Ham v. South Carolina Petition for Writ of Certiorari to the Supreme Court of South Carolina

    4*
2 <

rT

Opinion Below ..............................
Jurisdiction ...............................
Questions Presented For Review ................ .
Constitutional and Statutory Provisions Involved 
Statement ............
REASONS FOR GRANTING THE WRIT

E >

tSib

Conclusion

1
1
2

2
2

Page

The Trial Judge's Refusal To Examine The Jurors On 
Voir Dire As To Whether Petitioner's Race or Pre- 
Trial Publicity Would Affect Their Ability To Ren­
der A Fair Verdict Violated Petitioner's Right To An Impartial Jury Guaranteed By The Sixth and 
Fourteenth Amendments to the United States Consti­tution ..................................
The Affirmance of Petitioner's Conviction Under A 
Section of A Statute With Which He Was Not Charged 
or Convicted Deprived Him of Notice of The Speci­
fic Charge Against Him In Violation of The Due 
Process Clause of the Fourteenth Amendment ......
The Admission of Evidence At Trial That Was 
Seized From Petitioner Following His Arrest Pur­
suant To A Constitutionally Invalid Arrest War­
rant Violated His Rights Under The Fourth and Fourteenth Amendments ............

21

27
31

e^pf Cases
Aguilar v ^ T e x i ^ t ^ ^  (1964) ..................  28, 29
Aldridge v. United States, 283 U. S. 308 (1931) 8,12,14,17,18,19
Avery v. Georgia, 345 U. S. 549 (1953) ....................  4
Bailey v. United States, 53 F.2d 982 (5th Cir. 1931)___ 10,12,13
Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) .......  17
Baldwin v. New York, 399 U. S. 66 (1970) ..................  9
Carter v. Jury Commission, 396 U. S. 320 ..................  11
Cole v. Arkansas, 333 U. S. 196 (1944) ................  24,25,26
Commonwealth v. Lee, 324 Mass. 714, 88 N. E.2d 713 (1949)... 20



I

11

Dennis v. United States, 339 U. S. 162 (1950)...........  9,10,16 |
Douglas v. Alabama, 380 U. S. 415 (1965)..................  29,30
Duncan v. Louisiana, 391 U. S. 145 (1968) ................  9
Estes v. Texas, 381 U. S. 532 (1965) .....................  17
Eubanks v. Louisiana, 356 U. S. 584 (1958) .............  17
Fraizer v. United States, 267 F.2d 62 (1st Cir. 1959) .... 18
Garner v. Louisiana, 368 U. S. 157 (1957) ................  26
Giles v. State, 229 Md. 370, 183 A.2d 359 (1962) .........  20
Giordenello v. United States, 357 U. S. 480 (1958)........ 27,28
Gradney v. State, 129 Tex. Crim. 445, 87 S. W.2d 715 (1935) 20
Groppi v. Wisconsin, 27 L.Ed.2d 491 (1971).............  10,13,18
Hayes v. Missouri, 120 U. S. 68 (1886)   10
Henry v. Mississippi, 379 U. S. 443 (1965) ..........  29,30,31
Hill v. State, 112 Miss. 260, 72 So. 1003 (1916) .........  20
Irvin v. Dowd, 366 U. S. 717 (1961)...............  9,11,12,15,17
Jones v. United States, 362 U. S. 257 (1960) .............  28
Ker v. California, 374 U. S. 23 (1963)   27
King v. United States, 362 F.2d 968 (D.C. Cir. 1966)   18
Lewis v. United States, 146 U. S. 370 (1892) .............  io
Mapp v. Ohio, 367 U. S. 643 (1961) .......................  27
Marson v. United States, 203 F.2d 904 (6th Cir. 1953) .... 18
Morford v. United States, 339 U. S. 258 (1950)   10,12
N.A.A.C.P.v. Alabama, 377 U. S. 288 (1964) ............. 31
Parker v. Gladden, 385 U. S. 363 (1966)................ 10,13,17
Patterson v. Colorado, 205 U. S. 454 (1907)   17,19
People v. Decker, 157 N.Y. 186, 51 N.E. 1018 (1898)   19
Pinder v. State, 27 Fla. 370, 8 So. 837 (1891)   20
Pointer v. United States, 151 U. S. 396 (1894) ...........  10,12
Rideau v. Louisiana, 373 U. S. 723 (1963)..............  11,13,17
Ross v. United States, 374 F.2d 97 (8th Cir. 1967) .......  19
Sheppard v. Maxwell, 394 U. S. 333 (1966) ............

Page '

17



Ill

25
Page

Shuttlesworth v. Birmingham, 376 U. S. 339 (1964)
Silverthorne v. United States, 400 F.2d 627 (9th Cir 1968) ...........................................
Smith v. United States, 262 F.2d 50 (4th Cir, 1958)
Spevack v. Klein, 385 U. S. 511 (1967) ...............
Spinelli v. United States, 393 U. S. 410 (1969)
State v. Higgs, 143 Conn. 138, 120 A.2d 152 (1956) ___
State v. Sanders, 103 S. C. 216, 88 S. E. 10 (1916)
Stilson v. United States, 250 U. S. 583 (1919)
Stirone v. United States, 361 U. S. 212 (I960) .......
Strauder v. West Virginia, 100 U. S. 303 (1880) ......
Swain v. Alabama, 380 U. S. 202 (1965) ...............
Turner v. Fouche, 396 U. S. 346 (1970) ...............
Turner v. Louisiana, 379 U. S. 466 (1965) ............
United States v. Dennis, 183 F.2d 201 (4th Cir. 1958)..
United States v. Gore, 435 F.2d 1110 (4th Cir, 1970) ..
United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir. 1962) ..................................... '
Williams v. Florida, 399 U. S. 78 (1970) .............
Witherspoon v. Illinois, 391 U. S. 510 (1968) ........
Woolfolk v. State, 85 Ga. 69, 11 S.E. 814 (1890)......
Wright v. Georgia, 373 U. S. 284 (1963) ..............

Statutes
28 U.S.C. § 1257 (3) .................................
Code of Laws of South Carolxna:

16,18,19
18
26
29
20

19
10
26
17

11,17,18
11
17
18 
18

16 
11, 13

10
20

31

1

§ 32-1506(d) .. 
§ 32-1505(a)(3) 
§ 32-1505(b) ..
§ 32-1463 ....
§ 32-1462(12) .

21,24,26
21
24
23

23,24

(



IV

Page
Other Authorities

Community Hostility and the Right to an Impartial Jury,60 Col. L. Rev. 349, 354 (1960) .....................  11
Standards Relating to Fair Trial and Free Press, American 
Bar Association Project on Minimum Standards For Criminal Justice (Tent. Draft, 1966) ...........................  11,13,19



In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1971 
No.

GENE HAM,
Petitioner,

- v . -

STATE OF SOUTH CAROLINA.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

Petitioner prays that a writ of certiorari issue to review | 
the judgment of the Supreme Court of South Carolina entered on 
April 7, 1971. Rehearing was denied on April 28, 1971.

Opinion Below
The opinion of the Supreme Court of South Carolina is unof­

ficially reported at 180 S. E.2d 628 and is set out in the 
Appendix hereto, pp. a - 5a. Petitioner was convicted upon trial 
by jury in the General Sessions Court of Florence County, South 
Carolina and no opinion exists with respect to that conviction.

Jurisdiction
The judgment of the Supreme Court of South Carolina was en­

tered on April 7, 1971 and a timely petition for rehearing was 
denied on April 28, 1971 (App. 6a) . Jurisdiction of this Court isj 
invoked under 28 U.S.C. § 1257(3).

Questions Presented For Review
1. Whether the trial judge's refusal to examine the jurors 

on voir dire as to whether petitioner's race or pre-trial publici­
ty would affect their ability to render a fair verdict violated 
petitioner's right to an impartial jury, guaranteed by the Sixth 
and Fourteenth Amendments to the Constitution?



2. Whether the affirmance of petitioner's conviction under 
statutory section with which he was not charged or convicted de­
prived him of specific notice of the charges against him in viola­
tion of his right to due process of law, guaranteed by the Four­
teenth Amendment?

3. Whether the admission of evidence at trial seized from 
petitioner following his arrest pursuant to an invalid arrest war­
rant violated his rights under the Fourth and Fourteenth Amend­
ments?

Constitutional and Statutory Provisions Involved
1. The Sixth Amendment to the United States Constitution 

provides in part:
"In all criminal prosecutions, the accused 
shall enjoy the right to a speedy and public trial, by an impartial jury of the State and 
district wherein the crime shall have been 
committed. . .and to be informed of the na— ture and cause of the accusation; . . ."

2. Sections 38-202, 32-1462(2), 32-1463, 32-1493, 32-1505, 
32-1506 and 32-1510.3 are set out in the Appendix, pp. 7a-13a.

Statement
Petitioner Gene Ham, a black man, was convicted on June 3, 

1970 by a jury in the General Sessions Court of Florence, South 
Carolina, of the possession of a depressant or stimulant drug in 
violation of § 32-1506(d) of the Code of Laws of South Carolina 
(Cum. Supp. 1970) and sentenced to eighteen months upon the public 
works of the county or in the State penitentiary (R. 141)

Petitioner was arrested on the afternoon of May 15, 1970 by 
three police officers while he was walking on the street in Flor- j 
ence (R. 72-73). The arresting officers had four warrants for pe- I 
titioner1s arrest that had been issued on May 13 and 14 charging 
him with the possession of various kinds of illegal drugs (R. 4-7, ; 
72, 77). After he was arrested he was frisked on the street,place<j[ 
m  a patrol car and taken to the police station (R.73,114). There

^  References are to pages of the original record on file with the Clerk of the Supreme Court of South Carolina.
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; he was booked and asked to take everything out of his pockets 
| (R. 74). According to the police officers, he removed eight pack-
| at?es from his pockets which were opened, examined and found to 
contain marijuana (R. 74). An arrest warrant charging him with 
the possession of "certain stimulant drugs, to-wit, marijuana" was 
then issued (R. 3, 78).

A preliminary hearing was held on May 28th and 29th, and pe- \ 
tioner was bound over to the grand jury (R. 14). He was indicted 1 
on June 1st for "illegal possession of depressants or stimulants" : 
in violation of "Section 32-1506, paragraph 2d" (R. 8). On the 
following day, the case was called for trial in the General Sess­
ions Court. At that time counsel for petitioner sought to with­
draw from the case or, in the alternative, to be appointed by the 
court to represent petitioner on the ground that he was indigent 
(R. 9-11) . The court, however, refused to permit counsel to with-! 
draw or to appoint them and directed them to continue to represent! 
petitioner (R. 12). Despite the counsel’s statement that they I
were not ready to go to trial and had not had an adequate oppor­
tunity to prepare written motions because the indictment had only i 
been handed down on the previous day (R. 11-13), the court di­
rected that they proceed with the motions orally (R. 13).

|j .Petitioner's motion for a continuance on the ground that 
jj counsel had not had sufficient time to prepare for trial and had 
not yet even obtained a transcript of the preliminary hearing 
that had been held four days earlier was passed over, but peti­
tioner was nevertheless required to make the rest of his motions 
(R. 14-15). His motion for a change of venue or a continuance on 
the ground of prejudicial publicity was overruled (R. 14, 15). A
motion for the dismissal of the indictment because of denial of 
counsel was overruled (R. 15-19). And after a hearing, petition­
er's motion to strike the petit jury venire on the grounds of

ISsystematic exclusion of Negroes, was denied (R. 19-46). At the
------- :------------  j2/ Petitioner showed that only six (17%) of the thirty-six petit jurors who were available for petitioner's case were black 

despite the fact that 8,929 (32%) of the approximately 29,500|
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"4. Did you watch the television show about the 
local drug problem a few days ago when a 
local policeman appeared for a long time?
Have you heard about that show? Have you 
read or heard about recent newspaper arti­
cles to the effect that the local drug prob­
lem is bad? Would you try this case solely 
on the basis of the evidence presented in 
this courtroom? Would you be influenced by 
the circumstances that the prosecution's wit— ness, a police officer, has publicly spoken on TV about drugs?" (R. 52).

