Maxwell v. Stephens Brief for Appellee

    United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 17,729 
CIVIL

W illiam  L. M axw ell  __________ Appellant

y , '

D an  D . S tephen s , Superintendent of
Arkansas State Penitentiary__________ ____ Appellee

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT OF 

ARKANSAS PINE BLUFF DIVISION

BRIEF FOR APPELLEE

B bttce B en n ett  

Attorney General 

J ack  L . L essenberry

Chief Assistant Attorney General 

Attorneys for Appellee

PARAGON PRINTING G O ., UTTLE ROCK



IN D E X

Statement of Case ___________________________________________  1

Statement of Points to be Argued and Authorities Relied on___  4-8

Argument __________________________________________________  9
I The Arrest and Search of Appellant ____________________ 9

A. Standards of Reasonable Search and Seizure ______ 9
B. The Search was Incident to a Lawful Arrest ______ 10

C. The Search was Justified as an Emergency --------- 11

D. The Coat was Delivered to the Police Officers

Voluntarily _______________________________ *---------  12

1. Appellant’s Mother Gave Consent -------------------- 12

2. Appellant’s Mother Did Not Need Authority 
from Appellant to Deliver the Coat to the
Police Officers_________________________________ 14

3. The Coat Could be Properly Obtained 
by Either a Search Warrant or Consent
by a Third Party___ __________________________  14

E. The Coat Was Legally Obtained and as such
any use Could Not Prejudice Appellant. ----------------- 15

II The Alternate Penalties for the Crime of Rape in 
in Arkansas are Constitutional and Have Been 
Properly Enforced______________________________________ 15

III Question Concerning the Petit Jury and Waiver ....--------  22

A. The Selection and Composition of the Petit 
Jury Panel Met Every Statutory and
Constitutional Requirement. ---------------------------------- 22

B. The Statutory Requirement of Identifying 
the Race of Electors in the Poll Tax Books
is Constitutional..........—------ -------- --------------------------  24

C. Appellant Waived Any Objection to the
Petit Jury Panel. ____ *.-----------------------------------------  28

Conclusion ________________________________________________ —  32

CASES CITED

Akins v. Texas, 325 U.S. 398 (1945) --------------------- ---------------------  22
Anderson v. State, 200 Ark. 516 ----------------------------------------------  22

Avery v. Georgia, 234 U.S. 559

Page

25



INDEX — (Continued)

Bailey v. Henslee, 287 F. 2d 936, (8th Cir, 1961, cert. den.
363 U.S. 877 _____________________________________________  27

Black v. State, 215 Ark. 618 __________________________________  19

Boyd v. United States, 116 U.S. 627 __ ___ t_______________ ,__  9

Brown v. Allen, 344 U.S. at 480 ______________________________ 25, 26

Buchanan v. State, 214 Ark. 835 ______________________________  22

Carr v. State, 43 Ark. 99 ---------------------- ----------------- :...................  10

Carter v. Texas, 177 U.S. 442 (1900) _______________________ 22

Cassell v. Texas, 339 U.S. 282 (1950) __________________________  22
Commonwealth v. Holmes, 183 N.E. 2d 279 ____________________  10

Commonwealth v. Tucker, 76 N.E. 127 ________________________  13

Dennis v. State, 5 Ark. 230 ___________ _______________________  16
Dorsey v. State, 219 Ark. 101 _______ ..._________________________ 19

Draper v. United States, 358 U.S. 307 ________ __________________  10

Fay v. Nola, 372 U.S. 391 _____________________________________ 28, 29

Gibson v. Mississippi, 162 U.S. 656 __________ ______ _________ 26

Gray v. Commonwealth, 249 S.W. 769 ____ ____________________  14
Hall v. United States, 168 F. 2d 161 (D.C. Cir. 1948) ____________ 20

Hamm v. State, 214 Ark. 171 ________________________________  17
Hamm v. Virginia State Board of Elections, 230 F. Supp.

156 (E.D. Va. 1964) __________________________________ ,___  26

Haraway v. State, 203 Ark. 912 _______________________________  19
Henslee v. Stewart, 311 F. 2d 691 (8th Cir. 1963) cert.

den. 373 U.S. 902 ____________________________ ____________ 27

Hernandez v. Texas, 347 U.S. 475 ____________ ..______________  20
Hickinbotham v. State, 227 Ark. 1032 __________________________  17
Holt v. United States, 218 U.S. 245 _________________ -__________ 14
Irvin v. State, 66 So. 2d 288 ----------------------------------------------------  14
Johnson v. State, 238 Ark. 15 ---------------------------- ----- -------------- 30
Ker v. California, 374 U.S. 23 _______..._____ ...__________________ 10
Malloy v. Hogan, 377 U.S. ____________________________ ________  10
Mapp v. Ohio, 367 U.S. 643 ___________________________ _______ 9

Martin v. Houck, 54 S.E, 219-------------- _ i__---- ------------------------- • 11

Page



Martin v. Texas, 200 U.S. 31G (1906) __________________________  23

Maxwell v. State, 236 Ark. 700 ________ ____ __________________  16

Maxwell v. Stephens, 229 F. Supp. 205 (E.D. Ark. 1964) ... ........ 2, 23
Mitchell v. State, 233 Ark. 587 ___________________ _________ _  17

Moore v. Henslee, 276 F. 2d 876 (8th Cir. 1960) ____ ::__________ 19, 23

Moore v. State, 229 Ark. 335 _______________ ___________________  19

Pace v. Alabama, 106 U.S. 583 ________________________________ 17

Payne v. State,. 226 Ark. 910 ________________ ______________ ___ 19
Reece v. Georgia, 350 U.S. 85 ____________________________ ____  31

Rochin v. California, 342 U.S. 165 __________________________ 10
Rudolph v. Alabama, 375 U.S. 889 ____________________________  21
Smith v. Texas, 311 U.S. 128 _____ ____________________________  20

Strauder v. West Virginia, 100 U.S. 303 _______________________  26
Tarrance v. Florida, 188 U.S. 519 (1903) ______________________  22

Thomas v. Florida, 92 So. 2d 621, cert. den. 354 U.S. 925 _______ 17
United States ex rel Goldsby v. Harpole, 263 F. 2d 71

(5th Cir. 1959) __________________________________________ 28,30
United States v. Iacullo, 226 F. 2d 788 (7th Cir. 1955) ___________  14

United States v. Roberts, 223 F. Supp. 49 (E.D. Ark. 1963) ________  13
Virginia v. Rives, 100 U.S. 313 (1879) ________________________  22

