Petition for Writ of Certiorari to the Supreme Court of Georgia

    w
i
d
e
n
 

is
 
L
L
 

LR
 
R
E
L
L
 
W
A
 

wi
d 

Li
k 

ms
i 

it
al
 

BR
: 

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

v.45 15 Ws se 

  

WILLIAM HENRY FURMAN, 

Petitioner, 

adh VANE 

STATE OF GEORGIA, 

Respondent. 

  

  

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA 

  

  

    
JACK GREENBERG 

MICHAEL MELTSNER 

JACK HIMMELSTEIN 

ELIZABETH B. DUBOIS 

10 Columbus Circle 
New York, New York 10019 

ANTHONY G. AMSTERDAM 

Stanford University Law School 
Stanford, California 94305 

B. CLARENCE MAYFIELD 
910 West Broad Street 

Savannah, Georgia 31401 

ATTORNEYS FOR PETITIONER 

or 

  
 



  

  

    

INDEX 

Citation to Opinions Below ——————m mmm 

TUL LEALCELON =m oem oe eran om cr do ec ee ei ee se er me mt et me me ee 

Questions Presented --—-—----- i a pm RE A  . hR 

‘Constitutional and Statutory Provisions Involved —-————=- 

BBL ITTY ws seers sa 5 se Ge Se cm 

How The Federal Questions Were Raised and Decided Below -- 

Argument 

I The Court Below Has Misapplied The Standards 
— QE Witherspoon V.~1llinois, -391-U.8..--510 

(1968), And Has Thereby Condoned The Denial 
To Petitioner Of A Fair Jury Trial On The 
Issue Of The Death Sentence. —==—remmmcemmcmcnee—- 

    

A. The Test Of Exclusion Applied By The Court 
Below Did Not Meet The Minimum Standards 
Required By The Constitution As Announced 

“In Witherspoon. =—————cccmmmmrcm——m————— me 
  

_B. The Court Below Erred In Approving Death 
Qualification Practices, Whose Consti- 

tutionality Raises The Question Expressly 
Reserved In Witherspoon. =—-—--—=———ce—eeeceeee—— 

  

1 Georgia's Practice Of Allowing Capital Trial 
Juries Absolute Discretion To Impose The 
Death Penalty, Uncontrolled By Standards 
Or Directions Of Any Kind, Violates The Due 
Process Clause Of The Fourteenth Amendmzsnt. ---- 

IIT Petitioner's Death Sentence Constitutes Cruel 
And Unusual Punishment In Violation Of The 

Eighth And Fourteenth Amendments To The 
Constitution Of The United States. ==—=—cemm——ee- 

Conclusion ———=— mmm . 

12 

18 

21 

25 

  
 



    

Ed 

  

Page 

Bell v. Patterson, 402 F.2d 394 (10th Cir. 1968) ----- 13 

Boulden v. ‘Holman, 394 U.S. 478 (1963) ‘mmr sims ——— 9,12 

Campbell v. State, Fla. 8, Ct. No. 35, 622 (6/11/69) ~~ 8 

Daniels v. State, 35 S.E.2d 362 (Ga. 1945) ————mmemeem 20 

Davis v. State, 440 S.W.2d 244 (Ark. 1969) ————mmmeme—em 8 

Hicks v. State, 196 Ga. 671, 27 S.E.2d 307 (1943) —--—-- 20 

McBurnett v. State, 206 Ga. 59, 55 S.E.2d 598 (1949)-- 19 

Miller v. State, 224 Ga. 627, .163 S.E.2d4,730 (1968) -- 8 

People v. Mallett, 244 N.E.2d 129 (111, 1969) =—mmemm- 8 

People v. Speck, 41 111.24 177, 242 N.E.24 208 

(I11. 1968) =——=—mm mmm em 8 

Pittman v. State, 434 S.W.2d 352 (Tex. Cr. App. 1968)- 8,13 

Scott v. State, 434 S.W.2d 678 (Tex. 1968) —-=—mm—m—ee- 8 

Smith v, State, 437 S.W.2d4 835 (Tex. 1968) —-=—-mmeeee 8 

Smith v. Texas, 311 U.S. 128 (1940) —-mmmemeeme eee 16 

State v. Aiken, 452 P.2d 232 (Wash. 1969) —-———ceeee- — 8 

State v. Crook, 221 50.24 473 (La. 1969) ——~ce—am—mwmm—- 8 

State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968) ---—-—- 8,13 

Trop v. Dulles, 356 U.S. 86 (1958) —mmmemeeemcmme es ——— 22 

Veney v. State, 345 A.2d 568 (Md. 1968) «——=—em=e—ae—a—- 8 

Williams v. Dutton, 400 P.24 797 {5th Cir. 1968) === 8 

Williams v. State, 46 S.E. 626 (1904) -wceecmcammaana=— . --20 

Witherspoon v. Illinois, 391 U.S. 510 
(1968) ——=—mmmm me 2,6,7,8,9,11,12,13,14,15,16,17 

STATUCTE?= 

Federal: 

20.8.0. GUIBT LT mene min iss iim so oe Be he ser ried me ein ee £2 

ii 

  
 



  

State: 
Georgia Code Ann, §26+1001: (1953). ~——e=awwwmmwmmen wns 2,21 

Georgia Code Ann. §26-1002 (1953) ~—m—memmmm————————— 2,21 

deorata Code Ann. §26-1005 (1968 Supp.) '=em=m=—=—==ce- 3,18,21 

Georgia Code Ann. §26-~1009 (1953) =wmmmmm—————- re mm 3,18,21 

Georgia Code Ann. §27-2302 (1963 SUDD) ~r===mdwmmmimmm 3 

Georgia Code Ann. §27-2512 (1953) —=—————mmmm mmm ———— 4 

Georgia Code Ann, §$59-806.-(1965) ~—e=s=ammwmmeatne——n- 8 

OTHER AUTHORITIES 

Bedau, Death Sentences in New Jersey 1907-1960, 19 : 

Rutgers L. Rev, 1, 9-11:{1964) —-—ew==mmmams==cen- 23   

HARTUNG, TRENDS IN THE USE OF CAPITAL PUNISHMENT, 284 
ANNALS 8 (1952) =mmmmmm— eee mmm mmm mmm mm 23 

MATTICK, "THE UNEXAMINED DEATH (1966)=—===——rm==neecn. 23 

PRESIDENT 'S COMMISSION ON LAW ENFORCEMENT AND ADMINI- 

STRATION OF JUSTICE, REPORT (The Challenge of Crime 

in a Free Society) (1967) 143 w=-=maienmmumm mms mmm 23 

Sellin, The Inevitable End of Capital Punishment, in 

SELLIN, CAPITAL PUNISHMENT (1967) 239-240 23 
    

U.S. Department of Justice, Bureau of Prisons, National 

Prisoner Statistics, No. 42, EXECUTIONS 1930-1967 

(June 1968) ——— meme me 23 

ZIESEL, SOME DATA ON JUROR ATTITUDES TOWARDS CAPITAL 

PUNISHMENT 7-8 (Center for Studies in Criminal Justice, 

University of Chicago Law School, 1968) =m==eer=e 15 

iii       
 



- 
in
 
R
E
 

B
R
 

SO
 

i 
3 

Ba
 

| 
{ 

{ 
H 

i 
+ 

i 

      

sg pee pe wa om 

SUPREME COURT OF THE UNITLD STATES 

OCTOBER TERM, 1969 

  

WILLIAM HENRY FURMAN, 

  

Petitioner, 

-.- 

STATE OF GEORGIA, : 3 

Respondent. 