The judge refused to ask all of these proposed questions on the 
ground that "[t]hey are not relevant" (R. 52). instead, he asked j 
each of the jurors only the following three questions:

"Have you formed or expressed any opinion as to the guilt or innocence of the defendant?
Are you conscious of any bias for or against him?
"Can you give the State and the defendant a fair Itrial" (R. 53-71).

Two jurors were excused by the court because of their answers to 
these questions (R. 62-63, 70). No one was challenged for cause 
by either the State or petitioner but each side exhausted its five! 
peremptory challenges (R. 54, 47, 49, 61, 65, 68, 69).

At trial, one of eight small packages that a police officer 
| testlfied had been among petitioner’s personal belongings when he j 
was searched at the police station after his arrest was admitted 
into evidence over the objection by petitioner that the State had 
not sufficiently shown the chain of possession from the time of 
seizure to the trial (R. 75-77). After a laboratory technician 
testified over petitioner’s objection that he was not shown to be !I

: be qualified, that the seven other packages taken from petitioner !
contained approximately twenty-one grams of marijuana and that

I marijuana is classified as an hallucinogenic drug" (R. 89, 91) thei4/State rested (R. 105).
4/ Although the seven packages that were identified as contain­

ing marijuana were marked for identification (R. 86) and 
twice offered by the State in evidence (R. 90, 91), the record 
does not show that they were ever actually admitted into evi- I



Petitioner moved for a directed verdict on the grounds that 
there was no evidence that marijuana had been designated as a 
"depressant or stimulant drug" or that petitioner had obtained it 
without a prescription, as alleged in the indictment (R. 107).

|The motion was overruled (R. 107).
Petitioner took the stand in his own defense and testified j

that the first time he had seen the eight packages containing mar- 
j ijuana was when he removed the contents of his pockets at the po- 
lice station after his arrest (R. 115). He stated that he had not 
had the packages in his possession at any time before he was ar­
rested (R. 115-116), and could only speculate that the police 
officers had planted it in his pockets when he was frisked or 
later at the police station (R. 116). Petitioner, who is a civil 
rights worker for the Southern Christian Leadership Conference and 
had been appointed by the Mayor to the Bi-racial Committee of the 
City of Florence (R. 107, 128), had heard that the local police 
were "out to get him" because of his civil rights' activities 
(R. Ill).

Petitioner then rested his case (R. 131). After recalling 
one of the police officers on rebuttal, the State rested (R. 132).

The judge charged the jury that petitioner was on trial for 
the crime of illegally possessing, without a prescription, a de­
pressant or stimulant drug which would have a stimulant effect on 
the central nervous system (R. 133). He charged them that mari­
juana had been classified as such a drug and that possession of it 

jj without a prescription constituted prima facie evidence of unlaw-
i| possession (R. 134-136) . Petitioner excepted to the charge|
that marijuana had been found to be a depressant or stimulant drug,j 

j and his request that the jury be further charged that if they findjj
that there is no evidence that marijuana had been so classified 
they must acquit him was refused (R. 139).

The jury returned a verdict of guilty (R. 140). Petitioner's 
! motion for judgment notwithstanding the verdict or, in the

-6-



alternative, for a new trial which preserved his rights under all j 
of his motions and objections raised during the trial was denied 
(R. 140) .

On appeal, petitioner assigned as error the failure of the 
trial court to dismiss the indictment and to exclude the evidence 
that was seized incident to the illegal arrest, the refusal of thej 
court to examine the jurors on voir dire with respect to racial 
prejudice or pre-trial publicity, and the court’s refusal to di- j 
rect a verdict of acquittal on the ground that he had not been

i

proven guilty of the crime charged (R. 144, 145, 147-148).in his 
brief he contended that the arrest warrants had been issued in !
violation of the Fourth and Fourteenth Amendments, that the ad- ;
mission of evidence seized incident to the illegal arrest viola­
ted his rights under these Amendments, and that this issue had 
been adequately^raised in the trial court by his motion to dismiss 
the indictment. He argued that the failure of the trial judge to 
ask petitioner’s proposed voir dire questions violated his right 
to an impartial jury under the Sixth and Fourteenth Amendments.-̂  
And he argued that there was no evidence to sustain his convictionj 
m  vlolatlon of his right to due process of law guaranteed by the I

-Z./Fourteenth Amendment. !
In affirming his conviction a majority of the South Carolina 

Supreme Court declined to consider whether the evidence seized in-j 
cident to petitioner’s arrest had been admitted in violation of pel 
titioner's rights on the ground that it had not been properly j

! V  Brief of Appellant, pp. 5-9; Reply Brief, pp. 1-2.
6/ Brief of Appellant, p. 15; Reply Brief, pp. 3-7.
!_/ Brief of Appellant, p. 24; Reply Brief, p. 13.

-7-



objected to at trial (App. la). it held that the trial judge hadj 
not abused his discretion in refusing to ask additional questions 
on voir dire after he had asked the questions required by statute 
(App. 2a). Finally, it held that his conviction could be sus­
tained under another provision of the statute under which he had 
been charged that prohibited the possession of "illegal drugs", 
including marijuana (App. 3a-4a). The court concluded that the 
"language of the indictment was clearly sufficient to advise [pe­
titioner] of the nature of the charge" (App. 5a).

Two of the five Justices dissented on the ground that the re­
fusal of the trial judge to inquire of the jurors whether they 
had any prejudice because of these particular matters [petition­
er's race and appearance] which would prevent them from giving a 
fair and impartial verdict" was error because it was in conflict 
with this Court's decision in Aldridge v. United States. 283 U. S. 

j  308 (1931) (App. 8a).
| . . ! in addition to seeking rehearing on the issues raised in his
main briefs, petitioner claimed that the affirmance of his con­
viction on the basis of a section of the statute with which he hadj 
not been charged violated his right guaranteed by the Fourteenth
T V  J  8/Amendment to be given notice of specific charges against him.
The petition was denied over the dissent of two Justices (App. 6a)L

8/ Petition for Rehearing, pp. 5-6.



REASONS FOR GRANTING THE WRIT

I

The Trial Judge's Refusal To Examine The 
Jurors On Voir Dire As To Whether Peti­
tioner's Race or Pre-Trial Publicity Would 
Affect Their Ability To Render A Fair Ver- aict Violated Petitioner1s Right To An Im­
partial Jury Guaranteed By The Sixth and 
Fourteenth Amendments to the United States Constitution.

The issue raised by this case is central to the constitutional 
guarantee of a jury trial. Justice Jackson once noted that "[t]he j 
right to a fair trial is the right that stands guardian over all 

j other rights," Dennis v. United States. 339 U. S. 162 (1950) (con- '' 
curring opinion). And the recent decisions of this Court recog­
nize the crucial importance of the jury trial in the administration

i

of our system of criminal law. Baldwin v. New York. 399 U. S. 66 
(1970); Duncan v. Louisiana, 391 U. S. 145 (1968). But the right 
to a jury trial alone does not satisfy the Constitution's mandate. I 
For as this Court has said:

i" [T]he right to jury trial guarantees 
to the accused a fair trial by a panel of impartial 'indifferent' jurors. The 
failure to accord an accused a fair 
hearing violates even the minimal stand­
ards of due process . . . .  in the lan­
guage of Lord Coke, a juror must be as 
'indifferent as he stands unsworne .
. .1 His verdict must be based on evi­
dence developed at the trial" (Irvin v.Dowd, 366 U. S. 717, 722 (1961)71

Unless the impartiality of the jury can be assured, the right to a 
jury trial and, indeed, the right to a fair trial will be drained 
of any substance.

We are concerned here with the means which must be made avail-1 
able by a state to a criminal defendant to enable him obtain an 
impartial jury. Only last term this Court concluded that "under 
the Constitution a defendant must be given an opportunity to show 1

l
-9-



that a change of venue is required in his case," Groppi v.
^ COn51n- 27 L -Ed-2d 491 U ” l). A state statute that barred 
a change of venue in any misdemeanor case, therefore, was uncon- | 
stitutional and the defendant was entitled to an opportunity to 
show that prejudicial pre-trial publicity made it impossible for | 
him to obtain an impartial jury in the county in which he was ;
charged. In the present case, petitioner contends that the right 
to an impartial jury can only be vouchsafed if a criminal defend­
ant is given a meaningful opportunity to exercise his right to 
challenge prospective jurors for cause or peremptorily. Petitioner 
submits that the refusal of the trial judge to question jurors on i 
voir dire with respect to whether they were prejudiced against him) 
because of his race or because of pre-trial publicity completely j 
frustrated this right and requires the reversal of his conviction 

It cannot be doubted that the right of a criminal defendant 
to exercise challenges both for cause and peremptory, is encom­
passed by the Sixth Amendment's guarantee of an impartial jury, 
made applicable to the States through the Due Process Clause of thj 
Fourteenth Amendment. Parker v. Gladden. 385 u. s. 363, 364 (196® 
see Witherspoon v. Illinois., 391 u. s. 510, 518 (1968). This 
Court has said that "the right of challenge comes from the common 
law with the trial by jury itself, and has always been held essen­
tial to the fairness of trial by jury," Lewis v. United States

i 146 U ' S ' 37°' 376 <1892>- "Preservation of the opportunity to 
prove actual bias is a guarantee of a defendant's right to an im­
partial jury," Dennis v. United States. 339 U. S. 162, 171-172 
(1950); see Morford v. United States. 339 U. S. 258 (1950). And 
the right to peremptory challenges, without showing cause," is one 
of the most important of the rights secured to the accused."
I2±nter v. United States, 151 u. s. 396. 408 (1894); see Haves v. 
Missouri. 120 U. S. 68 (1886,; Bailey V .  United States 53 F.2d

984 (5th Cir. 1931); cf. Stilson v. United States.250 u. S. I

-10-



583, 586 (1919). Historically, the right of challenge has been an 
integral part of the jury system, see Swain v. Alabama. 380 U. S. 
202, 212-13 (1965), and was clearly conceived of as fundamental by 
the framers of the Sixth Amendment. See Williams v. Florida. 399 
U. S. 78, 94 (1970). Although this Court has never explicity held! 
that the right of challenge is a requirement of due process appli-j 
cable to the States, the reason probably lies in the fact that it 
is guaranteed in one form or another to a criminal defendant in

9/each of the fifty States and the District of Columbia.
The right of challenge is essential to the constitutional 

guarantee because it is the principal method available to insure ! 
an impartial jury. See Note, Community Hostility and the Right toj 
an Impartial Jury, 60 Col. L. Rev. 349, 354 (1960). Jury select­
ion procedures can at best only provide juries that represent a 
"cross-section" of the community, from which particular groups 
have not been excluded. See Carter v. Jury Commission. 396 U. S. j 
320; Turner v. Fouche, 396 U. S. 346 (1970). Similarly, the right! 
to a continuance or to a change of venue only serves to reduce the! 
liklihood of prejudice to a defendant which may result from com­
munity hostility arising out of a particular case. See Irvin v. 
Dowd, supra, Rideau v. Louisiana, 373 U. S. 723 (1963). Indeed, 
these means are often available only after a defendant has beeni
unable to secure an impartial jury through the exercise of his

I• j challenges. Standards Relating to Fair Trial and Free Press.
!! ■rican — ar Association Proiect on Minimum Standards For Criminal!
j — S-̂ ice (Tent* ^aft, 1966), pp. 126-127. it is only through the | 
exercise of challenges, therefore, that the defendant can eliminate 
individual jurors who for any reason would not be impartial in ren-i 

| dering a verdict. Without this right, there would be no way to 
- - ,
9/ See Appendix, pp. 14a-16a.



