Sims v GA Brief for Respondent

    IN T H E

SUPREME COURT OF THE UNITED STATES,
OCTOBER TER M , 1966.

No. 251.

ISSAC SIMS, JR., 
Petitioner, 

vs.
STATE O F GEORGIA, 

Respondent.

On Writ of Certiorari to the Supreme Court of Georgia,

BRIEF FOR RESPONDENT.

ARTHUR K. B O LTO N,
Attorney General of Georgia.

Judicial Building,
40 Capitol Square,

Atlanta, Georgia.
E. FR EEM A N LEV ER ET T ,

Deputy Assistant Attorney General.
25 Thomas Street,

Elberton, Georgia.
DEW EY HAYES,

Solicitor General, Waycross Circuit
Douglas, Georgia.

Attorneys for Respondent.

St. Loots L aw Printing Co., Inc., 41.5 N. Eighth Street. CEntral 1-4477.



INDEX.
Page

Opinions below ...................................................................... 1

Jurisdiction ........................................................................  2

Questions presented ............................    2

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

Summary of argument....................................................... 9

Argument ............................................................................... 12
I. No rights of petitioner were violated by admis­

sion in evidence of the confessions ..........................  12
A. The decision below is not in conflict with

Jackson v. D enno...............................................   12
B. The standards applied below to determine

voluntariness were not insufficient...................... 17
C. The confession was not obtained under in­

herently coercive circumstances ........................  18
D. The decision below does not violate peti­

tioner’s Sixth Amendment right to counsel 
under Escobedo v. Illin o is ...............................  25

II. There was no denial of equal protection by the
rulings below relating to the challenges to the
grand and petit ju r ie s .............................   27
A. No error results from the action of the Geor­

gia Courts in restricting proof to the current 
jury l is ts ............................................................... 28

B. The use by the jury commissioners of the Tax
Digest, required by law to list Negro taxpay­
ers separately, shows no violation of the con­
stitution ..........................................................   31

C. There was no prima facie showing of discrimi­
nation from the statistics.................................  39

Conclusion ..................................................................  40



11

TABLE OF AUTHORITIES.

Gases.

Akins v. Texas, 325 U. S. 398, 89 L. Ed. 1692 (1945). .28, 
Anderson v. Martin, 375 U. S. 833, 11 L. Ed, 2d 439

(1964)  
Ashcraft v. Tennessee, 322 U. S. 143, 88 L. Ed. 1192

(1944) ..............................................................................
Avery v. Georgia, 345 U. S. 559, 97 L. Ed. 1244

(1953) ...................................................................... 11,32,

Billingsley v. Clayton, 359 F. 2d 13 (C. A. 5th, 1966). .30, 
Blackburn v. Alabama, 361 U. S. 199, 4 L. Ed. 2d

242 (1960) ............................................. ........................
Boles v. Stevensou, 379 U. S. 43, 13 L. Ed. 2d 109

(1964) ............................................................................ 9,
Brookins v. State, 221 Ga. 181, 144 S. E. 2d 83 (1965) 
Brooks v. Beto, . . .  F. 2d . . . ,  35 L. W. 2077 (July

29, 1966) ........................................................................
Brown v. Allen 344 U. S. 443, 97 L. Ed. 469 (1953) . .11, 
Bush v. Kentucky, 107 U. S. 110, 117, 27 L. Ed. 354 

(1883) ..............................................................................

Cassell v. Texas, 339 U. S. 282, 291, 94 L. Ed. 839
(1950) ....................................................... ............ 29,31,

Chambers v. Florida, 309 U. S. 227, 84 L. Ed. 716
(1940)  

Claybourn v. State, 190 Ga. 861, 869, 11 S. E. 2d 23
(1940) ..............................................................................

Culcombe v. Connecticut, 367 U. S. 568, 6 L. Ed. 2d 
1037 (1961) .................................................................. 18-

Downs v. State, 208 Ga. 619, 621, 68 S. E. 2d 568 
(1952) .............................................................................

Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977 
(1964) .......................................................................2,10,

, 31

32

19

33

31

19

14
32

34
29

31

34

18

13

-19

13

25



Ill

Fay v. New York, 332 U. S. 261, 285, 91 L. Ed. 2043
(1947) ............................................................................. 28,

Fay v. Noia, 372 U. S. 391, 438, 9 L. Ed. 2d 837
(1963) ............................................................................... 3,

Fikes v. Alabama, 352 U. S. 191, 197, 2 L. Ed. 2d 246
(1957) ...................................................  2,17,19,

Gallegos v. Nebraska, 342 U. S. 55, 65, 96 L. Ed. 86 
(1957) ............................................................ ............... 17,

Hall v. State, 65 Ga. 36 (1880) .......................................
Haley v. Ohio, 338 U. S. at 52.......................................
Hamm v. Virginia State Board of Elections, 230 F. 

Snpp. 156 (D. C. Va. 1964), aff’d sub nom. Tancil v.
Woolls, 379 U. S. 19, 13 L. Ed. 2d 91 (1964) ..........

Harris v. South Carolina, 338 U. S. 68, 93 L. Ed. 1815
(1949) ..............................................................................

Harris v. Stephens, 361 F. 2d 888, 892 (C. A. 8th, 1966) 
Haynes v. Washington, 373 U. S. 503, 513, 10 L. Ed.

2d 513 (1963) ..................................... ................... 17,19,
Hill v. Texas, 316 U. S. 400, 404, 86 L. Ed. 1559 (1942) 
Hoyt v. Florida, 368 U. S. 57, 7 L. Ed. 2d (1961) . . . .

Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908
(1964) ................................................................... 2,9,12,

Jackson v. United States, 337 F. 2d 136, 140-141 (C. A.
D. C. 1964), cert. den. 380 U. S. 935, 13 L. Ed. 2d
822 (1965) .............................................. ......................

Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d
882 (1966) ......................................................................

Johnson v. Pennsylvania, 340 U. S. 881, 95 L. Ed. 640
(1950) ..............................................................................

Jugiro v. Brush, 140 U. S. 291, 297, 35 L. Ed. 510
(1891) .............................................................................

Lisenba v. California, 314 U. S. 219, 235, 86 L. Ed. 166
(1941)  ................................................... 21,24,

Long v. United States, 338 F. 2d 549 (C. A. D. C. 1964)

31

15

20

20

13
20

32

18
32

25
34
31

14

26

25

18

31

25
26



XV

Lyons v. Oklahoma, 322 U. S. 596, 601, 88 L. Ed. 1481
(1944) .............................................................9,18,21,22,23

Malinski v. New York, 324 U. S. 401, 89 L. Ed. 1029
(1945) ..............................................................................  19

Martin v. Texas, 200 U. S. 316, 320, 50 L. Ed. 497
(1906) ....................................... ..................... ................  3i

Massiah v. United States, 377 U. S. 201, 12 L. Ed.
2d 246 (1964) ..............................................................  26

Maxwell v. Stevens, 348 F. 2d 325 (C. A. 8th, 1965) 32
McNabb v. United States, 318 U. S. 332, 346, 87 L. Ed.

819 (1943) ....................................................................... 25
Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694 

(1966) ..............................................................................  25

Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567 (1881) 31

Pollard v. State, 148 Ga. 447 (3), 96 S. E. 997 (1918).. 27

Reck v. Pate, 367 U. S. 433, 6 L. Ed. 2d 948 (1961).. 19
Rogers v. Richmond, 365 U. S. 534, 5 L. Ed. 2d 760 

(1961) ..............................................................................  18

Scott v. Walker, 358 F. 2d 56 (C. A. 5th, 1966) ...........  31
Sims v. Balkcom, Warden, 220 Ga. 7, 136 S. E. 2d 766

(1964) ................................................................................ 1)4
Sims v. State, 221 Ga. 190, 144 S. E. 2d 103 (1965), 

cert, granted, 384 U. S. 998, 16 L. Ed. 2d 1013
(I960) ...................    1,4

Smith v. Texas, 311 U. S. 128, 130, 85 L. Ed 84
(1940) .............................................................................31,34

Spano v. New York, 360 U. S. 315, 3 L. Ed. 2d 1265
(1959) ..............................................................................  19

Stein v. New York, 346 U. S. 156, 182, 185, 97 L. Ed
1522 (1953) ...............................  17,21

Strauder v. West Virginia, 100 U. S. 303, 305, 25
L. Ed. 664 (1880) ......................................................... 31

Stroble v. California, 343 U. S. 181, 191, 96 L. Ed. 872 
(1952) ....................................................................... 17,21,22



V

Swain v. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759
(1965) ................................................................. 11,28,30,31

Thomas v. Arizona, 356 U. S. 390, 2 L. Ed. 2d 863
(1958) ....................................................................... 20,21,22

Thomas v. Texas, 212 U. S. 278, 53 L. Ed. 512 (1909) 31

United States ex rel. Goldsby v. Harpole, 263 F. 2d
71 (C. A. 5th, 1959), cert. den. 361 U. S. 838 ..........  31

United States ex rel. Goldsby v. Harpole, 263 F. 2d 71
(C. A. 5th 1964) ............................................................ 39

United States ex rel. Seals v. Wiman, 304 F. 2d 53
(C. A. 4th, 1962), cert. den. 372 U. S. 924 ................ 31,34

United States v. Carnignan, 342 U. S. 36, 38, 96 L. Ed.
48 (1951)  ................................................................ 13

Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667 (1880) 31

Watts v. Indiana, 338 U. S. 49, 93 L. Ed. 1801 (1949) .18, 29
White v. Texas, 310 U. S. 530, 84 L. Ed. 1342 (1940) 18
Whitus v. Balkeom, 333 F. 2d 496 (C. A. 5th, 1964), 

cert. den. 379 U. S. 931, 13 L. Ed. 2d 343 (1965).. 15 
Williams v. Georgia, 349 U. S. 375, 99 L. Ed. 1161

(1955) ...................................  32
Wood v. Brush, 140 U. S. 278, 285, 35 L. Ed. 505 

(1891) ........................................................    31

Statutes.