  

PETITION FOR BRIT OF CERTIORART TO THE 
SUPREME COURT OF GEORGIA 

Petitioner prays that a writ of certiorari issue to review 

the judgment of the Supreme Court of the State of Georgia entered 

on April 24, 1969. 

CITATION TO OPINIONS BELOW 

The opinion of the Supreme Court of the State of Georgia 

is reported at 167 S.E. 2d 628 (1969) and is set out in 

Appendix A hereto, pp. la-2a, infra. 

JURISDICTION 

The judgment of the Supreme Court of the State of Georgia 

was entered on April 24, 1969 and is set out in Appendix B hereto, 

P. 3a, infra. Jurisdiction of this Court is invoked under 28 U.S.(.   
 



  

  

  

    

§1257(3), petitioner having asserted below and asserting here 

* deprivation of rights secured by the Constitution of the United 

States. 

‘ QUESTIONS PRESENTED 

l. Whether a prospective juror was improperly excluded 

from petitioner's jury in violation of the rule of Witherspoon   

v. Xllinois, 391. U.8.-:510 (1968)7 
  

2. Whether Georgia's practice of allowing capital trial 

juries absolute disgretion to impose the, death penalty, uncon- 

trolled by standards or directions of any kind, violates the Due 

Process Clause of the Fourteenth Amendment? 

3. - Whether punishment of death by electrocution pursuant 

to provisions of Georgia law for the crime of murder constitutes 

cruel and unusual punishment in violation of the Eighth and 

Fourteenth Amendments? 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED 

l. This case. involves the Eighth and Fourteenth Amendments 

to the Constitution of the United States. 

2. This case also involves the following provisions of 

Georgia Code Annotated: 

Ga. Code Ann. §26-1001(1953) 
  

26-1001. (59 P.C.) Definition; kinds.- 
Homicide is the killing of a human being, 
and is of three kinds-murder, manslaughter, 

and justifiable homicide. (Cobb, 783) 

Ga. Code Ann. §26-1002 (1953) 
  

26-1002. (60 P.C.) Murder defined.-Murder 
is the unlawful killing of a human being, 
in the peace of the State, by a person of 
sound memory and discretion, with malice 
aforethought, either express or implied. 

  
 



  

  

  
    

® @ 

Ga.Code Ann. §26-1005(1968 Supp.) 
  

26-1005. (63 P.C.) Punishment for murder: 
recommendation by jury.-The punishment for 
persons convicted of murder shall be death, 
but may be confinement in the penitentiary 
for life in the following cases: If the jury 
trying the case shall so recommend, or if the 
conviction is founded solely on circumstantial 
testimony, the presiding judge may sentence to 
confinement in the penitentiary for life. In 
the former case it is not discretionary with 
the judge; in the latter it is. When it is 

- shown that a person convicted of murder had 
not reached his 17th birthday at the time of- EE 
the commission-of the offense, the punishment 
of such person shall not be death but shall 

~—be imprisonment for life. 
Whenever a jury, in a capital case of homicide, 

shall find a verdict of guilty, with a recommenda- 
tion of mercy, instead of a recommendation of im-. 
prisonment for life; in cases where by law the -— 
jury may make such recommendation, such verdict- 
shall be held to mean imprisonment for life. If, 
in any capital case of homicide, the jury shall 
make any recommendation, where not authorized 
by law to make a recommendation of imprisonment 
for life, the verdict shall be construed as if 
made without any recommendation. (Cobb, 783. 
Acts 1875, p. 106; 1878-9, p. 60; 1963, p. 122.) 

Ga. Code Ann. §26-1009(1953) 
  

26-1009. (67 P.C.) Involuntary manslaughter defined. 
-Involuntary manslaughter shall consist in the 
killing of a human being without any intention to 
do so, but in the commission of an unlawful act, .or 
a lawful act, which probably might produce such a 
consequence, in an unlawful manner: Provided, that 
where such involuntary killing shall happen in the 
commission of an unlawful act which, in its conse- 
quences, naturally tends to destroy the life of = 
a human being, or is committed in the prosecution 
of a riotous intent, or of a crime punishable by 
death or confinement in the penitentiary, the 
offense shall be deemed and adjudged to be murder. 
{Cobh, 784). 

Ga. Code Ann. §27-2302 (1968 Supp.) 
  

27-2302. (1060 P.C.) Recommendation to mery .- 
In all capital cases, other than those of homicide, 
when the verdict is guilty, with a recommendation 
to mercy, it shall be legal and shall mean imprison- 
ment for life. When the verdict is guilty without  



  

  

c
e
 

ie
 

bad
 
i
 

ROS 
{ 

TO
RR
EY
 

3 
NT

S 
T
E
I
R
R
I
P
R
N
N
S
Y
 0 
OE

P 
SP
U 

    

a recommendation to mercy it shall be 
legal and shall mean that the convicted 
person shall be sentenced to death. However, 
when 1t is shown that a person convicted of 
a capital offense without a recommendation 
to mercy had not reached his 17th birthday 
at the time of the commission of the offense 
the punishment of such person shall not be 
death but shall be imprisonment for life. 
{Acts 1875, pp. 106; 1963, Pp+ 122,123.) 

Ga. Code Ann. §27-2512(1953) 
  

27-2512. Electrocution substituted for 
hanging; place of execution.- All persons 
who shall be convicted of a capital crime 
and who shall have imposed upon them the 
sentence of death, shall suffer such pun- 
ishment by electrocution instead of by 
hanging. : 

In all cases in which the defendant is 
sentenced to be electrocuted it shall be 

the duty of the trial judge, in passing 
sentence, to direct that the defendant 
be delivered to the Director of Corrections 
for electrocution at such penal institution 
as may be designated by said Director. How- 
ever, no executions shall be held at the old 
prison farm in Baldwin county. (Acts 1924, 
Pp. 195,197: Acts ‘1937-38; Extra.Sess., D. 
330.) 

  
 



  

  

    

STATEMENT 

This is a petition for writ of certiorari to review the 

judgment of the Supreme Court of Georgia, entered April 24, 1969, 

affirming petitioner's conviction and sentence of death. 

Petitioner was tried for the capital crime of murder in 

the Superior Couteae Chatham County, Georgia, on September 

20, 1968. One of the prospective jurors for petitioner's Luisi; 

Mr. Alvin W. Anchors, Sr., was eliminated for cause on the basis 

of a brief inquiry regarding his conscientious opposition to cap- 

ital punishment (R.289-290). 