I

guarantee to an accused that the jurors who may actually strip 
him of his life or liberty are not infected by the kind of bias 
or prejudice that would deprive him of"a fair trial by a panel of i 
'indifferent' jurors." Irvin v. Dowd, supra, 366 U. S. at 722.

It follows that an accused must be provided with a reasonable! 
opportunity to examine prospective jurors on voir dire. Speaking < 
of the right of peremptory challenges, this Court has said:

"Any system for the impaneling of a jury 
that prevents or embarrasses the full, 
unrestricted exercise by the accused of that right, must be condemned. And, 
therefore, he cannot be compelled to make 
a peremptory challenge until he has been 
brought face to face, in the presence of 
the court, with each proposed juror, and 
an opportunity given for such inspection 
and examination of him as is required for 
the due administration of justice" (Pointer 
v. United States, supra, 151 U. S. at 409).

It is, of course, equally true that the right to challenge a jIIjuror for cause would be a hollow guarantee unless the accused 
were able to ascertain the facts pertaining to a juror's legal 
disqualifications or state of mind so that he can intelligently 
exercise a challenge. See Morford v. United States. 339 U. S.
258, 259 (1950); Aldridge v. United States. 283 U. S. 308 (1931); 
Bailey v. United States, 53 F.2d 982, 984 (5th Cir. 1931); People
v. Boulware, ___ N. Y.2d ___ (No. 115, 1971) (Slip op. p. 3). In '
the absence of a voir dire examination, the only means that a de- ! 
fendant would have of discovering grounds upon which to exercise aj 
challenge would be to investigate the prospective jurors prior to 1 
the commencement of the trial. But such a possibility does not 
provide a realistic alternative to a voir dire examinationa Even 
if it were possible to gather some information upon which to ex— 
ercise challenges, such an investigation would be unlikely to dis­
close the attitudes that a juror would only reveal when he is put 
under oath and examined by the court or counsel. The practical 
impossibility, moreover, for a criminal defendant, who may be

II
!



indigent, to conduct an extensive investigation of a trial venire 
of forty or fifty jurors in the limited time between the publica­
tion of t h e o r y  list and the time of trial severely limits its 
usefulness. Finally, any procedure which encouraged pre-trial 
contact between a defendant and prospective jurors would greatly 
impair the jury's detachment and be subject to serious abuses.
See Parker v. Gladden, supra, 385 U. S. at 369 (Harlan J. dis­
senting) . The conclusion that the opportunity to examine pros­
pective jurors is constitutionally required is buttressed by the j 
fact that a voir dire examination is universally provided as part I 
of the jury selection process in the fifty States and the District] 
of Columbia. Just as a defendant is constitutionally entitled tcj 
show that a change of venue is required to insure an impartial jud, 
~ ?ppi v * Wisconsin, supra, so too must he be entitled to a mean- j 
ingful opportunity to select an impartial jury in the venue in 
which he is tried.

The extent of the examination to which an accused is entitled] 
is the issue squarely presented by this case. The importance of | 
this issue and its implications for our system of criminal justice! 
are great. For the rising concern about the elimination of the 
prejudicial effects on juries of pre-trial publicity, see Groppj 
V* Wisconsin, supra; Rideau v. Louisiana, supra; Standards 1
Relating to Fair Trial and Free Press, supra, is paralleled by an j 
increasing need to promote efficiency in the administration of 
justice. See Williams v .__Florida, supra, 399 U. S. at 134-35

10/ In the present case, petitioner was indicted on June 2, 1970 i
Junef3rd*” d?Y °f thJ term °f COUrt' and his trial began on June 3rd. in accordance with South Carolina practice, the

S e pe5sons was not selected and summoned un- ; 
t ^e5ore<:the beginning of the term of court (R.39- turv Code of Laws of S. C. In other jurisdictions,jury lists are often not made available until the trial com- 

mences. See Bailey v. United States. su£>ra. 53 f.2d It 983. I
11/ See Appendix, pp. 17a-18a.

-13-



! !
(Harlan, J. concurring). Thus, in any particular case the right 
to a meaningful opportunity to select an impartial jury must be 
reconciled with the State's interest in avoiding unnecessary delay: 
and expense in bringing criminal defendants to trial.

The resolution of these competing claims must necessarily be ' 
left largely to the discretion of the trial judge, depending on!
the circumstances of the particular case. But this Court has said 
that this discretion is "subject to the essential demands of fair­
ness." Aldridge v. United States, supra. 283 U. S. at 310. And 
petitioner submits that under the circumstances of the present 

I case' the refusal of trial judge to ask the prospective jurors any 
questions at all pertaining to racial prejudice or pre-trial pub­
licity violated the "essential demands of fairness" and requires 
the reversal of his conviction.

Petitioner, as noted by the two dissenting Justices on the 
South Carolina Supreme Court, is a "black, bearded civil or human 
rights activist" whose role as a SCLC worker had gained him a cer­
tain notoriety in Florence County, South Carolina (R. 107, lll-112)j 
He was charged with the possession of marijuana, and the State's \ 
case was based entirely on the testimony of white police officers i 
who claimed that they had found the drug in petitioner's possess- j 
ion while searching him pursuant to an arrest on an unrelated 
charge (R. 74). Petitioner, on the other hand, testified that he j 
did not have any marijuana in his possession and that he was being!
framed by the authorities because of his involvement in civil 

rights (R. 116). The case was, moreover, of more than usual in­
terest because of the recent concern in Florence over the serious 
drug problem (R. 52). Indeed, the police officer who was the 

State's chief witness had recently appeared on local television on!
I! 'I a program devoted to drug abuse (R. 52).

In order to minimize the possibility that the jury that wouldj 
hear his case would be prejudiced against him, petitioner moved to

-14-



sys-quash the trial venire on the grounds that blacks had been 
tematically excluded and for a change of venue or a continuance 
on the ground of pre-trial publicity. But these motions were 
summarily denied (R. 14-15,4Q -Despite the fact that the trial 
judge was thus alerted to circumstances showing a very real pos­
sibility that prospective jurors might be hostile or prejudiced 
towards petitioner, he conducted the most cursory voir dire exam­
ination. He asked each juror individually three general ques- 
tions, and refused petitioner's request that additional ques­
tions be asked on voir dire pertaining to whether the jurors 
would be influenced by petitioner’s race, by the use of the term 
"black," by the fact that petitioner wore a beard, or by recent 
television and newspaper publicity relating to the local drug 
problem (R. 52). The jury was impaneled after each side had ex­
hausted its peremptory challenges (R. 71).

Petitioner submits that such a limitation on the voir dire 
examination frustrated his right to challenge prospective jurors 
and thereby violated his right to an impartial jury guaranteed by 
the Sixth and Fourteenth Amendments. Clearly, the three general 
questions thejudge put to the jurors relating to their impartial­
ity were inadequate to elicit meaningful responses. It has been 
widely recognized that the mere statement by a juror that he can 
be impartial, particularly in response to a general query, is en- j 
titled to little weight. In Irvin v. Dowd, supra. 366 U. S. at 
728, this Court pointed out that at the defendant's trial:

12/ See p. 5, supra. The trial judge apparently asked and receiv-l 
ed a negative response to a fourth question as to whether anyi 
member of the panel was related to the defendant by blood o r ! 
marriage which he addressed to the group of prospective jur- I ors collectively (R. 51). J !

-15-



"No doubt each juror was sincere when 
he said that he would be fair and im­
partial to petitioner, but the psycholog­
ical impact of requiring such a declara­
tion before one's fellows is often its father."

And one federal court concluded that:
"[Mjerely going through the form of ob­
taining jurors' assurances of impar­
tiality is insufficient [to test that 
impartiality] . . . [Wjhether a jurorcan render a verdict based solely on 
evidence adduced in the courtroom 
should not be adjudged on that juror's 
own assessment of self-righteousness 
without something more." (Silverthorne 
v. United States, 400 F.2d 627, 638-39 
(9th Cir. 1968) (Emphasis in original)).

See also Dennis v. United States, supra. 339 U. S. at 176; United 
Sta-tes ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir. 1962) (en 

j banc). Instead, "the defendant in a criminal case has the 'right 
to probe for the hidden prejudices of the jurors'," and calling 
for purely subjective responses to general questions is ineffect­
ive to test their competency. Silverthorne v. United States.

| supra. 400 F.2d at 640.
l|

We submit that in the present case the trial judge was con­
stitutionally required to go beyond such general questioning and 
to inquire specifically as to the effects of racial prejudice and 
Pre_^r-'-a-*- Publicity. We think that minimal standards for insur­
ing impartiality require that an accused who is a member of a 
minority group which is the subject of widespread prejudice be 
permitted to probe the attitudes of the jurors with respect to 
such prejudice and that he also be permitted to elicit objective 
facts concerning their contact with pre-trial publicity.

The decisions of this Court have long recognized that racial
prejudice and pre-trial publicity represent the most serious 
threats to the integrity of the jury system. As long as 1880 this! 
Court held that the "apprehended existence of prejudice" against 
a black criminal defendant from a jury from which blacks had been '



systematically excluded required the reversal of his conviction. | 
Strauder v. West Virginia, 100 U. S. 303 (1880). In order to preJ 
vent racial prejudice from affecting the impartiality of juries, j 
an unbroken line of cases since that time have held that any 
racial discrimination in the selection of juries violates an ac­
cused s right to due process and to the equal protection of the 
law, regardless of any showing of actual prejudice. See Eubanks 
v. Louisiana, 356 U. S. 584, 585 (1958); Billingsley v. Clayton. 
359 F.2d 13, 15 (5th Cir. 1966). The right of the accused to a 
jury determination of guilt based only upon the evidence
at a trial has also been recognized as one of the fundamental j
guarantees of due process. Patterson v. Colorado. 205 U. S. 454 
(1907). And this Court has been sensitive to the potentially 
prejudicial affects of publicity and extra-judicial statements 
upon this guarantee. Parker v. Gladden. supra; Sheppard v. 
Maxwell, 394 U. S. 333 (1966); Estes v. Texas, 381 U. S. 532 (1963
Turner v - Louisiana, 379 U. S. 466 (1965) ; Rideau v. Louisiana.
373 U. S. 723 (1963) ; Irvin v. Dowd, supra.