Walton v. State, 232 Ark. 86 ________________________________  19

TEXT BOOKS
20 American Jurisprudence, Evidence, § 401 __________________ 14

1 Searches, Seizures and Immunities, § 6 Varon (1961) _________ 9
1 Wharton’s Criminal Proceedure, § 38 (10th Ed.) ___________ ... 11

STATUTES
Amendment VIII, Arkansas Constitution, Article III, § 1 ________ 26
Arkansas Constitution, Article II, § 3 ___       16
Arkansas Constitution, Article II, § 9 __________    21
Arkansas Statutes (1947) Annotated

Section 3-104.2 ___________________________________________  26
Section 3-118 ____________________________________________  27

INDEX — (Continued)

Page



INDEX — (Continued)
Page

Section

Section

Section
Section

Section

Section

Section

Section

Section

3-227 (b) __________________ - i --------- ------------------- - 27

28-601 ..........       29

39-101 ___________________________________________  26
39-206 ________________________________________ __-  26,28

39-208 ________________________ - __________________ 26,28

41-3403 _____   16

43-215 __________________________ -__________-_____  16

43-403 __________________________ ___ :_____________  10
43-412 ___________________________________________  10



United States Court of Appeals
FOR THE EIGHTH CIRCUIT

Ho. 17,729 
CIVIL

W illiam  L. M a x w e l l --------------------------------------Appellant

v.

H ast D. S teph en s , Superintendent o f
Arkansas State Penitentiary______________ Appellee

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT OF 

ARKANSAS PINE BLUFF DIVISION

BRIEF FOR APPELLEE

STATEMENT OF THE CASE

This is an appeal by William L. Maxwell, a con­
demned rapist, from a denial of a petition for a writ of 
habeas corpus. The petition was filed in the United 
States District Court four days before the scheduled ex­
ecution. The execution was stayed and a full hearing 
was conducted on all of the issues raised by appellant. 
That decision is reported as Maxwell v. Stephens, 229 F. 
Supp. 205 (E.D. Ark. 1964).



2

The appellant was charged by felony information for 
the crime of rape of Stella Spoon during the early morn­
ing of November 3, 1961, in Hot Springs, Arkansas. 
The trial record sustains the brutal facts of this most 
heinous act in tragic details. The victim, a rather frail 
woman, lived with her aged and crippled father in a 
sparsely populated area. After she had gone to bed, 
she was aroused by a noise. As she entered the living 
room a small night lamp in her father’s adjoining bed­
room alerted her to the presence of a person outside of 
the window. She immediately turned on a ceiling light 
revealing the appellant cutting the window screen. The 
appellant attempted to conceal his identity by pulling a 
woman’s stocking over his face, but this effort was un­
successful and the stocking fell from his head. Miss 
Spoon immediately ordered the intruder to leave and 
dialed “ operator”  on her telephone to summons the police. 
At this time, appellant entered the room through the 
window and struck the young woman to the floor. Al­
though Miss Spoon did not have the opportunity to give 
any information over the telephone, the operator heard 
the prosecutrix’ screams and directed the police to the 
house.

When the victim’s father attempted to intervene to 
protect his daughter, appellant threatened his life, hit 
the old man, and rendered him totally helpless. After 
the police arrived, Mr. Spoon was found bleeding, inco­
herent, and afraid to open the house to the officers.

Appellant foreeably took the young woman from her 
home to a vacant lot where he overcame her stubborn 
resistance and savagely consumated sexual intercourse. 
Terrorized and shocked, the prosecutrix found her way 
to a street where searching policemen discovered her 
wet, barefooted, and almost nude. The officers took her



3

directly to a hospital and she was immediately examined 
by a doctor. She remained in the hospital for three days 
to recover from the injuries the appellant inflicted upon 
her.

The trial judge appointed two local lawyers for the 
defense of appellant. However, these attorneys were 
discharged when appellant employed private counsel. A 
continuance of the case was granted and several motions 
were presented to the trial court.

The prosecution produced numerous witnesses at the 
trial including two experts from the Federal Bureau of 
Investigation. Although appellant confessed to the 
crime on two occasions, neither statement was used by 
the State.

The charge was proved by overwhelming evidence. 
The jury returned a verdict of guilty without a, recom­
mendation of leniency and appellant was sentenced to 
death. The conviction was affirmed by the Supreme 
Court of Arkansas and rehearing denied. No appelli- 
cation was made for certiorari to the United States 
Supreme Court.

The statement contained in appellant's brief is, for 
the most part, a fair resume of the circumstances involved 
in this litigation. There are, however, several errors 
or gross misstatements concerning the facts which are 
consistent with appellant’s theory of the case. Rather 
than dwell upon those matters here, appellee, in interest 
of brevity defers remarks to the applicable points of 
argument in the brief. To aid consideration of the issues, 
appellee has followed the organization of appellant’s brief 
and has utilized appellant’s method of reference to the 
several records made in this prolonged litigation.



4

STATEMENT OF POINTS TO BE ARGUED AND 
AUTHORITIES RELIED ON

i

The Arrest and Search of Appellant

A. Standards of Reasonable Search and Seizure

CASES

Boyd v. United States, 116 U.S. 627;

Malloy v. Hogan, 377 U.S............ ; 12 L.Ed. 2d 653;

Mapp v. Ohio, 367 U.S. 643;

Bochin v. California, 342 U.S. 165

TEXTBOOKS

1 Searches, Seizures and Immunities, § 6, Varon 
(1961)

B. The Search Was Incident to a Lawful Arrest

CASES

Commonwealth v. Holmes, 183 N.E. 2d 279 

Draper v. United States, 358 U.S. 307 

Carr v. State, 43 Ark. 99 

K er  v. California, 374 U. S. 23 

Martin v. Houch, 54 S.E. 219

TEXTBOOKS

1. Wharton’s Criminal Procedure, § 38 (10th Ed.)



5

STATUTES

Arkansas Statutes (1947) Annotated, § 43-403 and 
§ 43-412

C. The Search Was Justified as an Emergency

D. The Coat Was Delivered to the Police Officers 
V ohmtarily.

1. Appellant’s Mother Gave Consent

CASES

United States v. Roberts, 223 F, Supp 49 (E.D. Ark. 1963), 
332 F. 2d 892 (8th Cir. 1964);