At the close of petitioner's one day trial the issues of 

guilt and punishment were submitted to the jury which was given 

no instructions limiting or directing its absolute discretion, 

in the event of conviction, to impose a sentence of life or 

death. 

The jury found petitioner guilty of murder, without 

recommendation of life imprisonment (R.10), and he was according- 

ly sentenced to death by electrocution (R. 19). He appealed to 

the Supreme Court of Georgia which, on April 24, 1969 affirmed 

his eonvideion and sentence of death. 

on May 3, 1969 the Hon. W. H. Duckworth, Chief Justice of 

the Supreme Court of Georgia, stayed execution of the judgment. 

for a period of 90 days from April 24, 1969 in order to allow 

a petition for writ of certiorari to be filed in this Court. 

(R.424). 

  
 



      

~ HOW THE FEDERAL QUESTIONS WERE RAISED 
AND DECIDED BELOW 

At trial petitioner's counsel objected to the exclusion 

of juror Anchors because of his opposition to capital silane 

and further objected to Anchors' exclusion on the basis of his 

answers to the questions he was asked concerning such opposition 

(R. 292-293). The telal court found that Anchors was properly 

excluded for cause apparently because Anchors had stated that 

he thought his opposition to the death Seralty would "affect" 

his decision as to guilt (R. 290,294). 

Petitioner's Amended Motion for New Trial (R. 37-48) raised 

the three federal questions Presented } here, arguing that the 

exclusion of juror Anchors violated petitioner's Fourteenth 

Amendment rights as defined in Witherspoon v. Illinois, 391 U.S. 

2/ 
510 (1968) (R. 42-44); that the grant to the jury of uncontrolled 

    

discretion to choose a life or death sentence violated peti- 

tioner's Fourteenth Amendment rights (R. 45) ; and that peti- 

tioner's sentence of death constituted cruel and unusual pun- 

ishment in violation of the Eighth and Fourteenth Amendments 

(R. 41-42). This motion was denied by the trial court without 

opinion on February 24, 1969 (R. 49). 

  

1l/ Petitioner's counsel also objected to the exclusion of jurors 
on the grounds of their opposition to capital punishment in a 
written motion, denied without opinion by the Superior Court on 
September 20, 1968 (R. 17-18). 

2/ Petitioner argued that he was denied a fair trial on the 
guilt issue as well as the punishment issue by the exclusion of 
a scrupled juror.   
 



4 i 

  

Petitioner's Enumeration of Errors and Brief in the Supreme 

Court of Georgia (R. 410-413) again raised, among other claims, 

the questions presented to this Court: That petitioner's sentence 

bE death violated the United States Constitution in that it con- 

stituted cruel and unusual punishment, and had been imposed by 

a jury with uncontrolled discretion from which a scrupled juror 

had been improperly excluded. The Enumeration of Errors also 

alleged that "the Court erred in one and all of the respects set 

out in the amended Motion for a New Trial and for the reasons 

set forth thereon" (R. 411). 

The Supreme Court of Georgia denied petitioner's Witherspoon 
  

claim in the following language: 

A juror having been excluded for 
cause because he stated that his 
opposition to the death penalty 
would affect his decision as to 
a defendant's guilt, his exclusion 

| did not fall within the rule as 
laid down in Witherspoon v. Illinois, 

; 391'U.8--510 (88 SC 1770, 20. 15-24 
776), and the court 4id not err in 
excluding him for cause. There is 
no merit in the amended motion com- 
plaining that the exclusion violated 

: : the rule in the Witherspoon case, 
4 supra. (R. 414-415). 

    

i 
§ 

q 
£ 

| 
i 
i 
1 
4 
3 

: 

i 

  

The Court dismissed petitioner's ‘arguments ‘on uncontrolled jury 

discretion and cruel and unusual punishment even more briefly: 

The statutes of this State authorizing 
capital punishment have repeatedly been 
held not to be cruel and unusual punish- 
ment in violation of the Constitution. 
See Sims v. Balkcom, 220 Ga. 7(2) (136 
SE2d 766); Manor v. State, 223 Ga. 594 
(18), supra. Hence, there is no merit 
in this complaint. (R. 416-417). 3/ 

  

  

3/ Both the cases cited by the Georgia Supreme Court dealt 
specifically with both the issues of uncontrolled jury discretion 
and cruel and unusual punishment.       
 



  

o 

i 
| 
i 

= NN 

| 
i 

    
  

. courts believe that Witherspoon should be implemented. The result 

Miller v. State, 224 Ga. 627, 163 S.E. 24 730(1968). See also 

The Court concluded that, / "having considered every enumeration 

of error argued by counsel in his brief and finding no reversible 

  

error, the judgment is affirmed." (R. 418). 

ARGUMENT   

THE COURT BELOW HAS MISAPPLIED THE STANDARDS : pit 
OF WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968), 
AND HAS THEREBY CONDONED THE DENIAL TO PETITIONER 
OF A FAIR JURY TRIAL ON THE ISSUE OF THE DEATH 
SENTENCE. 

    

A. The Test of Exclusion Applied - by the Court Below 
Did Not Meet the Minimum Standards Required By 
The Constitution As Announced in Witherspoon.   

The selection of petitioner's jury took place in September 

2/ 
1968 -- after this Court's decision in Witherspoon. It is 

therefore of particular significance in indicating how the lower 

  

below is symptomatic of the restrictive and unsympathetic reading 

that Witherspoon has been given by virtually every state court 

: 4a/ 
that has considered it, and of the effective stultification of 

  

that decision which presumably will continue until this Court" 

clarifies Witherspoon's meaning and insists upon its enforcement. 
  

  

4/ Prior to Witherspoon, Georgia practice authorized the exclusio¢n 
of jurors who stated that they were conscientiously opposed to 
capital punishment, pursuant to Georgia Code Ann. §§59-806. This 
practice was declared unconstitutional, under Witherspoon in 

  

  

Williams v. Dutton, 400 F.2& 797(5th Cir..1968).   

4a/ See, e.g., Davis v. State, 440 S.W. 2d 244 (Ark. 1969); 
Campbell v. State, Florida Supreme Court, No. 35,622 (June 11, 
1969) ; People v. Speck, 41-111. 24: 177, 242. N.E.24 208 (111. 
1968); People v. Mallett, 244 N.E. 24 129 (Ill. 1969); State wv. 
Crock , 221 So. 24 473 (La. 1969); Veney v. State,-245 A. 24568 
(Md. 1968); State v. Mathis,52 N.J. 238, 245 A. 24 20 (1968); 
Pittman v. State, 434 S.W. 2d 352 (Texas 1968); Scott v. State, 

Fn — 

434 S.W.24 678 (Tex. 1968): Smith v. State,437 5. W. 24 835{Tex. 

  

  

  

  

  

  

1968); State v. Aiken, 452 P. 24 232 (Wash. 1969).  