But both of these essential constitutional protections are 
rendered virtually meaningless with respect to the selection of 
the jury which will actually try his case unless an accused is 
permitted to make inquiries of the nature sought here by petition—j 
er. Indeed, in Swain v. Alabama. 380 U. S. 202, 221 (1965) this 
Court noted that the influence of race on jurors is widely ex­
plored during voir dire and "that the fairness of trial by jury 

jj requires no less." In Aldridge v. United States. 283 U. S. 308 
(1931), this Court held that it was error for a federal trial 

I judge to refuse to ask prospective jurors a "question relative to ! 
racial prejudice' ' on the voir dire examination in a case where 

a black defendant was charged with shooting a white policeman 
(283 U. S. at 311). Citing with approval several State cases



which upheld the right of a defendant to ask questions designed 
to disclose racial prejudice, the Court noted "the widespread 
sentiment that fairness demands that such inquiries be allowed" 
(283 U. S. at 313). Although the voir dire inquiry mandated by 
Aldridge has never been explicitly held to be binding on lthe 
States (but see Swain v. Alabama, supra. 380 U. S. at 221), fed-

ieral courts have consistently held that a criminal defendant has j 
a right to examine jurors specifically with respect to racial pre-j 
judice. United States v. Gore, 435 F.2d 1110 (4th Cir, 1970); 

j King v. United States. 362 F.2d 968 (D.C. Cir. 1966) ; Fraizer v. 
United States. 267 F.2d 62 (1st Cir. 1959) ; Smith v. United States^ 
262 F.2d 50 (4th Cir. 1958); United States v. Dennis, 183 F.2d 
201, 227, n. 35, 228 Aff'd 341 U. S. 494 (1951). In Gore, more- j 
over, the court rejected the argument that Aldridge should be re-

istricted to cases of interracial violence. The court held that
the refusal to ask questions concerning racial bias could not be ^

|considered harmless error where, as in the present case, the de­
fendants were black and the government's witnesses were white, ancj 
the outcome depended on weighing credibility. United States v. 
Gore, supra, 435 F.2d at 1112. The right to inquire into the ex- ! 
posure of jurors to pre-trial publicity is implicit in the deci- ! 
sions of this Court, Groppi v. Wisconsin, supra; Irvin v. Dowd, 
supra, and its denial has been held to be reversible error by 
federal courts. Silverthorne v. United States, supra; Marson v. 
United States. 203 F.2d 904 (6t.h Cir. 1953).

In affirming petitioner's conviction, the South Carolina IISupreme Court held that the trial judge did not abuse his discre- j 
tion in refusing to ask the requested questions in view of the 
fact that petitioner "failed to carry the burden of showing that 
[the] questions should have been asked to assure a fair and im­
partial jury" (A. 2a). The court did not indicate, nor is it

|
-18-



obvious, what kind of showing a defendant must make before he can 
ask whether race prejudice or pre-trial publicity would affect a 
juror's ability to render an impartial verdict. Under the cir­
cumstances of this case where a black civil rights worker was 
being prosecuted on a drug charge in the midst of rising concern 
over a serious local drug problem, it certainly cannot be said 
that the possibility of such prejudice is remote. C± . Ross v. 
United States, 374 F.2d 97, 104-105 (8th Cir. 1967). And it is

|
clear that an affirmative answer to such questions would have pro-j
vided the ground for a challenge for cause. State v. Sanders,103 j;
S. C. 216, 88 S. E. 10 (1916) ; People v. Decker, 157 N.Y. 186,
51 N. E. 1018 (1898); Patterson v. Colorado. 205 U. S. 454 (1907)J 
By requiring an additional showing that there is some need to ask I 
questions of this nature, the court undermines the very function ! 
of the voir dire examination and completely frustrates any op-

13/portunity that an accused has to select an impartial jury.
This holding is squarely in conflict with the decision of 

this Court in Aldridge which lays down a broad rule that "an 
accused has a right to inquire whether racial prejudice precludes 
any juror from reaching a fair and impartial verdict," United 
States v. Gore, supra, 435 F.2d at 1110, as well as with the de­
cisions of federal courts which permit enough of an inquiry that 
the court can "objectively [assess] the impact caused by . . .
pretrial knowledge on the juror's impartiality." Silverthorne ! 
v - United States, supra. 400 F.2d at 638. See Standards Relating I 
to Fair Trial and Free Press, supra. § 34, pp. 130-131. The de­
cision of the South Carolina Court also exposes a serious divi­
sion between those States which follow the South Carolina rule j
holding that it is within the discretion of the trial judge to 

13/ See pp. 12, 13, supra.

-19-



refuse to inquire into matters of racial prejudice, see WooIfoik 
v. State, 85 Ga. 69, 11 S. E. 814 (1890) ; Commonwealth v. Lee, 324 
Mass. 714, 88 N. E.2d 713 (1949); Gradney v. State. 129 Tex. Crim 
445, 87 S. W.2d 715 (1935); Hornsby v. State, 94 Ala. 55, 10 So. I 
522 (1891), and those States which recognize that an accused has j 
a right to make such an inquiry on the voir dire examination,
Giles v. State, 229 Md. 370, 183 A.2d 359 (1962) ; state v. Higgs. | 
143 Conn. 138, 120 A.2d 152 (1956); Pinder v. State. 27 Fla. 370,
8 So. 837 (1891); Hill v. State, 112 Miss. 260, 72 So. 1003 (1916).

This Court should grant certiorari in this case to decide 
whether the fundamental constitutional right to an impartial jury 
guarantees a criminal defendant a meaningful opportunity to ex­
amine and challenge jurors who may be prejudiced against him. Inj 
so doing, this Court can resolve the conflict between the decision 
of the court below and the decisions of other state and federal 
courts, as well as to provide needed constitutional standards wittj 
respect to the crucial jury selection process.

I



I

The Affirmance of Petitioner's Conviction Under A Section of A Statute With Which 
He Was Not Charged or Convicted Deprived 
Him of Notice of The Specific Charge 
Against Him In Violation of The Due Process Clause of the Fourteenth Amendment.

On May 15, 1970 petitioner was arrested on a warrant charging 
j him with the Possession of "certain stimulant drugs, to wit, 
marijuana" (R.3). He was indicted on June 1, 1970 for "Illegal

I Possession of Depressants or Stimulants" on the ground that he:
II "did violate Section 32-1506, paragraph 2d, 

of the 1962 Code of Laws for the State of 
South Carolina, as amended, in that he did 
possess a quantity of drugs, without medi­
cal prescription and without being prescribed 
or administered by medical prescription or 
authority, said drugs designated as having a 
potential for abuse because of its depressant 
or stimulant effect on the central nervous 
system or its hallucinogenic effect, namely marijuana" (R.8).

Thus, petitioner was clearly charged with the crime of 
possessing a "depressant or stimulant drug" and the indictment 
tracks the statutory definition of such a drug found in 
§ 32-1505 (a) (3) :I

"Any drug which contains any quantity of a 
substance which the State Board of Health 
or the appropriate Federal drug authorities 
have found to have, and by regulation desig­nated as having a potential for abuse be­
cause of its depressant or stimulant effect 
on the central nervous system or its hallu­cinogenic effect."

The possession of such a drug is made illegal by § 32-1506(d)
when, as the indictment charges, it is not obtained from, or on
.. . . 14/the prescription of, a medical practitioner.

14/ The reference to "Section 32-1506, paragraph 2d" in the 
indictment is obviously an error since this section deals only with "delivery" of drugs and not with possession.

lii j

|
-21-



I

The State's case in chief consisted solely of the testimony 
| °f tWO police officers who stated that they had arrested peti- 
I tioner on an unrelated charge and had discovered eight small 
I Packages in the course of a search of his personal belongings

whioh were identified as containing approximately 24 
i grams (less than one ounce) of marijuana (R.89-90). Petitioner 
moved for a directed verdict at the close of the State's case on 
the grounds that the State had failed to prove, in the terms of 
the indictment, that marijuana had been "designated as having a 
potential for abuse because of its depressant or stimulant effect 
on the central nervous system or its hallucinogenic effect" or 

j that petitioner had possessed the drug "without medical prescrip- 
|i tlon and without being prescribed or administered by medical pre­
scription or authority", as alleged in the indictment (R.106-107). 
This motion was overruled (R.107)

j

| After both sides had rested, the trial judge charged the jury
that petitioner was on trial for the crime of possessing depress­
ant or stimulant drugs which have a "stimulant effect on the 
central nervous system" without a medical prescription (R.133).

| He defined "depressant or stimulant drug" as any substance:
"which the State Board of Health and the 

|j appropriate Federal authorities after in­
vestigation found to be, and have by regulation 
designated as habit-forming, because of its 
stimulant affect on the central nervous system, 
or any drug which contains any quantity of 
substance which the State Board of Health and 
the appropriate Federal drug authorities have 
found to be, and by regulation designated as having a potential for abuse because of its 
depressant or stimulant effect on the central 
nervous system, or its hallucinogenic effect"(R.134) .

! The judge further charged that "[m] arijuana has been labelled as a 
| dePressant or stimulant drug having an effect on the central j
nervous system" and that its possession without being in a con­
tainer with a prescription label is prima facie evidence that the 
possession is unlawful (R.135-136).



Petitioner excepted to the charge that marijuana had been 
found to be a depressant or stimulant drug and requested that the 
judge further charge the jury that "if there is no evidence of a 

i finding or regulation of the State Board of Health and of the 
|j Federal Drug Authority concerning the potential for abuse and the ! 
|| effect on the central nervous system, or the hallucinogenic effect 
i! of marijuana, then they must acquit him" (R.139). The request 
jj was refused (R.139), and jury returned a verdict of guilty (R.140). 

On appeal, petitioner urged that the State had completely 
failed to prove the essential elements of the crime with which he 

| was charged, i.e., that he had possessed a drug which had been 
designated by State and Federal authorities as having a potential

I
j| f o r  abuse because of its depressant or stimulant effect on the 
j central nervous system or its hallucinogenic effect. He pointed 
! out that the statute under which he was charged was clearly not 
jj intended to apply to the possession of marijuana which was classi- 
j fled as a "narcotic drug" and specifically made unlawful under the 
provisions of the Uniform Narcotic Drug Act (§§ 32-1462(12), 32- 
1463). The State, on the other hand, argued that the testimony j 
of the laboratory technician that marijuana "is classified as an

i
j hallucinogenic drug" (R.91) was sufficient to bring marijuana 
within the statutory definition of a depressant or stimulant drug 
and that it was common knowledge that marijuana has a "potential

I i§/for abuse."
The South Carolina Supreme Court did not affirm petitioner's 

! conviction on the ground that the State had sufficiently proved 
that marijuana was a "depressant or stimulant drug." Rather, the

1J>/ Brief of Appellant, pp. 22-24; Reply Brief, pp. 10-13 
16/ Brief of Respondent, pp. 17-19.