Commonwealth v. Tucker, 76 N.E. 127

2. Appellant’s Mother Did Not Need Author­
ity From Appellant to Deliver the Coat to 
the Police Officers.

CASES

Irvin v. State, 66 So. 2d 288;

Gray v. Commonwealth, 249 S.W. 769;

3. The Coat Could be Properly Obtained by 
Either a Search Warrant or Consent by a 
Third Party.

CASES

Holt v. United States, 218 U.S. 245;

United States v. lacullo, 226 F. 2d 788;

TEXTBOOKS

20 American Jurisprudence, Evidence, § 401



6

E. The Coat Was Legally Obtained, and as Such 
Any Use Could Not Prejudice Appellant.

i i

The Alternate Penalties For the Crime of Rape- 
In Arkansas are Constitutional and 

Have, Been Properly Enforced

CASES

Hickinbotham v. State, 227 Ark. 1032;

Maxwell v, State, 236 Ark. 700;

Mitchell v. State, 233 Ark. 587;

Thomas v, Florida, 92 So. 2d 621;

Black v. State, 215 Ark. 618;

Dennis v. State, 5 Ark. 230;

Dorsey v. State, 219 Ark. 101;

Hall v. United States, 168 F. 2d 161;

Hamm v. State, 214 Ark. 171;

Haraway v. State, 203 Ark. 912;

Hernandez v. Texas, 347 U.S. 475;

Moore v. Henslee, 276 F. 2d 876;

Moore v. State, 229 Ark. 335;

Pace v. Alabama, 106 U.S. 583;

Smith v. Texas, 311 U.S. 128;

Rudolph v. Alabama, 375 U.S. 889;

Walton v. State, 232 Ark. 86;



7

STATUTES

Arkansas Constitution, Article II, § 3.

Arkansas Constitution, Article II, § 9.

Arkansas Statutes (1947) Annotated, § 43-215 and 
§ 41-3403.

in

Questions Concerning the Petit Jury and 
W  aiver

A. The Selection and Composition of the Petit 
Jury Panel Met Every Statutory and Consti­
tutional Requirement.

CASES

Maxwell v. Stephens, 229 F. Supp. 205;

Akins v. Texas, 325 U.S. 598;

Anderson v. State, 200 Ark. 516 

Buchanan v. State, 214 Ark. 835;

Carter v. Texas, 177 U.S. 442;

Cassell v. Texas, 339 U.S. 282;

Martin v. Texas, 200 U.S. 316;

Moore v. Henslee, 276 F. 2d 876;

Tarrance v. Florida, 188 U.S. 519;

Virginia v. Rives, 100 U.S. 313;



8

B. The Statutory Requirement of Identifying the 
Race of Electors in the Poll Tax Books is Con­
stitutional.

CASES

Bailey v. Henslee, 287 F. 2d 936;

Brown v. Allen, 344 U.S. 443;

Hamm v. Virginia State Board of Elections, 230 F. Supp. 
156;

Henslee v. Stewart, 311 F. 2d 691;

Avery v. Georgia, 234 U.S. 559;

Gibson v. Mississippi, 162 U.S. 565;

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

STATUTES

Amendment VIII, Arkansas Constitution, Article III,

Arkansas Statutes (1947) Annotated, § 3-227 (b) • 
§3-104.2; § 3-118; §39-101; § 39-206; § 39-208.

C. Appellant Waived Any Objection to the Petit 
Jury Panel.

Fay v. Noia, 372 U.S. 391;

Reece v. Georgia, 350 U.S. 85;

United States ex rel Goldsby v. Harpole, 263 F. 2d 71;

STATUTES

Arkansas Statutes (1947) Annotated, § 28-601.



9

ARGUMENT

x

The Arrest and Search of Appellant

At Point I of appellant’s brief there is a varied dis­
cussion of different aspects of Ms apprehension, the search 
of his person and the obtaining of his coat. It is al­
leged that each act was unconstitutional.

A. Standards of Reasonable Search and Seizure

It is conceded that the rules of the federal courts 
implementing the Fourth Amendment of the United States 
Constitution have recently been made applicable to the 
States under the due process clause of the Fourteenth 
Amendment. Mapp v. Ohio, 367 U. S. 643. It is agreed 
that illegally obtained evidence cannot be used to aid 
criminal prosecution. Boyd v. United States, 116 U.S. 
627. But appellant interjects for the first time that 
the use of the articles of clothing violated his right against 
self incrimination preserved by the Fifth Amendment 
to the Constitution of the United States. This objection 
was not raised in the trial of the case nor was it argued 
in the appeal to the Arkansas Supreme Court. Further­
more, this contention was not raised during the hearing 
or in the brief submitted to the district judge. Appel-, 
lant has ignored all procedural requirements to preserve 
the question for review in -either the state or federal 
court.

Norwithstanding the failure of appellant to make 
proper objection throughout this litigation, it is clear 
that the use of the hair, thread and articles , of clothing 
do not violate the protection of self incrimination.
1 Searches, Seizures and Immunities, § 6, Varon (1961).



10

This case is not any way analogous to Malloy v. Hogan,
377 U.S. ------ , decided June 15, 1964, 12 L. Ed. 2d 653
cited by appellant and should not be confused with Rochin 
v. California, 342 U.S. 165, where there was a violation 
of “ due process of law".

B. The Search Was Incident to a Lawful Arrest

It is well established in both the federal and state 
courts that a search may be made of the person and the 
premises when there has been a lawful arrest. The 
validity of appellant’s apprehension was questioned in 
the district court and was noted in the certificate of 
probable cause. However, since there is no discussion 
concerning the arrest in appellant’s brief, it may be 
assumed that this issue has now been waived. It is 
still necessary, however, that some brief recitation of the 
law governing arrests be made.

The federal court is governed by state law as to 
the manner of arrest. K er  v. California, 374 U. 8. 23. 
It is provided by statute that a police officer may make 
an arrest without a warrant where he has reasonable 
grounds for believing that the person arrested has com­
mitted a felony. Ark. Stat. Ann. § 43-403 (1947). This 
Statute has been given a liberal common law interpreta­
tion. Carr v. State, 43 Ark. 99. An arrest is affected 
by placing the person of the defendant in restraint or 
bv his submission to custody. Ark. Stat. Ann. § 43-412 
(1947). A most analogous situation to the case at bar 
was decided recently in Massachusetts. Commonwealth 
v. Holmes, 183 N.E. 2d 279 (1962). See also Draper v. 
United States, 358 U.S. 307 (1958).