    

. » 

It is essential that the Court act now not merely in the interests 

of those who have been and will be condemned to die by unconsti- 

tutionally selected juries,but also in the interests of the 

. orderly administration of justice. Witherspoon, which this Court   

reaffirmed in Boulden v. Holman, 394 U.S. 478 (1969) held that 

no sentence of death could constitutionally be imposed by a 

jury from which prospective jurors had been excluded for opposi- 

tion to the death penalty unless, at the least, the excluded 

“jurors had made 

    
 



  

i 

; 

i 

i 
i 
4 
i 
i 
i i 

1 

    

 . ® 

"unmistakably clear (1) that they would 
automatically vote against the imposition 
of capital punishment without regard to 
any evidence that might be developed at 
the trial of the case before them, .or (2) 

  

J that their attitude toward the death penalty 
would prevent them from making an impartial 
decision as to the defendant's guilt. (391 
U.s., at 522-23, n. 21). (emphasis in original) 

The court below held that juror Anchors was properly ex- 

cluded on the basis of his statement that his opposition to the 

death penalty wouldraffect his decision as to a defendant's 
.5/ 

guilt. The relevant testimony follows: 

MR. BARKER [counsel for the State]: 
  

Do you think that your attitude 

toward the death penalty would prevent you 

from making an impartial decision as to 

the defendant's guilt ? 

MR. ANCHORS: (Inaudible) 
  

MR. BARKER: Pardon me, sir? 
  

MR. ANCHORS: I said I am opposed -- 
  

MR. BARKER: Would this opposition to the death 
  

penalty affect your decision as to a defendant's 

guile? 

MR. ANCHORS: I think it would. 
  

MR. BARKER: I would ask that he be stricken for 
  

cause, Sir. 

THE COURT: All right; have a seat, Mr. Anchors. 
  

(R. 290) 

  

5/ This was apparently the basis of the trial court's ruling 
as well. (R. 290,294). 

w LOS 

  
 



      

This exchalge cannot justify exclusion for cause under 

Witherspoon. 
  

adequately to distinguish the 

It is extremely likely that a 

and that a statement that his 
| 

his decision as to guilt would be premised on this false assumptio 

Juror Anchors' answer might well have been different if he had 

been fairly informed that, under Georgia law, the jury is free, in 

a capital trial, to impose a life sentence rather than a death 

sentence upon a guilty defendant, for whatever reason it chooses, 

or for no reason at all. (See 
¢ 

it is .essential at least that 
  

penalty is not mandatory upon 

they have complete discretion 

fendant to life or death. 

The above inquiry is further inadequate as a basis for con- 

stitutional disqualification because juror Anchors' answer was 

impermissibly equivocal -- he 

thought his opposition to the 

decision. Neither the prosecution nor the court pressed him 

further on the point, to determine whether, despite his attitude 

toward the death penalty, he could do his duty as a juror to 

decide impartially between the defendant and the State on the 

issue of guilt. In sum, this 

that juror Anchors made "unmistakably clear . . . 

[his] attitude toward the death penalty would prevent . . 

from making an impartial decision -as to the defendant's quire,» 

The finding of the 

requirements makes 

Juror Anchors 

capital punishment 

punishment in a case regardless of the evidence." 

"I believe I would." (R. 

on by the court below nor, apparently, by the trial court to 

=3] - 

In the first place, the form of the inquiry fails 

court below that it did satisfy Witherspoon's 

a mockery of that decision. 

was also asked whether his opposition to 

meant that he "would refuse to impose capital 

289-90). 

gullt issue from the penalty issue. 

juror would assume from this inquiry 

Yes? os em 
upon a finding of guilt, 

conscientious opposition might affect 

Part II, infra) .Under Witherspoon 
  

jurors be informed that the death - 

a finding of guilt and that instead 

as to whether to sentence the de- 

finally admitted only that he 

death penalty would affect his 

exchange cannot justify a finding 

that. . 

[him] 

  

He responded 

This exchange was not relied   
 



» » 

  

exclude him. And certainly it cannot justify exclusion under 

Witherspoon standards. The question is vague and ambiguous and 
  

could well be interpreted as asking whether the juror might re-, 

fuse to impose the death penalty where the evidence showed the 

defendant to be guilty, in which case the juror's answer was 

perfectly proper. Certainly this question, and Anchors’ 

sduivoaal response, failed to show that he would never in any 

type of case be willing to Surdas the death penalty. (See 

Eculden Vv. Holman, 394 U.S. 478 (1969); still less did it make 

  

unmistakably clear" that he "would autdmatically vote against 

1 ; the imposition of capital punishment" (Witherspoon v. Illinois, 
    

supra, 391 U.S. at 522-23,n. 21) and would be unwilling even to 

consider its imposition regardless of the circumstances of a 

| particular case before him. 

B. The Court Below Erred in Approving Death Qualification 
Practices, Whose Constitutionality Raises The Question 
Expressly Reserved in Witherspoon. 

  

S
d
 

b
m
 

AR
 

te 
08 

Even if the exclusion of juror Anchors were outside the 

express condemnation of Witherspoon, the death-qualifying 
  

practice employed to excuse him for cause raises the question 

  

reserved in Witherspoon: Whether by any standard, jurors 

| can be excluded in capital cases merely because of the strength 

of their opposition to or conscientious scruples against the 

death penalty. 

Petitioner submits that the logic of this Court's opinion 

  

in Witherspoon makes clear that the Constitution will countenance 

no death-qualifying of capital juries, however limited. 

-— 13       
 



  

That this issue be considered now by this Court is crucial, 

for not only have the lower state and federal courts often 

vastly limited what appeared to be the clear meaning of the | 
; 

Witherspoon holding, but they have chosen to interpret this 
  

Court's reservation of the question raised by the narrower 

form of death-qualifying practices as a constitutional valida- 

6/ 
tion of those practices. They have so read Witherspoon even 

  

though this Court carefully limited the issue before it: 

"The issue before us is a narrow 
one. It does not involve the right 

| of the prosecution to challenge for 
‘ : cause those prospective jurors who 

state that their reservations about 
capital punishment would prevent 
them from making an impartial decision 
as to the defendant's guilt. Nor does" 
it involve the State's assertion of a 
right to exclude from the jury in a 
capital case those who say that they 
could never vote to impose the death 
penalty or that they would refuse even 
to consider its imposition in the case 
before them. (391 U.S., at 513-14) 
(emphasis added). 

  

  

The Court's opinion leaves no doubt that Witherspoon should not 
  

  | be read to validate constitutionally those tests and practices 

of exclusion that fall outside its specific condemnation. 
  

"We repeat, however, that 
nothing we say today bears upon 

s the power of a State to execute: 
| a defendant sentenced to death by 

—- a jury from which the only venire- 
men who were in fact excluded for 
cause were those who made unmistakably 
clear (1) that they would automatically 
vote against the imposition of capital 
punishment without regard:-to any evi- 
dence that might be developed at the 
trial of the case before them, or (2) that 
their attitude toward the death penalty 
would prevent them from making an impartial 
decision as to the defendant's guilt." 
{¥8., at. 522-23, n. 21.) 