Code of Georgia of 1882, § 3910 (b) ...............................  35
Constitution of 1877, Art. II, par. I I .............................  38
Constitution of Georgia, Art. I, Sec. I, Par. V (Code

Ann., § 2-105) ................................................................  13
Constitution of Georgia, Art. VI, Sec. XVI, Par. I

(Code Ann., §2-5101) ................................................... 13
Ga. Code, § 27-210 ............................................................. 20
Ga. Code, § 27-212 ............................................................  20
Ga. Code, § 27-901 ............................................................. 20
Ga. Code, § 38-411 ............................................................. 17



Ga. Code, § 59-106 ...........................................................31,
Ga. Code, § 59-109 ................................. ...........................
Ga. Code, § 59-201 .............................................................
Ga. Code, § 59-203 ................................... .........................
Ga. Code, § 59-701 .............................................................
Ga. Code, § 92-108 .............................................................
Ga. Code, § 92-6302 ...........................................................

v i

Ga. Code, § 92-6307 ....................................... 27, 32, 35, 38,
Georgia Laws 1894, pp. 31, 115 ................................... 36,
Georgia Laws 1908, p. 2 7 ...................................................
Georgia Laws 1927, p. 5 7 .................................................
Georgia Laws 1966, Vol. I, p. 393 ................................. 32,
28 USCA, Sec. 1257 (3) .....................................................

Miscellaneous.

Alex Mathews Arnett, “ The Populist Movement in
Georgia,”  7 Ga. Hist. Quart. 313, 332 (1923) ..........

Atlanta Constitution, November 8, 9, 15, 1894 ..........37,
Coulter, Georgia, A Short History, p. 393 (1 9 4 7 )........
50 Iowa L. R. 909, 917 (1965) .......................................
49 Minn. L. R. 360, 363 (1964) .......................................
Georgia House Jour., 1894, pp. 42, 230 ........................37,
Leverett, “ Confessions and the Privilege Against Self- 

Incrimination” , 1 Ga. St. B. J. 433, 441 (May, 1965)
McElreath on the Constitution of Georgia, § 854..........
Siegel, “ The Fallacies of Jackson v. Denno,”  31 Brook-

lin L. R. 50, 58 (1964) ...................................................
United States Census of Population 1960, Georgia 

General Social and Economic Characteristics, PC(1) 
12c Ga., p. 334 ................................. ............................

35
27
35
27
27
38
32
39
37
38
38
39
2

37
38
36
14
13
38

13
38

13

29



IN T H E

SUPREME COURT OF THE UNITED STATES.

OCTOBER TER M , 1966.

No. 251.

ISSAC SIMS, JR ., 
Petitioner,

vs.

STATE O F GEORGIA, 
Respondent.

On Writ of Certiorari to the Supreme Court of Georgia.

BRIEF FOR RESPONDENT.

OPINIONS BELOW.

The opinion of the Supreme Court of Georgia under 
review (R. 328) is reported as Sims v. State, 221 Ga. 
190, 144 S. E. 2d 103 (1965), cert, granted, 384 U. S. 998, 
16 L. Ed. 2d 1013 (1966). Prior decision of the Supreme 
Court of Georgia setting aside the first conviction on 
habeas corpus, is reported as Sims v. Balkcom, Warden, 
220 Ga. 7, 136 S. E. 2d 766 (1964).



JURISDICTION.

Jurisdiction is invoked under 28 USCA, Sec. 1257 (3).

QUESTIONS PRESENTED.

In granting certiorari, the order of this Court declared 
that the writ was granted, limited to five questions as 
stated by the petition, as follows:

“ 1. Whether petitioner’s Fourteenth Amendment rights 
were violated by a conviction and sentence to death ob­
tained on the basis of a confession made under inherently 
coercive circumstances within the doctrine of Fikes v. 
Alabama, 352 U. S. 191.

“ 2. Whether petitioner’s Fourteenth Amendment rights 
were violated by the failure of the Georgia courts to 
afford a fair and reliable procedure for determining the 
voluntariness of his alleged coerced confession in dis­
regard of the principle of Jackson v. Denno, 378 U. S. 
368.

“ 3. Whether petitioner’s Fourteenth Amendment right 
to counsel as declared in Escobedo v. Illinois, 378 U. S. 
478, was violated by the use of his confession obtained 
during police interrogation in the absence of counsel, or 
whether petitioner’s right to counsel was effectively 
waived.

“ 4. Is a conviction constitutional where:

(a) local practice pursuant to state statute re­
quires racially segregated tax books and county 
jurors are selected from such books;

(b) the number of Negroes chosen is only 5% of 
the jurors but they comprise about 20% of xthe tax­
payers; and

—  2 —



3

(c) a Negro criminal defendant’s offer to prove a 
practice of arbitrary and systematic Negro inclusion 
or exclusion based on jury lists of the prior ten years 
is disallowed.

“ 5. Where a Negro defendant sentenced to death in 
Georgia for the rape of a white woman offers to prove 
that nineteen times as many Negroes as whites have been 
executed for rape in Georgia in an effort to show that 
racial discrimination violating the equal protection clause 
of the Fourteenth Amendment produced such a result, 
may this offer of proof be disallowed?” 1 (R. 356).

Respondent obviously does not concur in the form in 
which the questions are stated. The contentions of Re­
spondent are fully set out in the “ Summary of Argu­
ment,”  infra.

1 Petitioner has expressly abandoned this point in his brief 
(p. 3). Respondent does not agree with the assertion, how­
ever, that this question can be raised at a later date. This 
Court granted certiorari to hear it, and the abandonment of 
it here constitutes a waiver and “ deliberate by-passing” of an 
existing remedy. See Fay v. Noia, 372 U. S. 391, 438, 9 L. Ed. 
2d 837 (1963).



4

STATEMENT.

Issac Sims, a 29 year old Negro, was convicted at the 
1963 October Term of the Superior Court of Charlton 
County, of the rape of a white woman and sentenced to 
death (R. 251). His Court-appointed attorney declined to 
file an appeal to the Supreme Court of Georgia, and while 
awaiting execution at the Georgia State Prison, habeas 
corpus was instituted in the City Court of Reidsville, as­
serting as grounds therefor, denial of counsel, racial dis­
crimination in the selection of the grand and petit juries, 
and the claim that imposition of the death penalty for 
rape was violative of the Fourteenth Amendment for sev­
eral reasons. The trial court remanded the prisoner, hut 
on appeal, the Supreme Court of Georgia held that jury 
discrimination could not be raised by habeas corpus; re­
jected the contention that imposition of the death penalty 
was unconstitutional for any reason; but set aside the con­
viction on the grounds that the failure of counsel to ap­
peal, and the failure of the trial court to appoint other 
counsel, constituted a denial of counsel under both the 
state and federal constitutions. Sims v. Balkcom, Warden, 
220 Ga. 7, 136 S. E. 2d 766 (1964).

Following remand, the jury boxes were revised (R. 76), 
petitioner was reindicted at the 1964 October Term (R. 1), 
tried and again sentenced to death (R. 316). Motion for 
new trial was filed (R. 22), later amended (R. 24), over­
ruled (R. 317), and appeal was then taken to the Su­
preme Court of Georgia (R. 318). The conviction was 
affirmed by that Court. Sims v. State, 221 Ga. 190, 144 
S. E. 2d 103 (1965) (R. 328). This Court granted cer­
tiorari on June 20, 1966 (R. 356), limited to 5 questions.2 
Sims v. Georgia, 384 U. S. 998, 16 L. Ed. 2d 1013 (1966).

2 See “ Questions Presented” , supra.



5

The facts material to an understanding of the issues 
are as follows: On April 13, 1963, at approximately 10
o ’clock A. M., the victim, a 29 year old white woman 
(R. 157), was proceeding toward her home on a dirt road 
approximately 3 miles from St. George, Georgia, when 
petitioner in a following vehicle suddenly rammed her car 
from the rear, knocking it in the ditch and turning it 
completely around (R. 151). Petitioner emerged from 
his vehicle, forced the victim into the woods where she 
was choked, struck in the face, and forcibly raped (R. 
152). When first seen following the crime, her face was 
streaming blood (R. 159) and her eyes, nose, and mouth 
were bleeding (R. 161, 187). As also stated by the ex­
amining physician,

“ When I saw her she was lying on the emergency 
room table, very emotionally upset and almost in a 
state of shock from the experience that she said she 
had just gone through. Her clothes were dirty that 
she had on; her face was dirty; there was mud about 
her legs; and her face had blood stains, had bruise 
marks, and there was clotted blood about, particu­
larly her nose, and the eyes were bloodshot. There 
were marks on her neck, chest, and breast, and there 
were marks on her lower abdomen, and her female 
parts showed evidence of fresh trauma. There was 
a bleeding area and a small torn area in the lower 
part”  (R. 153).

Petitioner left the scene on foot in the direction of the 
Toledo community (R. 153) and while police officers were 
tracking with bloodhounds at the scene (R. 180) a local 
citizen contacted his Negro employees at Toledo and in­
structed them to be on the lookout for any strange man 
(R. 163). Around 2:30 P. M. that afternoon, two of these 
Negro employees, T. W. Walker and Arthur Lee Walker, 
spotted petitioner at the Toledo community with mud on 
his clothes (R. 170). Upon approaching petitioner,



6

Arthur advised petitioner that the “ law”  was looking- 
for him, after which the following ensued:

. and I asked him did he really attack that white 
woman.

