Branch v. Texas Brief for the Petitioner

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Brief Collection, LDF Court Filings. Branch v. Texas Brief for the Petitioner, 1971. 7e869c2c-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d0752e13-572a-4079-a84a-5899008b59b0/branch-v-texas-brief-for-the-petitioner. Accessed April 06, 2025.

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IN THE

Sup-

C E f 1

IN THE

Supreme Court of the United States

t).S, \
\

3 1911
\

: hK

No. 69-5031

ELMER BRANCH,

Petitioner,

TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS

BRIEF FOR THE PETITIONER

M e l v y n C a r s o n B r u d e r

706 Main Street
Suite 300
Dallas, Texas 75202

C ounsel fo r P etitioner

Washington, D. C. - TH IEL PRESS - 202 • 393-0625

(i)

TABLE OF CONTENTS

Page

CITATIONS TO OPINION BELOW................................................. 1

JURISDICTION................................................................................... 2

QUESTION PRESENTED ......................................... 2
CONSTITUTIONAL PROVISION INVOLVED............................. 3

STATEMENT OF THE CASE ......................................... 3

SUMMARY OF ARGUMENT............................................................ 6

ARGUMENT:
I. The imposition of the death penalty in a rape case

where the life of the victim is neither taken nor
endangered is contrary to contemporary standards of
decency, exceeds accepted maximum punishment for
that offense, and is arbitrarily disproportionate to the
crime com m itted ......................................... • ........................ '

II. The imposition of the death penalty for rape by the
state of Texas, being among a minority of states
authorizing such a penalty, violates the petitioner’s
right to equal protection of the laws as a citizen of
the United S ta tes ...................................................................... 18

III. The death sentence in rape cases is the tool and
product of racial discrimination, “unusual” in national
context, and violative of the Due Process Clause of
the Fourteenth Amendment.................................................... 19

IV. Capital punishment in rape cases serves no useful
function within accepted modern penological atti
tudes. It is, therefore, “cruel and unusual” within
the meaning of the Eighth Am endm ent............................... 23

V. By authorizing local prosecutors to waive the death
penalty in capital cases, thereby changing the range
of punishment upon personal caprice, the unique
Texas capital punishment procedure fosters racial dis
crimination and results in highly disproportionate
impositions of death sentences upon Negroes, in vio
lation of both the Eighth and Fourteenth Amend
ments .......................................................................................... 30

CONCLUSION..................................................................................... 36

(ii) Page

APPENDIX A: Statutes Providing for the Death Penalty in
Rape Cases............................................................................ la

APPENDIX B: Provisions of Texas Statutes Cited in This
B rie f ............................................................ l la

APPENDIX C: National Prisoner Statistics—Table 3, Prison
ers Executed Under Civil Authority in the United States,
by Offense (Rape Only), Race and S ta te .................................... 13a

APPENDIX D: Typical Form Used in Texas for Giving
Notice of Intention To Seek D e a th ............................................ 15a

Typical Form Used in Texas for Giving Notice of Inten
tion Not To Seek D eath ............................................................... 15a

APPENDIX E: Disposition of Rape Prosecutions in Wilbarger
County, Texas 1924-1970 ................................................... 17a

TA BLE O F A U TH O R ITIES

Cases:
Anderson v. Martin, 375 U.S. 399 (1 9 6 4 )....................................... 36

Bell v. Maryland, 378 U.S. 226 (1964) .................................. 21

Bennett v. State, 448 P.2d 253 (Okla. Ct. Crim. App. 1968) . . . 15

Bosnick v. State, 454 S.W.2d 311 (Ark. Sup. Ct. 1970) ............. 14

Branch v. State, 447 S.W.2d 932 (Tex. Cr. App. 1 9 6 9 )............... 1

Branch v. Texas,___U .S .___ , 91 S. Ct. 2287 (1 9 7 1 )................ 2

Brown v. Board of Education, 347 U.S. 483 (1 9 5 4 )..................... 21

Calhoun v. State, 214 S.W. 335 (Tex. Cr. App. 1919).................. 15
Clardy v. State, 436 S.W.2d 535 (Tex. Cr. App. 1 9 6 8 )............... 31

Commonwealth v. Alvarado, 276 A.2d 526 (Pa. Sup. Ct.
1971) ............................................................................................... 15

Cox v. Louisiana, 379 U.S. 536 (1965) ............................ 33
Evans v. Newton, 382 U.S. 296 (1966) ............... 35

Griffin v. Illinois, 351 U.S. 12 (1956) ............................................ 34
Hunter v. Erickson, 393 U.S. 385 (1 9 6 9 ) ....................................... 33
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)............................ 8

Jacobellis v. Ohio, 378 U.S. 184 (1 9 6 4 ) ......................................... 21

Page

35Leeper v. Texas, 139 U.S. 462 (1891)
Lewis v. State, 451 P.2d 399 (Okla. Ct. Crim. App. 1967) . . . . 15

Loving v. Virginia, 388 U.S. 1 (1 9 6 7 ).................................... 21, 30, 35

McGautha v. California,__ U.S. — , 91 S. Ct. 1454 (1971) . . . 9, 33
McLaughlin v. Florida, 379 U.S. 184 (1 9 6 4 ) ....................... 21, 30, 35

Morrissette v. United States, 342 U.S. 246 (1 9 5 2 ) ....................... 23

People v. Anderson, 447 P.2d 942 (Cal. 1968)............................... 14

People v. Crews, 244 N.E.2d 593 (111. Sup. Ct. 1969) .................. 14

People v. Morse, 452 P.2d 607 (Cal. 1 9 6 7 ) .................................... 14

People v. Walcher, 246 N.E.2d 256 (111. Sup. Ct. 1 9 6 9 )................ 14

Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1 9 4 5 ) .................. 30
Ralph v. Warden, 438 F.2d 786 (4th Cir. 1 9 7 0 )............. 8, 17, 23, 30

Robinson v. California, 370 U.S. 660 (1962).................................. 8, 17

Shelley v. Kraemer, 334 U.S. 1 (1 9 4 8 )............................................ 9

Sibron v. New York, 392 U.S. 40 (1 9 6 8 ) ....................................... 9

Skinner v. Oklahoma, 316 U.S. 535 (1942).................................... 9

Smith v. State, 455 S.W.2d 748 (Tex. Cr. App. 1970) .............. 31

State v. Conyers, 275 A.2d 721 (N.J. Sup. Ct. 1 9 7 1 ).......... 15

State v. Garcia, 457 P.2d 985 (N.M. Sup. Ct. 1 9 6 9 )..................... 15

State v. Maloney, 464 P.2d 793 (Ariz. Sup. Ct. 1970) ................ 14
State v. Pace, 456 P.2d 197 (N.M. Sup. Ct. 1 9 6 9 ) ....................... 15
State v. Royster, 273 A.2d 574 (N.J. Sup. Ct. 1 9 7 1 ) .................. 15

Trop v. Dulles, 356 U.S. 86 (1 9 5 8 ) ...............................................passim

United States ex rel. Townsend v. Twomey, 322 F. Supp.
158 (N.D. 111. 1971)........................................................................ 18

Weems v. United States, 217 U.S. 349 (1 9 1 0 ).......................... 7, 8, 17

Williams v. New York, 337 U.S. 241 (1 9 4 9 ) ................................. 23

Zimmer v. State, 477 P.2d 971 (Kan. Sup. Ct. 1 9 7 0 ) .......... 14

Statutes and Constitutions:
U.S. Constitution, Amendment V III ................................................. 3

U.S. Constitution, Amendment X IV ................................................. 3

(iii)

10 U.S.C., Sec. 920 ........................................................................... 14, 9a

18 U.S.C., Sec. 2031.............................. .......................................... 14, 9a

28 U.S.C., Sec. 1 2 5 7 (3 )...................................................................... 2

D.C. Code, Sec. 22-2801 (1 9 6 1 ) ................................................. 14, 10a

Ala. Code, Sec. 14-395 (1958) ...................................................... 13, la
Ala. Code, Sec. 14-397 (1958) ...................................................... 13, la

Ala. Code, Sec. 14-398 (1958) ...................................................... 13, la

Ark. Stat. Ann., Sec. 41-2153 (1 9 6 4 )................................. .. 13, 2a

Ark. Stat. Ann., Sec. 41-3403 (1 9 6 4 )............................................ 13, la

Ark. Stat. Ann., Sec. 41-3405 (1 9 6 4 )................................. 13 ̂ la

Ark. Stat. Ann., Sec. 41-3411 (1964) ............................................ 13, 2a

Fla. Stat. Ann., Sec. 794.01 (1 9 6 4 ) ............................ ................. 13, 2a

Ga. Code Ann., Sec. 26-1302 (1 9 6 8 ) ............................................ 14, 2a

Ga. Code Ann., Sec. 26-1303 (1 9 6 8 ) ............................................ 14, 2a

Ga. Code Ann., Sec. 26-1304 (1 9 6 8 ) ............................................ 14, 2a

Ky. Rev. Stat. Ann., Sec. 435.080 (1963) .................................. 3a

Ky. Rev. Stat. Ann., Sec. 435.090 (1963) ................................. 14, 3a

La. Rev. Stat. Ann., Sec. 14.42 (1 9 5 0 )......................................... 14, 3a

Md. Ann. Code, Art. 27, Sec. 461 (1 9 5 7 ).................................... 14, 4a

Md. Ann. Code, Art. 27, Sec. 462 (1 9 5 7 ).................................... 14, 4a

Md. Ann. Code, Art. 27, Sec. 463 (1 9 5 7 ).................................... 4a

Miss. Code Ann., Sec. 2358 (1 9 5 6 ) .............................................. 14, 4a

Mo. Rev. Stat., Sec. 559.260 (1953) ............................................ 5a

Nev. Rev. Stat., Sec. 200.363 (1 9 6 8 )............................................ 14, 5a

N.C. Gen. Stat., Sec. 14-21 (1953)................................................. 14, 6a

Okla. Stat. Ann., Tit. 21, Sec. 1111 (1958) ............................... 14,6a

Okla. Stat. Ann., Tit. 21, Sec. 1114 (1958) ............................... 14,7a

Okla. Stat. Ann., Tit. 21, Sec. 1115 (1958) ............................... 14, 7a
S.C. Code Ann., Sec. 16-72 (1962) .............................................. 14, 7a

S.C. Code Ann., Sec. 16-80 (1962) .............................................. 14,7a

Tenn. Code Ann., Sec. 39-3702 (1955) ....................................... 14, 8a

(iv)
Page

(v)

Tenn. Code Ann., Sec. 39-3703 (1955) .................................... . 14, 8a

Tenn. Code Ann., Sec. 39-3704 (1955) .................................... 14, 8a

Tenn. Code Ann., Sec. 39-3705 (1955) .......................... ............ 14, 8a

Tex. Const., Art. 5, Sec. 5 (1896) .................................................... 2

Tex. Code of Crim. Proc., Art. 1.14 (1 9 6 5 )..................................passim
Tex. Code of Crim. Proc., Art. 2.01 (1965) .......................... 5, 34, 2a

Tex. Code of Crim. Proc., Art. 37.07 (1967) ............................... 5

Tex. Penal Code, Art. 1069 (1 9 1 6 ) ............................................33> 10a

Tex. Penal Code, Art. 1183 (1925) ............................. 5, 14, 9a, 11a

Tex. Penal Code, Art. 1189 (1925) ...............................................passim

Tex. Penal Code, Art. 1421 (1925) ................................................ 5

Va. Code Ann., Sec. 18.1-44 (1960) ............................................14, 9a

O ther A u th o rities:

Ancel, The Problem o f the Death Penalty, in Sellin, Capital
Punishment 3 (1967) .................................................................... 24

Article, Capital Punishment: A Fading Practice, IS Time
Mag. 19 (1 9 6 0 ).................. 15~16

Article, The State Should N ot Kill, New York Herald Tribune,
sec. 2, p. 4 (March 27, 1960) ...................................................... 16

Bazelon, The Imperative To Punish, 206 Atlantic Monthly
41 (1960) ........................................................................................ 23

Bedau, A Social Philosopher Looks at the Death Penalty,
123 Am. J. Psychiatry 1361 (1 9 6 7 )......................................... 22, 25

Bedau, Criminology, Deterrence and the Death Penalty: A
Reconsideration, 61 J. Crim. Law, Crim. & Pol. Sci. 539
(1 9 7 1 ).................................................................. .........................16> 27

Bedau, Death Sentences in New Jersey 1907-1960, 19 Rutgers
L. Rev. 1 (1964) ................................................... - .................... 16, 22

Bedau, The Courts, the Constitution and the Death Penalty,
1968 Utah L. Rev. 201 (1 9 6 8 ) ................................................. 25

Bedau, The Death Penalty in America (1 9 6 7 ) ..................... 16, 19, 25

Page

(vi)
Page

Bedau, The Death Penalty Today, 76 Christian Century 320
(1 9 5 9 )................................................................................................ 15

Bennett, in Knight, With Liberty and Justice for All 274
(1 9 6 7 ) .............................................................................................. 21

Bloch & Geis, Man, Crime and Society (1966) ............................ 26

Brown, Statement to the California Legislature, 1 Califor
nian 11 (1 9 6 0 ) .......... .................................................................. 16, 21

Calbert, Capital Punishment in the 20th Century (1 9 7 1 )............. 27

Campion, Should Men Hang, 102 America (Catholic Weekly
Review) 319 (1 9 5 9 ) ................................................................... . 15

Case comment, 5 Suf. U. L. Rev. 504 (1971) ................................ 27

Casenote, 29 La. L. Rev. 396 (1 9 6 9 ).............................................. 27

Chambliss, Types o f Deviance and the Effectiveness o f Legal
Sanctions, 1965 Wise. L. Rev. 703 (1965) ............................... 26

Clark, To Abolish the Death Penalty, hearings before the
Subcommittee on Criminal Law and Procedures of the
Senate Judiciary Committee, on S. 1760, July 2, 1968,
Department of Justice Release, 2 .............................................. 22, 25

Comment, 1968 Cal. L. Rev. 270 (1 9 6 8 ) ....................................... 27