-23-



court noted that the section of the statute under which petitioner
u yhad ostensibly been charged had been amended on May 1, 1970, 

one month before petitioner's indictment, to make illegal the 
I "possession of a depressant, stimulant, counterfeit or illegal 
i — --2" (emphasis added) . The court pointed out that under §§ 32- 
| 1505(b) the definition of "illegal drug" includes "any narcotic 
drug" and that § 32-1462(12) of the Uniform Narcotic Drug Act in- 

I cludes marijuana within the definition of "narcotic drugs". Thus; 
'j even though it was clear that petitioner had been charged, tried
| and convicted for the possession of a "depressant or stimulantI
j d r u < ?  the court concluded that the conviction could be sustained 

jj because the same statute also penalized the possession of "illegalI
j drugs" which included marijuana. in response to petitioner's
contention that he had been deprived of fair notice of the charge

| against him, the court simply stated:
"The language of the indictment was clearly 
sufficient to advise him of the nature of | the charge" (A.4a).

jj Petitioner submits that the affirmance of his conviction
j by the South Carolina Supreme Court on the basis of a section of 
j the statute with which he was not charged denied him his right to
| due process of law guaranteed by the Fourteenth Amendment. This
I
ij case is closely analogous to Cole v. Arkansas. 333 U.S. 196 (194,11
it \  /  ,

:! where the defendants had been charged and convicted of violating
j!j; § 2 °f a criminal statute but the State Supreme Court affirmed the j
ljj convictions under § 1 of the statute. In reversing the convic-
j tions, this Court held:
!-------------- ----------------------------
^  in?ifi?nent referred to it as "§ 32-1506, paragraph2d and the Supreme Court referred to it as § 32-1506 

( )(d)." The correct citation, however, is § 32-1506(d).



I

See

"No principle of procedural due process is 
more clearly established than that notice of the specific charge, and a chance to be 
heard in a trial of the issue raised by that 
charge, if desired, are among the constitutional 
rights of every accused in a criminal proceeding in all courts, state or federal . . .  If, as 
the State Supreme Court held, petitioners were 
charged with a violation of § 1, it is doubtful 
both that the information fairly informed them 
of that charge and that they sought to defend 
themselves against such a charge; it is certain 
that they were not tried for or found guilty of 
it. It is as much a violation of due process 
to send an accused to prison following convic­tion of a charge on which he was never tried 
as it would be to convict him upon a charge 
that was never made" (333 U.S. at 201).

, 18/ also Shuttlesworth v. Birmingham. 376 U.S. 339 (1964). The
Court further concluded that the defendants' rights had also been 
violated in the Arkansas Supreme Court because:

"To conform to due process of law, petitioners were entitled to have the validity of their 
convictions appraised on consideration of 
the case as it was tried and as the issues 
were determined in the trial court" (333 U.S. at 202) .

It is plain that the decision of the court below similarly 
deprived petitioner of notice of the specific charge against him 
and of an opportunity to have the validity of his conviction 
appraised on appeal on the basis of the theory on which the case 
was tried in the trial court. Not only was petitioner misled by 
the indictment into believing that the State would have to prove 
'‘marijuana had been appropriately designated as a "depressant or 
|lstimulant drug, but at the time of his trial there was no way in
I
the exercise of ordinary diligence that he could even have found 
i|out that the statute under which he had been charged had been

•

18/ In this case this Court summarily reversed, on the authority 
of Cole v. Arkansas, supra, a decision by the Alabama Supreme Court (149 So.2d 921 (1962)) affirming a conviction for 
interfering with a police officer. The Alabama court had

that even if the defendant could not have been convicted 
under the section of the City Code with which he was charged there was no error in his conviction "since he could have been clearly convicted of a simple assault."

-25-



!j amended °ne m<j^h earlier to include "illegal drugs" within its 
| prohibitions. Indeed, it is apparent that neither the judge nor 
| the Prosecuting attorney were aware of this amendment.-^

In holding that petitioner's conviction can be affirmed 
because the evidence adduced at his trial is sufficient to convict 

j him of some crime, even though it was not the one charged, the 
jSouth Carolina Supreme Court also undermines the fundamental prin­
ciple that an accused cannot be deprived of his liberty unless he 

| is found guilty beyond a reasonable doubt by a jury of his peers on 
the basis of the evidence presented. Garner v. Louisiana. 368 U.S. 
157, 164 (1957). This basic requirement of due process is simply 
not met when as in the present case, an appellate court substi- 

| tutes its judgement for that of the jury. See Stirone v. United 
| States. 361 U.S. 212 (1960).

Such a disregard of basic procedural due process can never beI
considered harmless error. These procedural safeguards are de­
signed to insure fairness in the administration of criminal justice 
and their violation cannot be excused merely because the extent of 
prejudice to the defendant cannot be accurately measured. See 
jsjDevack v. Klein, 385 U.S. 511, 518 (1967) ; Stirone v. United 
^States, supra, 361 U.S. at 217. Consequently, this Court should 
ij grant certiorari and reverse petitioner's conviction by the South 
jCarolina Supreme Court "upon a charge that was never made." Cole 
! v. Arkansas, supra, 333 U.S. at 201.Ii------------------- ---------------- -
19/ In his Petiton for Rehearing in the South Carolina Supreme 

Court, petitioner pointed out that it was common for legis- |j lative enactments to go unnoticed by the bar for weeks oreven months before they were officially published.(Petition for Rehearing, p.6).
20/ That the trial judge was unaware of the amendment is demon­

strated by the fact that he charged the jury that under the 
j statute the possession of a depressant or stimulant drug

without a container bering a prescription label was prima 
facie evidence of unlawful possession (R.135-36). The second 
sentence of § 32-1506(d) which created this presumption, how­ever, was deleted by the May 1, 1970 amendment. (See §32- 1506(d), Reviser's Note).

-26-



Ill
The Admission of Evidence At Trial That Was 
Seized From Petitioner Following His Arrest 
Pursuant To A Constitutionally invalid" 
Arrest Warrant Violated His Rights UncTer 
The Fourth And Fourteenth Amendments

It is clear that none of the four arrest warrants pursuant to 
which petitioner was arrested on May 15, 1970 was based on a 
sufficient showing of probable cause. Petitioner's arrest,

! therefore, violated the Fourth and Fourteenth Amendments and the 
jevidence seized incident to the arrest was inadmissible at trial. 
Giordenello v. United States. 357 U.S. 480 (1958); Ker v. 
California, 374 U.S. 23 (1963 ); Mapp v. Ohio, 367 U.S. 643 (1961) 

Each of the warrants had been issued on May 13th or 14th,
1970 on the basis of an affidavit sworn to by E. J. Lessmeister, 
chief of detectives of the city of Florence (R. 4-7, 71). Three 
of the affidavits alleged only that on a certain date petitioner
had a certain stimulant drug in his possession and sold it to
„ • 21/ one Mike Martin," and one affidavit alleged only possession.

2_1/ The material part of each affidavit is as follows:
". . . on or about the 27 day of April, 1970, 
one Gene Ham did have in his possession certain 
stimulant drugs, to-wit: Dexamyl #2, and did
sell the same to one Mike Martin." (r . 4)
". . . on or about the 14 day of May 1970,
One Gene Ham did have in his possession 
a quantity of stimulant drugs, to-wit.Librium, 5 mg." ( r . 5)
". . . on or about the 19 day of April 1970, one Gene Ham did have in his possession 
certain stimulant drugs, to-wit: Dexamyl#1, and did sell the same to one Mike Martin." ( r . 6)

" • - . on or about the 30 day of April 1970, one Gene Ham did have in his possession 
certain stimulant drugs, to-wit:
Bithetamine #20, and did sell the same to one Mike Martin." (R.  7)

ll

-27-



No facts or circumstances were set forth indicating the basis 
or the source of Officer Lessmeister's conclusion from which a 
neutral and detached magistrate could make an independent 
determination that petitioner had committed a crime. Aguilar v.
Texas, 378 U.S. 108 (1964); Jones v. United States. 362 U.S.
257 (1960 ).

On the basis of this Court's decision in Giordenello v.
United States, supra, there can be no question but that these 

I warrants violated the Fourth Amendment. in that case, this Court 
construed Rule 4 of the Federal Rules of Criminal Procedure in 
light of the Fourth Amendment's requirement of probable cause 
and reversed a conviction based upon evidence seized pursuant 
to an arrest on a warrant which had been issued without a suffi­
cient showing of probable cause. That warrant, almost identical 
to the ones at issue here, alleged only that the defendant received 
and concealed a narcotic drug on a particular date with knowledge 
of unlawful importation. In language equally applicable to the 
:present case, this court said:

"fl]t is clear that [the complaint] does not 
pass muster because it does not provide any 
basis for the Commissioner’s determination under Rule 4 that probable cause existed.
The complaint contains no affirmative alle­gation that the affiant spoke with personal 
knowledge of the matters contained therein; 
it does not indicate any sources for the 
complainant's belief; and it does not set 
forth any other sufficient basis upon which 
a finding of probable cause could be made "(357 U.S. at 486)

As in Giordenello. moreover, the record in this case affirmatively 
|showed that the affiant had no personal knowledge of the facts 
on which the charge was based ( r . 48-49) Ibid. Finally, even if

-28-

I



it were assumed that the "one Mike Martin" referred to in the
affidavits was the source of Officer Lessmeister's knowledge,
|the affidavits still fall far short of establishing probable
!| cause. S£inelli v. United States. 393 U.S. 410 (1969); Aguilar v

—
Texas, supra.

The South Carolina Supreme Court declined to consider the 
constitutionality of the arrest and search of petitioner on the 
ground that he had not objected for that reason to the admission 
at trial of the evidence seized (App. la ). Petitioner submits, 

j however, that his failure to make a contemporaneous objection to 
the admission of the marijuana into evidence is not an adequate 
state ground which can preclude this Court from reviewing the 
federal question presented. See Douglas v. Alabama. 380 U.S.
415, 422 (1965); Henry v. Mississippi. 379 U.S. 443, 447 (1965).

It is settled that "a litigant's procedural defaults in 
state proceedings do not prevent vindication of his federal rights 
unless the State’s insistence on compliance with its proceduralI
jirule serves a legitimate state interest." Henry v. Mississippi. 
sujDrâ  379 U.S. at 477. No such interest was served in the 
present case by the enforcement of the contemporaneous objection 
rule to bar consideration of petitioner's constitutional challenge 
to his conviction in the South Carolina Supreme Court. On the 
contrary, petitioner's pre-trial motion to dismiss the indictment 
which was "ample and timely to bring the alleged federal error to 
the attention of the trial court and enable it to take appropriate
corrective action [was] sufficient to serve legitimate stateI
interests, and therefore sufficient to preserve the claim for
Review here." Doug las v. Alabama, supra, 380 U S  at 422

—

In the pre-trial motion, petitioner clearly brought to the 
attention of the trial judge his claim that the warrants pursuant

-29-



I

I to which he was arrested were invalid for want of a sufficient 
showing of probable cause for their issuance ( r . 48-50). The 
corrective action of a dismissal of the indictment which he sought 
was, moreover, clearly appropriate in view of the fact that the 
indictment was based entirely upon the evidence seized as a 
result of his illegal arrest. When the trial court denied this 
motion it ruled adversely to petitioner on the same federal claim 
which would have provided the basis for his later objection to the 
admissibility of the seized evidence. Thus, "fn]o legitimate 
interest would have been served by requiring repetition of a 
patently futile objection," Douglas v. Alabama, supra. 380 U.S. 
at 422, and "giving effect to the contemporaneous-objection rule 
for its own sake 'would be to force resort to an arid ritual of 
meaningless form.'" Henry v. Mississippi, supra, 379 U.S. at 449.