This crime was perpetrated during the early morning 
when the availability of a magistrate, the obtaining of 
an affidavit and the niceties of formal procedure could



11

not be entertained. The law has consistently recognized 
instances of this nature cognizant that escape is an ever­
present possibility. 1 Wharton’s Criminal Procedure, 
§ 38 (10th E d .); Martin v. Houck, 141 N.C. 317, 54 S.E. 
219.

Appellee agrees that it is not entirely clear from the 
record the exact time that the arrest was made. The 
police officer, after having been directed to the room 
where appellant resided with his two younger brothers, 
awoke appellant and directed that he put on the clothes 
found on a chair next to the bed (U.S. 267). As it 
developed, appellant evaded putting on his blue coat. 
After he was identified it was realized that this important 
article of clothing was. missing.

It should not matter that there was the lapse of 15 
minutes, 30 minutes, or an hour after the arrest, the 
settled right of the officers to obtain the clothing would 
not become extinct. The “ search,”  if it can be properly 
defined as that, was confined to the immediate vicinity 
of the arrest. The record discloses that the coat was 
in the bedroom closet (U.S. 242). It must be remembered 
that tins was not a general search of a large area, but 
was merely the recovery of an item of clothing that ap­
pellant had either purposely or inadvertently failed to 
take with him as originally requested by the officer. As 
such, these circumstances do not violate rules governing 
this aspect of our law.

0. The Search Was Justified as an Emergency

If it should be determined that the search was not 
incident to a lawful arrest, then most assuredly the ob­
taining of the coat was justified as an emergency. The 
authorities cited by appellant while reciting established 
principles, are not controlling of the factual circumstances 
presented here.



12

As related previously, both the crime and the arrest 
occurred during the early morning. Although, there is 
some deviation in the estimates of time, the coat was 
procured by the police officers at approximately 5:00 
A.M. (U.S. 243). No magistrate was available at that 
time and would not be available for perhaps four more 
hours. This would conservately mean that the officers 
would not have been able to recover the coat until 9:30 
or 10:00 that morning. During this entire time, there 
was a continuing danger that appellant’s family may 
have realized the importance of the article of clothing 
and would either hide or destroy it. Appellant had 
run afoul of the law numerous times. Although his 
family, by their action, have proved to be law 
abiding and cooperative with the policemen, it appeared 
obvious to the officers, as it should to this Court, that 
there is a natural inclination to aid him in his time of 
need even to the extent of destroying valuable evidence. 
Thus, this case is governed by the rule that a search can 
be made where delay would likely prevent recovery of 
the item.

D. The Coat Was Delivered to the Police Officers
Voluntarily.

1. Appellant’s Mother Gave Consent

It is contended by appellant that his mother did 
not voluntarily consent to the officers entering the house 
and obtaining the coat. This assertion rests upon one 
brief comment that she was “ afraid'’ not to let the officers 
in the house (U.S. 138). The facts of this ease are, 
as observed by the district judge, that the officers knocked 
on the door, identified themselves, made a request for 
the specific article of clothing and were shown to the 
closet by appellant’s mother (U.S. 143, 138, 242 Ark. 
333-334). The record is replete that the officers were



courteous and requested but one article, Mrs. Maxwell 
cooperated with the officers in every way (U.S. 138). She 
had no reason to refuse their entrance into the home. 
Much to the disdain of appellant, peace officers in Ar­
kansas are not feared by the public. There is no attitude 
in Arkansas that citizens should reject, frustrate, or 
burden police officers in their line of duty. Only rarely 
do persons object to police officers coming into their 
homes unless, of course, there is something to hide such 
as narcotics or untaxed liquor.

There is no evidence whatsoever that the police abused 
this Negro woman. There was no coercion implied or 
otherwise. In fact, the woman was candid enough to 
admit this on cross examination (U.S. 147, 152, 157).

One fact cannot be overlooked. Mrs. Maxwell was 
present at trial at the counsel table with her son and his 
lawyer. One police officer, Lieutenant Crain, explained 
to the jury how the appellant’s coat was procured from 
his home. His testimony that the entry was voluntarily 
was uncontradicted. It will also be recalled that ap­
pellant lived in this room with his two brothers, ages 
fourteen and nineteen (U.S. 143). I f  the actions of the 
investigating officers were anything other than the way 
that had been explained, surely appellant was fortified 
with several witnesses to dispute the testimony.

All authorities agree that a permitted search is 
proper and valid. United States v. Roberts, 223 F. Supp. 
49 (E.D. Ark. 1963), 332 F. 2d 892 (8th Cir. 1964); Com­
monwealth v. Tucker, 76 N.E. 127, 189 Mass. 457, 7 LRA 
(N.S.) 1056.

One point remains: the officers did not obtain a
search warrant simply because under the circumstances, 
it was not needed nor demanded.



14

2. Appellant’s Mother Did Not Need Author­
ity From Appellant to Deliver the Coat to 
the Police Officer.

A valient effort is made to the end that appellant’s 
mother needed authority from appellant to give the 
police officers the coat. The basis of this argument 
is that the Fourth Amendment should be extended to 
offer protection in these circumstances. Again all legal 
authority is contradictory to appellant’s theory. Irvin 
v. State, 66 So. 2d 288, cert. den. 346 TJ.S. 927.

It is undisputed that, although appellant was a mature 
young man and had reached his majority, he still resided 
with his parents as their son, sharing a room with two 
brothers (U.S. 141, 147). Gray v. Commonwealth, 249 
S.W. 769, 198 Ky. 610 (1923). The district judge was 
quick to recognize this settled proposition of law. The 
fact that the article given to the officers was an article 
of appellant’s clothing cannot alter the conclusion.

3. The Coat Could be Properly Obtained by 
Either a Search Warrant or Consent by a 
Third Party.

Finally, appellant suggests that certain items may 
not ever be taken even with a valid search warrant. An 
effort is made to establish the coat used by the police 
officers in this case as an article protected by the Fifth 
Amendment privilege against self-incrimination. As
stated previously, this argument is totally without founda­
tion. United States v. Iacullo, 226 F. 2d 788 (7th Cir, 
1955). It has been the long established rule that articles 
of clothing worn by the accused may be used by the pros­
ecution and is not a violation of the right against in­
crimination. Holt v. United States, 218 U.S. 245; 20 
Am.'Jur., Evidence, § 401.



15

E. The Coat Was Legally Obtained and as Such 
Any Use Could Not Prejudice Appellant.

Even without the coat, there was ample evidence to 
convict appellant of the crime. However, as discussed 
previously, since the coat was properly acquired by the 
police officers, no prejudice could result.