DeMent, A Plea for the Condemned, 29 Ala. Law. 440
(1 9 6 8 ) .................................................................................. 27

DiSalle, Abolition o f Capital Punishment, hearings of Sub
committee if 2 on H.R. 870, U.S. House of Representa
tives, Committee of the Judiciary, 86th Cong., 2d Sess.
Serial No. 21:158, Supt. of Docs., Wash., D.C........................... 16

Drinkwater, Capital Punishment? No, 94 Rotarian 12 (1959) . . . 15

Gallop, Sharp Drop in Number o f Americans Favoring Death
Penalty for Murder, Public Opinion News Service (March
23, 1960) ................................................................................ .. . 15, 16

Gallop, Growing Trend Against Death Penalty Found in
Canada, U.S., Public Opinion News Service (March 25,
1960) ................................................................................................ 15

Gibbons, Psychiatric Therapy, in Prison Within Society, ed.
by Hazelrigg (1965)........................................................................ 26

Goldberg & Dershowitz, Declaring the Death Penalty Uncon
stitutional, 83 Harv. L. Rev. 1773 (1 9 7 0 ).......................... 8

Gottlieb, Capital Punishment, 15 Crime & Del. 2 (1969) .......... 16

Gottlieb, Testing the Death Penalty, 34 S. Cal. L. Rev. 268
(1961)................................................................................................ 16

Granucci, “Nor Cruel or Unusual Punishments Inflicted”:
The Original Meaning, 57 Cal. L. Rev. 839 (1 9 6 9 )................ 8, 11

Harrison, Menninger Hits at Death Penalty, New York Times,
p. 27 (May 13, 1960) ......................................................... 16

Havemann, Capital Punishment Is N ot the Answer, 76
Readers Digest 114 (1 9 6 0 )............................................................ 15

Hofstadter, Miller & Aaron, The American Republic (1960) . . . 11

Howard, Administration o f Rape Cases in the City o f Balti
more and the State o f Maryland (1 9 6 7 ) .................................... 22

Kendall, The Case Against Capital Punishment, 10 Presby
terian Life 6 (1957)......................................................................... 15

Knight, With Liberty and Justice for All (1967) ....................... 21, 28

Koeninger, Capital Punishment in Texas 1924-1968, 15
Crime & Del. 132 (1 9 6 9 ) .................... passim

Lawes, Twenty Thousand Years in Sing Sing (1932) .................. 13

McGee, Capital Punishment as Seen by a Correctional Admin
istrator, 28 Fed. Prob. 1 (1 9 6 4 ) ................................................. 27

McNamara, Abolition o f Capital Punishment, hearings of
Subcommittee # 2 on H.R. 870, U.S. House of Represen
tatives, Committee of the Judiciary, 86th Cong., 2d Sess.
Serial No. 21:158, Supt. of Docs., Wash., D.C............ .............. 16

Mannering, Significant Characteristics o f Recidivists, NPPA
Jour. IV 211-217 (1 9 5 8 ) ................................................................. 26

Mattick, The Unexamined Death (1966) .................................... 16, 25

Mitchell & Mitchell, A Biography o f the Constitution o f the
United States (1 9 6 4 )............................ 9

Morison, The Oxford History o f the American People
(1965)................................................................................................... 11

Murray, States’ Laws on Race and Color (1955) .......................... 20
New Jersey Commission on the Habitual Sex Offender, The

Habitual Sex Offender, Report and Recommendation o f
the Commission on the Habitual Sex Offender, as formu
lated by Paul W. Tappan, technical consultant (Undated) . . . 26

( vii)
Page

New York State Temporary Commission for Review of the
Penal Law and Criminal Code, Special Report on Capital
Punishment ( 1 9 6 5 ) ......................................................................... 25

Note, Constitutional Law—Cruel and Unusual Punishment—
Condition in Prison Render Confinement Unconstitu
tional, 45 Tulane L. Rev. 403 (1971) ....................................... 8

Partington, The Incidence o f the Death Penalty for Rape in
Virginia, 22 Wash. & Lee L. Rev. 43 (1 9 6 5 ) ............................. 21

Patrick, Capital Punishment and Life Imprisonment in North
Carolina 1946-1968, 6 Wake Forest L. Rev. 417 (1970) . . . . 27

Patrick, The Status o f Capital Punishment: A World Perspec
tive, 56 J. Crim. L., Crim. & Pol. Sci. 397 (1 9 6 5 ) .......... .. 16

Pennell, U.K. Royal Commission on Capital Punishment
Studies 1949-1953, 5 Alberta L. Rev. 1 (1 9 6 7 ) ....................... 27

Playfair, Is the Death Penalty Necessary, 200 Atlantic
Monthly 31 (1 9 5 7 ) ....................................................................... 15

President’s Commission on Law Enforcement and the Admin
istration of Justice, Report (The Challenge o f Crime in a
Free Society) (1 9 6 7 )........................................................... 14, 22, 25

Pritchett, The American Constitution (1959) ............................... 28

Reckless, The Use o f the Death Penalty, 15 Crime & Del.
43 (1969) ........................................................... 27

Rigg, The Penalty Worse Than Death, 230 Sat. Eve. Post
(Aug. 21, 1 9 5 7 ) .............................................................................. 15

Royal Commission on Capital Punishment, Report 1949-
1953 (1953)................................................................................... 23, 24

Rubin, The Supreme Court, Cruel and Unusual Punishment
and the Death Penalty, 15 Crime & Del. 121 (1969)............... 8

Schnur, The New Penology: Fact or Fiction, in Penology:
A Realistic Approach, ed. by Vedder & Kay (1 9 6 4 )............... 23

Sellin, The Death Penalty (1959) . ............. ................................. 15, 25

Sellin, Capital Punishment (1 9 6 7 ) ................................................. 16, 24

Singer, Psychological Studies o f Punishment, 58 Cal. L. Rev.
405 (1970)........................................................................................ 26

Sturrup, Treating the Untreatable (1 9 6 5 ) ....................................... 26

( viii)
Page

Tappan, Contemporary Correction (1951) ..................................24, 26

Tidmarsh, Halloran & Connaly, Capital Punishment: A Case
for Abolition (1 9 6 3 ) ....................... .............................................. 27

Tingler, Unconstitutional Punishment, 6 Crim. Law Bui. 311
(1 9 7 0 )..................................................................................................8, 11

Trevelyan, ed. by Morris, The American Revolution (1965) . . . . 11

Texas Practice, Willson’s Criminal Forms, Sec. 2713 (1966) . . . . 15a

United Nations, Capital Punishment Report (1968) .................. 14, 25

United States Department of Justice, Bureau of Prisons,
National Prisoner Statistics, No. 45, Capital Punishment
1930-1968 (1969) ......................................................................... 15, 19

Vernon’s Ann. Tex. Const., vol. 2 (1 9 5 5 ) ....................................... 2

Vernon’s Mo. Stat. Ann., Sec. 559.260 (1953)............... .............. 14
Webster’s New Seventh Collegiate Dictionary (1965) .................. 22

West, A Psychiatrist Looks at the Death Penalty, paper pre
sented at the 122nd Annual Meeting of the American
Psychiatric Association, Atlantic City, New Jersey (May
1 1 ,1 9 6 6 ).......................................................................................... 22

Wolfgang, Kelly & Nolde, Comparison o f the Executed and
Commuted Among Admissions to Death Row, 53 J. Crim.
L., Crim. & Pol. Sci. 301 (1 9 6 2 )................................................. 22

Younger, Capital Punishment: A Sharp Medicine Recon
sidered, 42 ABA 113 (1956).................. ...................................... 15

(ix)
Page

IN THE

Supreme Court of the United States

No. 69-5031

ELMER BRANCH,

Petitioner,

TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS

BRIEF FOR THE PETITIONER

CITATION TO OPINION BELOW

The opinion of the Texas Court of Criminal Appeals
(App. 130-134) is reported at 447 S.W.2d 932.

JURISDICTION

The judgment of the Texas Court of Criminal Appeals
was entered on December 10, 1969 (App. 130). No peti
tion for rehearing was filed by the petitioner’s court-
appointed lawyer. The Court of Criminal Appeals issued its
mandate affirming the petitioner’s conviction on December
29, 1969, thereby ordering the imposition of the death
penalty assessed by the jury (App. 135). The judgment of
the Court of Criminal Appeals of Texas is final and is from
the court of last resort in criminal cases in Texas.1 A
motion for leave to proceed in forma pauperis and a peti
tion for writ of certiorari were filed on March 10, 1970,
and were granted June 28, 1971. ___ U .S .___, 91 S. Ct.
2287. The jurisdiction of this Court rests on 28 U.S.C.,
Sec. 1257(3), since the petitioner claims a right under the
Constitution of the United States.

QUESTION PRESENTED

Does the imposition and carrying out of the death
penalty in this case constitute cruel and unusual punish
ment in violation of the Eighth and Fourteenth Amend
ments?

1Art. 5, Sec. 5, Texas Constitution, provides: “The Court of Crim
inal Appeals shall have appellate jurisdiction co-extensive with the
limits of the State in all criminal cases of whatever grade, with such
exceptions and under such regulations as may be prescribed by law.”
This article has been interpreted to mean that the Court of Criminal
Appeals “is the court of final jurisdiction in criminal matters,” and
vis-a-vis the Supreme Court of Texas, the Court of Criminal Appeals
is “supreme in criminal [matters].” 2 Vernon’s Ann. Tex. Const. 50
(1955).

CONSTITUTIONAL PROVISIONS
INVOLVED

The Eighth Amendment to the Constitution of the
United States provides:

Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment
inflicted.

Section 1 of the Fourteenth Amendment to the Consti
tution of the United States provides, in relevant part:

No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

On May 9, 1967, before 2:00 AM, an unarmed Negro
male forced his way into the rural home of Mrs. Grady
Stowe (App. 18, 28), a 65 year old Caucasian widow (App.
18, 21, 107), who was the mother of the Wilbarger County
sheriff’s brother-in-law (App. 45, 46, 49). The Negro
entered Mrs. Stowe’s bedroom as she slept, jerked the bed
covers from her, awakening her, grabbed her arm, struggled
with her (App. 18), pinned her against a wall as she lay on
the bed, admonished her not to “holler” and pressed his
right arm on her throat when she attempted to cry out
(but never threatened her with serious harm or death (see
App. 119) during the encounter), took off her pajama
bottoms, and then sexually assaulted her (App. 19).

Following the assault, Mrs. Stowe and her assailant
engaged in a bizarre combination of conversation and action
for thirty to forty-five minutes (App. 22): the Negro
requested money; Mrs. Stowe denied having any money
(App. 19), but then gave him the contents of her coin purse
(App. 20). In a further effort to placate him, Mrs. Stowe

offered to write him a check, or leave any amount of
money at a place to be designated by him on the following
day; he refused both offers (App. 20). During this conver
sation Mrs. Stowe was not permitted to leave the bed where
she sat (App. 20, 21). Later, however, when she asked to
get her combined hearing aid and eyeglasses, the Negro con
sented. She got up from the bed, secured the hearing aid/
glasses and then sat in a chair in the bedroom (App. 21).
She asked: “Why did you come out here and molest a
woman my age? I am sixty-five years old, when there are
plenty of nice pretty girls in town” ; to which her assailant
replied: “I wanted to see how you felt about colored
people” (App. 21). Mrs. Stowe then related numerous
events detailing aid that she and her late husband had given
Negroes. Mrs. Stowe’s second request—to go to the bath
room to get a drink of water—met with the Negro’s
approval. However, when Mrs. Stowe turned on a hall light
(App. 22) he told her to turn it off, and then “shoved” her
down the hallway to the bedroom and onto the bed (App.
23). The Negro acceded to her third request by “pitching”
her the pajama bottoms he had earlier ripped from her. He
then “jerked the wire off the receiver” of the telephone,
admonished her not to tell anyone what had happened or
he would return the following day and kill her, and left
(App. 23).

All the salient facts concerning the offense for which the
petitioner was assessed the supreme penalty came from the
wholly uncorroborated testimony of Mrs. Stowe. No medi
cal testimony was available to the prosecution to substanti
ate the fact that a sexual assault had been made upon Mrs.
Stowe (App. 108). The record is barren of any medical
testimony showing injury to Mrs. Stowe resulting from the
Negro’s attack (see App. 119). Nor is there any evidence
of any sincere threats of death or of serious bodily harm or
injury made by the Negro to Mrs. Stowe. In short, there is
no medically significant testimony that any physical or
psychological damage to Mrs. Stowe occurred as a result of
the alleged rape which she described.

The petitioner was indicted for the rape of Mrs. Stowe,
a capital offense2 (App. 2). Notice of intention to seek the
death penalty was filed by the Wilbarger County District
Attorney (who was responsible for prosecuting the peti
tioner, Texas Code o f Criminal Procedure, Art. 2.01) in_
accordance with the requirement of Texas Code o f Crimi
nal Procedure, Art. 1.14 (App. 5). Being represented by
appointed counsel because of his indigency (App. 3, 4), the
petitioner was tried in the 46th Judicial District Court,
Wilbarger County, Texas (App. 11), the county in which
the alleged offense occurred (App. 28), seventy-five days
after the commission of the alleged offense (App. 6). In a
unitary trial3 the petitioner was adjudged guilty and sen
tenced to death (App. 10-13). An appeal to the Court of
Criminal Appeals was unsuccessful (App. 130 et seq., 135).

Testimony taken at the petitioner’s trial revealed the
following pertinent information regarding the petitioner:
He had previously been convicted of felony theft, a viola
tion of Texas Penal Code, Art. 1421, and assessed three
years in the Texas Department of Corrections. He spent
most of the sentence in prison prior to his parole in 1967
(App. 84, 85). While in the TDC, the petitioner was tested
and evaluated. The results showed the twenty year old
petitioner to have an IQ of 67 (according to the Gray-
Votaw-Rogers General Achievement Test and the Otis
Form A Test), which was borderline mentally deficient
(App. 86, 87), and well below the average low IQ of 80
found among Texas prison inmates (App. 93). His educa
tional achievement showed him to have the equivalent of
five and one-half years of grade school education (App. 87,
88). The prison report indicated he was of “dull intelli
gence” (App. 83), which corroborated the testimony that
while in school the petitioner was mentally slow, that

2 Texas Penal Code, Arts. 1183, 1189, respectively. See Appendix
B, infra.

3A bifurcated trial is now required in all capital cases in Texas.
Texas Code o f Criminal Procedure, Art. 37.07, as amended (1967).