Q. You asked him what?
A. Did he attack that white woman.
Q. And what did he say?
A. He said he did.
Q. Did anybody tell him to make a statement?
A. No, sir.
Q. And you asked him what, now?
A. I asked him did he attack that white woman, 

and he said ‘ yes’. And at that time he took off and 
took a little trot towards the swamp down there, and 
I backed up to the window and asked Boy Roberson 
for his gun, and I called him, and he turned and 
come back to me, and he got just about to me and 
I throwed the gun on him and told him to go and 
sit on T. W .’s porch . . . ”  (R. 176-7).

This admission, it should be noted, was admitted with­
out objection.

Petitioner was picked up by the Walkers’ employer 
around 3:30 P. M. (R. 164), and turned over to two state 
patrolmen (R. 184) who took him to Dr. Jackson’s office 
in Folkston where his clothes were removed for evidence 
(R. 185). Following this, petitioner was removed to the 
Ware County jail in Waycross, Georgia (R. 185), around 
5 or 6 o ’clock (R. 133). Around 6:30 that same after­
noon, petitioner recognized Deputy Dudley Jones at the 
jail whom he had known as a deputy sheriff in Charlton 
County, and called to him. A conversation ensued in 
which petitioner stated that he had “ got in trouble with 
a white woman”  and wished to make a statement to the 
sheriff (R. 209-210). Deputy Jones contacted Sheriff Lee, 
and around 10:30 that same night, Sims was brought



7

downstairs to the interview room where his statement 
(E. 226) was written out, read to him and signed by him, 
the entire proceeding taking only 20 to 30 minutes (E. 
104, 119, 212). Sheriff Lee testified that he advised Sims 
that he was entitled to an attorney and that any state­
ment could be used against him in Court (E. 97, 99, 224). 
Petitioner stated that he did not desire an attorney (E. 
100, 120, 224). Petitioner Sims testified under oath that 
he remembers the statement being read to him (E. 136); 
that all the officers talked “ nice”  to him in the interview 
room (E. 139); that nobody threatened him (E. 140); that 
he recalls the sheriff telling him that anything he said 
could be used against him (E. 140); that Deputy Jones 
was “ friendly”  to him and he wasn’t scared (E. 141-2); 
that nobody beat or threatened him (E. 142); that he con­
sidered Deputy Jones his friend (E. 143); that he signed 
the statement after it was read to him (E. 141); and that 
he signed it because it was “ right”  (E. 141).

At his second trial, petitioner was represented by a 
Negro attorney active in civil rights litigation who filed 
plea in abatement to the indictment based upon a claim 
of jury discrimination (E. 3); a challenge to the array of 
petit jurors for like reason (E. 6); motion for change of 
venue (E. 9); motion to suppress the confession made in 
the Ware County jail (E. 13); a plea in abatement attack­
ing the Georgia rape statute, Code Sec. 26-1302, facially 
and as applied (E. 17); and an oral motion to quash. 
All of these motions were denied (E. 5, 8, 12, 16, 18, 146). 
As it will be necessary to refer at length to the evidence 
relative to several of these motions in the Argument, 
further reference will not be made here. The trial com­
menced on October 7, and was concluded on October 8, 
resulting in a verdict of guilty without recommendation 
of mercy (E. 2). Motion for new trial was filed in the 
usual “ skeleton”  form (E. 22). In due course, it was 
amended so as to assign error on the admission of the



8

confession and call in question the Georgia procedure of 
submitting the issue to the jury (E. 24). The motion was 
overruled (E. 317). Appeal was thereupon taken to the 
Supreme Court of Georgia by bill of exceptions which 
additionally assigned error on the orders overruling the 
several pleas and motions previously referred to (E. 318). 
The Supreme Court of Georgia affirmed (E. 328). This 
Court granted certiorari (E. 356).



9

SUMMARY OF ARGUMENT.

L

Admission in evidence of the confessions obtained from 
petitioner while in custody violated none of his rights.

(A) Prior to trial, a full scale hearing was held by the 
Court on Petitioner’s motion to suppress the confessions, 
which complied with the requirements of Jackson v. Denno, 
378 U. S. 368, 12 L. Ed. 2d 908 (1964). The only thing 
which the trial court did not do that it might have done, 
was to read into the record explicit findings of fact. Cf. 
Boles v. Stevenson, 379 U. S. 43, 13 L. Ed. 2d 109 (1964). 
However, any failure in the respect, even assuming it other­
wise deficient, is immaterial here, since (1) Counsel for 
petitioner expressly waived any further effort on the part 
of the Court to comply with Jackson v. Denno, and (2) Pe­
titioner himself having testified under oath at the trial 
that he signed the confession, that he was not afraid, and 
that it was “ right” , demanded a finding that the confes­
sions were voluntary, as the Supreme Court of Georgia 
so held (R. 329).

(B) The standards applied by the trial court in its 
charge to determine voluntariness (in effect, Code, § 38-411) 
do not fall short of that required by decisions of this 
Court. The sufficiency of instructions in this regard is 
not a matter of federal concern. Lyons v. Oklahoma, 322 
U. S. 596, 601, 88 L. Ed. 1481 (1944).

(C) The confession was not obtained under inherently 
coercive circumstances. Petitioner was taken into custody 
around 3 o ’clock on (Saturday afternoon. Just prior 
thereto, before being arrested, he had spontaneously ex­
claimed to Negro turpentine workers that he had “ at­
tacked that white woman”  (R. 176). He was placed in



10

jail between 5 and 6 o ’clock P. M., and around 6:30, upon 
seeing a deputy sheriff whom he had known for many 
years, called to the deputy and in the course of a casual 
conversation, stated that he had raped a white woman, 
and that he wished to make a statement to the sheriff (R. 
210). Around 10:30 that same evening he was brought 
downstairs in the jail where the statement was made, after 
being advised fully of his rights, the entire conversation 
taking 15 to 30 minutes. Petitioner’s claim that he was 
earlier subjected to physical abuse while being examined 
in a doctor’s office prior to being put in jail are disputed 
by the evidence, and in any event, no causal relation is 
shown between what took place in the doctor’s office that 
afternoon and the confessions made later that night in 
the jail, in the presence of entirely different persons.

(D) Since petitioner expressly stated that he did not 
desire counsel after being fully advised of his rights, use 
of the confessions later obtained does not violate the rule 
of Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977 
(1964).

II.

Discrimination in jury selection does not appear from 
the record.

(A) No error is shown from the action of the Georgia 
Courts in restricting proof to the current jury lists, since it 
appears that the lists had just been revised, and Negroes 
were then serving on juries in Charlton County. In any 
event, (1) The offer of proof was not sufficient; (2) The 
evidence was sufficient to overcome any prima facie case 
which such evidence otherwise might have established.

(B) Use of the county tax digest in making up the jury 
lists is not unconstitutional because of the fact that the 
digest is required by law to be separated according to 
race. The digest is used in making up the jury boxes,



—  11

not the panels. As to the former, the decisions of this 
Court require that jury commissioners apprise themselves 
of the racial identity of those eligible for service, in order 
to insure that discrimination does not result. This process 
is deliberative. Avery v. Georgia, 345 U. S. 559, 97 L. Ed. 
1244 (1953), on the other hand, involves the making up 
of the panels for each term of court, and the selection 
process at this stage is designed to be by chance, without 
regard to the identity of individual jurors. The legisla­
tive history of the state law attacked here (repealed in 
1966) shows that it was not designed as an instrument of 
discrimination, but was motivated by a desire to facilitate 
identification in registration made difficult by previous 
practice whereby Negroes were entered on the tax digest 
under the names of their employers.

(C) There was no prima facie showing of discrimina­
tion from the fact that Negroes constitute 20% of the tax­
payers, and a lesser percentage of jurors. Swain v. Ala­
bama, 380 U. S. 202, 13 L. Ed. 2d 759 (1965); Brown v. 
Allen, 344 U. S. 443, 97 L. Ed. 469 (1953).



ARGUMENT.

I.

No Rights of Petitioner Were Violated by Admission 
in Evidence of the Confessions.

Petitioner contends that admission of the confessions 
in evidence at the trial were violative of his rights for 
four reasons. Respondent will consider these contentions 
in the same order urged by petitioner.

A. The Decision Below Is Not in Conflict With Jackson 
v. Denno.

It is the position of Respondent that the rule of Jack- 
son v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908 (1964), was 
not violated by the state courts because (1) The pro­
cedure followed below complied with the requirements 
of that decision, (2) Counsel for petitioner during trial 
expressly waived any further proceedings by the court to 
comply with the rule, and (3) Under the undisputed 
facts, there was no issue for determination, petitioner’s 
own testimony demanding a finding of voluntariness.

First, as to the procedure employed by the Court, it is 
to be observed that prior to trial, counsel for petitioner 
filed a “ motion to suppress illegally obtained evidence”  
(R. 13-16) which sought to suppress the written confes­
sion. A full scale hearing was had on this motion before 
the trial began outside the presence of the jurors (R. 47). 
At this hearing, the sheriff and deputy sheriff who were 
present when the confession was made testified at length, 
as well as petitioner himself (R. 96-145). At the con­
clusion, the motion was overruled (R. 147, 16).

Prior to the decision of this Court in Jackson v. Denno, 
supra, Georgia was one of the states which followed the 
New York rule, as this Court noted (378 U. S. at 396).

— 12 —



13

As stated in Downs v. State, 208 Ga. 619, 621, 68 S. E. 
2d 568 (1952),

“ The State having made out a prima facie case 
that the alleged confession was freely and voluntarily 
made, it was a question for the jury to determine on 
conflicting evidence whether the alleged confession 
was freely and voluntarily made.”