  

  

  6/ B.g., Bell v. Patterson, 402 F.-24 394 (10th Cir. 1968); 
State v. Mathis, 52 N.J. 238, 245 A. 24 _20:(1968); Pittman'v. 
State, 434 sS.W. 24 352 (Tex.Cr.App. 1968).See also the cases 
cited in n. 4a, supra. 

SO       
 



  

  

And the Court avoided even the acceptance of arguments which 

might support the narrower sort of death-qualification practice. 

: If the State had excluded only 
those prospective jurors who stated 
in advance of trial that they would 
not even consider returning a verdict 
of death, it could argue that the re- 
sulting jury was simply "neutral" with 
respect to penalty. (Id. , at 520) 
(emphasis added). 

Not only does Witherspoon not validate the narrow forms 
  

of |death-qualification, but its logic leads directly to the 

conclusion that wherever state law leaves the death penalty 

to the jury's unfettered discretion, no system of excusing 

prospective jurors can be consistent with a defendant's right... 

to a representative jury on the determination of the death 

sentence. 

We say this for several reasons. First, Witherspoon 
  

recognizes that where the jury has broad discretion in choosing 

between life and death, its decision is no more than the re- 

flection of the conscience of the community,and it must be no 

less than a reflection of the conscience of the total community 

" A man who opposes the death 
penalty, no less than one who favors 
it, can make the discretionary judgment 
entrusted to him by the State and can 
thus obey the oath he takes as a juror. 
But a jury from which all. such men have 
been excluded cannot perform the task 
demanded of it. Guided by neither rule 
nor standard, 'free to select or reject 
as it [sees] fit, ' a jury- that must choose 
between life imprisonment and capital pun- 
ishment can do little more =-- and must do 
nothing less -- than express the conscience 
of the community on the ultimate question 
of life or death. Yet, in.a nation less 

-ila       
 



  

{ 
§ 
| 

i 
3 

i 

| 

x 

i 

1 
= 

    

than half of whose people believe 
in the death penalty, a jury composed 
exclusively of such people cannot speak 
for the community. Culled of all who 
harbor doubts about the wisdom of 
capital punishment -- of all who would 
be reluctant to pronounce the extreme 
penalty -- such a jury can speak only 
for a distinct and dwindling minority." 
{391-U.8., at 519-20.) 

While the Court needed to have been concerned here only with 

those who remain eligible for capital juries after the sort of 

L 

  

~brqadside death-qualification condemned in Witherspoon, the same 

-can| be said of capital ‘juries from which are excluded those who 

would never vote for the death penalty. Of those who would be 

excluded under the broader test, it appears that more than 

one-half would also be excluded even after more meticulous voir 

dire examination designed to eliminate only veniremen who are 

unalterably unwilling to vote the death penalty in any case. 

Zeisel, Some Data on Juror Attitudes ‘Towards Capital Punishment 
  

7-8 (Center for Studies in Criminal Justice, University of 
7/ 

Chicago Law. School, 1968). It can thus be said of a jury 

death-qualified by this narrower, stricter process -- as was 

said of the jury in Witherspoon -- that it "can speak only for 
  

a distinct and dwindling minority. {391 U.85., at 520). 

  

7/ Of the persons who,, in a national poll conducted by the 
Gallup Organization, answered affirmatively that they had "con- 
scientious or religious scruples against the death penalty," 

“Professor Zeisel found that 38% would nonetheless vote. for the 

death penalty "reluctantly, if there were no mitigating circum- 
stances," or if it were a horrible murder and a most terrible 
murderer." Another 3% answered "don't know." And 53% who ad- 
mitted to scruples against the death penalty stated that they 
would in. no case vote the death penalty. This group, then, 
would be struck from the jury even after the more meticulous 
and narrow voir dire. 

  

  
 



  

] 

; 
4 

    

Second, the rationale of Witherspoon suggests that any 
  

death qualification procedure unjustifiably distorts the con- 

stitutionally requisite representativeness of the jury that sits 

to determine the penalty issue. Although the vice condemned in 

Witherspoon is expressed in terms of the jury being "stacked,"   

Or -& "hanging Jury," id., at 523, the concern expressed by these 

phrases connotes not merely unfairness, but unbalance. A deck 

or a jury is "stacked" by over-inclusion, over-representation 

of one type, with consequent under-representation of another 

or others. And a "hanging jury" is not seen to be so in 

absolute but in relative terms -- it is a jury more prone than 

most to-kill. We take it that no defendant could complain of 

a "hanging jury" chosen by the luck of the draw and fairly 

representative of a "hanging community." What Witherspoon   

condemns is an unrepresentatively, a disproportionately, death- 

prone jury =- one chosen by a process that skews and distorts 

the community character of the jurors with regard to the vital 

penalty question. | 

Witherspoon thus confirms that what is wrong with a rule 
  

excusing for cause a class of veniremen characterized by. their 

particular views on the subject of the death penalty is that the 

process renders the remaining jurors unrepresentative; and that 

such a rule affronts the "established tradition in the uso of 

juries as instruments of public justice [which has’ now. become - 

a constitutional command] that the jury be a body truly rep= 

resentative of the community." Smith v. Texas, 311 U.S. 128, 

130 (1240). The point is no less valid if a narrower, rather 

than a broader, standard is employed to test the nature of the 

venireman's views that work his disqualification. The State's 

  
 



      

. 9 

justification for a jury selection process which makes the Suvy 

unrepresentative is also essentially the same for all forms 

and species of death-qualifying procedure: that the disqualified 

jurors "cannot be relied upon to vote for [capital punishment] 

. « «. even when the laws of the State and the instructions of 

the trial judge would make death the proper penalty." Witherspoon, 
  

supra, 391 U.S. 510, at 518-19. But this Court flatly rejected 

that supposed justification, and for reasons not limited to the 
8/5: 

holding in Witherspoon. Illinois' asserted purpose for exclud- 
  

ing scrupled jurors was rejected not alone because the state's 

exclusionary practice went beyond the necessities of that pur- 

pose, but on the broader constitutional logic that a capital 

trial process which gives the jury limitless discretion to 

sentence to life or death COmpOrts no sufficient justification 

for excusing jurors on the sole ground that they will exercise 

that discretion on the grounds of principle. "A man who opposes 

the death penalty . . . . [and, we add, one who will never vote 

for it], can make the discretionary judgment entrusted to him 

by the State and can thus obey the oath he takes as a juror." 

321 U.S., at 519. He can follow the law; he is told to exercise 

his discretion, and he will do so as well and as surely in 

accordance with his conscience as the next man. 

  

(oe
 

bn
, "But in Illinois, as in other States, the 
jury is given broad discretion to decide 
whether or not death is 'the proper penalty'" 
in a given case, and a juror's general views 
about capital punishment play an inevitable 
role in any such decigion.™ (391 U.S8., at 
519.) 