The most important factor totally ignored by ap­
pellant while discussing each of the foregoing topics con­
cerning the obtaining of his coat by the police officers, 
was that the district judge did not rest his decision on 
any one fact, whether it be consent, search incident to 
an arrest, the nature of the search, the actions of the 
officers, or the time that the arrest was made and the 
coat obtained. All of these and other matters, as well 
as the demeanor of the witnesses, the reasonableness of 
their testimony, their interest in the case, was apparently 
given appropriate consideration by the district court. 
There was also the well reasoned maximum that the burden 
of proof should fall upon those who most readily can 
furnish it. In this respect, appellant had available his 
mother and two brothers who could have disputed testi­
mony that went uncontradicted in the trial, but when 
offered by appellant through his mother at the hearing 
before the district judge was completely unavailing. 
No other conclusion than that reached by the district 
judge is reasonable.

n

The Alternate Penalties For the Crime of Rape 
In Arkansas are Constitutional and 

Have Been Properly Enforced

Apparently as an afterthought, appellant, by a second 
amendment to his petition, alleged that the death penalty



for rape in Arkansas has been applied in a discrim­
inatory manner and is unconstitutional. This conten­
tion is discussed at Point II of appellant’s brief.

It is initially stated by appellant that Arkansas, at 
one time, had a statute providing- for the death penalty 
for a slave convicted of rape. Dennis v. State, 5 Ark. 
230. Just how this 1843 case affects the present litigation 
is not explained. It might be said, parenthetically, that 
school children know that people in Massachusetts used 
to burn witches. Of course, royalty often was inclined 
to behead commoners and vice versa, when the oppor­
tunity was presented, and Romans apparently delighted 
in watching lions devour Christians. So much for 
digressive irrevelant historical references.

Appellant, then charitably concludes that the statutes 
in Arkansas are now consistent with the standards im­
posed by the Constitution of the United States. There 
is no question that a statute imposing greater punish­
ment on one race than another would not only controvene 
the Fourteenth Amendment to the Constitution of the 
United States, but would also offend the Constitution 
of Arkansas. Ark. Const. Art. II, §3. Since 1842, this 
jurisdiction, as well as many other states, has provided 
that the death penalty may be imposed, as in common 
law, on those found guilty of the crime of rape. Ark. 
Slat. Ann. § 41-3403 (1947). In 1915, the General As­
sembly gave the jury the prerogative to assess either a 
life or a death sentence. Ark. Stat. Ann. § 43-215 
(1947).

Although the contention raised by appellant is unique, 
it is not without precedent. It should suffice to note 
that all authority discovered by appellee is opposed to 
the proposition. Maxwell v. State, ,236 Ark. 700, 370



17

S.W. 2d 113 (1963); Mitchell v. State, 233 Ark. 587, 346 
S.W. 2d 201; Thomas v. Florida, 92 So. 2d 621, cert. den. 
354 IT.S. 925; Pace v. Alabama, 106 U.S. 583.

A similar situation arose in this jurisdiction in regard 
to a Sunday closing law. Hickinbotham v. State, 227 
Ark. 1032, 303 S.W. 2d 565. It held that the quantum 
of proof required of unlawful application of a crime must 
be “  . . .  shown by cogent evidence that the officers 
knowingly permitted others to continuously and syste­
matically remain open . . . .”

Even though appellant may sincerely believe that 
all of the rapists given the death sentence were guilty 
of attacking a white woman, there is absolutely no proof 
to support this assumption. There is at least one re­
ported case where a Negro found guilty of raping a white 
woman was given a life sentence. Hamm v. State, 214 
Ark. 171, 214 S.W. 2d 917 (1948). In the last fourteen years 
two white men and two Negroes have been executed for 
rape. Does this smack of disparity! Just how many 
Negroes have been found not guilty or guilty of lesser 
offenses that were not appealed? The statistical data 
submitted by appellant completely ignores the evidence 
which justifies the highest penalty.

To .illustrate the conclusion of discrimination, ap­
pellant relies entirely on the number of white persons as 
opposed to the number of Negroes accused of rape. At 
page 35 of the brief, appellant states that nearly two- 
thirds of the prosecutions were against white persons 
and thus, no argument can be made that there is a higher 
crime rate among Negroes. Although appellee never 
intended to assert that there is a higher crime rate among 
the Negro population, appellant’s unfounded conclusions 
demand a response. The answer is available in the



18

tables so tediously prepared with the addition of one 
critical factor which was ignored: the proportion of the
Negro population to the white population. In Pulaski 
County, for example, although the charges of rape are 
almost even, 11 whites and 10 Negroes, the non-whites 
make up less than 22 percent of the total population. 
Hence, the incident of rape by Negroes is more than 
twice as large as that by whites. The ratio in Jefferson 
County is approximately proportionate. In Garland 
County, where the trial was conducted, there have been 
fi white men accused of x'ape in the last 10 years and 3 
Negroes, but Negroes comprise less than 11 percent of 
the total population in Garland County. (See 1960 
reports of the Bureau of Census.) Appellant also com­
plains that the district Judge erred by restricting the area 
or number of counties for inquiry, but no objection was 
entered (II.S. 313, 314).

Appellant then demands an explanation as to why 
so many Negroes have been executed for the crime of 
rape. As an alternative appellee suggests simply a 
reading of the reports of those cases. Each justifies 
the extreme penalty of death.

There is another answer to the question of why 
hiegioes receive the death penalty. Even a person un­
versed in the law recognizes that consent is ordinarily 
the vital question. In fact, it was the defense made 
by this appellant in his trial. The violent circumstances 
of the attack, the physical injuries inflicted upon the 
victim and many other matters defy consent.

ext, appellant attacks the entire judicial system 
in Arkansas at page 36 of his brief. The initial and 
primary example related is the unconstitutional restric­
tion of Negroes on juries in “ many counties’. Ref­



19

erence is then made to the only two cases in Arkansas 
where a federal court concluded racial discrimination, 
and surprisingly enough these two cases came from one 
county. On the contrary, it can be shown that there 
have been many affirmations by the federal judiciary of 
constitutional jury selection in Arkansas. Dorsey v. 
State, 219 Ark. 101, cert, den., 342 U.S. 851; Haraway v. 
State, 203 Ark. 912, cert, den., 317 U.S. 648; Blade v. State 
215 Ark. 618, cert, den., 338 U.S. 956; Moore v. Henslee, 
276 F. 2d 876 (8th Cir. 1960); Moore v. State, 229 Ark. 
335, cert, den., 358 U.S, 946; Payne v. State, 226 Ark. 
910 reversed on other grounds, 356 U.S. 560.