While it was early suggested that the preliminary hear­
ing should be held outside the presence of the jury, Hall v. 
State, 65 Ga. 36 (1880), in practice this rarely has been 
done in the past, cf. United States v. Carnignan, 342 U. S. 
36, 38, 96 L. Ed. 48 (1951), and note, 49 Minn. L. R. 360, 
363 (1964), it was done here. In addition, when the 
matter of the confession came up during trial before the 
jury, the latter was excused while Sheriff Lee was sub­
jected to cross-examination before the confession was ad­
mitted (R. 225), but counsel for petitioner then withdrew 
his request (E. 226). The Court also submitted the issue 
of voluntariness to the jury (E. 312), but this was neces­
sary under state law. The Constitution of Georgia, Art. I, 
Sec. I, Par. V (Code Ann., §2-105), guarantees every ac­
cused “ a public and speedy trial by an impartial jury.”  
See also, Constitution, Art. VI, Sec. XYI, Par. I (Code 
Ann., §2-5101), declaring that “ The right of trial by 
jury, except where it is otherwise provided in this Con­
stitution, shall remain inviolate . . . ”  This includes the 
right of the accused to have the issue as to the voluntari­
ness of a confession ultimately decided by a jury. Clay- 
bourn v. State, 190 Ga. 861, 869, 11 S. E. 2d 23 (1940). 
To comply with this Court ’s decision in the Denno case, 
the issue must now be independently resolved by the trial 
judge, but in order to comply with the State Constitution, 
it must also be submitted to the jury. See Leverett, “ Con­
fessions and the Privilege Against Self-Incrimination, ”  1 
Ga. St. B. J. 433, 441 (May, 1965), and cf. Siegel, “ The 
Fallacies of Jackson v. Denno,”  31 Brooklyn L. E. 50, 58



14

(1964); Note, 50 Iowa L. R. 909, 917 (1965). About the 
only thing which the trial judge might have done here 
which he did not do would have been to read into the 
record specific findings of fact so as to afford “ a reliable 
and clear cut determination of the voluntariness of the 
confession.”  Boles v. Stevenson, 379 U. S. 43, 45, 13 
L. Ed. 2d 109 (1964). However, as respondent will pres­
ently show, the evidence so far demanded a finding of 
voluntariness as to render this failure harmless. The 
Georgia procedure followed here was therefore tantamount 
to the Massachusetts rule, which this Court specifically 
approved in Jackson v. Denno, supra (378 U. S. at 378).

Second, any further effort toward compliance with Jack- 
son v. Denno was expressly waived here. After the state 
had questioned Sheriff Lee as to the details of the con­
fession, the following transpired:

“ The Defendant’s Attorney: Your Honor, we’d like 
to have the opportunity to examine this witness be­
fore the statement is read into the record.

The Court: All right.
The Solicitor General: Would you like to do it at 

this time?
The Defendant’s Attorney: I believe the rule re­

quires that the jury be excused.
The Court: All right, let the jury go to the jury 

room.

(The jury thereupon retired from the court room.)

The Solicitor General: I was under the impression 
that he had already examined Sheriff Lee this morn­
ing concerning this statement, and that is a matter 
of record.

The Court: All right.
The Defendant’s Attorney: As your Honor knows, 

the rule has been recently changed by the Supreme



— 15

Court of the United States, and we did have an op­
portunity to examine the witness today, and on that 
basis, your Honor, I withdraw my request that the 
jury be excused and let him proceed with the direct 
examination. I don’t know whether the procedure 
being followed at this time satisfied the rule decided 
by the Supreme Court on June 22, 1964, that the 
Court must make judicial determination whether the 
statement was made voluntarily before it is read to 
the jury. We did make an examination today, and I 
withdraw the request for the jury to be excused.

The Court: All right, bring the jury back”  (R. 
225-6).

This clearly constitutes a waiver—a “ deliberate by­
passing”  of any further or different procedural handling 
of the issue. Fay v. Noia, 372 U. S. 391, 438, 9 L. Ed. 2d 
837 (1963). Insofar as it might be urged that petitioner 
did not himself participate in this decision, it is enough 
to say that this technical issue was of such nature that 
petitioner could not realistically comprehend it anyway. 
Whitus v. Balkcom, 333 F. 2d 496 (C. A. 5th, 1964), cert, 
den. 379 U. S. 931, 13 L. Ed. 2d 343 (1965).

Third, the evidence demanding a finding that the con­
fession was voluntary, and any failure of the trial court 
to make an express finding to this effect was harmless. 
The Supreme Court of Georgia so held. See division 5 (c) 
of the syllabus to its decision (R. 329). The crime was 
committed around 10 o ’clock A. M. on Saturday, April 3, 
1963 (R. 150). At approximately 1 or 2 o ’clock later that 
afternoon, petitioner appeared at the Toledo settlement, 
and before he was ever taken into custody, stated to sev­
eral Negro turpentine workers that he had “ attacked a 
white woman”  (R. 176, 179). He was then placed under 
citizen’s arrest by these Negro workers (R. 176), and 
handed over to the Georgia State Patrol around 3 o ’clock



16

(R. 185). Petitioner was taken to Dr. Jackson’s office 
where a physical examination was conducted which lasted 
15 minutes (R. 207). He was then taken to the hospital 
where a cut over his eye was treated (E. 207), after which 
he was taken to the Ware County jail and confined some 
time between 5 and 6 P. M. (R. 133). Some time around 
6:30, Deputy Dudley Jones happened to be putting a pris­
oner in the jail (R. 210), when petitioner, recognizing him 
as having been a deputy previously in Charlton County, 
called to Deputy Jones and told him that he, petitioner, 
had “ got in trouble with a white woman”  (R. 113, 138, 
210). Upon being asked whether he wished to make a 
statement to the sheriff, petitioner replied that he did (R. 
210). Petitioner admitted talking to Deputy Jones, and 
that he was treated “ nice”  and no effort was made to 
beat him or to “ say anything”  to him (R. 139). About 
10:30 later that night, petitioner was brought downstairs 
in the interview room where the confession was made 
(R. 113, 210, 223). Petitioner testified under oath that 
the officers talked “ nice”  to him (R. 139); that he 
wasn’t beaten or threatened (R. 139-142); that he wasn’t 
afraid of Deputy Jones, who was “ friendly”  to him (R. 
141-3); that he recalls the Sheriff telling him that any­
thing he said could be used against him (R. 140); that he 
wasn’t scared (R. 142); that the statement was read to him, 
and that he signed it because it was right (R. 141). It is 
also undisputed that the interrogation and taking of the 
statement took only about 15 to 30 minutes (R. 104, 119). 
Petitioner had not been taken before a judge, as it was 
Saturday evening and none was available (R. 236).

It is thus seen that petitioner confessed initially after 
having been in jail only an hour or so during a casual 
conversation, and that the written confession was given 
about 4 hours later, the latter lasting only 30 minutes at 
the most. There is not the slightest evidence that the 
confessions made in the Ware County jail were anything



17

but voluntary. To hold otherwise would require a rejec­
tion of petitioner’s own sworn testimony at the trial. 
Where as here an accused admits at the trial that his con­
fession was signed after it was read to him and because it 
was “ right,”  there is no issue for judge or jury to deter­
mine. Viewed in the light of the previous, spontaneous 
confession to the Negro turpentine workers made before 
he was taken into custody (R. 176, 179), the record “ sug­
gests strongly that petitioner had concluded, quite inde­
pendently of any duress by the police, that it was wise to 
make a clean breast of his guilt.”  Stroble v. California, 
343 U. S. 181, 191, 96 L. Ed. 872 (1952).

B. The Standards Applied Below to Determine Volun­
tariness Were Not Insufficient.

This contention (Brief, p. 22) attacks the charge on 
voluntariness given to the trial jury (R. 312), which was 
in effect the provisions of Ga. Code, § 38-411, which de­
clares :

“ Confessions must be voluntary.—To make a con­
fession admissible, it must have been made voluntarily, 
without being induced by another, by the slightest 
hope of benefit or remotest fear of injury.”

Under decisions of this Court dealing with confessions, 
“ the accepted test is their voluntariness,” Gallegos v. 
Nebraska, 342 U. S. 55, 65, 96 L. Ed. 86 (1957), which de­
pends “upon a weighing of the circumstances of pressure 
against the power of resistance of the person confessing.” 
Stein v. New York, 346 U. S. 156, 185, 97 L. Ed. 1522 
(1953); Fikes v. Alabama, 352 U. S. 191, 197, 2 L. Ed. 2d 
246 (1957). “ In short, the true test of admissibility is 
that the confession is made freely, voluntarily and with­
out compulsion or inducement of any sort.” Haynes v. 
Washington, 373 U. S. 503, 513, 10 L. Ed. 2d 513 (1963). 
Ultimately, the test announced in the decisions of this;



— 18

Court do not differ from that as stated by Georgia law 
and applied below. Rogers v. Richmond, 365 U. S. 534,. 
5 L. Ed. 2d 760 (1961), relied upon by petitioner, does not 
hold that any specific form of words must be used. It does, 
not deal with what must be considered but rather with 
one thing which must not be considered, i. e., the probable 
reliability of the confession as one circumstance in deter­
mining its voluntariness. 365 U. S. at 542. This is a 
different proposition from the contention made here which 
was rejected by this Court in Lyons v. Oklahoma,, 322 
U. S. 596, 601, 88 L. Ed. 1481 (1944), where it was said: 

“ The question of how specific an instruction in a 
state court must be upon the involuntary character 
of a confession is, as a matter of procedure or practice, 
solely for the courts of the state. When the state 
approved instruction fairly raises the question of 
whether or not the challenged confession was volun­
tary, as this instruction did, the requirements of due 
process, under the Fourteenth Amendment are satisfied 
and this Court will not require a modification of local 
practice to meet views that it might have as to the 
advantages of concreteness.”