<7 =~   
 



        

ey 

GEORGIA'S PRACTICE OF ALLOWING . 
CAPITAL TRIAL JURIES ABSOLUTE : 
DISCRETION TO IMPOSE THE DEATH 
PENALTY, UNCONTROLLED BY STAN- 
DARDS OR DIRECTIONS OF ANY KIND, 
VIOLATES THE DUE PROCESS . CLAUSE 
OF THE FOURTEENTH AMENDMENT. 

Georgia law grants the jurors in a murder trial the power 

to choose between a sentence of life imprisonment and the death 

S/ : 
penalty. Neither the statutes nor the cases define any standards 

guiding the exercise of this power. Accordingly the court below _ 

10/ 
gave the jury no guidance in its charge. Indeed it would 

  

9/ Ga. Code Ann. §26-1005 (1968 Supp.) provides that the penalty 
for murder (by persons 17 years of age and older) shall be death 
unless the jury recommends life imprisonment in which case it 
shall be life. (Similar provisions apply for all other capital 
crimes. See Ga. Code Ann.-.§27-2302 (1968 Supp.):; Ga. Code .Ann. 
(1953 and 1968 Supp.)§§26-801 (treason); 26-903 (insurrection); 
26-1007 (killing in revenge); 26-1009 (felony where death is 
natural consequence) ;26-1103 (foeticide) ;26-1302 (rape) ;26-1603 
(kidnapping for ransom); 26-1701 (stabbing causing death); 26-2206 
(arson causing death); 26-2502 (robbery by force or use of offen- 
sive weapon); 26-4007 (false witness causing death); 26-5203 (fight- 
ing duel where death results) ;26-5401 (mob violence where death 
results); 26-7314 (death caused by wrecking train) .) a= 

The judge may alter the jury's decision only when the murder 
conviction is founded solely on circumstantial testimony, and 
the jury has not recommended life, in which event the judge may 
sentence the defendant to life imprisonment. This provision is 
significant in indicating a legislative judgment that. circumstan- 
tiality of evidence is a factor relevant to the decision whether 
death is an appropriate penalty. Yet the jury is not even told 
to consider this factor when making its choice as to life or 
death. 

10/ : I charge you that the punishment for murder is 
death by electrocution, but.you, the jury, have 
the right in your discretion to recommend him to 
the mercy of the Court and fix the punishment for 
life, either of which actions by you would be bind- 
ing upon the Court. The Jury does not have to give 
any reason for its action in fixing the punishment 
at life or death. It does not even have to find: 
that there were extenuating circumstances. The 
punishment is an alternative punishment and may 
be one or the other as the jury sees fit. (R.404)  



      

® » 

have been improper under Georgia law for the court to have 

attempted to instruct the jury regarding the exercise of their 

discretion. Juries may, under Georgia law, decide between life 

11/ : 
and death for any or for no reason. McBurnett v. State, 206 

  

Ga. 59, 55 S.E. 2d 598,599 (1949). The choice is"a matter solely 

  

10/ cont'd. 

When the jurors returned to ask whether they could "render a 
verdict, leaving it tothe discretion of the cork .... ." 
the court interrupted "No, Sir. 1 have given you the forms 
of| the verdicts. It's up to the jury to determine." (R. 405). 

11/ The record in this case provides an illustration of the 
darigers of such untrammelled discretion. The transcript of the 
voilr dire in another criminal trial was made part of the record 
in petitioner's case. During the voir dire the following ex- 
change took place: 

Q You know - the law says that all 

persons charged with crime are 
entitled to equal treatment. By 
that it means that it would be your 
duty as a juror if you found the 
defendant guilty or in determining 
whether he's guilty or not, if you 
did find him guilty to impose the 
same punishment, no more or no less, 
if he were a white man under similar 
circumstances - do you agree to this? 

Ail Yes, Sir. 

MR. RYAN [Solicitor General of Chatham 
County] : I am going to object to that, 

sir, because it's not a proper question. 

  

THE COURT: 1 sustain your objection to it. 
  

MR. RYAN: The law gives the juror the privi- 
lege . . in murder cases, for instance -- 
no-reason at all to disregard the death 
penalty and impose life imprisonment. That's 
why -I make the objection -- the same set of 
circumstances and the jury can do two 
different things. (R. 241) 

  

- 19 = 

  
 



  

in their discretion, which is not limited or confined in any 

.case." Williams v. State, 46 S.E. 626 (1904). 
  

"The jury in determining whether 

or not to recommend mercy is not con- 

trolled by any rule of law, nor could 

the court under any circumstances in- 

struct them as to when they should, or 

should not, make such a recommendation. 

They may do so with or without a reason, 

and they may decline to do so with or 

without a reason. It is a matter wholly 

{ within their discretion." (Hicks v. State, 

196. ga. 671, 27 8.2. 24 307,°309:(1943Y. 

And| again, in Daniels v. State, 35 S.E. 3d 362, 363 (1945) the 

Supreme Court of Georgia upheld a charge. that the jury's choice 

could be made "with or without reason, arbitrarily, just as they 

might see fit . . ." 

Petitioner challenges the Georgia practice described above 

of permitting the trial jury absolute discretion, uncontrolled 

by standards or directives of any kind, to impose the death 

penalty as a violation of the Due Process Clause of the Fourteenth 

Amendment. This Court has granted review on the identical ques- 

tion in Maxwell v. Bishop, Oo. T. 1968, No.. 622. In addition, 

  

a score of petitions for certiorari raising the same 

federal constitutional claim involved in this petition have 

been filed with this Court and are now pending. E.g., Childs 

v. North Carolina, O. T. 1968, No. 1326 Misc.; McCants v. Alabama, 
  

O. T. 1968, No. 937 Misc.:; Johnson v. Virginia, O. T. 1968, No. 
  

307 Misc.:; Forcella v. New Jersey, O. T. 1968, No. 947 Misc.; 
  

  

Anderson et al., v. California, O. T. 1968, No. 1643 Misc. 
  

  

EE       
 



et ® @ 

  

Petitioner's views on the merits of this question are 

fully discussed in the Brief for Petitioner filed in Maxwell 

» v. Bishop, supra, at pp. 6-9,11-65, and therefore, rather than - 
  

rehearse those arguments here, we respectfully refer the Court 

to that brief. We add only that, should the Court decide the 

Maxwell case (and the other cases raising this issue noted 

supra) on other grounds, certiorari should be granted here 

so that this Court can decide whether a death penalty determina- 

tion made by a jury unguided by any legal standards comports 

with the Constitution -- a question affecting the lives of 

virtually all of the more than 400 condemned men on the death 

rows of this Nation. 

11x 

PETITIONER'S DEATH SENTENCE CONSTITUTES 
CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION 
OF THE EIGHTH AND FOURTEENTH AMENDMENTS 
TO THE CONSTITUTION OF THE UNITED STATES. 

