

but now asks that this same constitution afford him 

protection which he so cruelly denied the deceased, Mr. 

Micke. 

It will be noted that the death penalty is as 

old as the Ecclesiastical Courts in England from whence 

BT are derived. 

Permit us in closing-to quote the language of 

Justice McCoy of the Supreme Court of Georgia in thetehss 

of Whitten vs. The State of Georgia, 47 Georgia Reports, 

page 298 at 302; 

"Whether the law is unconstitutional, a violation 

of that article of the Constitutian which declares excessive 

fines shall not be imposed nor cruel and unusual punishments 

inflicted, is another question. The latter clause was,doubtless, 

intended to prohibit the barbarities of quartering, hanging 

in choins,. castration, eic. her adopted by the framers 

of the Constitution oT ts United States, larceny was generally 

punished by hanging; forgeries, burglaries, etc., in the same 

way, for, be it remembered, penitentiories are of doch 

origin, and I doubt if it ever entered into the minds of men 

of that doy; that o crime such as this witness makes the 

detondont guilty of deserved a less penalty that the Judge 

has inflicted. It would be an interference with atiens 

left by the Constitution to the legislative department of 

the Government, for us to undertake to weigh the propriety 

of this or that penalty fixed by the Legislature for Sreniils 

offenses. So long as they do not provide cruel and unusual 

wl Qu 

—
 

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_
—
_
—
_
_
 

 



  

punishments, such as disgraced the civilization of former 

ages, and moke one shudder with horror to read of them, as 

drawing, quartering, burning, etc., the Constitution does 

not put any limit upon legislative discretion. 

Judgment affirmed. 

This case has been followed by the Georgia Supreme 

Court as late as the decision in Sims vs. Balkcom, 220 

Georgia Reports, pg. 7 aot 10. (Decided May Zz, 1964), 

It can be seen that the Georgia Courts as well as the United 

States Supreme Court has held that the death penalty is not 

cruel and inhumane punishment. 

We respectfully contend that the Petitioner was given 

ao fair. and impartial trial and that his Writ of Certiorari 

should be denied. 

Respectfully submitted, 

THE STATE OF GEORGIA 
3 / 

”” rd 4 / Aa 73 ve tL rir : - pe // 
f Fr / y oo » pd! { 

BY A777 it, AL. / Colts fey 

  

DISTRICT ATTORNEY FOR’ THE 

EASTERN JUDICIAL CIRCUIT OF 

GEORGIA 

Post Office Address: 

305 Courthouse Building : 

Savannah, Georgia 31401