C. The Confession Was Not Obtained Under Inherently 
Coercive Circumstances.

The confession here was given after petitioner had been 
in custody only 7 hours, and after a period of interroga­
tion of only 30 minutes at the most. The case therefore 
differs from cases where an accused is subjected to per­
sistent and repeated questioning over a period of several, 
days, such as Chambers v. Florida, 309 IT. S. 227, 84 L. 
Ed. 716 (1940); White v. Texas, 310 IT. S. 530, 84 L. Ed. 
1342 (1940); Watts v. Indiana, 338 IT. S. 49, 93 L. Ed. 
1801 (1949); Harris v. South Carolina, 338 IT. S. 68, 93 
L. Ed. 1815 (1949); Johnson v. Pennsylvania, 340 IT. S. 
881, 95 L. Ed. 640 (I960); Culcombe v. Connecticut, 367



19

U. S. 568, 6 L. Ed. 2d 1037 (1961); Fikes v. Alabama,, 
352 U. S. 191, 2 L. Ed. 2d 246 (1957). Nor is this a ease 
where the accused was questioned for a long period with­
out rest or sleep, as in Ashcraft v. Tennessee, 322 U. S. 143,, 
88 L. Ed. 1192 (1944). Nor was it a case where the ac­
cused was seen to have been suffering from a mental dis­
order, as in Fikes v. Alabama, supra; Spano v. New York, 
360 U. S. 315, 3 L. Ed. 2d 1265 (1959); Blackburn v. 
Alabama, 361 U. S. 199, 4 L. Ed. 2d 242 (1960); Reck v. 
Pate, 367 U. S. 433, 6 L. Ed. 2d 948 (1961); Culoombe v. 
Connecticut, 367 IT. S. 568, 6 L. Ed. 2d 1037 (1961). Nor 
is this a case where the accused was subjected to “ trick­
ery” in order to induce a confession, as in Spano v. New 
York, supra. There was no threat to bring in members of 
the accused’s family and implicate them, as in Culcombe v, 
Connecticut, supra. There was no request and denial of 
counsel, as in Haynes v. Washington, 373 TJ. S. 503, 10 
L. Ed. 2d 513 (1963). The undisputed evidence was that 
petitioner was advised that he was entitled to an attorney 
and that anything he said could be used against him (R. 
97, 99, 120, 220, 224). Sims himself admitted he was ad­
vised that any statement he made could be used against: 
him (R. 140). While the accused was stripped for pur­
poses of examination, the entire undertaking took only 15 
minutes (R. 207), and there was no instance of keeping the 
accused naked over a 5 or 6 hour period until he confessed, 
as in Malinski v. New York, 324 U. S. 401, 89 L. Ed. 1029 
(1945). By petitioner’s own sworn testimony, he was not 
threatened, he was not afraid, he was not beaten, and he 
signed the confession because it was “ right” (R. 136-143). 
At the time the confession was signed, petitioner had not 
had supper, but he did not testify as to being hungry, 
only “ I could have eat” (R. 136), and it appears he had 
been in jail only about 4 or 5 hours and had not been in 
custody long enough to be fed (R. 111). The arrest oc­
curred around 3 P. M. on a Saturday afternoon (R. 137), 
when no judge was available for commitment hearing



—  20

(R. 236),1 and hence it is not a case when a prisoner is. 
held incommunicado without being carried before a 
magistrate.

The case of Fikes v. Alabama, supra, principally relied 
upon for the contention that the confessions were obtained 
under “ inherently coercive circumstances,” is completely 
inapposite. In that case, the accused was subjected to 
persistent questioning over the period of a week before he 
confessed; there was evidence of mental trouble; prompt 
commitment was denied; and efforts of the accused’s 
father and an attorney to see him were rebuffed.

Nor are the confessions rendered inadmissible by any 
claim of alleged physical mistreatment. Petitioner testified 
that while in Dr. Jackson’s office in Folkston, Dr. Jackson 
knocked him down, kicked him over the eye, and “drug” 
him over the floor by his privates (R. 131).

To begin with, Dr. Jackson denied that he knocked 
petitioner down or that he was beat while in his office (R. 
204). For purposes of review, the Doctor’s testimony in 
the respect must be accepted as true. Haley v. Ohio, 
supra (338 U. S. at 52): Gallegos v. Nebraska, supra (342 
U. S. at 61); Thomas v. Arizona, 356 U. S. 390, 2 L, Ed. 2d 
863 (1958).

It is undisputed that petitioner was treated for a cut 
over his eye at the hospital in Folkston (R. 204, 207), but

1 Code § 27-212 referred to in the brief of petitioner (p. 33) 
expressly recognizes that officers arresting without a warrant 
have a prescribed number of hours in which to carry the 
arrested person before an officer for hearing. Prior to the 
amendment of these two sections in 1956 (Ga. Laws 1956, 
p. 796), the requirement was not qualified by any stated num­
ber of hours. Here, however, the warrant for petitioner’s 
arrest had been obtained (E. 239), and hence Code §27-212 
was not applicable, but rather Code § 27-210, which declares 
that the accused should be brought before a magistrate within 
72 _ hours of arrest. Under Georgia law, capital offenses are 
bailable only before a judge of the superior court. Code



—  21

Dr. Jackson says lie fell in the floor (R. 204). Dr. Jack- 
son was extensively cross-examined by counsel for peti­
tioner, but there was no effort to question him concerning 
the claims that he pulled petitioner by his privates (R. 
197-208). No confession was elicited or attempted to be 
elicited at the doctor’s office. The sole purpose of this 
examination was to ascertain whether there was any blood 
on petitioner or his pants, in view of the fact that the 
victim was seen to have been in her monthly period (R. 
205). None of the officers or other persons who were 
present in the doctor’s office were present at the jail when 
the confession was made. The petitioner was taken com­
pletely away from the scene of the doctor’s office in Folks- 
ton, and carried 35 miles to the jail in Waycross, Georgia, 
before the matter of any confession was ever discussed. 
The written confession was not given until over 7 hours 
after the incident in the doctor’s office, in entirely differ­
ent surroundings, before entirely different persons, and 
without any connecting circumstances whatsoever.

Respondent specifically denies that any violence was 
committed on petitioner.2 However, even assuming that 
petitioner was struck in the doctor’s office, the decisions 
of this Court make plain that this fact alone would not 
bar use of confessions later obtained. Lisenba v. Cali­
fornia, 314 IT. S. 219, 235, 86 L. Ed. 166 (1941); Lyons v. 
Oklahoma, 322 IT. S. 596, 602, 88 L. Ed. 1481 (1944); 
Stroble v. California, 343 IT. S. 181, 191, 96 L. Ed. 872 
(1952); Thomas v. Arizona, 356 IT. S. 390, 2 L. Ed. 2d 
863 (1958). Of course, any confession made “ concur­
rently”  with physical torture is thereby rendered in­
admissible. Stein v. New York, 346 IT. S. 156, 182, 97 L. 
Ed. 1522 (1953). “ When this Court is asked to reverse

2 It should be noted that petitioner had been involved in a 
wreck just prior to the assault (R. 151) and the struggle be­
tween petitioner and the victim appeared to have been a vio­
lent one (R. 152, 159, 161, 187, 191).



—  22  —

a state court conviction as wanting in due process, illegal 
acts of state officials prior to trial are relevant only as 
they bear on petitioner’s contention that he has been de­
prived of a fair trial, either through the use of a coerced 
confession or otherwise.”  Stroble v. California, supra.
‘  ‘  Involuntary confessions, of course, may be given either 
simultaneously with or subsequent to unlawful pressure, 
force or threats. The question of whether those confes­
sions subsequently given are themselves voluntary de­
pends on the inferences as to the continuing effect of the 
coercive practices which may fairly be drawn from the 
surrounding circumstances. The voluntary or involuntary 
character of a confession is determined by a conclusion 
as to whether the accused, at the time he confesses, is in 
possession of mental freedom to confess or deny a sus­
pected participation in a crime,”  Lyons v. Oklahoma, 
supra.

In Thomas v. Arizona, supra, the prisoner was lassoed 
under threatening circumstances at the time of his arrest 
and again subsequently before being placed in jail. His 
confession made the following morning was held not in­
validated by the experiences of the day previous, the 
Court declaring: “ Deplorable as these ropings are to 
the spirit of a civilized administration of justice, the un­
disputed facts before us do not show that petitioner’s 
oral statement was a product of fear engendered by 
them”  (356 U. S. at 400).

In Stroble v. California, supra, the accused was ar­
rested around noon and while being searched, the police­
man kicked his foot to make him stand properly and 
then threatened the accused with a black jack. While 
awaiting for the police car to arrive, when asked whether 
he had committed the crime, accused mumbled something, 
whereupon a park foreman standing nearby slapped him. 
On the way to the jail, petitioner confessed. Upon arriv­
ing at the district attorney’s office a short time later, he



23 -r

again confessed in detail. Rejecting the contention that 
the previous violence vitiated the subsequent confessions, 
this Court declared:

“ Whatever occurred in the park at the foreman’s 
office occurred at least an hour before he began his 
confession in the District Attorney’s office, and was 
not accompanied by any demand that petitioner im­
plicate himself. Likewise his statement to the officer 
while on the way to the district attorney’s office was 
admittedly voluntary. In the District Attorney’s 
office, petitioner answered questions readily; there 
was none of the pressure of unrelenting interrogation 
which this Court condemned in Watts v. Indiana. . . . 
His willingness to confess to the doctors who ex­
amined him, after he had been arraigned and counsel 
had been appointed, and in circumstances free of 
coercion, suggests strongly that petitioner had con­
cluded, quite independently of any duress by the 
police, ‘ that it was wise to make a clean breast of 
his guilt’ ”  (343 U. S. at 191).

In Lyons v. Oklahoma, supra, the accused was charged 
with the murder of a tenant farmer, his wife and small 
child, it being contended that the accused thereafter 
burned the house with the bodies in it to conceal the 
crime. A pan containing the victims’ bones was placed 
in his lap during the questioning which resulted in one 
confession. This confession was not sought to be intro­
duced against him, but later that day, he was taken to 
the state prison where another confession was obtained 
which was admitted. In holding that this misconduct on 
the part of the officers did not invalidate the second con­
fession, the Court said:

“ The Fourteenth Amendment does not protect one 
who has admitted his guilt because of forbidden in­
ducements against the use at the trial of his subse­
quent confessions under all possible circumstances.