Petitioner cannot, moreover, be penalized for failing to 
clearly spell out the argument that the indictment should be 
dismissed because the evidence seized as a result of the illegal 
arrest was inadmissible. He was forced to go to trial two days 
after the indictment against him had been returned and before his 
counsel was even able to obtain a transcript of a preliminary

22/hearing that had been concluded three days before the indictmentT 
Indeed, on the day following the indictment his counsel had sought 
to withdraw from the case on the ground that petitioner wasI
unable to retain him. When the court refused to permit counsel 
to withdraw, petitioner moved for a continuance on the ground that 
he had not had an adequate opportunity to prepare for trial. This 
motion was denied and petitioner was directed to proceed with any

22/ See p. 3, supra.

-30-



2_3/
motions (R. 13). in the face of such pressure to go to trial,
Pe*-itioner moved orally to dismiss the indictment because of his 
illegal arrest. When counsel attempted to explain the basis for 
(the motion, the trial judge abruptly interrupted him and overruled 
|the motion (R.  50).

Thus, it was only the haste with which he was forced to go 
to trial and the conduct of the trial judge that prevented 
petitioner from fully elaborating upon his constitutional claim"! 
Under these circumstances, the refusal to consider that claim is 
essentially arbitrary. Where fundamental constitutional rights 
are at stake, the State cannot prevent their vindication by placing 
unnecessary and unjustified obstacles in the way of their 
assertion. N.A.A.C.P. v. Alabama, 377 u.S. 288 (1964 ); Wright v. 
Georgia, 373 U.S. 284 (1963 ). Consequently, this Court should

24/

grant certiorari and reverse petitioner's conviction on the ground 
that it was based on evidence seized in violation of his rights 
under the Fourth and Fourteenth Amendments.

2_3>/ In affirming his conviction, the South Carolina Supreme Court 
held that the denial of this motion for a continuance was not an 
abuse of discretion in light of the fact that 17 days had elapsed 
between the time of petitioner’s arrest and the beginning of the 
trial (App. 2a). The Supreme Court, however, failed to take 
account of the fact that petitioner had been arrested on May 15, 
1970 on five completely separate charges involving possession 
and/or sale of different drugs on different occasions. The 
^preliminary hearing on May 28 and 29 related to all of the charges ,and the record shows that petitioner was in fact indicted on each 
of the charges (R.  50). The charge on which he was convicted 
was merely the first that the State chose to call for trial.
Thus, petitioner received notice of the present indictment and 
the State's intention to call it for trial only the day before 
petitioner was required to make his motions and two days before the trial actually begun (R. 46-47).
24/ It cannot be contended that counsel deliberately bypassed 
the assertion of the federal claim. See Henry v. Mississippi, 
supra, 379 U.S. at 451. Since the evidence was clearly 
inadmissible and its exclusion would have required an acquittal, 
there could have been no strategic advantage to be derived from* failing to object.

-31-



Conclusion

For the foregoing reasons, petitioner prays that his peti­
tion for writ of certiorari to the Supreme Court of South Carolina 
be granted.

Respectfully submitted,

JACK GREENBERG JAMES M. NABRI-:
JONATHAN SHAPIRO

Columbus Circle 
New York, New York 10019

MORDECAI C. JOHNSON 
JOHN GAINES 

P. 0. Box 743 
Florence, South Carolina
Attorneys for Petitioner

- 3 2 -



APPENDIX



OPINION OF THE SUPREME COURT OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA 
In The Supreme Court

The State,

Gene Ham, .

Respondent,

Appellant.

Appeal From Florence County 
G. Badger Baker, Judge

Opinion No. 19197 Filed April 7, 1971
AFFIRMED

Mordecai C. Johnson, of Florence; Frank E. 
Cain, Jr., of Bennettsville; John A. Gaines, 
of Rock Hill; and Jack Greenberg and Jonathan Shapiro, both of New York, New York, for ap­pellant.
Solicitor T. Kenneth Summerford, of Florence, and Assistant Attorney General Timothy G. Quinn, of Columbia, for respondent.

LITTLEJOHN, A. J.: The defendant. Gene Ham, appeals from hii
conviction of possession of illegal drugs in violation of §32- 
1506(d) (1962 Code as amended). We affirm. The facts leading to 
his arrest and conviction may be summarized as follows:

On May 15, 1970, the appellant was arrested in Florence on 
the basis of four warrants which charged him with possession of 
stimulant drugs. Following his arrest he was taken to the city 
jail and searched; the search revealed a quantity of an unidenti­
fied substance. Thereafter a fifth arrest warrant was issued 
charging him with possession of marijuana.

a



On May 28 and 29 a preliminary hearing was held and probable 
cause found to bind Ham over to the General Sessions Court. On 
June 1, 1970, the grand jury returned true bills and on June 2 
the State proceeded to trial on the indictment charging possession 
of marijuana. !

At the conclusion of the evidence the matter was submitted to 
the jury which returned a guilty verdict. Motions for judgment 
N.O.V. and a new trial were denied. Appellant was sentenced to 
eighteen months and this appeal follows.

Appellant raises twelve issues for determination by this 
court; we deal with them as they were presented in the briefs.

Appellant contends first that his initial arrest was not made 
Pursuant to a valid arrest warrant and that the evidence seized

|
after the arrest was therefore inadmissible. We find from an 
analysis of the record that no objection to the admission of the 
marijuana was made at trial on this ground. At trial appellant 
questioned only the competency of the State's witness to identify ! 
the seized substance as marijuana.

Appellant next contends that mere possession of marijuana 
cannot, consistent with due process, be made a crime. He relies 
primarily on Stanley v. Georgia, 394 U. S. 557 (1969). Stanley 
dealt solely with the possession of allegedly obscene materials 
in one's home, and is clearly inapplicable here.

The statute itself, as the trial judge stressed in his jury ' 
charge, requires more than "mere" possession. The trial judge 
correctly set forth the presumption of innocence and reasonable 
doubt, along with the requirement of "knowing" possession.

Appellant s third contention, that a change of venue should 
have been granted because of prejudicial publicity,is, after an 
analysis of the exhibits presented, completely without merit.
The two newspaper clippings and one editorial concerning drug 
abuse did not name the defendant or refer in any way to his trialj

i

la



I

The trial judge did not abuse his broad discretion in this case 
to determine fairness. State v. Cannon. 248 S . C. 506, 151 S . E 
(2d) 752 (1966).

Appellant next contends that denial of his continuance motion 
was prejudicial error. He cites Powell v. Alabama, 287 U. S. 45 
(1932); that case involved the very different factual situation 
in which Negroes, accused of raping a white woman, were never 
given the effective aid of counsel. State v. Black, 243 S. C. 42, 
132 S. E. (2d)5 (1963) relied on by appellant, involved a capital 
offense where the death sentence had been imposed on the defendant. 
There, the only experienced counsel for the defendant had become 
ill and was unable to effectively participate in the trial. in j 
the case at bar appellant was continuously and ably represented, j 
A continuance is within the broad discretion of the trial judge. | 
State v. Harvey, 253 S. C. 328, 170 S. E. (2d) 657 (1969), and ! 
that discretion was not abused here where seventeen days elapsed j 
from the arrest to the beginning of trial.

Appellant next contends that the trial judge erred in refus- j 
ing to ask proposed voir dire questions. § 38-202 (1962 Code) 
sets forth the basic voir dire questions required by law; that 
section also permits a defendant to introduce competent evidence j 
m  support of any objections to a juror. The basic questions re- j 
ferred to in the section were covered. Appellant has failed to 
carry the burden of showing that other questions should have been \ 
asked to assure a fair and impartial jury. Certainly there is no \ 
showing of an abuse of discretion allowed a trial judge in this j 
State. State v. Britt, 273 S. C. 293, 117 S. E. (2d) 379 (1960). | 

Appellant’s next contention is that the trial judge abused 
his discretion in refusing to allow counsel to withdraw as re­
tained attorney for defendant. It is alleged that the judge

I
2a



indigent. He cites State v. Cowart, 251 S. C. 360, 162 S. E.
(2d) 535 (1968) for the rule that when one claims to be indigent 
the judge must make an affirmative determination of indigency. 
Cowart is inapposite to this case in that the defendants there, 
two minors, appeared at the outset with no lawyer and the trial 
judge refused to appoint one. Here appellant had counsel for the 
preliminary hearing and for pretrial; he appeared with this same i 
counsel at trial; the lawyer apparently found that Ham was unable 
and/or unwilling to pay and sought to be appointed so that the 
State could pay his fee. The prejudice, if any, resulted to the

■

lawyer's purse and not to the appellant; it does not in any way 
go to the substance of appellant's conviction.

I
Appellant next contends that the court below committed re­

versible error in allowing a laboratory technician to testify as 
an expert witness and identify the marijuana. The witness was Lt. 
Wilson of the South Carolina Law Enforcement Division. He stated 
to the court that he had identified marijuana on numerous occa­
sions and had seen it growing in the field. He was qualified to 
make the identification. The law in this State does not require 
a man to have a professional degree to qualify as an expert. Such
determinations rest in the discretion of the trial judge. Parks iI
v. Morris Homes Corp., 245 S. C. 461, 141 S. E. (2d) 129 (1965)
and also McCormick Evidence § 13 (1954).

Appellant's next two contentions form the substance of this
appeal; we treat them as one. Basically, appellant contends that
the State attempted to prove him guilty of violating the wrong
statute. Appellant contends that his trial should have been under)
that section of the code dealing with "narcotic" drugs rather thah
that dealing with "depressant and stimulant" drugs.

§ 32-1506(2)(d) of the code as amended May 1, 1970, under
which the indictment was brought makes unlawful,

(d) the possession of a depressant, stimulant, counter­feit, or illegal drug by any person, unless such person

should have made a factual determination that the defendant was
I

3a



obtained such drug on the prescription of a prac­
titioner, or in accordance with Section 2(a) 2."(Erapiiasis added.)
The 1970 amendment places "illegal" drugs within the class 

prohibited by § 32-1506 (2) (d) . Narcotic drugs are illegal drugs 
as defined in § 32-1505 (b) , and marijuana is classed as a nar- |
cotic drug in § 32-1462(12) of the 1962 Code as amended.

!This act became law on May 1, 1970, two weeks before appel-
|

lant was arrested. It follows that appellant was indicted on the 
correct statute.

Appellant's next contention is that the indictment should 
have been quashed because it fails to allege the offense sub­
stantially in the language of the statute. Appellant did not 
enumerate this ground in his motion to quash, and is precluded 
from doing so now. There can be no doubt that the indictment 
placed the defendant on notice that he was charged with possession} 
of marijuana. The language of the indictment was clearly suffi- j 
cient to advise him of the nature of the charge.

Finally, appellant contends that the imposition of an 18
Imonth sentence on a first offender constituted cruel and unusual 

punishment. The sentence imposed was less than the statutory max-I 
imum and there is no showing of partiality, prejudice or corrupt 
motive by the sentencing judge. Thompson v. State, 2 51 S. C. 593,: 
164 S.E. (2d) 760 (1968).