: Petitioner challenges the death penalty as administered in 

Georgia for the crime of A a violation of the Eighth 

and Fourteenth Amendment prohibitions ‘against cruel and unusual 

punishment. This Court granted review last term in Boykin v. 

Alabama, O0.T. 1968, No. 642, which raised the question of the 

application of the cruel and unusual prohibition to the death 

penalty for the crime of robbery. Although the case was ulti- 

mately decided on other grounds, 89 S.Ct. 1709 (1969), the issue 

  

12/ Under Georgia law there are no degrees of murder -- and all 
murder is capital, Ga.Code Ann. §§26-1001(1953), 26-1002 (1953), 
26-1005 (1968 Supp.), 26-1009(1953). - The other capital crimes 
in Georgia are listed supra at n. 9, p. 18. = 

«21%       
 



      

13/ 
was fully briefed and argued there. Considerations similar 

to those briefed in Boykin govern the application of the Eighth 

prohibitions to the death penalt o.. the death pen Y 

murder in Georgia. Petitioner respectfully refers the Court to 

the arguments made there, which will be briefly summarzed here: 

It is petitioner's contention, in sum, that his sentence of death 

constitutes a cruel and unusual punishment because it affronts 

contemporary standards of decency, universally felt, that would 

condemn the use of death as. a penalty for the crime of murder 

if| such a penalty were uniformly, regularly and evoihanzedly 

2oglied either to all those Sully of murder or to any non- 

arbitrarily selected sub-class thereof. 

| In the first place, far from being "widely accepted," 

Trop Vv. Dulles, 356 U.S. 86, 99 (1958), the death penalty today 

is with rare public unanimity rejected and repudiated. 

  

13/ See Brief for the NAACP Legal Defense Fund and the National 
Organization for the Rights of the Indigent, as amici curiae, 

PP. 24-61. 
  

-i37 

  
 



      

All informed observers of the death penalty agree in 

describing a world-wide trend toward its disuse hit is * 

nothing short of drastic. See UNITED NATIONS 81-82,96-97; SELLIN 

(1959) 4-14; MATTICK, THE UNEXAMINED DEATH (1966) [hereafter glted 

as MATTICK]5-6; Hartung, Trends in the Use of Capital Punishment, 
  

  

284 ANNALS 8 (1952); Sellin, The Inevitable End of Capital Pun- 

ishment, in SELLIN, CAPITAL PUNISHMENT (1967) 239-240; Bedau,   

Death Sentences in New Jersey 1907-1960, 19 RUTGERS L.REV. 1, 
  

9-11 (1964). In the United States, the «decreasing trend of execu- 

tions has been especially dramatic. The National Crime Commission 

recently noted that: 

"The most salient characteristic of 
capital punishment is that it is in- 
frequently applied . . .[A]ll available 
data indicate that judges, juries and 
governors are becoming increasingly 
reluctant to impose or authorize the carry- 

ing out of a death sentence." (PRESIDENT'S 
COMMISSION ON LAW ENFORCEMENT AND ADMIN- 

ISTRATION OF JUSTICE, REPORT (THE CHALLENGE 

OF CRIME IN A FREE SOCIETY) (1967) 143.) 

The extent to which this is true appears upon inspection of the 

highly reliable figures on executions maintained by the Federal 

Bureau of Prisons since 1930. Its latest cumulative report 

shows that 3,859 persons were executed under civil authority 

in the United States between 1930 and 1967. UNITED STATES 

DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, NATIONAL PRISONER 

STATISTICS, No. 42, Executions 1930-1967 (June 1968) [hereafter 
  

cliced as NPS(1968)], p. 7. Of these 3,859, only 191 were executed 

between 1960 and 1967; only 25 during the years 1964-1967. Ibid. 

The trend is shown quite adequately by setting out the figures 

for the number of executions during each of the following rep- 

resentative years: 

i033 o   
 



      

® ® 

Total Number of Executions 

in the United States 

1930 - 155 

| 1935 - 199 

1940 os 124 

1945 - 117 

1950 - 82 

1988. > = 76 

; 1960 - 56 : 

1961 - 42 

1962 - 47 

1963 — 21 

1964 - 15 

1965 - 7 

1966 -— i 

1967 - 2 

During the calendar year 1968, and oe far in 1969, there have 

been no executions in the United States. There have been no 

executions in Georgia since 1964. 

Of course, the penalty remains on the statute books, but 

we submit, only because of the rarity and arbitrariness with 

which it is applied. It is a matter of history that public 

acceptability of the death penalty has been maintained only 

by allowing discretion in capital sentencing -- discretion 

which, as argued in part II, supra, is wholly arbitrary. Further, 

the available evidence indicates that the death penalty has in 

fact been arbitrarily applied. In the first place arbitrariness 

is an almost necessaxy result where the death penalty is imposed 

with such extreme rarity. Secondly, the statistics and studies 

- 2   
 



- ~ Ls 

| 

  

14/ 
provide persuasive evidence of class and racial discrimination. 

.The death penalty is no part of the regular criminal-law machinery 

of Georgia or of the nation. It is a freakish aberration, a 

rare, extreme act of violence, visibly arbitrary, probably 

racially discriminatory =-- a penalty reserved for wholly arbitrary 

application because, if it were regularly used it would affront 

universally shared standards of public decency. Such a penalty-- 

not Law, but Terror -- is the instrument of totalitarian govern- 

ment. It is a cruel and unusual punishment, forbidden by the 

Eighth Amendment. 

CONCLUSION 

Petitioners pray that the petition for a writ of certiorari 

be granted. 

Respectfully submitted, 

JACK GREENBERG 

i MICHAEL MELTSNER 

i JACK HIMMELSTEIN 

1 ] - ELIZABETH B. DUBOIS 

10 Columbus Circle 
New York, New York 10019 

i 

| 

| 
1 
1 

4 
4 

| 
§ 
i i 

ANTHONY G. AMSTERDAM 

1 Stanford University Law School 
Stanford, California 94305 

B. CLARENCE MAYFIELD 

910 West Broad Street 

Savannah, Georgia 31401 

Attorneys for Petitioner 

  

14 / We will not attempt to outline here the available evidence, 
but it is interesting to note that over 80% of the people who have 
been executed in Georgia since 1930 have been Negro.       
 



  

I 

APPENDIX A 

Opinicn Of The Court Below 
v re cs tt 3 ni Sn Brn 

628 Ga. 

William Henry FURMAN 

: Ys 

The STATE. 

No. 25163. 

_ | Supreme Court of Georgia. 

April 24, 1969. 

Defendant was convicted in the Supe- 

rior Court, Chatham County, Dunbar Har- 

rison, J., of murder and he appealed. The 
Supreme Court, Duckworth, C. J., held that 

excluding for cause juror who stated that 

his opposition to death penalty would af- 

fect his decision as to Sefendant’s guilt 

_ was not error. 