The admissibility of the later confession depends upon 
the same test—isi it voluntary. The effect of earlier 
abuse may be so clear as to forbid any other inference 
than that it dominated the mind of the accused to such 
an extent that the later confession is involuntary. If 
the relation between the earlier and later confession 
is not so close that one must say the facts of one con­
trol the character of the other, the inference is one for 
the triers of fact and their conclusion, in such an un­
certain situation, that the confession should be ad­
mitted as voluntary, cannot be a denial of due proc­
ess”  (322 U. S. at 603).

Also pertinent to the facts here, in that petitioner was 
removed to entirely different surroundings before the ques­
tioned confession was obtained, is the language of this 
Court, viz.:

“ It followed the prisoner’s transfer from the control 
of the sheriff’s force to that of the warden’s. One 
person who had been present during a part of the time 
while the Hugo interrogation was in progress was 
present at McAlester, it is true, but he was not among 
those charged with abusing Lyons during the question­
ing at Hugo”  (322 U. S. at 604).

In Lisenba v. California, supra, the accused, while in cus­
tody on Monday, was slapped by an officer. He confessed 
the following day. It was held that use of the confession 
was not a denial of due process under these circumstances 
(314 U. S. at 240).

In view of the circumstances here—the lack of anything 
to connect what transpired in the doctor’s office with the 
confession made several hours later—coupled with the tes­
timony of the accused at the trial to the effect that he 
was not scared or afraid (R. 127-144) it is clear that the 
admission of the written confession (R. 226), and the peti­



— 25 —

tioner’s confirmation of it several days later (R. 238) did 
not amount to a ‘ ‘ failure to observe that fundamental fair­
ness essential to the very concept of justice” . Lisenba v. 
California, supra (314 U. S. at 236).

D. The Decision Below Does Not Violate Petitioner’s 
Sixth Amendment Right to Counsel under Escobedo v. Illi­
nois, 378 U. S. 478, 12 L, Ed. 2d 977 (1964).

In Escobedo, the crucial facts were (1) that the accused 
was never advised of his right to counsel, and (2) he spe­
cifically requested counsel which request was denied.

Here, petitioner was fully advised as to his rights (R. 97, 
99, 120, 220, 224), and he expressly declared that he did 
not desire an attorney (R. 100, 120, 224).

What was done here came very close to complying with 
the requirements of Miranda v. Arizona, 384 U. S. 436, 16 
L. Ed. 2d 694 (1966), although that case is not applicable 
here. Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 
882 (1966).

“ The mere fact that a confession was made while in 
the custody of the police does not render it inadmis­
sible.”

McNabb v. United States, 318 U. 8. 332, 346, 87 
L. Ed. 819 (1943).

“ And certainly we do not mean to suggest that all 
interrogation of witnesses and suspects is impermis­
sible. ’ ’

Haynes v. Washington, 373 U. S. 503, 515, 10 
L. Ed. 2d 513 (1963).

And, in Miranda v. Arizona, supra, it was said:

“ An express statement that the individual is willing 
to make a statement and does not want an attorney



followed closely by a statement could constitute a 
waiver.”  16 L. Ed. 2d at 724.

# #

“ Confessions remain a proper element in law en­
forcement”  * * *

“ Volunteered statements of any kind are not barred 
by the Fifth Amendment and their admissibility is 
not affected by our holding today”  (16 L. Ed. 2d at 
726).

The Court of Appeals for the District of Columbia has 
construed Escobedo contrary to that as contended for by 
petitioner. See Jackson v . United States, 337 F. 2d 136, 
140-141 (C. A. D. C. 1964), cert den. 380 U. S. 935, 13 L. Ed. 
2d 822 (1965); Long v. United States, 338 F. 2d 549 
(C. A. D. 0. 1964). In the Jackson case, it was said:

“ We conclude that no rule of law required the ex­
clusion of this appellant’s confession, voluntarily 
made, after he had been warned by the F. B. I., the 
police and the United States Commissioner acting pur­
suant to Buie 40 (b). He had not requested that coun­
sel be appointed; he had retained no lawyer; that one 
was not then appointed for him denied him no right; 
and as the law now stands, there is no automatic rule 
of exclusion which will bar use of such a confession 
by an accused who has no lawyer, under circumstances 
such as appear on the record before us.”

In Massiah v. United States, 377 U. S. 201, 12 L. Ed. 2d 
246 (1964), a federal prosecution subject to the Sixth 
Amendment, reliance was placed on the fact that Massiah 
was tricked, viz.:

“ In this case, Massiah was more seriously imposed 
upon . . . because he did not even know that he was 
under interrogation by a government agent”  (377 
U. S. at 206).

— 26 —



— 27 —

It was further said:
“ Here we deal not with a State Court conviction 

but with a federal case, where the specific guarantee of 
the Sixth Amendment directly applies”  (377 U. S. 
at 205).

II.

There Was No Denial of Equal Protection by the 
Rulings Below Relating to the Challenges 

to the Grand and Petit Juries.

The procedure of jury selection in Georgia as set forth 
in the Brief of Petitioner (p. 47) is essentially correct, 
except that the jury commissioners select a number of 
grand jurors from the persons previously selected as 
traverse jurors in a number not to exceed two-fifths of 
those selected as traverse (petit) jurors. In other words, 
the two-fifth’s figure is applied to the traverse jurors in 
selecting the grand jurors, and not to the tax digests in 
selecting either, as Petitioner’s brief indicates. Pollard 
v. State, 148 Ga. 447 (3), 96 S. E. 997 (1918). It should 
also be emphasized that the actual selection of the venires 
for each term of court is accomplished by the drawing 
of tickets containing the names of jurors from the jury 
boxes, Code §§ 59-203, 59-701. The making up of the 
panels has nothing to do with the “ jury lists” , which are 
merely a recording on the minutes of the Court of the 
names in the jury boxes. Code § 59-109.

Petitioner contends (A) That the state courts erred in 
denying him the right to adduce evidence relating to the 
composition of jury lists in existence prior to the revision 
in the summer of 1964. (B) That the selection of the jury 
lists from the tax digest, required by law at this time to 
list Negro and white taxpayers separately, Code § 92- 
6307, constitutes a denial of equal protection, and (C) 
That the disproportion between the number of Negroes



on the tax digest and the number on the grand and petit 
juries in this case established a prima facie case of dis­
crimination.

A. No Error Results From the Action of the Georgia 
Courts in Restricting Proof to the Current Jury Lists.

In support of the Plea in Abatement to the indictment 
(It. 3) and the challenge to the array of traverse jurors 
(R. 6-8) both based upon alleged racial discrimination in 
jury selection, counsel for petitioner sought to introduce 
grand jury lists for previous years, to wit, 1954, 1956, 
1958, 1959, 1960, 1962, 1963 (R. 72-3) and traverse jury 
lists for the years 1954, 1958, 1960, 1961, 1963, and 1965 
(R. 73). Objection was made to the lists for prior years 
on the ground that only the jury lists from which the 
juries in this case were drawn would be relevant (R. 70, 
73). Ruling was initially reserved (R. 72), but sub­
sequently, the Court sustained the objection and ruled 
out all jury lists other than the 1965 lists from which the 
grand and traverse juries in this case were selected (R. 
147). However, the Court accepted these lists by way 
of offer of proof (R. 254-298).

However, petitioner made no further offer of proof. 
Since the burden is on petitioner to prove discrimination, 
Akins v. Texas, 325 U. S. 398, 89 L. Ed. 1692 (1945); 
Swain v. Alabama, 380 U. S. 202, 226, 13 L. Ed. 2d 759 
(1965); Fay v. New York, 332 U. S. 261, 285, 91 L. Ed. 
2043 (1947), it is impossible to tell whether or not there 
was any discrimination with respect to these prior lists, 
and hence petitioner failed to carry the burden.

However, regardless of this, respondent submits that 
even assuming a more complete offer of proof had been 
made, and even assuming that such evidence would have 
made out a prima facie case of discrimination, the evi­
dence as to the 1965 jury lists sufficiently rebuts any in­
ference of discrimination.



29 —

It plainly appears that the jury boxes were revised in 
the summer of 1964 (R. 76).1 “ Former errors can not 
invalidate future trials” . . . .  It is this particular box 
that is decisive. Brown v. Allen, 344 U. S. 443, 479, 97 
L. Ed. 469 (1953). What transpired previously is ir­
relevant. Cassell v. Texas, 339 U. S. 282, 94 L. Ed. 839 
(1950). As the population of the County is very small— 
only 5313 (R. 75)—some member of the Board of Jury 
Commissioners was personally familiar with every Negro 
taxpayer in the County (R. 78, 84-5, 87). For the year 
1963, there were 1548 white taxpayers and 411 Negro 
taxpayers in the County—approximately 20% (R. 74). 
According to the 1960 Census, there were a total of 2656 
persons over 21 years, of which only 728 were Negro (R. 
75). For the October Term, 1965, at which petitioner was 
tried, there was one Negro on the Grand jury (R. 86) 
and at least 4 Negroes on the petit jury list from which 
the jury trying petitioner was selected (R. 321).1 2 Of the 
691 non-white persons in Charlton County 25 years of 
age or older, 302 were functionally illiterate.3 “ [T]here 
comes a point where this Court should not be ignorant 
as judges of what we know as men,”  Watts v. Indiana, 
338 U. S. 49, 52, 93 L. Ed. 1801 (1949), and “ We recog­
nize the fact that these lists have a higher proportion of 
white citizens than of colored, doubtless due to inequality 
of educational and economic opportunities.”  Brown v.