Accordingly, the judgment of the lower court is 
AFFIRMED.
MOSS , C . J ., and LEWIS , A . J ., concur . BUSSEY and BRAILS FORI} 

dissent.

BUSSEY, A. J. (dissenting): The appellant is a locally well-i
known, young, black, bearded, civil or "human" rights activist, 
who contended, inter alia, that marijuana was planted upon him by j 
law enforcement officers who were "out to get him." The jury
panel was composed of six blacks and thirty whites. The appellant)

|
4a



I

requested voir dire examination of the prospective jurors and 
specifically requested that the following questions, inter alia, 
be asked.

"1. Would you fairly try this case on the basis of evidence and disregarding the defendant's race?
"2. You have no prejudice against Negroes? Against black people? You would not be influenced by the use of the 
term 'black?'
"3. Would you disregard the fact that this defendant 
wears a beard in deciding this case?"

The trial judge declined to ask the foregoing questions, ruling
that they were not relevant. Instead, His Honor asked the jurors
only the three basic questions specifically required by Sec. 38-
202 of the 1962 Code. Under the facts and circumstances of this
case and the principles enunciated by the United States Supreme
Court in the case of Aldridge v. U. S. (1931), 283 U. S. 308, 51 S^
Ct. 470, 75 L. Ed. 1054, (which decision is binding upon this Courtjt
I conclude that His Honor was in error in summarily disposing of
the proposed questions as irrelevant. It was, of course, not nec- J
essary for the court to ask questions in precisely the form pre-
sented, but under the Aldridge case it was required/ I think, to
inquire of the jurors whether they had any prejudice because of
these particular matters which would prevent them giving a fair and
impartial verdict.

The case of State v. Young, 238 S. C. 115, 119 S. E. (2d) 504^ 
relied upon by the respondent as sustaining the action of the 
trial judge, is clearly distinguishable on the facts. In fairness I 
to the lower court, his ruling in this respect finds some support 
in State v. Bethune (1910), 86 S. C. 143, 67 S. E. 466, and State 
v. Bethune (1912), 93 S. C. 195, 75 S. E. 281. The Aldridge case, 
supra, is however, I think controlling.

The defendant in my opinion is entitled to a new trial and I j 
would reverse and remand to that end.

BRAILSFORD, A. J., concurs.

|

5a



Order Denying Petition For Rehearing

THE SUPREME COURT OF SOUTH CAROLINA

Frances H. Smith 
Clerk P.O.Box 11358April 28, 1971 Columbia, S.C. 29211

Mordecai C. Johnson, EsquireP. O. Box 743
Florence, South Carolina

Re: The State v. Ham
Dear Mr. Johnson:

The Court has this day refused your petition 
for rehearing in the above case in the following order: 

"Petition denied.
p/ uusepn k . MOSSs/ J. Woodrow Lewis C.J. 

A. J.
A . J .
A . J .s/ Bruce Littleiohn A. J.

: petition.
A. J.
A . J .s/ Thos. P. Bussev A. J.s/ J. M. Brailsford A. J.
A . J . "

The remittitur is being sent down today.
Very truly yours, 
FRANCES H. SMITH, CLERK

FHS:ml
CC: The Honorable Timothy G

By s/ Reba D. Mims 
Deputy ClerkQuinn

6 a



STATUTES INVOLVED

Code of,Laws of South Carolina 1962 Annotate 
Vol. 9, p. 24.

§ 38-202 . Jurors may be examined by court-.: -if np+- 
lndifferent, shall be set aside.— The court shall, on 
motion of either party in the suit, examine on oath 
any person who is called as a juror therein to know 
whether he is related to either party, has any interest 
m  the cause, has expressed or formed any opinion or is 
sensible of any bias or prejudice therein, and the 
party objecting to the juror may introduce any other 
competent evidence in support of the objection. If it 
appears to the court that the juror is not indifferent 
in the cause, he shall be placed aside as to the trial 
of that cause and another shall be called.

Code of Laws of South Carolina 1962 Annotated 
Vol. 7 (Cum. Supp. 1970) p. 179

§ 32-1462. Ikfiiutinn.s.-The following words and 
phrases shall, as used in this article, have the follow­
ing meanings, unless the context otherwise requires:

* * * * *
''Narcotic drugs" means coca leaves, opium, 

isonipecaine, amidone, isoamidone and keto-bemidone, 
and every substance neither chemically nor physically 
distinguishable from them, cannabis or any cannabis 
preparation, marihuana, commonly known as Indian hemp 
and any drug or preparation classified, now or hereafter, 
under the Federal narcotic laws as a narcotic or opiate;

7a



Code of Laws of South Carolina Annot^pH 
Vol. 7, pp. 455, 463

§ 32-1463. Acts prohibited.—  Tt shall be unlawful 
for any person to manufacture, possess, have under his 
control, sell, prescribe, administer, dispense or com­
pound any narcotic drug except as authorized in this 
article.

§ 32-1493. General penalties.— Any person viola­
ting any of the provisions of this article, except as 
specified in §§ 32-1484.1 and 32-1493.1 shall, upon 
conviction, be punished for a first offense by a fine 
not exceeding two thousand dollars or by imprisonment 
of not more than two years, or by both fine and im­
prisonment, in the discretion of the court. A second 
offender shall be subject to a fine of not less than 
two thousand dollars nor more than five thousand dol­
lars or to imprisonment for not less than two years 
nor more than five years, or both, in the discretion 
of the court. A third or subsequent offender shall 
be subject to imprisonment of not less than ten years 
nor more than twenty years, and no probation or sus­
pension of such sentence shall be granted until the 
service of not less than ten years of the sentence.

Code of Laws of South Carolina Annotated 
y.ol- 7 (Cum. Supp. 1970) p. 184. 185, 189

§ 32-1505. Definitions.—  For the purpose of this 
article:
(a) The term "depressant or stimulant drug" means:
(1) Any drug which contains any quantity of
(A) Barbituric acid or any of the salts of bar­

bituric acid; or

8 a



(B) Any derivative of barbituric acid which has 
been designated as habit forming by the State Board 
of Health or the appropriate Federal drug authorities.
(2) Any drug which contains any quantity of
(A) Amphetamine or any of its optical isomers;
(B) Any salt of amphetamine or any salt of an 

optical isomer or amphetamine; or
(C) Any substance which the State Board of Health or 

the appropriate Federal drug authorities, after inves­
tigation, have found to be, and by regulation designa­
ted as, habit forming because of its stimulant effect 
on the central nervous system; or
(3) Any drug which contains any quantity of a sub­

stance which the State Board of Health or the approp­
riate Federal drug authorities have found to have, and 
by regulation designated as having a potential for 
abuse because of its depressant or stimulant effect on 
the central nervous system or its ha 1lucinogenic effect,
(b) The term 'illegal drug" means any depressant or 
stimulant drug, or counterfeit drug as defined in this 
article or any narcotic drug or any other drug, pharm­
aceutical or biological preparation, bearing upon its 
original manufacturer's label, the legend "Caution- 
Federal Law prohibits dispensing without prescription," 
or such like phrase, while not in a proper container
or not legally held in possession as provided by this 
article or any other section of the Code of Laws of 
South Carolina.

§ 32-1506. Prohibited acts.— The following 
acts, the failure to act as hereinafter set forth, 
and the causing of any such act or failure are hereby 
declared unlawful except as provided in § 32-1507:

(a) The delivery of any depressant or stimulant

9 a



Districts
Divisions

Sample from Master Lists 
(1971)

Total Non-White % N.W.

Jurors Actually Reporting 
(1971)

Total Non-White % N.W.

1970 % Underrepresent 
Census Master Actual 
7 N.W. Lists Jurors 
(over 21)________________

Tennessee-Middle
Columbia 163 14 8.6 51 15 2.9 8.0 -7.5 63.8
Northeastern 199 2 1.0 48 0 0 1.2 16.7 100
Nashville 210 26 12.4 116 20 17.2 14.4 13.9 -19.4

Tennessee-Eastern
Winchester 438 22 5.0 107 2 1.9 5.8 13.8 67.2
Southern 433 57 13.2 483 65 13.5 16.0 17.5 15.6
Northern 435 11 2.5 382 11 2.9 8.1 69.1 64.2
Northeastern 395 9 2.3 366 7 1.9 2.2 -4.5 13.6

Texas-Western
Austin 430 57 13.5 190 23 12.1 9.9 -38 -22.2
Del Rio 435 7 1.6 196 4 2.0 1.4 -14.3 -42.9
El Paso 436 13 2.9 201 3 1.5 2.7 -7.4 44.4
Midland 439 19 4.3 120 8 6.7 6.0 28.3 -11.7
Pecos 468 10 2.1 113 5 4.4 1.8 -16.7 -144.4
San Antonio 458 33 7.2 382 22 5.8 6.0 -20.0 3.3
Waco 457 80 17.5 77 9 11.7 11.8 -48.3 .8

Texas-Southern
Brownsville 89 2 2.2 127 1 .8 .3 -733.3 -266.7
Corpus Christi 88 4 4,5 130 8 6.2 3.5 -28.6 -77.1
Galveston 58 18 31.0 121 15 12.4 15 -106.6 17.3
Houston 491 105 21.4 411 117 28.5 18.5 -15.7 -54.1
Laredo 117 0 0 84 0 0 .4 100 100
Victoria 20 2 10 39 3 7.7 8.3 -20.5 7.2



drug unless—
(1) such depressant or stimulant drug is delivered 

by a pharmacist, upon a prescription, and there is af­
fixed to the immediate container in which such drug 
is delivered a label bearing (A) the name and address 
of the pharmacy from which such drug was delivered;
(B) the name of the pharmacist dispensing such drug;
(C) the date on which the prescription for such drug 
was filled; (D) the number of such prescription as 
filed in the prescription files of the pharmacist 
who filled such prescription; (E) the name of the 
practitioner who prescribed such drug; (F) the name 
and address of the patient, and, if such drug was 
prescribed for an animal, a statement of the species 
of the animal; and (G) the directions for use of the 
drug as contained in the prescription; or

(2) Such depressant or stimulant drug is delivered 
by a practitioner in the course of his practice and 
the immediate container in which such drug is delivered 
bears a label on which appears the direction for use of 
such drug, the name and address of such practitioner, 
the name and address of the patient, and, if such drug
is prescribed for an animal, a statement of the species 
of the animal.
(b) No prescription (issued before or after the effect­

ive date of this section) for any depressant or stimu­
lant drug may be filled or refilled more than six 
months after the date on which such prescription was 
issued and no such prescription which is authorized to 
be refilled may be refilled more than five times, ex­
cept that any prescription for such a drug after six 
months after the date of issue or after being refilled 
five times may be renewed by the practitioner issuing

1 0 a

!i



it either in siting or orally (if promptly reduced 
to writing and filed by the pharmacist filling it, 
and the original prescription shall be cancelled).
If no indication of refill status is indicated on 
the prescription, it shall not be refilled.
(c) The delivery of a depressant or stimulant 

drug upon prescription unless the pharmacist who
such prescription files and retains it as re­

quired in § 32-1508.
(d) The possession of a depressant, stimulant, 

counterfeit or illegal drug by any person, unless 
such person obtained such drug on the prescription
of a practitioner, or in accordance with § 32-1506 
(a) (2)
(e) The refusal to make available and to accord 

full opportunity to check any record or file as re­
quired by § 32-1509.
(f) The failure to keep records as required by 

paragraph (a) or (b) of § 32-1508.
(g) The using by any person to his own advantage,

or the revealing, other than to an officer or employee 
the State Board of Health, or to a court when rele­

vant in a judicial proceeding under this article, of 
any information required under the authority of § 32-1509, 
concerning any method or process which as a trade 
secret is entitled to protection.
(h) (1) Making, selling, disposing of, or keeping in 

possession, control or custody, or concealing any 
punch, die, plate, stone, or other thing designed to 
print, imprint, or reproduce the trademark, trade 
name, or other identifying mark, imprint, or device 
of another or any likeness of any of the foregoing

1 1 a



upon any drug or container or labeling thereof so 
as to render such drug a counterfeit drug. (2)
The doing of any act which causes a drug to be a 
counterfeit drug, or the sale or dispensing or
the holding for sale or dispensing, of a counter­
feit drug.