Affirmed 

I. Jury ¢=108 

Excluding for cause juror who stated 

that his opposition to death penalty would 

affect his decision as to defendant’s guilt 

was not error. 

2. Criminal Law €=2412.2(3) 

Evidence of defendant’s statements in 

regard to crime charged was properly a 

mitted where trial court found that detent. 

ant’s constitutional rights were adequately 

explained to him at time of arrest and that 

he thereafter freely and voluntarily and 

knowingly made the statements. 

3. Criminal Law ¢=339, 394.4(9) 

- Extrinsic evidence of fingerprints and 

pistol obtained after arrest should not have 

been suppressed where defendant had been 

adequately apprised of his constitutional 

rights. 

4. Criminal Law ¢=1213 

Statutes authorizing imposition of cap- 

ital punishment do not violate constitution- 

al proscriptio 3 of cruel and unusiral pun- 

ishment. .. 

  
- 

aad 

  

167 SOUTH EASTERN REPORT 

PE SS AE rt tle. rs St. melt. Po 0 Aine 

ER, 2d SERIES 

5. Arrest &=70 

Detention or imprisonment beyond 48- 

hour statutory requirement does not render 

jury verdict after indictment illegal or 

void. Code, § 27-212, 

6. Criminal Law ¢=228 i 

Fact that commitment hearing was not 

held until four days after arrest did not, 

where no secret inquisition or interrogation 

was claimed, fender subsequent Bily ver- 

dict void. Code, § 27-212. 

7. Homicide €&=235 

Evidence supported conviction of mur- 

der by shooting occurring during burglary. 
Code, § 26-1004. 

————emt— 

B. Clarence Mayfield, Savannah, for ap 
pellant. 

Andrew J. Ryan, Jr., Dist. Atty., Robert 

E. Barker, Savannah, Arthur K.- Bolton, 

Atty. Gen., Marion O. Gordon, Asst. Atty. 

Gen.,, Larry H. Evans, Atlanta, for appel- 
lee. ! 

Syllabus Opinion by the Court 

DUCKWORTH, Chief Justice. 

This case involves the crime of murder 
by shooting,” occurring during a burglary 

after the intruder had been discovered by 

the deceased who was then shot through a 

closed door. The accused was indicted, 

tried and convicted without a recommenda- 
tion for mercy. A motion for new trial, as 
amended, was filed, heard and overruled, 

and the appeal is from the judgment, after 

conviction, and sentence with error enu- 

merated on the denial of the motion for 

new trial, as amended. Held: : 

[1] 1. A juror having been excluded 

for cause because he stated that his opposi- 

tion to the death penalty would affect his’ 

decision as to a defendant’s guilt, his ex- 

clusion did not fall within the rule as laid 

down in Witherspoon v. Illinois, 391 U.S. 

 



  

a
 

t
e
t
 

C
E
 

I
G
E
 

VI
E 
S
N
S
 
T
A
I
 

0 

  

A
 
A 

T
R
 
T
R
E
N
 PW 

NR
 
A
T
A
 

A
T
 

  

| 
H 
5 
5 

A
T
P
 

or
 

| 

510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and the 
court did not err in excluding him for 

cause. There is no merit in the amended 

motion complaining that the exclusion vio- 

lated the rule in the Witherspoon case, su- 

pra. &: : 

[2] 2. The record showing a defini- 

tive determination from a consideration of 

‘the evidence by the trial judge, out of the 

jury’s presence, that upon his arrest the 

accused had his constitutional rights ex- 

p'rined to him, including the right to re- 

main silent, the right of counsel, and that 

anything he said might be used against him 

in court, and that he thereafter freely and 

voluntarily and knowingly made certain 

statements in regard to the crime, the same 
was admissible both legally and factually, 

“and all the requirements of Miranda v. Ari- 

zona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. 
"Ed.2d 694; Gideon v. Wainwright, 372 U.S. 
“335, 83 S.Ct. 792; 9 L.Ed.2d 799; Escobedo 
v. Illinois, 378 U.S. 478, 84 S.Ct. 1738, 12 

L.Ed2d 977,- and Jackson v. Denno, 378 

U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 

have been complied with fully and com- 
pletely. . We_find no merit in the conten- 

H
E
 

ST
S 

€ C
AT

 
PE
 
A
T
I
 

WT 
S
T
I
P
E
 

e
r
 
O
P
 

T
N
 

tion of counsel that his constitutional 

rights had been violated.  _ 

“133 3. We find no violation of Miran- 

da v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 

supra, as contended by counsel, hence the 

extrinsic evidence of fingerprints, admis- 

sions, and pistol were properly allowed in. 

evidence ‘against him and should not have 

been suppressed. Manor v. State, 223 Ga. 

594(3), 157 S.E.2d 431; Schimerber v. Cal- 

ifornia, 384 U.S. 757, 86 S.Ct. 1826, 16 L. 

Ed2d 908; Terry v. Ohio, 392 US. 1, 88 

S.Ct. 1868, 20 L.Ed.2d 889. 

[4] 4. The statutes of this State au- 
thorizing capital punishment have repeat- 

edly been held not to be.cruel and unusual 

punishment in violation of the Constitution. 

FURMAN v. STATE 
Cite as 167 S.E.2d 628  . SD; 

Ga.” 629 

See Sims v. Balkcom, 220 Ga. 7(2), 136 S. 

E2d 766; Manor v. State, 223 Ga. 

594(18), 157 S.E.2d 431, supra. . Hence, 

there is no merit in this complaint. 

[5,6] 5. The record discloses that the 

accused was arrested on August 11, 1967, 

and a commitment hearing held on August 

15, 1967. While Code Ann. § 27-212 (Ga. 

L.1956, pp. 796, 797) requires a hearing 

does not render the verdict of a jury after 

indictment illegal or void. It has already 

been held above that the evidence of fin- 

within 48 hours, nevertheless, a detention 

. or imprisonment beyond a reasonable time 

gerprints, pistol and admissions which were. 

obtained after his arrest could be used 

against him, and no secret inquisition or 

interrogation is claimed in this case. See 

Dukes v. State, 109 Ga.App. 825(1), 137 

S.E.2d 532; Pistor v. State, 219 Ga. 161, 

132 S.E.24 183. : 

[7] 6. The admission in open court by 

the accused in his unsworn statement that 

during the period in which he was involved 

in the commission of a criminal act at the 

home of the deceased, he accidentally 

tripped over a wire in leaving the premises 

causing the gun to go off, together with 

other facts and circumstances surrounding 

the death of the deceased by violent means, 
was sufficient ta support the verdict of 

guilty of murder, and the general grounds 

of the motion for new trial are not merito- 

rious. See Code § 26-1004; Williams wv. 

State, 222 Ga. 208, 149 S.E.2d 449; Manor 

v. State, 223 Ga. 594, 157 S.E.2d 431, su- 

pra. : 

7. Having considered every enumera- 

tion of error argued by counsel in his brief 

and finding no reversible error, the judg- 

ment is 

Affirmed. 

All the Justices concur. 

7 
4