Appellant then recklessly accuses criminal adminis­
tration and the executive branch in Arkansas with un­
constitutional discrimination. There is not one scintilla 
of evidence submitted by appellant or even a reasonable 
inference that a prosecutor, parole officer, or the Gov­
ernor has failed to give each defendant, regardless of 
race, impartial consideration. On the contrary the 
prosecutors each expressly denied that race was of any 
consideration. This is undisputed. The Governor has 
been extremenly lenient by not promptly scheduling ex­
ecution dates and permitting lengthy extensions of time, 
for example, appellants conviction was affirmed in May 
1963, but execution was not set until 1964.

As to the comment of successive forums of segre­
gated justice found on page 36 of appellant’s brief, ap­
pellee invites attention to Walton v. State, 232 Ark. 86 
334 S.W. 2d 657 (1960) where the Arkansas Supreme 
Court ignored the Negro attorney’s nine sentence brief, 
and found error on its own initiative reversing the Negro 
defendant’s murder conviction.



20

In support of all of these contentions, appellant er­
roneously relies upon Hernandez v. Texas, 347 U.S. 475 
and Smith, v. Texas, 311 U.S. 128. Appellant says it is 
not what public officials say, but what they do which is 
determinative of discrimination. The Supreme Court 
has held in those cited cases and many others, that general 
expressions cannot overcome a contrary fact, but there 
must, first be a showing of invalidity.

Some delight is taken by appellant in the fact that a 
witness for the State said “ Nigger” . Occasionally, it 
may be fashionable to write in dialects. Court reporters 
are sometime inclined to do so with disastrous results. 
Prime examples are found in this record. For instance 
at U.S. 232 the reporter recorded the statement of appel­
lee’s attorney as: “ I ’m gonna play surprised.”  It
can be stated with complete candor and confidence that 
counsel was not “ playing”  by any means, but rather 
“ plead surprise” . The record does not show other 
reference to “ Nigger”  during the trial, and it would be 
unlikely that the trial judge, much greater the Negro 
defense attorney, would permit the word without ob­
jection.

It is then noted that the Negroes who appear for 
jury service were either excused by the trial judge or 
peremptorily challenged by the prosecutor. The record 
again must speak. Actually some of the prospective 
Negro jurors effectively excused themselves. Surely, 
those persons challenged for cause were unsatisfactory 
for only one objection was noted by appellant’s trial 
attorney. In view of the responses to answers, the pros­
ecutor would have been foolish not to exercise a challenge 
on those persons. Moreover, it is not improper to chal­
lenge persons of a particular race. Hall v. United States, 
168 F. 2d 161 (D C. Cir, 1948), cert, den,, 334 U.S, 853,



21

It is argued that the prosecutor’s admonition to the 
jury was a guise to remind the jury that appellant was 
a Negro and his victim was white. In all fairness, it 
must be recognized that the jury was present and wit­
nessed the trial for three days. This information was 
hardly necessary. The remarks of the prosecutor were 
commendable. Appellant’s contention is so anemic that 
further remarks would complement it with merit where 
none exist.

At the conclusion of the argument, appellant urges 
that the imposition of the death penalty contravenes 
Amendment 8 to the United States Constitution as cruel 
and unusual punishment. This State has an identical 
provision. Ark. Const,, Art, II § 9. It is true that 
penologist and criminologist as well as law enforcement 
officials have a divergence of views as to the benefits to 
be derived from the existence of a death penalty for 
certain crimes, but the wisdom of the legislation does not 
concern this court.

Appellant relies upon the brief dissent found in 
Rudolph v. Alabama, 375 IT.S. 889. It must be noted 
that the three dissenting justices would only consider 
the death penalty improper where human life had not been 
“ threatened or taken” . It is not necessary to repeat 
here the violent circumstances concerning not only the 
life of the victim but the life of her ninety-year-old father 
as well. It will be remembered that in addition to the 
threats to take their lives, appellant inflicted serious 
injuries on them.

It is imperative to remember that in Garland County, 
where the crime was committed there has never been & 
capitol sentence for rape and only two men, a white and



22

an Indian have been sentenced to death. These were 
for murder. Under these circumstances, there can be 
no merit to appellant's argument.

m

Questions Concerning the Petit Jury and 
Waiver

A. The Selection and Composition of the Petit 
Jury Panel Met Every Statutory and Consti­
tutional Requirement.

Jury duty has been described by the Supreme Court 
of Arkansas as a right incident of citizenship, subject to 
statutory regulation. Buchanan cv. State, 214 Ark. 835, 
218 S.W. 2d 700 (1948). Every court jealously guards 
the constitutional guaranty of a fair trial by jury and 
due process of law. Anderson v. State, 200 Ark. 516, 
139 S.W. 2d 396 (1940).

It is presumed that a jury meets all constitutional 
requirements. The burden of the establishing discrim­
ination is upon the accused. Tarrance v. Florida, 188 
U.S. 519 (1903). The mere allegation of discrimination 
without supporting evidence is insufficient. Carter v. 
Texas, 177 U.S. 442 (1900). A jury is not required to 
have proportional representation of all ethnic groups 
of the community in order to assure equal protection of 
law, Virginia v. Rives, 100 U.S. 313 (1879). Inequality 
or disproportion of the number of the Negroes finally, 
selected as venireman does not in itself constitute dis­
crimination. Akins v. Texas, 325 U.S. 398 (1945). 
While a defendant has no right, constitutional or other­
wise, to even have his race represented on a particular 
panel, proportional racial limitation, as such, is forbidden. 
Cassell v. Texas, 339 U.S, 282 (1950). Simply stated,



23

the race of veniremen has no bearing and. should not be 
considered by the jury commissioners. Martin v. Texas, 
200 U.S. 316 (1906).

Of the three jury commissioners, one was a Negro 
and the other two were white. Cf. Moore v. Henslee, 
supra, 276 F. 2d 876 (8th Cir. 1960). The jury commis­
sions have been so composed in Garland County for a 
number of years (U.S. 47). Incidentally, the panel in 
question had been selected approximately two months 
before the crime was committed. Each of the jury com­
missioners were long time residents of Garland County. 
One lived in a rural community and operated a general 
grocery store. Another had been a Chevrolet dealer 
since 1936. The other commissioner lived in a predom­
inately colored area of Hot Springs and operated a 
barber shop in the Negro business community. Thus, 
the commissioners were eminently qualified to discharge 
their statutory obligations.