“some years [he learned], and some he didn’t (App. 98),
and that he was in the lower four percentile of his class.

SUMMARY OF ARGUMENT

I. The proper standard for the determination of the con
stitutionality of punishment is to look at reaction of the
populace to the punishment under scrutiny, to measure
the punishment inflicted to other punishments generally
inflicted for similar crimes, and to examine the punishment
imposed for any disproportionate relationship which it may
bear to the crime involved. The imposition of death for
the offense of rape where the life of the victim has been
neither taken nor endangered is contrary to popular stand
ards of decency, is excessive in relation to the crime as
compared to the majority of sentences imposed in similar
rape cases, and is highly disproportionate as to petitioner.

II. Only sixteen states authorize the imposition of death
as a punishment for rape. By sentencing the petitioner to
death (although a wide range of alternatives is available),
the State of Texas deprived petitioner of equal protection
of the laws due him as a citizen of the United States.

III. The imposition of death is a southern phenomenon;
moreover, the death penalty is assessed in a highly dispro
portionate number of cases in which Negroes are the
offenders. In Texas, an accused rapist, if black, has a 78%
chance of receiving the death penalty, but if white, that
chance is diminished to 22%. Statistically, and historically,
the imposition of the death penalty for rape is both a tool
and product of racial discrimination, visited upon Negroes,
thereby rendering it “unusual” within the national frame
work, in violation of the Eighth Amendment, and in viola
tion of the Due Process and Equal Protections Clauses of
the Fourteenth Amendment.

IV. Capital punishment serves no useful purpose in fur
therance of legitimate and rational penological goals. It
certainly cannot provide a basis for rehabilitation. There

are no statistics which evince proof of an increase in capital
offense with the advent of abolition; and the converse is
tru e - the existence of capital punishment does not bring
about a lowering of capital crimes. It thus has no deterrent
value. With respect to rape cases, capital punishment is
totally unacceptable because of the low criminal commit
ment of the offender and the “expressive” rather than
“instrumental” nature of the offense.

V. The unique Texas practice of authorizing local prose
cutors to seek or waive the death penalty violates all
standards of fairness and fosters ascertainable racial discrim
ination violating the Eighth Amendment’s ban on “unusual”
punishments and the Due Process Clause of the Fourteenth
Amendment.

ARGUMENT
I. THE IMPOSITION AND CARRYING OUT OF THE

DEATH PENALTY IN THIS CASE DOES NOT
ACCORD WITH CONTEMPORARY STANDARDS
OF DECENCY SHARED BY THE MAJORITY OF
AMERICAN CITIZENS, IS EXCESSIVE AND DIS
PROPORTIONATE TO THE OFFENSE.

The standard which this Court has historically applied to
all “cruel and unusual punishment” questions appears in
the opinions of this Court in Weems v. United States, 217
U.S. 349, 378 (1910):

The clause of the Constitution . . . may therefore
be progressive, and it is not fastened to the obso
lete, but may acquire meaning as public opinion
becomes enlightened by humane justice

and in Trop v, Dulles, 356 U.S. 86, 101 (1958):
The [Eighth] Amendment must draw its meaning
from the evolving standards of decency that mark
the progress of a maturing society.

This test, evolving as it did from the 17th century English
common law, see Weems v. United States, 217 U.S. 372;

Trop v. Dulles, 356 U.S. 100; Robinson v. California, 370
U.S. 660, 675 (1962); Tingler, Unconstitutional Punish
ment, 6 Crim. Law Bui. 311, 312, 327 (1970); Granucci,
“Nor Cruel and Unusual Punishments Inflicted”: The Origi
nal Meaning, 57 Cal. L. Rev. 839, 852-853 (1969), has been
widely accepted as the historically correct and judicially
prpper interpretation of the Eighth Amendment and the
Cruel and Unusual Punishment Clause. Ralph v. Warden,
438 F.2d 786, 789, 790 (4th Cir. 1970); Jackson v. Bishop,
404 F.2d 571, 578-579 (8th Cir. 1968); Note, Constitu
tional Law—Cruel and Unusual Punishment—Conditions in
Prison Render Confinement Unconstitutional, 45 Tulane L.
Rev. 403 (1971); Goldberg & Dershowitz, Declaring the
Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773,
1789 (1970); Tingler, Unconstitutional Punishment, 6 Crim.
Law Bui. 311, 316 (1970); Rubin, The Supreme Court,
Cruel and Unusual Punishment and the Death Penalty, 15
Crime & Del. 121, 121-122 (1969).

The test to determine the permissibility of a particular
punishment assessed in a specific case thus requires an
inquiry into the following factors:

1. Whether the punishment imposed is barbarous, pain
ful or inhumane, thus rendering it cruel. See Trop v.
Dulles, 356 U.S.TOO, at footnote 32.

2. Whether the punishment finds general, international
approbation or condemnation. Weems v. United States,
217 U.S. 377; Trop v. Dulles, 356 U.S. 103.

3. Whether the punishment is excessive with respect to
the crime, as gauged by patterns of conduct with respect to
similar crimes and public opinion. Ralph v. Warden, 438
F.2d 793; Jackson v. Bishop, 404 F.2d 579.

4. Whether the punishment is disproportionate to the
offense committed, as well as to punishments inflicted in
other similar cases. Trop v. Dulles, 356 U.S. 103; Ralph
v. Warden, 438 F.2d 793; Jackson v. Bishop, 404 F.2d 579.

5. Whether the punishment is rationally calculated to
achieve a legitimate end of legislative purpose, i.e., the pre
vention of crime and the protection of society. Trap v.
Dulles, 356 U.S. 107, Brennan, I., concurring.

It is significant to note at this juncture that the peti
tioner does not challenge the states’ legislative right to
enact or maintain authorization for capital punishment; the
“wisdom of state policies”4 in providing for capital punish
ment is outside the scope of the petitioner’s contention
(although, as intimated in Trop v. Dulles, 356 U.S., at 103-
104 and at 107, the validity of legislation authorizing cruel
and unusual punishments may be a legitimate concern
under the Eighth Amendment). The issue which the peti
tioner seeks to litigate is whether the imposition of the
death penalty is permissible in a rape case where the
victim’s life is neither taken nor endangered.

The mere existence of Texas Penal Code, Art. 1189,
authorizing the death penalty in any rape case, does not
establish the constitutionality of the imposition of capital
punishment in any rape case, or, more specifically, in this
rape case, “for the Eighth Amendment is a limitation on
both legislative and judicial action.” Ralph v. Warden, 438
F.2d 788-789; Mitchell & Mitchell, A Biography o f the
Constitution o f the United States 198 (1964). A statute
may be constitutionally valid on its face, yet application of
that statute may not pass constitutional muster. The
reason this situation occurs is, to a great extent, because
“ the constitutional point with respect to a statute . . . is
‘not so much . . . the language employed as . . . the conduct
it authorizes.’ ” Sibron v. New York, 392 U.S. 40, 61-62
(1968). See also Skinner v. Oklahoma, 316 U.S. 535
(1942), and Shelley v. Kraemer, 334 U.S. 1 (1948), where
this Court held that judicial enforcement of an otherwise
valid contract which resulted in discrimination based on
race could not be constitutionally sanctioned, and said:

AMcGautha v. California, ___ U.S. ___, 91 S. Ct. 1454 (1971),
Douglas, J., dissenting.

We conclude, therefore, that the restrictive agree
ments, standing alone cannot be regarded as a viola
tion of any rights guaranteed to petitioners by the
Fourteenth Amendment. So long as the purposes
of those agreements are effectuated by voluntary
adherence to their terms, it would appear clear that
there has been no action by the State and the provi
sions of the Amendment have not been violated . . .

But here there was more. These are cases in
which the purposes of the agreements were secured
only by judicial enforcement by state courts of the
restrictive terms of the agreements . . .

The affirmance of the petitioner’s death sentence by the
Texas Court of Criminal Appeals cannot rest upon the
existence of Texas Penal Code, Art. 1189, but must also
withstand the joint tests of the Eighth and Fourteenth
Amendments inasmuch as that affirmance is judicial (and
therefore State) action enforcing Art. 1189.

From these two propositions—the right of the state to
punish, and the obligation of the state to mete out punish
ments (that is, to apply penal sanctions) in conformity with
federal constitutional protections—comes the conclusion
expressed in Trop v. Dulles, 356 U.S. 100:

While the State has the power to punish, the
[Eighth] Amendment stands to assure that this
power be exercised within the limits of civilized
standards.

It is thus crucial to determine whether the imposition and
carrying out of the death penalty in a rape case where the
life of the victim is neither taken nor endangered comes
within “the limits of civilized standards.” To do this, it is
first necessary to locate those “limits of civilized standards.”

History sustains the view that Trap’s “civilized standards”
are to be found in the contemporary standards of the ever-
changing morality of the populace existing at the time the
inquiry is made. Eighteenth century Americans knew well,
and fully appreciated, the reasons for including the Tenth
Clause in the 1688 English Bill of R ights-to prevent recur

rences of the discriminatory judicial excesses practiced
under the Stuarts to punish political enemies and critics of
the crown. The prohibition against cruel and unusual pun
ishment was critical enough so that the colonies included
such a protection in their pre-revolutionary laws. Granucci,
“Nor Cruel and Unusual Punishments Inflicted”: The Origi
nal Meaning, 57 Cal. L. Rev. 839, 852-853 (1969). Logi
cally, it is clear that the Eighth Amendment was not
adopted only to abolish those punishments then deemed
barbarous, inhumane or painful, for were that the case, the
Eighth Amendment would have been nothing short of sur-
plussage and a mere re-enactment of the existing common
law of the colonies. Instead, the intendment of the authors
of our Constitution was to provide the citizens of the
country with a living, flexible document, susceptible of inter
pretation to meet the changing demands of time and people.

It is not enough that our courts stand ready to pro
hibit the torture common to the time of the Stuarts.
The Constitution is a living document capable of
continued expansion, the Eighth Amendment being
only one part of this viable package. The Eighth
Amendment is applicable to those sanctions which
are dehumanizing or which shock the conscience,
either in their severity or by their disproportionate
relation to the crime.

Tingler, Unconstitutional Punishment, 6 Crim. Law Bui.
311, 327 (1970). This interpretation is bolstered by an
examination of conditions preceding the American Revolu
tion. Arbitrary legislation and arbitrary enforcement of
legislation was prevalent in pre-Revolutionary America as a
political weapon of the British aimed at maintaining order.
Hofstadter, Miller & Aaron, The American Republic 156-
167 (1960); Trevelyan, ed. by Morris, The American Revo
lution 116 et seq. (1965); Morison, Oxford History o f the
American People 178-210 (1965). Thus the Eighth Amend
ment, like the other nine Amendments of the Bill of Rights,
was an expression of reaction to unacceptable conditions
known to the founding fathers, expressed in the form of

guaranties to the people. It was an expression of revulsion
to not only the judicial excesses prohibited by the common
law—barbarous and inhumane punishment—but also to the
judicial and legislative excesses known to the revolutionary
colonists—punishments which were excessive in relation to
the crime and which were discriminatorily assessed.

Measured against this historical background, it is clear
that the Cruel and Unusual Punishment Clause is aimed at
all applications of law which, if applied even-handedly and
generally to the populace, would be completely unaccept
able to the majority of the people (as were the sanctions,
in the form of taxes and imprisonment, imposed by British
law and arbitrarily enforced by British courts against only
those colonists who demonstrated an insurgent or rebellious
attitude toward the crown and its policies).

The real danger of penal sanctions vis-a-vis the Eighth
Amendment’s inhibition against cruel and unusual punish
ments, as recognized by the framers of the Constitution, is
not that they will be enacted, but that they will be applied
to minorities in such a manner that political redress by
those minorities is precluded. History amply demonstrates
the futile efforts of the American colonists, too few in
numbers and too far removed from the hub of politics to
be effective, to secure fair and adequate representation in
Parliament in order to challenge and hopefully alleviate the
burdensome taxation policies imposed upon them by that
political body. So long as the minority to whom the penal
sanction is oppressively applied is small enough, or suf
ficiently politically innocuous, thereby circumventing a
stirring of the indignation of a majority of the people, the
public conscience will not rise to the defense of such a
minority. The protection of these minorities is the histori
cal purpose of the Eighth Amendment.

The petitioner’s sentence of death for the commission of
a non-homicidal rape falls within a class of arbitrarily
applied extant law which the Eighth Amendment was
intended to proscribe. The question, in determining the

validity of capital punishment in this case under “civilized
standards,” is whether contemporary standards of morality,
expressed in the form of public opinion, will permit the
imposition and carrying out of this sentence. It is respect
fully submitted that if capital punishment were uniformly,
regularly, and even-handedly applied to all persons con
victed of non-homicidal rape, or to any arbitrarily selected
class of persons, such as, for example, horse thieves, the
majority of the people would raise an opposition to that
action akin to the furor demonstrated by the American
revolutionaries simply because the imposition of the death
penalty in a rape case where the life of the victim is neither
taken nor endangered affronts the standards of decency
now universally shared among rational men.

What would be the attitude of the American
people if by good or ill circumstance the ten
thousand men and women who in any one year
commit our murders and manslaughters in these
United States, would all be convicted of murder,
sentenced to death, and that punishment actually
inflicted? What, indeed, but an almost universal
cry for abolition.

Lawes, Twenty Thousand Years in Sing Sing 306-307
(1932).

This conclusion that the death penalty in rape cases
where the victim’s life is neither taken nor endangered no
longer meets with the approbation of a majority of the
people is predicated upon the following facts, circumstances
and conclusion.