§ 32~1510.3 Violations; penalties for 
first and subsequent offenses; suspension, cancella­
tion and reinstatement of licenses— Anv person vio­
lating any of the provisions of this article shall 
be deemed guilty of a misdemeanor, and'upon convic­
tion shall be punished for a first offense by a fine 
not exceeding two thousand dollars or by imprison­
ment of not more than two years or by both fine and 
imprisonment, in the discretion of the court. A 
second offender shall be subject to a fine of not less 
than two thousand dollars nor more than five thousand 
dollars or by imprisonment for not less than two years 
nor more than five years or both, in the discretion 
of the court. A third or subsequent offender shall be 
subject to imprisonment of not less than five years nor 
more than ten years and no probation or suspension of 
such sentence shall be granted until the service of not 
less than five years of the sentence. Any person vi­
olating any of the provisions of this article shall 
be deemed a subsequent offender if he has been pre­
viously convicted of a violation of any of the laws of 
the United States or any state or territory of the 
United States, relative to depressant or stimulant or 
counterfeit drugs. if a pharamacist or practitioner 
is convicted of, pleads guilty to, or pleads nolo 
contendere to any violation of the provisions of this 
article, the licensing board having jurisdiction, may,

12 a



after a proper hearing suspend or cancel the pro­
fessional license of such convicted pharmacist or 
Practitioner. On the application of any person 
whose license has been suspended or cancelled and 
upon proper showing and for good cause, such li­
censing board may reinstate such license.

13a



A. The right to challenge for cause and peremptorily is 
guaranteed by the constitutions and statutes of the following states:
Alabama: Code of Alabama Recomp. Tit. 30, §§55, 60 (1958)
Alaska: Alaska Statutes §12.45.010, 09.20.90, Civ. Rule 47
Arizona: Ariz. Rev. Stat. Rules of Crim. Proc., Rule 219,225
Arkansas: Ark. Stat. 43-1915, 43-1922 (1947)
California; Cal. Penal Code §1071, 1070
Colorado: Col. Rev. Stat. 78-5-4 (1963)
Connecticut: Conn. Genl. Stat. 51-242
Delaware: Del. Code Superior Ct. Rules -Criminal, Rule 24
District of Columbia: D.C.C.E. General Sessions Court

Rules, Criminal Division, Rule 24
Florida: Fla. Stat. 913-02(2), 913.08 (1969)
Georgia: Code of Ga. 59-804, 59-805
Hawaii: Hawaii Rev. Stat. §635-28, 635-29
Idaho: Idaho Code 19-2017, 19-2015
Illinois: Illinois 3.H.A. ch. 38, §115-4
Indiana: Burns Ind. Stat. §9-1504 (inference from the

the nature of the grounds for challenge), 9-1502
Iowa: Iowa Code §779.5, 779.10 (1946)
Kansas: K.S.A. 22-3410, 22-3412
Kentucky: Ken. Rev. Stat. Rules of Practice,

R. Cr. 9-36, 9-40
Louisiana: La. Statutes Ann. C-Cr. P 797; La. Const.

Art. I Sec. 10
Maine: Maine Rev. Stat. Tit. 15, §1259
Maryland: Maryland Ann. Code Art. 51 §10, 15 (1957)
Massachusetts: Ann. Laws of Mass. Recomp. Ch. 234, §28.29

(1956)
Michigan: Mich. Comp. Laws, 768.12 (1948)
Minnesota: M.S.A. §631.28, 631-27
Mississippi: Miss. Code §1802 (inference), 2520 (1942)

The Right to Challenge in the States
_____ and the District of Columbia

-14a-



Missouri: Missouri Rev. Stat. §546.120, 546. 130, 546 140546.150, 546.180 (1959)
Montana: Rev. Code of Montana Tit. 95, ch. 1909 (1947)
Nebraska: Rev. Stat. of Neb. §29-2006 (inference from

nature of grounds of challenge), 29-2006 (1943)
Nevada: Nev. Rev. Stat. Chap. 175.036, 175.051
New Hampshire: N.H. R.S.A. 606.3
New Jersey: N.J.S.A. 2A:78-4, 2A:78-7
New Mexico: N.M. Stat. §19-1-14, 41-10-3 (1953)
New York: N.Y. Consol. Laws Code of Crim. Proc. §370,375, 376, 372
North Carolina: Genl. Stat. of N.C. §9-15, 9-21 (1965)
North Dakota: N.D. Cent. Code 29-17-32, 29-17-30
Ohio: Ohio Rev. Code §2945.21 (inferentially), 2945.21

2945.22

Oklahoma: 22 Okl. St. Ann. §656, 655
Oregon: Ore. Rev. Stat. §136.210, 17.165, 136.230
Pennsylvania: 19 P.S. §811
Rhode Island: Genl. Laws of R.I. 9-10-14, 9-10-18 (1956)
South Carolina: Code of Laws of S.C. 38-211
South Dakota: S.D. Comp. Laws 23-43-29, 23-43-28 (1967)
Tennessee: Tenn. Code §22.301, 40.2510
Texas: Tex. Stat. Art. 35.16, 35.15
Utah: Utah Code 77-30-16, 77-30-15 (1953)
Vermont: Vt. Stat. Tit. 19, §1941
Virginia: Code of Va. 19.1-206, 8-199 (inference),19.1-208 (1950)
Washington: Rev. Code Wash. 10.49.040, 10.49.060
West Virginia: w. Va. Code 62-3-4, 62-2-3
Wisconsin: Wise. Stat. Ann. 957.14, 270.16, 972.03
Wyoming: Wyo. Stat. §7-223, Rule 25 W.R. Cr. P.

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B. Although there is no statutory grant of right to challenge 
for cause in the following states, it is nevertheless provided on the basis of case law:
Colorado - Jones v. State, 23 Colo. 276, 47 P.275 (1898)
Connecticut - State v. Smith, 49 Conn. 376 (1881)
District of Columbia - united States v. Baker, 266 F.Supp.

461 (D.D.C. 1967), cause remanded 
131 U.S. App. D.C. 7, 401 F.2d 958, 
on remand 301 F. Supp. 973 (D.D.C. 
_______)

Michigan - People v. Wheeler, 96 Mich. 1, 55 N W 371 (1893)
South Carolina - State v. Britt, 237 S.C. 293, 117 S E 2d379 (1960)

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Examination of Jurors on Voir Dire in the States
---------- -and the District of Columbia

A.
right°by°atatutetteS Pr°Vide "°ir dlre aS a ° f
Alabama: Code of Alabama Recomp. Tit. 30, §52 (1958)
Alaska: Alaska Stat. 12.45.010, 09.20.090, Civ. R. 47
Arizona. Ariz. Rev. Stat. Rules of Crim. Proc. R. 217 
Arkansas: Ark. Stat. 39-226 (1947)
California: Cal. Penal Code §1078
Connecticut: Conn. Genl. Stat. 51-240
Delaware: Del. Code Superior Ct. Rules - Criminal Rule 24
District of Columbia: D.C.C.E. General Sessions Court

Rules, Criminal Division, Rule 24
Florida: i'la. Stat. 913.02 (1969)
Georgia: Code of Ga. 59-806 (felony)
Hawaii: Hawaii Rev. Stat. §635.27
Illinois: 111. S.H.A. ch. 38 §115-4
Kansas: K.S.A. 22-3408
Kentucky: Ken. Rev. stat. Rules of Practice R. Cr. 9.38
Louisiana: La. Stat. Ann. c. Cr. p. 786
Maine: Maine Rev. Stat. Tit. 15 §1258A
Massachusetts: Ann^Laws of Mass. Recomp. chap. 234 §28

Michigan: , Mich. Comp. Laws 768.8 (1948)
Minnesota: M.S.A. §631.26
Mississippi; Miss. Code §1802 (1942)
Montana: Rev. code of Montana Tit. 95 Chap. 1909 (1947)
Nevada: Nev. Rev. Stat. chap. 175.031
New Hampshire: NH RSA 606:1, 500:32
New Jersey: N.J.S.A. 2A:78-4
New Mexico: N.M. Rev. stat. §21-1-1(47) (1953)
North Carolina: Genl. Stat. of N.C. §9-15 (1965)
North Dakota; N.D. Century Code 29-17-28

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V

Ohio: Ohio Rev. Code §2 94 5.2 7
Oregon: Ore. Rev. Stat. §136.210
Pennsylvania: 19 P.S. § R. Cr. P. 1106, 1107
Rhode Island: Genl. Laws of R.I. 9-10-14 (1956)
South Carolina: Code of Laws of S.C. 38-202 (1962)
Texas: Tex. Stat. Code of Crim. Proc. Art. 35.12
Virginia: Code of Va. §19.1-206, §8-199 (1950)
Wisconsin: Wise. Stat. Ann. 957.14, 252.08
Wyoming: wyo. Stat. Rule 25 W.R. Cr. P.

B* Although there is no statutory right to voir dire in the
following states, it is nevertheless provided on the basis of case law:
Colorado - Zancanel1i v. People, 63 C. 252, 165 P.612 (1917) ;
Georgia - Nobles v. State, 127 Ga. 212, 56 S.E. 125 (1906) (misdemeanors)
Idaho - State v. Hoaglund, 39 Idaho 405, 228 P. 314 (1924) 
Indiana - Epps v. State, 102 Ind. 538, 1 N.E. 491 (1885)
Iowa - State v. Dooley, 89 la. 584, 57 N.W. 414 (1894) 
Maryland - Griggs v. State, 231 Md. 530, 191 A.2d 435 (1963) 
Missouri - State v. Mann, 83 Mo. 589 (1884)
Nebraska - Oden v. State, 166 Neb. 729, 90 N.W. 2d 356 (1958)I
New York - People v. Jelke, 130 NYS 2d 662, 284 App. Div 211 (1954)
Oklahoma - Roberson v. state, Okla.

456 P. 2d 595 (1968) * ------'
South Dakota - State v. Gurrington, 11 s.D. 178, 76 N W 326(1898) *
Tennessee - Foute v. State, 83 Tenn. 712 (1885); Paducah 

T.& A.R. Co. v. Muzzell, 95 Tenn. 200,31 S.W. 999 (1895) I
Utah - State v. Morgan, 23 u. 212, 64 P. 356 (1901)
Vermont - state v. Mercier, 98 Vt. 368, 127 A. 715 (1925)

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