1 Actually, the revision took place on Sept. 3, 1964, according 
to the minutes of Court.

2 The Clerk of Charlton Superior Court advises that there 
were a total of 479 names on the 1964 traverse jury list, of 
which he is able to recognize at least 58 as being Negroes; and 
that on the 1964 grand jury list, there are a total of 147 names, 
of which at least 11 are Negroes. Of the 99 jurors summoned 
for traverse jury service at the 1964 October Term, 9 Negroes 
actually appeared for service.

3 See United States Census of Population 1960, Georgia, 
General Social and Economic Characteristics, PC (1) 12 c Ga 
p. 334.



30 —

Allen, 344 IT. S. 443, 473, 97 L. Ed. 469 (1953), and see 
Swain v. Alabama, supra (380 U. S. at 208). To attempt 
to apply statistical formulas, such as petitioner suggests 
(Brief p. 58) which assume a complete equality of intel­
ligence, education and other qualities necessary for jury 
service between the races, in a small rural, agricultural 
county like Charlton, is not only erroneous, it is absurd. 
There was no effort here to prove that any large number 
of Negro taxpayers were qualified for jury service.

In Swain v. Alabama, supra, only two Negroes were on 
the grand jury indicting the accused, and eight were on 
the panel from which the petit jury was selected, and two 
of these were exempt. In holding that this did not make 
out a case of discrimination, this Court said:

“ It is wholly obvious that Alabama has not totally 
excluded a racial group from either grand or petit 
jury panels, as was the case in Norris v. Alabama, 
294 U. 8. 587; Hill v. Texas, 316 U. S. 400; Patton v. 
Mississippi, 332 U. S. 463; Hernandez v. Texas, 347 
IT. S. 475; and Reece v. Georgia, 350 IT. 8. 85. More­
over, we do not consider an average of six to eight 
Negroes on these panels as constituting forbidden 
token inclusion within the meaning of the cases in 
this Court, Thomas v. Texas, 212 U. S. 278; Akins v. 
Texas, 325 IT. S. 398; Avery v. Georgia, 345 U. S. 559. 
Nor do we consider the evidence in this case to make 
out a prima facie case of invidious discrimination 
under the Fourteenth Amendment.”

In Brown v. Allen, 344 U. 8. 443, 97 L. Ed. 469 (1953), 
a challenge was overruled where there was only one Negro 
who served on the grand jury, and eight on the panel 
from which the petit jury was selected. See also, Billings­
ley v. Clayton, 359 F. 2d 13 (C. A. 5th, 1966).

While token inclusion does not satisfy the Constitution, 
Brown v. Allen, 344 U. S. 443, 471, 97 L. Ed. 469 (1953);



31

Smith v. Texas, 311 U. S. 128, 130, 85 L. Ed. 84 (1940); 
Billingsley v. Clayton, 359 F. 2d 13 (C. A. 5th, 1966), the 
mere fact that there are no Negroes on the grand or petit 
jury in a given case does not establish discrimination, 
Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667 (1880); 
Bush v. Kentucky, 107 U. S. 110, 117, 27 L. Ed. 354 (1883); 
Martin v. Texas, 200 U. S. 316, 320, 50 L. Ed. 497 (1906); 
Akins v. Texas, supra (325 U. S. at 403); Hoyt v. Florida, 
368 U. S. 57, 7 L. Ed. 2d (1961); Fay v. New York, 332 
U. S. 261, 285, 91 L. Ed. 2043 (1947), for “ Circumstances 
or chance may well dictate that no persons in a certain 
class will serve on a particular jury.”  Hoyt v. Florida, 
supra. An accused is not entitled to demand proportional 
representation of his race on the jury in his case. Thomas 
v. Texas, 212 U. S. 278, 53 L. Ed. 512 (1909); Akins v. 
Texas, supra; Swain v. Alabama, supra (380 U. 8. at 208); 
Fay v. New York, supra (332 U. S. at 291); Cassell v. 
Texas, 339 U. 8. 282, 291, 94 L. Ed. 839 (1950); United 
States ex rel. Goldsby v. Harpole, 263 F. 2d 71 (C. A. 5th, 
1959), cert. den. 361 U. S. 838; United States ex rel. Seals 
v. Wiman, 304 F. 2d 53 (C. A. 4th, 1962), cert. den. 372 
U. S. 924; Scott v. Walker, 358 F. 2d 56 (C. A. 5th, 1966); 
Billingsley v. Clayton, 359 F. 2d 13 (C. A. 5th, 1966). 
Indeed, he is not even entitled to demand that any mem­
ber of his race serve. Strauder v. West Virginia, 100 
U. S. 303, 305, 25 L. Ed. 664 (1880); Virginia v. Rives, 100 
U. S. 313, 25 L. Ed. 667 (1880); Neal v. Delaware, 103 
U. S. 370, 26 L. Ed. 567 (1881); Bush v. Kentucky, supra; 
Wood v. Brush, 140 U. S. 278, 285, 35 L. Ed. 505 (1891); 
Jugiro v. Brush, 140 U. S. 291, 297, 35 L. Ed. 510 (1891); 
Akins v. Texas, supra.

B. The Use by the Jury Commissioners of the Tax 
Digest, Required by Law to List Negro Taxpayers Sepa­
rately, Shows No Violation of the Constitution.

Georgia law requires that jurors be selected from the 
books of the tax receiver. Code § 59-106. In this case,



— 32 —

the jury commissioners utilized the tax digests, as dis­
tinguished from the individual tax return sheets4 (R. 77).

Prior to 1966, Code §92-6307 provided in part:
“ Names of colored and white taxpayers shall he 

made out separately on the tax digest.”

This provision was repealed in 1966 (Ga. Laws 1966, 
Vol. I, p. 393).

When the jury boxes in question in this case were pre­
pared, however, the tax digests were kept separate, and 
it is this fact, coupled with the requirement that the jury 
lists be made from the tax records, that petitioner assails 
as being unconstitutional, relying upon Avery v. Georgia, 
345 U. S. 559, 97 L. Ed. 1244 (1953).

A similar contention was rejected in Maxwell v. Stevens,
348 F. 2d 325 (C. A. 8th, 1965); Harris v. Stephens, 361 
F. 2d 888, 892 (C. A. 8th, 1966); and Brookins v. State, 
221 Ga. 181, 144 S. E. 2d 83 (1965).

The validity of Code § 92-6307 if attacked in a direct 
proceeding by way of injunction is not at issue here. See 
Anderson v. Martin, 375 U. S. 833, 11 L. Ed. 2d 439 (1964); 
Hamm v. Virginia State Board of Elections, 230 F. Supp. 
156 (D. C. Va. 1964), aff’d sub nom. Tancil v. Woolls, 379 
TJ. S. 19, 13 L. Ed. 2d 91 (1964). The question is whether 
under the facts of this case, the practice is seen to be 
harmful, for harmless error is no ground for complaint. 
Cf. Rule 61, Fed. Rules Civ. Proc.

In Avery v. Georgia, supra, and in Williams v. Georgia,
349 U. S. 375, 99 L. Ed. 1161 (1955), this Court held that

4 Prior to 1965, the tax return sheets furnished by the State 
Revenue Department (Code § 92-6302) to all counties were yellow 
for Negro taxpayers and white for white taxpayers (R. 78). 
However, this practice was discontinued in 1965, and in any 
event, since the tax return sheets were not used in this case, 
this is constitutionally irrelevant.



33

the placing of the names of white and Negro jurors in the 
jury box on different colored slips of paper was such error 
as would require a new trial, where seasonably challenged, 
on the reasoning that,

“ Even if the white and yellow tickets were drawn 
from the jury box without discrimination, opportunity 
was available to resort to it at other stages in the 
selection process. And, in view of the case before us, 
where not a single Negro was selected to serve on a 
panel of sixty—though many were available, we think 
that petitioner has certainly established a prima facie 
case of discrimination.”  Avery v. Georgia, supra 
(345 U. S. at 562).

The determinative factor in Avery is the crucial stage 
at which the different colored slips afforded an oppor­
tunity for discrimination. The slips are placed in the box 
to serve the function of affording a fair and impartial 
means of selecting the venires through the chance draw­
ing of names for each term of court. This procedure by 
its nature is designed to be so conducted as to eliminate 
the element of conscious choice in the selection process. 
It takes place at the critical point when each panel for 
the coming term of court is in the actual process of being 
made up. Any distinguishing marks therefore tend to 
destroy the very element of chance which the drawing of 
names from a box is designed to achieve. As pointed out 
by Mr. Justice Frankfurter’s concurring opinion in Avery, 
the openings in the jury boxes were of sufficient size to 
enable the judge drawing the slips to distinguish their 
color. 345 U. 8. at 564. In other words, the different 
colored slips injected “ color”  where it was peculiarly 
important that the selection process be color blind.

Such is not the case here, for the difference is between 
selecting the jury rolls, and selecting the venires. With



34 —

respect to the former, involved in this case, the decisions 
of this Court place an affirmative duty on jury commis­
sioners to consider race, for in no other way can they be 
sure that the jury consists of a cross-section of the com­
munity :

‘ ‘ What the Fourteenth Amendment prohibits is 
racial discrimination in the selection of grand juries. 
Where jury commissioners limit those from whom 
grand juries are selected to their own personal ac­
quaintances, discrimination can arise from commis­
sioners who know no Negroes as well as from com­
missioners who know but eliminate them.”  Smith v. 
Texas, 311 U. S. 128, 132, 85 L. Ed. 84 (1940).