Since this Court said, thirteen years ago, that the death
penalty “is still widely accepted,” Trap v. Dulles, 356 U.S.
99, the pendulum of community expression has demon
strably swung away from a general approval of capital
punishment toward its abolition. This is especially true in
rape cases: only sixteen states authorize the imposition of
the death penalty for rape.5 (Of this number, all but one—

5Ala. Code, Secs. 14-395, 14-397, 14-398 (Recomp. Vol. 1958);
Ark. Stat. Ann., Secs. 41-3403, 43-2153 (1964 Repl. Vols.); see also
Secs. 41-3405, 41-3411; Fla. Stat. Ann., Sec. 794.01 (1964 Cum.

Nevada, which authorizes death in only those rape cases
where serious bodily harm has resulted to the victim,
Nevada Revised Statutes, Sec. 200.363 (1968)-are southern
or border states, a circumstance which will be more fully
discussed later in this brief.) The federal jurisdiction and
the District of Columbia also provide for the death penalty
in rape cases.6 In the community of nations, there is a pre
cipitous decline in the use of capital punishment, especially
with respect to rape cases, there being only three countries
other than the United States utilizing the supreme penalty
in a rape case. United Nations, Capital Punishment Report
81-82 (1968).

Juries and judges are more reluctant today than ever to
impose the death sentence, and governors are reluctant to
authorize the carrying out of a death sentence. President s
Commission on Law Enforcement and Administration of
Justice, Report (The Challenge o f Crime in a Free Society)
143 (1967). Appellate courts have shown a marked reluc
tance to permit the carrying out of death penalties in
numerous cases. State v. Maloney, 464 P.2d 793 (Ariz.
Sup. Ct. 1970); Bosnick v. State, 454 S.W.2d 311 (Ark.
Sup. Ct. 1970); People v. Morse, 452 P.2d 607 (Cal. 1969);
People v. Anderson, 447 P.2d 942 (Cal. 1968); People v.
Walcher, 246 N.E.2d 256 (111. Sup. Ct. 1969); People v.
Crews, 244 N.E.2d 593 (111. Sup. Ct. 1969); Zimmer v.
State, A l l P.2d 971 (Kan. Sup. Ct. 1970); Peterson v. State,

Supp.); Ga. Code Ann., Secs. 26-1302, 26-1304 (1968 Cum. Supp.);
Ky. Rev. Stat. Ann., Sec. 435.090 (1963); La. Rev. Stat. Ann., Sec.
14.42 (1950); Md. Ann. Code, Art. 27, Secs. 461,462 (1957); Miss.
Code Ann., Sec. 2358 (Recomp. Vol. 1956); Vernon’s Mo. Stat. Ann.,
Sec. 559.260 (1953); Nev. Rev. Stat., Sec. 200.363 (1968); N.C.
Gen. Stat., Sec. 14-21 (Recomp. Vol. 1953); Okla. Stat. Ann., Tit.
21, Secs. 1111, 1114, 1115 (1968); S.C. Code Ann., Secs. 16-72,
16-80 (1962); Tenn. Code Ann., Secs. 39-3702, 39-3703, 39-3704,
39-3705 (1955); Tex. Pen. Code Ann., Arts. 1183, 1189 (1961); Va.
Code Ann., Sec. 18.1-44 (Repl. Vol. 1960).

618 U.S.C., Sec. 2031 (1964); 10 U.S.C., Sec. 920 (1964); D.C.
Code Ann., Sec. 22-2801 (1961).

242 So. 2d 420 (Miss. Sup. Ct. 1970); State v. Garcia, 457
P.2d 985 (N.M. Sup. Ct. 1969); State v. Pace, 456 P.2d 197
(N.M. Sup. Ct. 1969); State v. Conyers, 275 A.2d 721 (N.J.
Sup. Ct. 1971); State v. Royster, 273 A.2d 574 (N.J. Sup.
Ct. 1971); Lewis v. State, 451 P.2d 399 (Okla. Ct. Crim.
App. 1967); Bennett v. State, 448 P.2d 253 (Okla. Ct.
Crim. App. 1968); Commonwealth v. Alvarado, 276 A.2d
526 (Pa. Sup. Ct. 1971); Calhoun v. State, 214 S.W. 335
(Tex. Ct. App. 1919). The number of executions has
dropped most significantly since the decision was handed
down in Trop. See United States Department of Justice,
Bureau of Prisons, National Prisoner Statistics, No. 45,
Capital Punishment, 1930-1968 (August 1969). On the
local level, no person has been executed in Texas since
1964; the last execution in this country occurred in 1967.
See Koeninger, Capital Punishment in Texas 1924-1968,
15 Crime & Del. 132 (1969).

More significant to the heart of petitioner’s contention
is the overwhelming expression of revulsion against the use
of death as punishment for crime. This is apparent in the
writings of authors, newsmen, penologists, psychologists,
jurists and attorneys—both prosecutors and defense lawyers.
Younger, Capital Punishment; A Sharp Medicine Recon
sidered, 42 ABA 113 (1956); Rigg, The Penalty Worse Than
Death, 230 Sat. Eve. Post 13 (August 31, 1957); Playfair,
Is the Death Penalty Necessary, 200 Atlantic Monthly 31
(1957); Kendall, The Case Against Capital Punishment, 10
Presbyterian Life 6 (1957); Bedau, The Death Penalty
Today, 76 Christian Century 320 (1959); Campion, Should
Men Hang, 102 America (National Catholic Weekly Review)
319 (1959); Drinkwater, Capital Punishment? No, 94 Rotar-
ian 12 (1959); Sellin, The Death Penalty (1959); Have-
mann, Capital Punishment Is Not the Answer, 76 Reader’s
Digest 114 (1960); Gallop, Sharp Drop in Number o f
Americans Favoring Death Penalty for Murder, Public Opin
ion News Service (March 23, 1960); Gallop, Growing Trend
Against Death Penalty Found in Canada, U.S., Public Opin
ion News Service (March 25, 1960); Article, Capital Punish-

merit: A Fading Practice, 75 Time Mag. 19 (1960); Article,
The State Should Not Kill, New York Herald Tribune, Sec.
2, p. 4 (March 27, 1960); Harrison, Menninger Hits at
Death Penalty, New York Times, p. 27 (May 13, 1960);
DiSalle, Abolition o f Capital Punishment, hearings of Sub
committee # 2 on H.R. 870, U.S. House of Representatives,
Committee of the Judiciary, 86th Cong., 2d Sess. Serial No.
21:158, Supt. of Docs., Wash., D.C.;McNamara, Abolition
o f Capital Punishment, hearings of Subcommittee § 2 on
H.R. 870, U.S. House of Representatives, Committee of
the Judiciary, 86th Cong., 2d Sess. Serial No. 21:158, Supt.
of Docs., Wash, D.C.; Brown, Statement to the California
Legislature, 1 Californian 11 (1960); Gottlieb, Testing the
Death Penalty, 34 S. Cal. L. Rev. 268 (1961); Bedau,
Death Sentences in New Jersey 1907-1960, 19 Rutgers
L. Rev. 1, 9-11 (1964); Patrick, The Status o f Capital
Punishment: A World Perspective, 56 J. Crim. L., Crim.
& Pol. Sci. 397, 408 (1965); Mattick, The Unexamined
Death, 5-6 (1966); Sellin, Capital Punishment, 239-240
(1967); Koeninger, Capital Punishment in Texas, 1924-
1968, 15 Crime & Del. 132, 138, 141-142 (1969); Bedau,
Criminology, Deterrence and the Death Penalty: A Recon
sideration, 61 J. Crim. Law, Crim. & Pol. Sci. 539 (1971).

The inescapable conclusion to be drawn from these facts,
circumstances and opinions is that there is today a wide
spread reluctance on the part of our nation’s citizenry to
accept the death penalty. Capital punishment is no longer
a part of the moral fabric of the community and nation.
The ranks of abolitionists increase daily. In 1953, 68% of
the American public supported the use of capital punish
ment. By 1960, only a bare majority of 51% favored the
use and retention of the death penalty. Today, supporters
of the death penalty are in a minority. Gallop, Sharp
Drop in Number o f Americans Favoring Death Penalty for
Murder, Public Opinion News Service (March 23, 1960);
Gottlieb, Capital Punishment, 15 Crime & Del. 1,14 (1969).
It is urged that the discernible decline of public opinion
favoring the death penalty, especially in rape cases, satis

17
fies the Weems-Trop test rendering the petitioner’s death
sentence in this case “cruel and unusual.”

The Fourth Circuit Court of Appeals voiced this conclu
sionary opinion in Ralph v. Warden, 438 F.2d 793:

We conclude, therefore, the two factors coalesce
to establish that the death sentence is so dispropor
tionate to the crime of rape when the victim’s life
is neither taken nor endangered that it violates the

̂ Eighth Amendment. First, in most jurisdictions
death is now considered an excessive penalty for
rape. This has been demonstrated by the legislative
trend to abolish capital punishment for this crime
and by the infrequency of its infliction in jurisdic
tions that still authorize it. Second, when a rapist
does not take or endanger the life of his victim, the
selection of the death penalty from the range of
punishment authorized by statute is anomalous when
compared to the large number of rapists who are
sentenced to prison.

It is respectfully submitted that although it cannot be
authoritatively said that the carrying out of the death penalty
upon petitioner in this case meets the ‘barbarous, painful
or inhumane’ test of Weems - Trop, the death penalty for
rape in cases such as this where the life of the victim is
neither taken nor endangered has met with almost universal
condemnation in this country and abroad, and is in excess
of the punishment usually meted out to rapists across the
country. The penalty is therefore violative of the Eighth
Amendment under the approbation/condemnation test, the
excessive punishment test, and disproportionate punishment
test of the Weems - Trop standards. The protection afforded
by the Eighth Amendment being binding upon the States,
Robinson v. California, 370 U.S. 660 (1962), the imposi
tion and carrying out of the death sentence in this case
cannot be constitutionally sustained.

II. THE IMPOSITION AND CARRYING OUT OF THE
DEATH PENALTY IN THIS CASE VIOLATES THE
PETITIONER’S GUARANTEE OF EQUAL PROTECTION
OF THE LAWS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION OF THE
UNITED STATES.

The fact that only sixteen of the fifty American states
authorize the imposition of the death penalty in rape cases,
and the infrequency with which capital punishment is im
posed in those minority of states, demonstrate a dispropor
tion among political entities and among those subjected to
punishment for the crime of rape which work a denial of
the petitioner’s right to equal protection of the laws. The
petitioner is a citizen of the United States as well as of the
state of Texas. Accordingly, he is entitled to the equal
protection of the laws of the United States. To subject
the petitioner to death when other citizens of the United
States convicted of the same crime are not subject to
death because they fortuitously commit their crime in one
of the thirty-four states which does not authorize death for
rape, or because they simply are not given the death pen
alty for their crime, although committed in one of the re
tention states, is a denial to the petitioner of the equal
protection of the laws of both the United States and of the
state of Texas, in violation of the Fifth and Fourteenth
Amendments.

. . . (Different punishments upon different individ
uals found guilty of the same offense does not af
ford equal protection of the laws upon citizens of
the United States and does not afford the petitioner
herein equal protection under rights guaranteed to
him by the Fifth Amendment as incorporated under
the Fourteenth Amendment, and that, therefore, the
imposition of the death sentence upon petitioner in
the case at bar was and is unconstitutional.

United States ex rel. Townsend v. Twomey, 322 F. Supp.
158, 179 (N.D. 111. 1971).

III. THE IMPOSITION AND CARRYING OUT OF THE
DEATH SENTENCE IN THIS CASE VIOLATES THE
PETITIONER S DUE PROCESS RIGHTS GUARANTEED
BY THE FOURTEENTH AMENDMENT INASMUCH AS
THE DEATH SENTENCE FOR RAPE IN THIS CASE IS
THE PRODUCT OF RACIAL DISCRIMINATION.

Statistics immutably give evidence that the death pen
alty for the crime of rape is a thinly veiled attempt to leg
itimatize racial homicide. Since 1930, 455 persons were
executed for rape. 405 were black (89%). This single fact
would not be nearly as meaningful without the additional fact
that no person in that period of time was executed for rape
by any non-southern or non-border state. See United States
Department of Justice, Bureau of Prisons, National Prisoner
Statistics, No. 45, Capital Punishment 1930 - 1968 (August
1968), Table 3 (included as Appendix C to this brief).
The use of the death penalty in rape cases, questions of race
aside, is totally southern in tradition and practice. By add
ing to the geographic phenomenon the statistics showing
the disproportionate number of blacks who suffer the death
penalty in relation to the number of all races convicted of
rape, it is clear that capital punishment in rape cases is a tool
and product of racial discrimination.

The Texas statistics establish that 78% of all rapists ex
ecuted between 1924 and 1968 were black, while 5% were
Mexican-American and 17% were white. More important
is the statistic showing the relationship between the fre
quency of imposition of death and sentences less than death:
blacks received death as punishment for rape at a ratio of
3 Vi to 1; whites and Mexican-Americans received death in
rape cases at the converse ratio of 1:3 Vz. This, of course,
indicates that any given Negro in the state of Texas can ex
pect to receive the death penalty for rape with more than
three times the certainty than any white or Mexican-Amer
ican. 78% of all Negroes tried and convicted of rape re
ceived the death penalty whereas only 22% of all white and
Mexican-American defendants similarly convicted suffered
the same fate. Koeninger, Capital Punishment in Texas 1924
- 1968, 15 Crime & Del. 132, 135 (1969).

There can be little doubt that a relationship between the
death penalty in rape cases and race is strong if not unden
iable. The statistics for murder across the nation and in
Texas show that whites and Negroes share almost equal
percentages among those executed and condemned; for rape,
there are at least eight blacks for every' white who have been
executed or sentenced to die across the nation and in Texas.

The dominant pattern is for the Negro male to get
the death penalty for raping the white female . . .
Comparison of ethnic groups in repsect to type of
sentence for rape shows a marked disproportion of
death sentences imposed for Negroes was 3 Wz: 1; for
whites and Latins together, the ratio was 1: 3Vz.

Koeninger, Capital Punishment in Texas 1924 - 1958, 15
Crime & Del. 132, 138 (1969).