Traditionally, cases involving discrimination in jury 
selection have been illustrated most dramatically by re­
sorting to a statistical analysis showing the proportion 
of Negroes serving on the panel as opposed to those 
eligible for jury duty. This tactic possesses a valuable 
convincing quality. Here, appellant did not choose to 
use such an approach or appraisal for the record discloses 
that Negro participation on the jury was greater in pro­
portion than the Negro population. Maxwell v. Stephens, 
supra, 229 F. Supp., at 215.

A  study of the testimony of the commissioners, as 
well as the finally selected jury list, sustains that the 
commissioners were not concerned with the race of the 
jurors, but simply sought to select an impartial panel.



24

Appellant’s painful efforts to show otherwise were 
not only unavailing, but had a contrary result.

B. The Statutory Requirement of Identifying the 
Race of Electors in the Poll Tax Books is Con­
stitutional.

Although the original petition for habeas corpus and 
the petition for certificate of probable cause each contained 
five different allegations of discrimination, only two are 
treated by appellant for consideration for this Court. It 
is urged at Point III of appellant’s brief that, since the 
petit jury list, from which the trial jury was selected, 
indicated the race of the jurors and that the poll tax 
books contained designation of race, there was a depriva­
tion of constitutional rights.

Tncipiently, it must be noted that this portion of ap­
pellant’s brief, contains several mis-statements of the 
recoi’d.

It is stated at page 38 in appellant’s brief, that the 
jury commissioners selected prospective jurors “ from 
these poll tax books” . This is not true. The testimony 
of each of the three commissioners was too clear to be 
misinterpreted. Each commissioner recommended persons 
lie thought proper to serve as jurors (IJ.S. 93). These 
persons were individually discussed and approved or re­
jected by the jury commissioners as a group (U.S. 93). 
The poll tax records were then consulted to determine if 
the approved persons possessed a current poll tax receipt 
(IJ.S. 71,77, 92-93). The fact that this was the procedure 
used in the past was confirmed by one of appellant’s wit­
nesses, a former Negro jury commissioner (U.S. 171). 
How, under these circumstances, could the notation of 
race in the poll tax book possibly affect the deliberations 
of the commissioners after the person was approved?



25

Moreover, tlie identifying marks were so insignificant 
and unimpressive that none of the commissioners recalled 
their presence in the book they used (U.S. 55, 59, 77, 
90).

It is next asserted by appellant that the completed 
jury list was delivered to the circuit clerk with “ c ’s "  
noted after the names of Negroes. This, also, is untrue. 
All of the commissioners denied making the notations 
(U.S. 72, 73, 88, 95). The clerk testified that he could 
not recall if the list had any racial identification when 
he received it (U.S. 131), but explained that sometimes 
he indicated the race of the jurors (U.S. 132) so that this 
information would be available to lawyers, newspaper­
men, and other interested persons (U.S. 43, 49). Of 
course, some jury lists did identify the Negro jurors (U.S. 
48-50). It must be remembered that the jury list had 
been open to the inspection of the public for three years 
before the hearing in the district court. In fact, appel­
lant’s trial attorney testified that he studied this and many 
other jury lists. Obviously his present attorneys made 
an independent investigation of the same material. Who 
made the identifying marks, why and when, is a matter 
of mere conjecture and cannot be persuasive.

Appellant would have this Court believe that there is 
judicial authority that any racial identification would, 
in itself, condemn the jury list. This is, at the very least, 
misleading. Appellant relies extensively on the case 
of Avery  v. Georgia, 234 U.S. 559. Even a cursory study 
of that decision reveals that discrimination was concluded 
only after a finding that there was both a device of racial 
designation and discriminatory results. On the other 
hand, in Brown v. Allen, 344 U.S. at 480, there was a device 
of racial identification, but in the absence of finding 
actual discrimination, the conviction was affirmed. The



26

case of Strauder v. West Virginia, 100 U.S. 303, cited by 
appellant, was not decided on the basis of racial consid­
eration by jury commissioners, but solely on a statute 
which excluded members of the African race from serv­
ing as jurors.

A vain attempt is then made to show that the Arkansas 
statute requiring racial identification is unconstitutional. 
There, appellant relies on the ease of Hammi v. Virginia 
State Board of Elections, 230 F. Supp. 156 (E.D. Va. 
1964). This argument must also fail. In fact, that 
decision supports the position of appellee. There, it 
was stated:

“ Of course, the designation of race, just like 
sex or religious denomination, may in certain 
records serve a useful purpose, and the procure­
ment and compilation of such information by State 
authorities cannot be outlawed per se. For ex­
ample, the securing and chronicling of racial data 
for identification or statistical use violates no 
constitutional privilege. I f the purpose is legiti­
mate, the reason justifiable, then no infringement 
results. The infirmity of the provisions just 
mentioned lies in their mandate of separation of 
names-by race.”

With this language foremost, the statutes in controversy 
must be viewed.

The jury commissioners are required to select those 
individuals who meet the statutory qualifications. Ark. 
Stat. Ann. §§ 39-101, 39-206, and 39-208 (1947). In Ar­
kansas, only qualified electors may serve as jurors. Ark. 
Stat. Ann. § 3-104.2 (1947). An elector must possess a 
current poll tax. Amend. VIII, Ark. Const., Art. I ll, § 1. 
Similar requirements have met approval. Gibson v. Mis­
sissippi,, 162 U.S. 565 (1896); Brown v. Allen, supra, 344 
U.S. at 474, and 472 footnote 22.



27

The poll tax books are required to note the designa­
tion of the elector’s race. Ark. Stat. Ann. § 3-227 (b) 
(1947). The list of poll tax payers are compiled as a 
poll tax book, published and distributed to the election 
judges by the county board of election commissioners. 
Ark. Stat. Ann. § 3-118 (1947). There is no separation 
of names by race or different colored papers as reported 
in TIamm.

A perusal of the previously noted statutes makes it 
abundantly clear that, consistent with most requirements 
of voter registration, a person must give information, 
among other things, of his color. The obvious purpose 
of requiring this and other data is to assure a conclusive 
means of identification of the particular person and his 
eligibility to vote. The interest of the State is legitimate 
and justifiable. The practice of identifying persons by 
color has won approval by usage in almost every con­
ceivable means of compilation. If this statute is to be 
stricken, then likewise the identification of race on a 
drivers license would be unconstitutional. It is cheerfully 
admitted that this is an absurd conclusion, but it does 
point up the inherent weakness of appellant’s argument.