And, in Hill v. Texas, 316 U. S. 400, 404, 86 L. Ed. 1559
(1942), this Court declared that it was the duty of jury 
commissioners imposed by Section 4 of the Civil Eights 
Act of 1875, to make an ‘ ‘ effort to ascertain whether there 
were within the County members of the colored race 
qualified to serve as jurors, and if so, who they were.”  
In Cassell v. Texas, 339 U. S. 282, 94 L. Ed. 839 (1950), 
convictions were reversed because of failure of the jury 
commissioners to acquaint themselves with Negroes in the 
County in order to ascertain their qualifications. See also 
Eubanks v. Louisiana, 356 U. S. 584, 2 L. Ed. 2d 991 
(1958); and United States ex rel. Seals v. Wiman, 304 F. 
2d 53 (C. A. 5th 1962), cert. den. 372 U. S. 924 (1963).

See also, Woods v. State, 222 Ga. 321, . . .  S. E. 2d . . .
(1966).

Just recently, the Fifth Circuit alluded to this fact in 
Brooks v. Beto, . . .  F. 2d . . . ,  35 L. W. 2077 (July 29, 
1966), where it was said that “ How then can it be 
said that conscientiously to do what the Constitution de­
mands makes the result bad because race had been con­
sciously considered to assure that race has not been the 
basis of discrimination?”



— 35

Moreover, any racial differentiation appearing on the 
tax digests would not give the jury commissioners any 
information they did not already have. While the process 
of drawing the venires from the box is intended to be 
rapid, routine, indiscriminate, and completely without re­
gard to the identity of individuals, the making up of the 
jury lists is something entirely different. The former is 
purely a mechanical, impersonal operation. The latter is 
personal and deliberative. Georgia law imposes certain 
qualifications for jury service, such as that the juror be 
“ experienced, intelligent and upright,”  Code § 59-106, 
and that grand jurors be “ above the age of 21 years, 
being neither idiots, lunatics, nor insane, who have re­
sided in the county for six months preceding the time of 
serving, and who are the most experienced, intelligent 
and upright persons . . . ”  Code § 59-201.

For the jury commissioners to perform their duty in 
ascertaining these qualifications, they necessarily must 
either personally know or investigate each prospective 
juror, and in so doing, it is inevitable that they would 
either know or discover his racial identity. Moreover, 
in a county as small as Charlton, it is unlikely that the 
commissioners would not already know the racial identity 
of each citizen. Two jury commissioners testified that 
they knew all of the Negroes in their sections of the 
county (R. 78, 81-2, 87).

In the present case, there is no evidence to indicate that 
the separate tax digests actually encouraged any dis­
crimination, nor had any reasonable tendency to do so. 
Nor is there anything to indicate that the statute requir­
ing separate digests, Code § 92-6307, was ever intended 
to have this effect. Georgia law had long required that 
the names of jurors be taken from the county tax books, 
a not uncommon provision in many states. See Code of 
Georgia of 1882, § 3910 (b). It was not until 1894 that 
the predecessor of Code § 92-6307 was enacted, with pas­



36

sage that year of a brief act limited to this section only 
(Ga. Laws 1894, p. 31).

The legislative background of the Act of 1894 discloses 
that it was not designed to serve a discriminatory purpose. 
The 1890’s were times of great political unrest in Georgia. 
The Populist Movement was sweeping the country and 
threatening to divide the Democratic Party. At this time, 
no provision was made by law for the registration of 
voters, persons could vote at any election box in the 
county, often voted at more than one, and at the elections 
held in 1892, fraud was rampant on both sides. As one 
historian stated:

“ This election throughout the state was a pathetic 
example of the venality that too often accompanies the 
rule by the people. Negro voters were bought and sold 
like merchandise and herded around the polls like so 
many cattle. They were fed at barbecues and made 
drunk and penned up to prevent them from voting, if 
they could not be otherwise controlled. Most of them 
who voted were in the hands of the regular Demo­
crats.”  Coulter, Georgia, A Short History, p. 393 
(1947).

Another commentator elaborates even further:

“ Many of the planters, owners of turpentine stills, 
and other employers took their ‘ hands’ to the polls 
and voted them in gangs. In some of the towns and 
cities, all-night revelries were held for the darkies on 
the night before election. Barbecue was served with 
whiskey and beer by the barrel. Next morning the 
dusky revelers were marched to the polls by beat of 
drums, carefully guarded lest some desert in search of 
another reward. In some of the cities bands of them 
were taken from one polling place to another and voted 
under different names. According to the testimony pro­
duced in the Watson-Black contested election case,



Negroes were brought over from South Carolina in 
four-horse wagons and voted at various precincts in Au­
gusta. The total vote in that city was double the num­
ber of legal voters, eighty per cent of it being Demo­
cratic. Somewhat similar methods were employed in 
the smaller towns. In the country, a considerable num­
ber of Populist precincts were thrown out on techni­
calities. The Democrats were not the only sinners, to 
be sure; but they were more resourceful, and hence 
more successful at the game.”  Alex Mathews Arnett, 
“ The Populist Movement in Georgia” , 7 Ga. Hist. 
Quart. 313, 332 (1923).

The immediate reaction was a demand for election re­
form. In his “ State of the State”  address to the 1894 
General Assembly, Governor Northen called for a voter’s 
registration law. House Jour. 1894, p. 42. Throughout the 
months of October and November, 1894, the Atlanta Con­
stitution called for an election bill to insure that only qual­
ified persons would be able to vote. See, e. g., issue of Sun­
day, November 4, p. 18. On November 6, 1894, an election 
was held at which widespread charges of vote frauds were 
again reported on both sides in connection with the Tenth 
District Congressional race in which Tom Watson lost his 
seat. See Atlanta Constitution, November 8, 1894, at p. 4; 
Id., issue of November 9, p. 4.

The result was passage of Georgia’s first registration 
law (Ga. Laws 1894, p. 115). This Act was designed 
to insure (1) That only persons duly qualified by registra­
tion would be permitted to vote, and (2) That a voter 
would be permitted to vote only in the district of his 
residence. Throughout the Act, emphasis was placed on 
requirements which would enable the responsible officials 
to properly identify persons claiming a right to register 
to vote. Conversant with the particular problems pre­
viously experienced with Negro voters, the registration 
act required identification by race, but it should be noted

— 37 —



38

that the act imposed only purely objective requirements, 
the literacy requirement not appearing in the law until 14 
years later in 1908 (Ga. Laws 1908, p. 27). Undoubtedly, 
the identification requirement was made necessary by the 
fact that traditionally many Negroes were named in honor 
of their former masters, and after emancipation, their 
employers.

Under the Constitution in existence at this time, only 
those persons who had paid all taxes5 due the state and 
county were permitted to vote (Const, of 1877, Art. II, 
Par. II; McElreath on the Constitution of Georgia, § 854), 
and in order to facilitate identification of taxpayers from 
the tax records during the registration process, House 
Bill 141, which later became § 92-6307, was introduced in 
the House of Representatives by Representative Rawlings 
on November 14, 1894 (House J. 1894, p. 230). The At­
lanta Constitution of Thursday, November 15, 1894, at p. 
7, reported the introduction of this bill as part of a story 
headed “ Registration and Elections,”  which, after re­
ferring to the progress of the Voters’ Registration Bill, 
stated:

“ Another bill bearing upon qualifications of voters 
is by Mr. Rawlings of Washington. He provides that 
it shall be the duty of the tax receivers of the several 
counties to place the names of the colored taxpayers 
in each militia district upon the tax digest in alpha­
betical order and it is provided that the names of the 
colored and white taxpayers shall be made out sepa­
rately on the tax digest.

‘ The occasion for that bill,’ said Mr. Rawlings, ‘ is 
simply this: Under the present law there is no re­
quirement of this kind and the tax receivers are in 
the habit of placing the names of the Negro taxpayers

5 This related only to ad valorem taxes. The poll tax was 
not enacted until 1927 (Ga. Laws 1927, p. 57; Code of 1933. 
§92-108).



39 —

with those of the whites and it is impossible to find 
out with any degree of ease whether a Negro’s name 
is on the tax digest. You see, it is pretty necessary 
to know this in election times. This is due to the 
habit of placing a man’s Negro employees with his 
name on the tax digest. For instance, Mr. Smith’s 
property is returned and with his name is placed the 
names of the Negroes who work for him and whose 
names he gives in. My bill provides for separate 
lists of colored and white taxpayers and that each 
list shall be kept alphabetically.’ ”

The foregoing demonstrates that Code § 92-6307 was 
never designed as a means of encouraging or facilitating 
discrimination. It was but part of a voters’ registration 
effort aimed at preventing vote frauds through voting by 
unauthorized persons. It could very easily serve the 
same function today, for many Negro citizens bear the 
same names as white citizens of their area. Notwithstand­
ing, the General Assembly repealed this part of the law 
this year (Ga. Laws 1966, p. 393).

Respondent deems it also important to point out to the 
Court the effect of any such ruling as urged here. Under 
the rulings by the Fifth Circuit in United States ex rel. 
Goldsby v. Harpole, 263 F. 2d 71 (C. A. 5th 1964), and 
particularly the decision in this case, 333 F. 2d 496, it is 
virtually impossible for this issue to be waived, when 
challenged by federal habeas corpus. There are 4896 
Negroes now confined in the Georgia prison system. If 
petitioner prevails on this question, every one of these 
prisoners will have to be retried. Such chaos should not 
be countenanced.

(C) There Was No Prima Facie Showing of Discrimina­
tion From the Statistics.

This contention was previously argued in Part A, supra.



CONCLUSION.

The judgment below should be affirmed. 

Respectfully submitted,

ARTHUR K. BOLTON,

Judicial Building, 
JO Capitol Square, 
Atlanta, Georgia.

Attorney General of Georgia.

E. FREEMAN LEVERETT,
Deputy Assistant Attorney General.

25 Thomas Street,
Elberton, Georgia.

DEWEY HAYES,
Solicitor General, Way cross Circuit.

Douglas, Georgia.
Attorneys for Respondent.



88