It is no accident that the death penalty for rape exists
primarily in the south; nor is it accidental that in those
states blacks suffer death as punishment for rape in a highly
disproportionate ratio to whites similarly treated. The facts
manifest a singularly consistent southern practice of dis-
criminatorily authorizing and imposing capital punishment
upon blacks for rape in the face of increasingly national re
vulsion to the practice. This is, of course, in keeping with
historical southern tradition. See Murray, States’ Laws on
Race and Color 6 (1955). While the majority of American
states have abolished capital punishment in rape cases, both
de jure and de facto, the southern states have held fast to
authorizing and imposing it. For example, in 1915 Tennes
see abolished capital punishment in all cases except rape.
Bedau, The Death Penalty in America 413 (1967).

That death is authorized as a punishment for rape by
only southern states (in cases where no injury to the victim
is shown) suggests the unusualness of the punishment,
thereby vitiating it under the Cruel and Unusual Pun
ishment Clause of the Eighth Amendment. The addi
tional fact that blacks suffer death as a punishment
for rape in a highly disproportionate relationship to
whites suggests that the application of the penal laws author

izing death in rape cases is discriminatory in purpose and
nature, aimed almost exclusively at Negroes, thereby violat
ing the Fourteenth Amendment.

Constitutional rights are governed not by historical pat
terns of action found in the south, but by present conduct
gleaned from across the nation. Bell v. Maryland, 378 U.S.
226 (1964). Thus state action, whether in the form of ap
plication of policy in civil affairs or imposition of penal
sanctions, must have an even-handed application with re
spect to the citizens. Any discrimination accomplished by
the application of state policy is violative of the Fourteenth
Amendment. This Court has condemned segregated public
schools, Brown v. Board o f Education, 347 U.S. 483 (1954),
and imprisonment under miscegentation statutes drafted to
apply to all races, but generally enforced against blacks. Mc
Laughlin v. Florida, 379 U.S. 184 (1964); Loving v. Virginia,
388 U.S. 1 (1967).

By looking to the national standards—not the local stand
ards7 —it can easily be ascertained that “ the incidence of im
position of the death penalty is merely a reflection of the
century-old distinction between master and slave” . Parting
ton, The Incidence o f the Death Penalty for Rape in Vir
ginia, 22 Wash. & Lee L.Rev. 43 (1965). It is agreed by
knowledgeable persons that “it is chiefly the indigent, the
friendless, the Negro, the mentally ill, who are doomed to
death”, James V. Bennett, former Director, Federal Bureau
of Prisons, in Knight, With Liberty and Justice For All 21A
(1967), and that “(n)o matter how efficient and fair the
death penalty may seem in theory, in actual practice . . .
it is primarily inflicted upon the weak, the poor, the ignor
ant, and against racial minorities” . Government Edmund
Brown, Statement to the California Legislature, 1 Californian
11 (1960).

Historically and statistically, the use of the death penalty
in rape cases comes within the protection afforded by the

7See Jacobellis v. Ohio, 378 U.S. 184 (1964), establishing national
standards as the proper indicator of permissible conduct.

Fourteenth Amendment’s Due Process Clause because of
the geographically limited area in which capital punishment
for rape is legislatively authorized and because of the highly
disproportionate number of blacks who suffer the death
penalty in this limited geographical area with its history
and tradition of dichotomous standards.8 * * * * * * 15

That the death penalty is utilized by southern states as
a means of racial homicide in rape cases is further but
tressed with the knowledge that the use of death as a pun
ishment for crime is on the decrease nationally, that fewer
Americans approve of capital punishment; but against this
tide of public opinion is a backwash of southern imposition
of death upon blacks for the crime of rape. The explana
tion for this phenomenon lies in the statistics and historical
patterns of conduct in furtherance of discrimination spread
throughout the south. The petitioner’s sentence of death
is a manifestation of that discriminatory racial practice.
This is not only cruel—“unrelieved by leniency,” as that
term is defined in Webster’s Seventh New Collegiate Dic
tionary 200 (1965)—and therefore unconstitutional under
the Eighth Amendment, it is also discriminatory because it
it is arbitrarily applied to blacks only in the south. To put
the proposition another way, but for the color of the peti-

8Wolfgang, Kelly & Nolde, Comparison o f the Executed and the
Commuted Among Admissions to Death Row, 53 J. Crim. L., Crim.
& Pol. Sci. 301 (1962); Bedau, Death Sentences in New Jersey 1907-
1960, 19 Rutgers L. Rev. 1, 18-21, 52-53 (1964); President’s Com
mission on Law Enforcement and Administrations, Report (The Chal
lenge o f Crime in A Free Society) 143 (1967); Bedau, A Social Philos
opher Looks at the Death Penalty, 123 AM. J. Psychiatry 1361,
1362 (1967); Keoninger, Capital Punishment in Texas 1924 - 1968,
15 Crime & Del. 132, 138, 141 (1969); West, A Psychiatrist Looks at
the Death Penalty, paper presented at the 122nd Annual Meeting of
the American Psychiatric Association, Atlantic City, New Jersey (May
11, 1966); Clark, To Abolish the Death Penalty, hearings before the
Subcommittee on Criminal Law and Procedures of the Senate Judici
ary Committee, on S. 1760, July 2, 1968, Department of Justice
Release, 2, Howard, Administration o f Rape Cases in the City o f
Baltimore and the State o f Maryland (1967).

tioner’s skin, the possibility of his receiving the death
penalty for his crime would have been 10% instead of the
90% which statistics shows he faced. See Koeninger, Capi
tal Punishment in Texas 1924-1968, 15 Crime & Del. 132,
141 (1969)

[Iinfrequent imposition of the death penalty for
rape not only indicates that it is excessive, it also
suggests that it is meted out arbitrarily.

Ralph v. Warden, 438 F.2d 789.

IV. THE IMPOSITION AND CARRYING OUT OF THE
DEATH PENALTY IN THIS CASE SERVES NO
LEGITIMATE AIM OF STATE PENAL POLICY AND
IS THEREFORE IN CONTRAVENTION OF THE
EIGHTH AND FOURTEENTH AMENDMENTS TO
THE CONSTITUTION OF THE UNITED STATES.

Traditionally, there is general agreement that the pur
poses of punishment for criminal conduct (and the “legiti
mate” aims of penal policy) is four-fold: (1) to satisfy
a primeval demand for vengeance or retribution; (2) to
deter the offender from again committing crime; (3) to
deter other would be offenders; and (4) to rehabilitate the
offender by constructive supervision during incarceration.
However, “ [mjodern penological thought discounts retribu
tion in the sense of vengeance.” Royal Commission on
Capital Punishment, Report 1949-1953, 17 (1953); Williams
v. New York, 337 U.S. 241, 248 (1949); Morrissette v.
United States, 342 U.S. 246, 251 (1952). Accordingly,
retribution should be discounted in determining whether
a specific punishment comes within one of the legitimate
aims of penal policy.

New concepts and methods of treating and handling
criminal offenders has, in recent years, emphasized the
rehabilitation factor. This is a logical conclusion to a
rational evolution of penology—the primary person involved
in penology is the offender; emphasis should be on restor
ing his ability to regain a useful position in society. Alfred
C. Schnur has described the “new penology” as follows:

2 4

What is the goal of the new penology? It is to get
men ready, as rapidly and economically as possible,
to go out and stay out by returning them to society,
as useful, law-abiding citizens who will not con
tribute to the commission of crime by others—men
who obey the law because they want to and not
because they are afraid not to.

The New Penology: Fact or Fiction, in Penology: A Real
istic Approach, ed. by Vedder & Kay, 3 (1964). No longer
is the penological aim the elimination of the criminal from
society by either incarceration or removal from society via
death or banishment. Tappan, Contemporary Correction,
5-6 (1951); Bazelon, The Imperative To Punish, 206 Atlan
tic Monthly 41 (1960). Emphasis is now placed upon
exhaustive examination of the criminal to determine the
most effective and appropriate methods of accomplishing
the goal of “remaking” him—rendering him a productive
member of the free society as quickly as possible, but with
adequate safeguards to protect society.

This is not to say that a gradation of punishments is
inappropriate under the Eighth Amendment, for moral rein
forcement dictates that punishment be increased in severity
as the seriousness of the offense rises. However, “ [g]rading
punishments according to the severity of the crime does
not require that the upper limit of severity be the death
penalty.” Bedau, The Death Penalty in America, 268
(1964). Thus, if pure punishment is all that matters with
respect to justification of sentencing those convicted of
crimes, there is no absolute need to include among the
available alternatives the death sentence. Ancel, The Prob
lem o f the Death Penalty, in Sellin, Capital Punishment, 3,
16-17, 19 (1967).

Nothing is more apparent than the conclusion of the
Royal Commission on Capital Punishment that “reforma
tion . . . can have no application where the death penalty
is exacted.” Royal Commission on Capital Punishment,
Report 1949-1953, 18 (1953). The implementation of
policies concerning punishment is today far different than

the practices known to the authors of the Eighth Amend
ment. Two hundred years ago, imprisonment was not as
safe, humane or economically feasible as an alternative to
death as it is today. Bedau, The Courts, the Constitution,
and Capital Punishment, 1968 Utah L. Rev. 201, 232
(1968). Former Attorney General Ramsey Clark put it this
way:

There was a time when self-preservation necessitated
[the] . . . imposition [of the death penalty]. Later
inordinate sacrifices by the innocent would have
been required to isolate dangerous persons from the
public. Our civilization has no such excuse.

Statement by Attorney General Ramsey Clark, hearings
before the Subcommittee on Criminal Laws and Procedures
of the Senate Judiciary Committee, on S. 1760, To Abolish
the Death Penalty, July 2, 1968, Department of Justice
Release, p. 2.

With respect to the deterrent effect, both as to the
defendant and others, there is wide-spread belief that capi
tal punishment offers no effective deterrent relief. Sellin,
The Death Penalty, 19-63 (1959); Sellin, Capital Punish
ment, 135-186, 244-253 (1967); Mattick, The Unexamined
Death, 8-28 (1966); Bedau, The Death Penalty in America,
214, 258-343 (1966); Bedau, A Social Philosopher Looks
at the Death Penalty, 123 Am. J. Psychiatry 1361, 1362
(1967).

It is generally agreed between the retentionists and
the abolitionists, whatever their opinions about the
value of comparative studies of deterrence, that the
data which now exist show no correlation between
the existence of capital punishment and lower rates
of capital crimes.

United Nations Department of Economic and Social Affairs,
Capital Punishment, 123 (1968). See also President’s Com
mission on Law Enforcement and Administration of Justice,
Report (The Challenge o f Crime in a Free Society), 143
(1967); New York State Temporary Commission on Revi
sion of the Penal Law and Criminal Code, Special Report
on Capital Punishment, 2 (1965).

In accordance with the new penological emphasis upon
rehabilitation, it has been discovered by penologists that
certain criminals have a marked predisposition toward recur
rent criminal activity regardless of any efforts made to
rehabilitate them. On the other hand, certain criminals
have demonstrated no recidivism. Among the latter are
rapists! It is now widely accepted by penologists that sex
offenders, including rapists, have little or no recidivism,
and do not, upon release from prison, progress from sex
offenses to other crimes, whether more or less serious.
New Jersey Commission on the Habitual Sex Offender, The
Habitual Sex Offender, Report and Recommendation o f the
Commission on the Habitual Sex Offender as formulated by
Paul W. Tappan, Technical Consultant, 13-16 (Undated);
Mannering, Significant Characteristics o f Recidivists, NPPA
Jour. IV, 211-217 (1958); Bloch & Geis, Man, Crime and
Society, 290-291 (1966); Tappan, Contemporary Correc
tion, 9 (1951). The results of these studies indicate that
society runs a minimal risk by allowing convicted rapists to
regain their freedom. This is so because of the nature of
both the crime and the criminal: rape is an expressive, not
an instrumental act, and rapists have a low criminal com
mitment. Chambliss, Types o f Deviance and the Effective
ness o f Legal Sanctions, 1965 Wise. L. Rev. 703, 712, 713
(1965). Accordingly, the need for rehabilitation is minimal;
but, more importantly, proper rehabilitation is readily avail
able. Sturrup, Treating the Untreatable (1965); Gibbons,
Psychiatric Therapy, in Prison Within Society, ed. by Hazel-
rigg, 329, 336-377, 340-341 (1965).

It has been determined that the punishment of sex
offenders is of little or no deterrent value regarding others
as well as the criminal himself because the sex crimes com
mitted are expressive. Singer, Psychological Studies o f Pun
ishment, Cal. L. Rev. 405, 417 (1970); Chambliss, Types
o f Deviance and the Effectiveness o f Legal Sanctions, 1965
Wise. L. Rev. 712, 713 (1965).

It should be concluded as a result of these studies,
keeping in mind the improved and improving modern

systems of penology, that the imposition of the death
penalty upon a person who has a low criminal commitment,
for a crime which is likely not to be repeated by that
person, where there is little, if any, hope for deterring
others (assuming arguendo the death penalty has any deter
rent value), constitutes “cruel and unusual punishment”
because it is excessive in relation to the rational punish
ment required under the “new penology”—that is, discount
ing retributive punishment. Bedau, Criminology, Deterrence
and the Death Penalty: A Reconsideration, J. Crim. Law,
Crime & Pol. Sci. 539 (1971); Pennell, U.K. Royal Commis
sion on Capital Punishment Studies: 1949-1953, 5 Alberta
L. Rev. 1, 67 (1967). As Professor Bedau has noted, “the
issue over abolishing the death penalty, as all serious
students of the subject have known for decades, is not
whether (1) the death penalty is a deterrent but whether
(2) the death penalty is a superior deterrent to ‘life’ impri
sonment.'” justice Marc Ancel of the French Supreme
Court has put it in the obverse, as follows: “We know that
criminal statistics and criminological research on the evolu
tion of criminality demonstrate that the abolition of the
death penalty has never brought about an increase in
crime.” Patrick, Capital Punishment & Life Imprisonment
in North Carolina 1946-1968, 6 Wake Forest L. Rev. 417,
427 (1970); see also Tidmarsh, Halloran & Connaly, Capital
Punishment: A Case for Abolition, 139, 146, 148 (1963);
Calbert, Capital Punishment in the 20th Century, 3-45
(1971).9

It is respectfully submitted that in addition to the empir
ical data submitted in satisfaction of the Weems-Trop test,
the modernization of penology and criminology has effec

9See also McGee, Capital Punishment as Seen by a Correctional
Administrator, 28 Fed. Prob. 1, 15 (1964); DeMent, A Plea for the
Condemned, 29 Ala. Law. 440, 443 (1968); Comment, 1968 Cal. L.
Rev. 270, 1337 (1968); Reckless, The Use o f the Death Penalty, 15
Crime & Del. 43, 56 (1969); Casenote, 29 La. L. Rev. 396, 402
(1969); Case comment, 5 Suf. U. L. Rev. 504, 512 (1971).

tively demonstrated that rapists need little rehabilitation or
punishment (as recognized by a majority of the States,
having abolished death as punishment for rape), because no
punishment, however severe, swift or sure, will effectively
deter rape due to its expressive nature, and the low crimi
nal commitment of potential and convicted rapists. Accord
ingly, the need for exacting the maximum—a life—as pun
ishment for such a crime becomes cruel and unusual.