This Court has had the opportunity on two recent 
occasions to determine if the use of racial identification 
in poll tax books is per se unconstitutional. Bailey v. 
Henslee, 287 F. 2d 936, (8th Cir., 1961), cert. den. 368 
TJ.S. 877, and Henslee v. Stewart, 311 F. 2d 691 (8th Cir., 
1963) cert. den. 373 U.S. 902. This proposition was 
rejected in both cases. The convictions were reversed 
on the basis of an accumulation of nine circumstances, 
but perhaps most significantly because the jury commis­
sioners in those cases purposely included Negroes on the 
panel.



28

Tlie crux of appellant’s contention, at page 42 of his 
brief, would appear that it is virtually impossible to 
“ avoid knowledge of the race of prospective jurors". 
But knowledge of race has never been considered a vice. 
Bather, consideration of race is the criteria and that is 
not in any way synonymous with knowledge.

Paradoxically, cases of this nature are ordinarily 
attacked for the reason that the jury commissioners have 
not made an effort to become acquainted with the qual­
ified Negroes. It would be almost incomprehensible for 
jury commissioners to select, discuss, and approve per­
sons of “ good character, of approved integrity, sound 
judgment and reasonable information" and not know the 
race of the individuals. See Ark. Stat. Ann. § 39-206, 
39-208 (1947) supra. This is particularly true in a pre- 
dominentlv rural area (IT.S. 293, 294).

Appellant cannot find comfort in either the facts or 
the law and his contention is totally without merit.

C. Appellant Waived Any Objection to the Petit 
Jury Panel.

Although the district judge made a factual determ­
ination that there was no discriminatory effort, conscious 
or otherwise, practiced by the jury commissioners, ap­
pellant and his trial attorney effectively waived the is­
sue.

As a pure legal concept, waiver by a criminal de­
fendant is difficult to prove under the ride of United States 
ex rel Gold,shy v. Harpole, 263 F. 2d 71 (5th Cir. 1959) 
cert. den. 361 U.S. 838, as enlarged by Fay v. Noia, 372 
U.S. 391 (1963). In practice, proof of waiver is almost 
beyond the realm of possibility. One significant im­
pediment is the rule of privileged communication. Ark.



29

Stat. Ann. § 28-601 (1947). Another obstacle peculiar to 
this case is the substitution and replacement of the trial at­
torney by the appellate attorneys. The record discloses 
that prior to the hearing on the petition for habeas 
corpus, counsel for the appellee attempted to gain such 
information as was possible concerning the question of 
waiver of the issue of jury discrimination by taking the 
depositions of the appellant and his trial counsel. How­
ever, all of the significant questions asked the appellant 
and his former attorney were rejected as either incrim­
inating or privileged communication. An unfruitful 
effort was then made to require answers to the questions 
by appropriate motion, but due to lack of time, this was 
not pursued.

Unquestionably, this record sustains an excellent ex­
ample of waiver which meets and satisfies both the spirit 
and the letter of Fay v. Noia. It was shown that the 
trial attorney for appellant was infinitely aware of the 
procedure and the traditional grounds for moving to quash 
a petit jury panel on account of racial discrimination 
(U.S. 274-278). The attorney made a dedicated effort 
to discover any substantial basis to challenge the panel 
(U.S. 278-281, 298-303). After his exhaustive investi­
gation, appellant’s trial attorney discussed the composi­
tion of the petit jury panel with the appellant’s parents 
and discussed the entire preparation of the trial with 
the petitioner and his parents (U.S. 291-292). The trial 
attorney for appellant stated on cross examination that 
he discussed the jury with appellant, but not the motion 
to quash (U.S. 297-298). Of course, appellant denied 
that his attorney ever discussed the jury panel with him 
(U.S. 305). From the record, it can be fairly surmised 
that the jury panel was discussed not only with the 
parents, but with appellant himself.



30

It is a matter of record that the trial attorney filed 
motions for continuance, to change venue, remove the 
case to federal court, to quash the information, and to 
declare the penalty for rape invalid. The trial judge 
did not restrict the filing of any motion (U.S. 304). There 
was one real reason why a motion to quash was not filed. 
The petitioner and his family were personally acquainted 
with a substantial number of the petit jurors (U.S. 293- 
294). The use of the panel was apparently one of the 
tactics that appellant employed in the trial (U.S. 284). 
A request for a mere two week continuance would have 
put the ease in a new term of court with a new jury (U.S. 
282-283).

The trial attorney announced that the petit jury was 
satisfactory (U.S. 293). This fact attaches importance 
because until this time, a motion to quash would have 
been proper. Johnson v. Stale, 238 Ark. 15, 377 S.W. 
2d 865.

There can be no contention in this case that there is 
a hesitancy to challenge juries in Arkansas. On the 
contrary, this tactic appears to be quite popular in this 
jurisdiction, and is employed frequently by both white 
and Negro attorneys. Thus, this case is significantly 
different than United States ex rel Goldsby v. Harpole, 
supra.

It is sincerely urged, notwithstanding the abundance 
of evidence sustaining a valid and constitutional jury 
panel, that this Court confirm that appellant waived the 
right to object to his trial jury. Appellant cannot be 
described as an uneducated or unsophisicated defendant. 
He made average grades (B ’s, C ’s and D ’s) to high school 
when he quit for some reason, but continued his education 
in the service (U.S. 160, 161, 166, 185). Moreover, he



31

had been educated in criminal procedure by experience 
(U.S. 197, 198). It should be appropriate to paraphrase 
the often quoted language that testimony of nonwaiver 
expressed in general terms is insufficient to rebut. Reece 
v. Georgia, 350 U.S. 85 (1955). To conclude otherwise, 
would be an effective barrier which could never be over­
come.



CONCLUSION

The lengthy record confirms the liberal attitude of 
the district court towards appellant and his five attorneys 
of record. The exhaustive opinion rendered by the dis­
trict judge sustains the careful and studious considera­
tion given each issue raised by appellant.

The energetic endeavors of appellant and his seven 
appellate attorneys are certainly laudable, but this con­
viction survives standing on a firm foundation of justice 
sought and fulfilled.

The decision should be affirmed.

Respectfully submitted,

B ruce B en n ett  

Attorney General

J ack  L . L essenberry

Chief Assistant Attorney General

Attorneys for Appellee