These factual studies and professional opinions show that
the death penalty has no rational place in the legitimate
penal policies of modern man. This is especially true in
rape cases where life is not taken nor endangered. In such
situations capital punishment is out of all proportion to the
crime. The death penalty in non-homicidal rape cases
becomes “cruel and unusual punishment” under the Eighth
Amendment, because in addition to its excessiveness, it bears
no relation to the valid penological aims of state criminal
policy.

Since “cruel” is not a technical term, with a defi
nite meaning at common law at the time of adop
tion of the Eighth Amendment, it would seem that
its interpretation can be modified in the light of
changes in public opinion. The constitutional stand
ard, in addition to barring punishments cruel in
themselves, also relates to punishments which are
out of all proportion to the offense.

Pritchett, The American Constitution, 527 (1959). A suc
cinct summary of the argument here presented was made
by Harold Knight in his book With Liberty and Justice for
All, 208-209 (1967):

What constitutes “cruel and unusual punishment”
or “excessive fines”—both prohibited by the Eighth
Amendment?

The answer today may well be quite different
from that when this amendment was adopted.
Indeed, over a half century ago, in 1910, the
Supreme Court asserted that its application was not
to be limited to “an experience of evils” known at
the time of its adoption.

2 9

The ban on cruel and unusual punishment was
designed primarily to prevent maiming and other
bodily indignities, all too common in the 17th and
18th centuries. In recent years it has been extended
punishment for drug addiction by recognizing addic
tion as an illness demanding treatment rather than
mere incarceration. A more severe penalty for a
lesser crime than for a more serious crime has been
held cruel and unusual. Likewise, a fine so heavy
a person discharging it by serving time in jail would
be imprisoned for a lifetime and more has been held
to be excessive.

Proponents of abolition of capital punishment
argue the time has come to reassess the death
penalty as cruel and unusual, even though a succes
sion of court cases run to the contrary. No longer
is a man hanged for stealing sheep as in 17th cen
tury England or a woman put to death for witch
craft as in colonial New England. Times do change.
Modern insights in psychology, criminology and
other behavioral sciences do make a difference.

The petitioner’s sentence of death for the offense of rape
where no life has been taken or seriously endangered vio
lates the standards of decency prevalent in contemporary
society, and is inconsistent with advanced concepts of
behavioral science, thereby violating the Eighth Amend
ment’s inhibition against cruel and unusual punishment. It
is cruel because it is far out of proportion to the crime for
which it was imposed; it is unusual because of the freak
ishly rare occurrences in which it is imposed, and because
of the aberrational phenomenon—indicating arbitrary dis
crimination—that death sentences for rape occur only in
the south and in a highly disproportionate number of cases
involving Negroes.

3 0

V. THE IMPOSITION AND CARRYING OUT OF THE
DEATH SENTENCE IN THIS CASE VIOLATES THE
EQUAL PROTECTION CLAUSE OF THE FOUR
TEENTH AMENDMENT BECAUSE OF THE UNIQUE
PROCEDURE UTILIZED IN TEXAS TO SECURE
IMPOSITION OF A DEATH SENTENCE.

The basic purpose of the Fourteenth Amendment is to
prevent State legislation designed to foster discrimination
based on racial distinctions. Railway Mail Ass’n v. Corsi,
326 U.S. 88 (1945); McLaughlin v. Florida, 379 U.S. 184
(1964); Loving v. Virginia, 388 U.S. 1 (1967). It should be
recalled that the petitioner does not assert the invalidity of
Texas Penal Code, Art. 1189; the discrimination presented
is that fostered by Texas Code o f Criminal Procedure, Art.
1.14, as applied in all capital cases. For purposes of dis
cussing this issue, it may be assumed that the death penalty
is a punishment which can be constitutionally imposed
within a state. The issue is whether the unique dichoto
mous practice existing in Texas is a constitutionally permis
sible manner of securing a presumptively constitutional
penalty. See Ralph v. Warden, 438 F.2d 789:

At issue, therefore, is the constitutionality of the
trial court’s selection of the death penalty from the
alternatives allowed by the statute in a case where
the convicted rapist has neither taken nor endan
gered life.

The Fourth Circuit did not address a challenge to the right
of the Maryland Legislature to provide for death as punish
ment for rape, or to the validity of the statute so providing
the death penalty; neither does the petitioner.

In Texas, there is a statute of state-wide application pro
viding that a person determined guilty of rape may be sen
tenced to death. Texas Penal Code, Art. 1189. There is
also a statutory requirement that the District Attorney
responsible for the prosecution of any capital case file, in
open court, a written notice of intention to seek the death
penalty at least fifteen days before trial in those cases in
which the death penalty will be sought. Texas Code o f

Criminal Procedure, Art. 1.14. (See App. 1 la, infra.)
If, however, such required notice is not filed properly or
timely, the death sentence cannot be imposed. Thus, where
the required notice is not given, even though the statute
provides for the death penalty, and though the jury may be
willing, even desirous, of assessing death, it cannot be law
fully imposed. See Clardy v. State, 436 S.W.2d 535, 536
(Tex. Cr. App. 1968); Smith v. State, 455 S.W.2d 748, 749-
752 (Tex. Cr. App. 1970). The authority of Art. 1189
authorizing the imposition of death in rape cases on a state
wide basis, and the right of the jury to assess capital pun
ishment, as provided for by law, is usurped by the respon
sible prosecuting attorney who elects to either file a notice
of intention not to seek the death penalty, or who fails to
file any notice. The Texas Legislature, by enacting Texas
Code o f Criminal Procedure, Art. 1.14, has placed the deci
sion as to whether a rapist will face the death penalty or
will be free from such fear solely and unreservedly in the
hands of a locally elected prosecuting attorney. This
practice does not lend itself to a uniform application of a
statewide law, as is required by the Fourteenth Amend
ment. This conclusion is true both in theory and practice,
as will be shown.

There have been 460 executions in the State of Texas
since 1924-th e year the first state-wide execution law was
adopted. Koeninger, Capital Punishment in Texas 1924-
1968, 15 Crime & Del. 132, 135 (1969). 314 of those
were colored or Mexican-American; 146 were w hite.- Id.,
at 135. Examining the statistics for rape conviction execu
tions, it will be seen that the ratio of Negroes who received
the death penalty as opposed to those who received a term
sentence is 3 Vi to 1; however, of all the white and Latins
together who were convicted of rape, the ratio of death to
a term sentence is 1 to 3*/2. Of singular importance is the
statistic involving white and black co-defendants showing
that the white defendants received a term of years while the
blacks received the death penalty for the same offense. Id.,
141. On a state-wide basis, Art. 1.14 fosters racial discrimi

nation by affording prosecuting attorneys the unbridled
power to relieve an accused rapist of the possibility of re
ceiving the death sentence, simply by filing a notice of in
tention not to seek the death penalty, or by failing to file
any type of notice. The facts above related circumstantially
establish the validity of this conclusion (especially in those
cases where white and black co-defendant’s received such
unequal treatment). Such a practice is violative of the
Fourteenth Amendment in that

It is clearly unconstitutional to enable a public offi
cial . . . to engage in invidious discrimination among
persons or groups . . . by use of a statute providing
a system of broad discretionary . . . powers.

Cox v. Louisiana, 379 U.S. 536, 557 (1965); see also Trop
v. Dulles, 356 U.S. 90, 91 (1958), criticizing the power to
punish delegated to the Army. Prima facie proof of discri
mination via Art. 1.14 is shown by the statistics themselves:
they reveal the disparity between the number of blacks that
have received the death penalty for rape and the dispropor
tionately lower number of whites who have been similarly
treated. It should be noted that the disproportion is not
nearly as high in murder cases; only in rape cases does the
Negro in Texas appear to be subjected to the death penalty
with such high frequency!

Further attention is drawn to the fact that no other
state gives a prosecutor the untrammeled discretion as to
whether the death penalty is an appropriate punishment in
a particular case, and whether it will be sought or waived
absolutely. The inherent and bald discretionary power that
Art. 1.14 provides is amply shown by the statements of the
Wilbarger County District Attorney during his final argu
ment to the jury in this case:

Let me tell you something else, gentlemen. The
responsibility lies with me and solely with me for
you being qualified on the death penalty. The State
allows me, the law allows me, as State’s Attorney,
to waive the death penalty, but it also directs me,
in a case I am going to insist on the death penalty,

that I give written notice to the Defendant within
a certain length of time, which has been done in
this case, that I am going to qualify that jury and
ask for the death penalty.

App. 124, and
Now Gentlemen, it’s up to you. You have got a
responsibility. I had a responsibility when I asked
you to qualify yourselves on the death penalty, and
I could have let it off, but the State feels that this
is a case that requires and justifies the death
penalty.

App. 125. In other states where capital punishment is
authorized, the issue of whether death will be assessed is
left to the jury. See Appendix A of this brief. (An interest
ing historical fact in this regard is that the Texas statute
which was the forerunner of Art. 1189 did provide for the
exercise of the jury’s discretion, as do other states:

A person guilty of rape shall be punished by death
or confinement in the penitentiary for life, or for
any term of years not less than five, in the discre
tion o f the jury. [Emphasis added.]

Texas Penal Code, Art. 1069 (1916). This was altered by
deletion of the italicized phrase in 1925. Contemporane
ously, the Texas Legislature adopted Texas Code o f Crimi
nal Procedure, Art. 1.14. Whether intentional or not, the
effect of this legislation was to remove the power of passing
upon whether capital punishment was appropriate in a given
case from the people of the community and place it in the
hands of the District Attorney. It is questionable whether
such delegation of authority by the Texas Legislature is
constitutionally permissible.)

It is not urged that the “standards” argument advanced
in McGautha v. California, ___ U.S. ___, 91 S. Ct. 1454
(1971), is applicable in this case to Art. 1189. McGautha's
holding is limited to the jury’s decision to impose the death
penalty and is beyond the attack made here because it con
stitutes an expression of the community, the jury being a
cross-section of the community. However, where the prose

3 4

cutor is given the discretion usually reserved to the jury,
his decision does not necessarily reflect the community’s
expression, and the justification advanced in McGautha is
not available to support the prosecutor’s election to seek
or refuse to seek the death penalty. The situation pre
sented in Texas-and only in Texas-is that the prosecuting
attorney effectively has the power to alter the statutory
range of punishment applicable to a particular individual in
a capital case by merely failing to file notice of intention
to seek, or by filing a notice of intention not to seek the
death penalty. This delegation of authority is a violation
of the constitutional guaranties of due process and equal
protection decrying procedures which permit or authorize
invidious discrimination between individuals and different
groups of persons in criminal trials. Griffin v. Illinois, 351
U.S. 12, 17 (1956). The protections of the Fourteenth
Amendment are not being enforced in Texas when a single
individual is given the potential power over life and death
which Art. 1.14 reposes in a prosecuting attorney. The
function of the jury is to act as the impartial arbiter
between the accused and the State; the prosecuting attor
ney in Texas does not serve in such a capacity. Texas Code
o f Criminal Procedure, Art. 2.01, requires the district attor
ney within each judicial district to represent the State of
Texas. Therefore, in Texas, the person who is solely
responsible for the prosecution of an accused in a capital
case is also solely responsible for making the decision
whether or not that accused will run the gauntlet of life or
death. This delegation of authority, placed as it is in the
hands of local elected officials, leads to purposeful discrimi
nation in the selection of cases in which the death penalty
is sought, and consequently imposed.

On a purely local basis, the conclusion stated above is
borne out by the records of Wilbarger County, the county
of conviction in this case (App. 11). Since 1925—the year
in which the required notice was enacted—there have been
158 capital cases (cases in which the death penalty was stat
utorily applicable). In only one case—the petitioner’s—was

notice of intention to seek the death penalty filed, as re
quired by Art. 1.14. Of the 158 capital cases,56 were rape
cases. The petitioner was the only person to be subjected
to, and to receive, the death penalty in Wilbarger County.

The contention might be advanced that reasons other
than pure, purposeful discrimination, such as the relation
ship of the victim to the county’s sheriff, are explanatory
of the imposition of the death penalty in this case. How
ever, the totality of the statistics points to the conclusion
that Art. 1.14 has, in Wilbarger County, led to purposeful
discrimination against the petitioner because of his color
and, but not exclusively, because of the other factors
unique to this case, in violation of the petitioner’s Four
teenth Amendment rights. The circumstantial evidence sup
porting this conclusion demands that the State carry a
heavy burden in negating the conclusion and justifying the
existence of the discrimination indicated by the statistics
on a basis other than purposeful discrimination based on
race. Hunter v. Erickson, 393 U.S. 385 (1969). The statis
tics themselves point to exactly the type of invidious dis
crimination based on race which the Fourteenth Amend
ment was designed to prohibit. McLaughlin v. Florida, 379
U.S. 184 (1964); Evans v. Newton, 382 U.S. 296 (1966);
Loving v. Virginia, 388 U.S. 1 (1967).

The only way in which the due process guaranteed by
the Fourteenth Amendment can be secured is “by laws
operating on all alike, and not subjecting the individual to
the arbitrary exercise of the powers of government unre
strained by the established principles of private right and
distributive justice.” Leeper v. Texas, 139 U.S. 462 (1891).
Art. 1.14 enables the State of Texas to discriminate at
the local level, by granting to local elected officials the
unbridled right to arbitrarily select who shall face the death
penalty in rape cases and who shall not. Though both Art.
1.14 and Art. 1189 may not be discriminatory on their
face, what they authorize when combined is impermissible

racial discrimination on a local basis (perhaps the most
prejudicial basis of all!). See Anderson v. Martin, 375 U.S.
399 (1964).

In summary, two factors authorize a setting aside of the
petitioner’s death sentence because of a denial to him of
due process of the law and equal protection of the law
inherent in the death penalty procedure unique to Texas:
first, the petitioner was denied equal protection of the laws
and due process of the law because a local, elected official
was afforded the absolute power to subject him to a differ
ent penalty than another person similarly situated, i.e., one
charged with rape; second, Art. 1.14 is effectively used, at
least in Wilbarger County, as a means of racial discrimina
tion in assessing the death penalty in rape cases, violating
due process of law.

CONCLUSION

For the reasons stated it is respectfully submitted that
the judgment of the Court of Criminal Appeals should be
reversed and the case remanded for proceedings by which
the petitioner’s sentence of death may be vacated.

Respectfully submitted,

MELVYN CARSON BRUDER
706 Main Street [Suite 300]
Dallas, Texas 75202

Counsel for Petitioner

APPENDIX A

STATUTES PROVIDING FOR THE DEATH
PENALTY IN RAPE CASES

Alabama

Alabama Code, Title 14, Sec. 395 (1958): “Any person
who is guilty of the crime of rape shall, on conviction, be
punished, at the discretion of the jury, by death or impris
onment in the penitentiary for not less than ten years.”

Alabama Code, Title 14, Sec. 397 (1958): “Any person
who has carnal knowledge of any woman or girl above four
teen years of age, without her consent, by administering to
her any kind of drug or other substance which produces
stupor, imbecility of mind, or weakness of body, as to pre
vent effectual resistance, shall, on conviction, be punished
at the discretion of the jury, by death or by imprisonment
in the penitentiary for not less than ten years.”

Alabama Code, Title 14, Sec. 398 (1958): “Any person
who has carnal knowledge of any girl under twelve years of
age, or abuses such girl in the attempt to have carnal knowl
edge of her, shall, on conviction, be punished, in the discre
tion of the jury, either by death or by imprisonment in the
penitentiary for not less than ten years.”

Arkansas

Arkansas Statutes, Sec. 41-3403 (1964): “Any person
convicted of the crime of rape shall suffer the punishment
of death (or life imprisonment in the state penitentiary at
hard labor).”

Arkansas Statutes, Sec. 41-3405 (1964): “Every person
who shall, with intent to commit rape, administer to any
female any potion, substance or liquid with intent to pro
duce such stupor, or imbecility of mind, or weakness of
body, as to prevent effectual resistance, shall, upon convic
tion, be punished with death (or life imprisonment in the
state penitentiary at hard labor).”

2 a

Arkansas Statutes, Sec. 41-3411 (1964): “Every person
who shall take unlawfully and against her will any woman,
and by force, duress, or menace, compel her to marry him,
or to marry any other person, or to be defiled; such
offender shall suffer death (or life imprisonment in the
state penitentiary at hard labor).”

Arkansas Statutes, Sec. 43-2153 (1964): “The jury shall
have the right in all cases where the punishment is now
death by law, to render a verdict of life imprisonment in
the State penitentiary at hard labor.”

Florida

Florida Statutes, Sec. 794.01 (1964): “Whoever ravishes
and carnally knows a female of the age of ten years or
more, by force and against her will, or unlawfully or car
nally knows and abuses a female child under the age of ten
years, shall be punished by death, unless a majority of the
jury in their verdict recommend mercy, in which event pun
ishment shall be by imprisonment in the state prison for
life, or for any term of years within the discretion of the
judge. * * *”

Georgia

Georgia Code, Sec. 26-1302 (1968): “The crime of rape
shall be punished with death, unless the defendant is recom
mended to mercy by the jury, in which case the punish
ment shall be for not less than one nor more than 20
years.”

Georgia Code, Sec. 26-1303 (1968): “It shall be unlaw
ful for any person to have sexual or carnal intercourse with
any female child under the age of 14 years, unless such
person shall have previously become lawfully married to
such female child.”

Georgia Code, Sec. 26-1304 (1968): “Any person who
shall violate the provisions of section 26-1303 shall be
guilty of rape, and on conviction thereof shall be punished
as prescribed by section 26-1302, unless the jury trying the

case shall recommend that the defendant be punished as for
a misdemeanor, in which event the same shall be made the
judgment and sentence of the court: Provided, however,
that no conviction shall be had for said offense on the
unsupported testimony of the female in question.”

Kentucky

Kentucky Revised Statutes, Sec. 435.080 (1963): “(1)
Any person who commits rape upon a child under twelve
years of age shall be punished by confinement in the peni
tentiary for life, or by death. * * *”

Kentucky Revised Statutes, Sec. 435.090 (1963): “Any
person who unlawfully carnally knows a female of and
above twelve years of age against her will or consent, or by
force or while she is insensible, shall be punished by death,
or by confinement in the penitentiary for life without privi
lege of parole, or by confinement in the penitentiary for
life, or by confinement in the penitentiary for not less than
ten years nor more than twenty years.”

Louisiana

Louisiana Revised Statutes, Sec. 14.42 (1950): “Aggra
vated rape is a rape committed where the sexual intercourse
is deemed to be without the lawful consent of the female
because it is committed under any one or more of the fol
lowing circumstances:

(1) Where the female resists the act to the utmost, but
her resistance is overcome by force.

(2) Where she is prevented from resisting the act by
threats of great and immediate bodily harm, accompanied
by apparent power of execution.

(3) Where she is under the age of twelve years. Lack of
knowledge of the female’s age shall not be a defense.

Whoever commits the crime of aggravated rape shall be
punished by death.”

4 a

Maryland

Maryland Code, Sec. 461 (1957): “Every person con
victed of a crime of rape or as being accessory thereto
before the fact shall, at the discretion of the court, suffer
death, or be sentenced to confinement in the penitentiary
for not less than eighteen months nor more than twenty-
one years * * *”

Maryland Code, Sec. 462 (1957): “If any person shall
carnally know and abuse any woman child under the age of
fourteen years, or knowingly carnally know and abuse any
woman who is an imbecile, noncompos mentis or insane, of
any age whatever, every such carnal knowledge shall be
deemed a felony, and the offender being convicted thereof
shall at the discretion of the court suffer death or imprison
ment for life in the penitentiary, or for a definite period,
not less than eighteen months nor more than twenty-one
years.”

Maryland Code, Sec. 463 (1957): “The jury which finds
any person guilty of rape under Sec. 461 of this subtitle,
or guilty of carnal knowledge under Sec. 462 of this sub
title, may add to their verdict the words ‘without capital
punishment,’ in which event the sentence of the court shall
not exceed twenty years in the penitentiary; and in no
such case in which the jury has returned a verdict including
the words ‘without capital punishment’ shall the court in
imposing sentence, sentence the convicted person to pay
the death penalty or to be confined in the penitentiary for
more than twenty years.”

Mississippi

Mississippi Code, Sec. 2358 (1956): “Every person who
shall be convicted of rape, either by carnally and unlawfully
knowing a female child under the age of twelve years, or
by forcibly ravashing any female of the age of twelve years
or upward, or who shall have been convicted of having
carnal knowledge of any female above the age of twelve
years without her consent, by administering to her any sub

stance or liquid which shall produce such stupor or such
imbecility of mind or weakness of body as to prevent effec
tual resistance, shall suffer death, unless the jury shall fix
the imprisonment in the penitentiary for life, as it may do
in the case of murder. * * *”

Missouri

Missouri Revised Statutes, Sec. 559.260 (1953): “Every
person who shall be convicted of rape, either by carnally
and unlawfully knowing any female child under the age of
sixteen years, or by forcibly ravishing any woman of the
age of sixteen years or upward, shall suffer death, or be
punished by imprisonment in the penitentiary for not less
than two years, in the discretion of the jury.”

Nevada

Nevada Revised Statutes, Sec. 200.363 (1968): “ 1. Forc
ible rape is the carnal knowledge of a female against her
will. A person convicted of forcible rape shall be punished:

(a) If substantial bodily harm results:
(1) By death; or
(2) By imprisonment for life without possibility of

parole; or
(3) By imprisonment for life with the possibility of

parole, eligibility for which begins when a
minimum of 10 years had been served.

(b) If no substantial bodily harm results:
(1) By imprisonment for life; or
(2) By imprisonment for a definite term of not less

than 5 years.
Under either sentence eligibility for parole begins when a
minimum of 5 years has been served.

2. Whether substantial bodily harm has resulted and, if
so, the punishment to be infliected shall be determined:

(a) Upon a plea of not guilty, by the jury.
(b) Upon a plea of guilty or a confession in open court

without a jury, by the court.”

North Carolina

North Carolina General Statutes, Sec. 14-21 (1953):
“Every person who is convicted of ravishing and carnally
knowing any female of the age of twelve years or more by
force and against her will, or who is convicted of unlaw
fully and carnally knowing and abusing any female child
under the age of twelve years, shall suffer death: Provided,
if the jury shall so recommend at the time of rendering its
verdict in open court, the punishment shall be imprison
ment for life in the State’s prison, and the court shall so
instruct the jury.”

Oklahoma

Oklahoma Statutes, Sec. 11 11 (1958): “Rape is an act
of sexual intercourse with a female, not the wife of the
perpetrator, under either of the following circumstances:

1st. Where the female is under the age of sixteen years.
2nd. Where the female is over the age of sixteen years

and under the age of eighteen, and of previous chaste and
virtuous character.

3rd. Where she is incapable through lunacy or other
unsoundness of mind, whether temporary or permanent, of
giving legal consent.

4th. Where she resists but her resistance is overcome by
force and violence.

5th. Where she is prevented from resistance by threats
of immediate and great bodily harm, accompanied by
apparent power of execution.

6th. Where she is prevented from resisting by any intox
icating narcotic, or anesthetic agent, administered by or
with the privity of the accused.

7th. Where she is at the time unconscious of the nature
of the act and this is known to the accused.

8th. Where she submits under the belief that the person
committing the act is her husband, and this belief is
induced by artifice, pretence or concealment practiced by

.7 a

the accused, or by the accused in collusion with her
husband with intent to induce such belief. And in all cases
of collusion between the accused and the husband of the
female, to accomplish such act, both the husband and the
accused shall be deemed guilty of rape.”

Oklahoma Statutes, Sec. 1114 (1958): “Rape committed
by a male over eighteen years of age upon a female under
the age of fourteen years, or incapable through lunacy or
unsoundness of mind of giving legal consent; or accom
plished with any female by means of force overcoming her
resistance, or by means of threats of immediate and great
bodily harm, accompanied by apparent power of execution,
preventing such resistance, is rape in the first degree. In all
other cases rape is of the second degree.

Oklahoma Statutes, Sec. 1 115 (1958): “Rape in the first
degree is punishable by death or imprisonment in the peni
tentiary, not less than five years, in the discretion of the
jury, or in case the jury shall fail or refuse to fix the pun
ishment, then the same shall be pronounced by the court.”

South Carolina

South Carolina Code, Sec. 16-72 (1962): “Any person
convicted of rape or assault with intent to ravish shall
suffer death unless the jury shall recommend him to the
mercy of the court in which event he shall be confined at
hard labor in the State Penitentiary for a term not exceed
ing forty years nor less than five years, at the discretion of
the presiding judge.”

South Carolina Code, Sec. 16-80 (1962): “If any person
shall unlawfully and carnally know and abuse any woman
child under the age of sixteen years, such unlawful and
carnal knowledge shall be a felony, and the offender
thereof being duly convicted shall suffer as for a rape; pro
vided, however, that when:

(1) The woman child is over the age of ten years and
the prisoner is found guilty the jury may find a special
verdict recommending him to the mercy of the court,

8 a

whereupon the punishment shall be reduced to imprison
ment in the Penitentiary for a term not exceeding fourteen
years, at the discretion of the court;

(2) The woman child is over the age of fourteen years
and under the age of sixteen years and the prisoner is found
guilty, the punishment shall be in the discretion of the
court, not exceeding five years’ imprisonment; and

(3) The defendant is under eighteen years of age and
the woman child is above the age of fourteen years previ
ous unchastity may be defensively shown, and if such want
of chastity be found by a special verdict of the jury, the
punishment imposed by the court shall not exceed one
year’s imprisonment or a fine of not more than five
hundred dollars, alternatively awarded.”

Tennessee

Tennessee Code, Sec. 39-3702 (1955): “Whoever is con
victed of rape of any female shall suffer death by electrocu
tion; provided, the jury before whom the offender is tried
and convicted, may, if they think proper, commute the
punishment for the offense to imprisonment in the peniten
tiary for life, or for a period of not less than ten (10)
years.”

Tennessee Code, Sec. 39-3703 (1955): “Any person who
wilfully and maliciously has carnal knowledge of a married
woman, without her consent, under the semblance of her
husband, or pretending to be her husband, shall be pun
ished as in the case of rape.”

Tennessee Code, Sec. 39-3704 (1955): “Any person who
has carnal knowledge of any female of the age of twelve
(12) years or upwards, by administering to her any sub
stance, or by any other means producing such stupor, imbe
cility of mind, or weakness of body, so as to prevent effec
tual resistance, shall be punished as in the case of rape.”

Tennessee Code, Sec. 39-3705 (1955): “Any person who
shall carnally know and abuse a female under the age of
twelve (12) years shall, on conviction, be punished as in the
case of rape.”

9 a

Texas

Texas Penal Code, Art. 1183 (1925): “Rape is the carnal
knowledge of a woman without her consent obtained by
force, threats or fraud * * * ”

Texas Penal Code, Art. 1189 (1925): “A person guilty
of rape shall be punished by death or by confinement in
the penitentiary for life, or for any term of years not less
than five.”

Virginia

Virginia Code, Sec. 18.1-44 (1960): “If any person car
nally know a female of sixteen years of age or more against
her will, by force, or carnally know a female child under
that age or a female inmate of any hospital for the insane,
who has been adjudged a lunatic, or any female who is an
inmate or pupil of an institution for deaf, dumb, blind,
feeble-minded, or epileptic persons, he shall, in the discre
tion of the court or jury, be punished with death, or con
finement in the penitentiary for life, or for any term not
less than five years. But if such female child be between
the ages of fourteen and sixteen years and not an inmate
or pupil of such institution hereinbefore mentioned, and
consents to the carnal knowledge, the punishment shall be
confinement in the penitentiary not less than one nor more
than twenty years.”

United States

United States Code, tit. 10, Sec. 920, 70A Stat. 73: “Any
person subject to (the Uniform Code of Military Justice)
who commits an act of sexual intercourse with a female
not his wife, by force and without her consent, is guilty
of rape and shall be punished by death or such other
punishment as a court-martial may direct. * * *”

United States Code, tit. 18, Sec. 2031, 62 Stat. 795:
“Whoever, within the special maritime and territorial juris
diction of the United States, commits rape shall suffer
death, or imprisonment for any term of years or for life.”

10a

District of Columbia

District o f Columbia Code, Sec. 22-2801 (1961): “Who
ever has carnal knowledge of a female forcibly and against
her will, or carnally knows and abuses a female child under
sixteen years of age, shall be imprisoned for not more than
thirty years: Provided, That in any case of rape the jury
may add to their verdict, if it be guilty, the words ‘with
the death penalty,’ in which case the punishment shall be
death by electrocution: Provided further, That if the jury
fail to agree as to the punishment the verdict of guilty shall
be received and the punishment shall be imprisonment as
provided in this section.”

11a

Provisions of Texas Statutes cited in this Brief:
Texas Penal Code, Art. 1183 (1925): “Rape is the carnal

knowledge of a woman without her consent obtained by
force, threats or fraud * * *”

Texas Penal Code, Art. 1069 (1916): “A person guilty
of rape shall be punished by death or by confinement in
the penitentiary for life, or for any term of years not less
than five, in the discretion of the jury.” (Repealed by
Texas Penal Code, Art. 1189 (1925)).

Texas Penal Code, Art. 1189 (1925): “A person guilty
of rape shall be punished by death or by confinement in
the penitentiary for life, or for any term of years not less
than five.”

Texas Code o f Criminal Procedure, Art. 1.14 (1967):
“The defendant in a criminal prosecution for any offense
may waive any rights secured him by law except the right
of trial by jury in a capital felony case in which the state
has made known in open court in writing at least 15 days
prior to trial that it will seek the death penalty. No case
in which the state seeks the death penalty shall be tried
until 15 days after such notice is given. When the state
makes known to the court in writing in open court that it
will not seek the death penalty in a capital case, the
defendant may enter a plea of guilty, nolo contendere, or
not guilty before the court and waive trial by jury as pro
vided in Article 1.13, and in such case under no circum
stance may the death penalty be imposed.”

Texas Code o f Criminal Procedure, Art. 1.14 (1965):
“The defendant in a criminal prosecution for any offense
may waive any rights secured him by law except the right
of trial by jury in a capital felony case in which the State
has made known in open court in writing at least 15 days
prior to trial that it will seek the death penalty. No case
in which the State seeks the death penalty shall be tried
until 15 days after such notice is given. When the State

A P P E N D IX B

1 2 a

makes known to the court in writing in open court that it
will not seek the death penalty in a capital, case, the
defendant may enter a plea of guilty before the court and
waive a trial by jury as provided in Article 1.13, and in
such case under no circumstances may the death penalty be
imposed.”

Texas Code o f Criminal Procedure, Art. 2.01 (1965):
“Each district attorney shall represent the State in all crimi
nal cases in the district courts of his district, except in
cases where he has been, before his election, employed
adversely * * *”

Texas Revised Civil Statutes, Art. 322 (1967): “Section
1. The following Judicial Districts in this state shall each
respectively elect a District Attorney, viz.: * * * 46th * * *”

13a

NATIONAL PRISONER STATISTICS-TABLE 3
PRISONERS EXECUTED UNDER CIVIL AUTHOR
ITY IN THE UNITED STATES, BY OFFENSE
(RAPE ONLY), RACE AND STATE

A P P E N D IX C

Region and S ta te
-

A ll offenses
1 | Rape

T otal White Negro Other T otal White Negro Other

United S ta tes ......... 3,859 1,751 2 ,066 42 455 48 405 2

Percent .........* . . . 100.0 . . . . . . . . . 11 .8 . . . . . . . . .

FEDERAL . . . . . . . . . . . . . . . . . 33 28 3 2 2 2 - -

TOTAL STATE . . . . . . . . . . . . . 3,826 1,723 2,063 h0 453 46 405 2

NORTHEAST ............... .. 6o3 424 ITT T -

Maine ....................... XX XX XX XX XX XX XX XX
New Hampshire ............. 1 1 - - _
Vermont ......................... 4 1* . .
M assachusetts ............. 27 25 2 „ _ _
Rhode Island . . . . . . . . - _ -
Connecticut ................. 21 18 3 - - - - -

New York ....................... 329 234 90 5
New Je rsey . . . . . . . . . . 71* 47 25 2 - _
Pennsylvania ............... 152 95 57 - - - - -

NORTH CENTRAL................. 403 257 11*4 2 10 3 7

Ohio ..................... .. 172 104 67 1
Indiana ................... .. hi 31 10 - - _
I l l in o i s v . ............. .. 90 59 31 - _ _ _
Michigan- ' ............... '. XX XX XX XX XX r x x XX XX
Wisconsin^ . . . . . . . . XX XX XX XX XX XX XX XX

M innesotav ............... XX XX XX XX XX XX XX XX
Iowa ................. .. 18 18 . - _
M is s o u r i ...................... 62 29 33 - 10 3 7
North Dakota ............. - - - - _
South Dakota . . . . 1 1 - _ _
Nebraska*....................... 4 3 - 1 _ _
Kansas *................... 15 12 3 - - - - -

i ii . 1 I1

14a

SOUTH........... 2,306 637 1 ,659 10 443 43 398 2

Delaware v 12 5 7 • 4 1 3 .
M ary lan d ............... .. 68 13 55 - 24 6 18 -
D is t .-o f Columbia . . . . 40 3 37 - 3' - 3 -
V irg in ia .......................... 92 17 75 - 21 - 21 -
West V i r g i n i a ............ ko 31 9 - 1 - 1 ■ -

■ North C arolina . . . . . . . 263 59 199 5 47 4 4l 2
South C a r o l in a ............. 162 35 127 - 42 5 37 -
Georgia ............................ 366 68 298 - 61 3 58 -
F l o r i d a ......................... .. 170 57 113 - 36 1 35-

Kentucky .......................... 103 51 52 - 10 1 9 -
T en n e ssee ........... . 93 27 66 - 27 5 22 -
Alabama ................... .. 135 28 107 - 22 2 20 -
M iss issip p i ................... 154 30 124 - 21 * 21 -

Arkansas .......................... 118 27 90 1 19 2 17 -
Louisiana ................... . 133 30 103 - 17 - 17 -
Oklahoma .......................... 60 42 15 3 4 - 4 -

Texas ............................... 297 114 182 1 84 13 71 “

WEST . . . . . . . . . . . . . . . . . . . 509 405 83 21 • - . «

Montana ............................ 6 4 2 . „
Idaho ................................ 3 3 - - - - '
Wyoming ........... 7 6 1 • - - • - -
Colorado .......................... 47 41 5 1 - - -
New Mexico ..................... 8 6 2 - - - - -
Arizona ............................ 33 28 . 10 — - - - -
Utah ................... .............. 13 13 - - - - - -
Nevada .............................. 29 21 2 “ * **

-Washington ...................... 47 40 5 2 - - - -
Oregon' ....................... 19 16 3 » - - - -
C a lifo rn ia ..................... 292 221 53 18 - » - »
Alaska, ..................... XX XX XX XX XX XX XX XX
Hawaii' ’ . . . . . ............. XX XX XX XX XX XX XX XX

15a

TYPICAL FORM USED IN TEXAS FOR GIVING
NOTICE OF INTENTION TO SEEK DEATH

STATE S INTENTION TO SEEK THE DEATH PENALTY

No. ______

STATE OF TEXAS IN THE CRIMINAL DISTRICT COURT
VS. NUMBER ______________________ OF
_________________ DALLAS COUNTY, TEXAS

______________________ TERM, 19__
_______ , 1 9 -

Now comes the Criminal District Attorney of Dallas
County, Texas, and represents to the Court that the
Defendant herein is indicted for a capital felony offense,
to-wit: __________________ ______ ——-------------------------»
and hereby makes it known to the Court in this written
instrument and in open court that the State will seek the
Death Penalty in the trial of this case, and respectfully
requests the Court to order the Clerk of this Court to have
the Defendant served with a copy of this instrument, if the
Defendant is in custody, or his address known.

Is/ HENRY WADE
Criminal District Attorney
Dallas County, Texas

See also 8 Texas Practice, Willson’s Criminal Forms, Sec.
2713 (1966).

TYPICAL FORM USED IN TEXAS FOR GIVING
NOTICE OF INTENTION NOT TO SEEK DEATH

N o _________

THE STATE OF TEXAS IN THE CRIMINAL DISTRICT COURT
VS. NUMBER ______________________ OF
______________________ DALLAS COUNTY, TEXAS

_______________________ TERM, 19__

A P P E N D IX D

16a

STATE S INTENTION NOT TO SEEK THE
DEATH PENALTY

Now comes the Criminal District Attorney of Dallas
County, Texas, and represents to the Court that the
Defendant herein is indicted for a capital felony offense,
to-wit: ____________________— —---------------------------- ----—— >
and hereby makes it known to the Court in this written
instrument and in open court that the State will not seek
the Death Penalty in the trial of this case, and respectfully
requests the Court to order the Clerk of this Court to have
the Defendant served with a copy of this instrument, if the
Defendant is in custody, or his address known.

/s/ HENRY WADE
Criminal District Attorney
Dallas County, Texas

17a

DISPOSITION OF RAPE PROSECUTIONS IN
WILBARGER COUNTY, TEXAS 1924-1970

A P P E N D IX E

Case No. Defendant Year Disposition
2706 Irwin Lundy 1924 Dismissed by D.A.
2844 C. A. Dickinson 1926 Dismissed by D.A.
2899 Roy McKissick 1926 55 years in the penitentiary
3099 Chester Aaron 1928 Dismissed by D.A.
3106 Floyd Cloud 1928 Dismissed by D.A.
3200 Tom Murrell 1929 Dismissed by D.A.
3205 Sam Bruce 1929 No disposition noted
3224 Pete Tuggle 1929 Dismissed by D.A.
3286 G. F. Powell 1930 Dismissed by D.A.
3351 D. S. Lack 1931 Dismissed by D.A.
3352 Olan Maney 1931 Dismissed by D.A.
3371 Therman George 1931 Dismissed by D.A.
3371 Bob Moore 1931 Dismissed by D.A.
3401 Melvin Goodwin 1931 Dismissed by D.A.
3464 Budge White 1932 Dismissed by D.A.
3468 William Nudget 1932 Dismissed by D.A.
3784 Marvin White 1935 Dismissed by D.A.
3842 Jack Clifford 1935 Dismissed by D.A.
3924 Jim Cubine 1936 5 years in the penitentiary
3925 Jim Cubine 1936 Dismissed by D.A.
4022 Hugh Russell 1938 Dismissed by D.A.
4035 Guy Castles 1938 Dismissed by D.A.
4117 Carl Robinson 1939 Dismissed by D.A.
4118 Buster Stevens 1939 Dismissed by D.A.
4120 Tolly Garver 1939 Dismissed by D.A.
4123 Esfarino Castillo 1939 Dismissed by D.A.
4141 Edgar Dempsey 1939 15 years in the penitentiary
4142 Edgar Dempsey 1939 Dismissed by D.A.
4175 Buck Bradford 1940 Dismissed by D.A.
4292 Walter Stockton 1942 10 years in the penitentiary
4302 Johnny Murley 1943 Dismissed by D.A.
4313 Johnny Murray 1943 Defendant discharged
4401 B. L. Davis 1947 Dismissed by D.A.
4432 Bud Gibson 1947 Dismissed by D.A.
4432 Frank Keeler 1947 Dismissed by D.A.
4432 Clayton Mitchell 1947 Dismissed by D.A.

18a

Case No. Defendant
4439 Edward Wehba
4448 Clayton Mitchell
4503 Clyde Vaughn
4551 A. Gonzales
4717 Willie Carpenter
4907 T. J. Dulse
6045 Frank Coleman
6079 Melburn Baker
6193 Henry Bagley
6292 Larry Keenan
6322 Milton Tennell
6323 Billie Joe Tennell
6390 Van Craig
6405 Van Craig
6440 Jessie Murray
6441 Lamar Braswell
6454 J. J. Sillemon
6506 John Phillips

6513 Willie Nelson
6608 ELMER BRANCH
6707 Marshall Waggoner
6710 Milburn Baker
6771 Leroy Demps, Jr.
6869 Robert Delgardo

Disposition
Dismissed by D.A.
Dismissed by D.A.
5 years probated
“No Return”
Not guilty
Dismissed by D.A.
Dismissed by D.A.
15 years in the penitentiary
15 years in the penitentiary
Dismissed by D.A.
5 years probated
5 years probated
Dismissed by D.A.
Dismissed by D.A.
5 years in the penitentiary
15 years in the penitentiary
Dismissed by D.A.
Dismissed by D.A.

after a hung jury
No disposition
DEATH
Life in the penitentiary
5 years in the penitentiary
10 years probated
No disposition

Year
1947
1947
1948
1949
1952
1955
1958
1959
1960
1962
1962
1962
1963
1963
1964
1964
1964
1965

1965
1967
1969
1969
1970
1970

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Branch v. Texas Brief for the Petitioner

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