BUMPER v. NORTH CAROLINA

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Argument of Norman B. Smith

Chief Justice Earl Warren: Number 1016, Wayne Darnell Bumper, Petitioner, versus North Carolina.

Mr.Smith, you may continue with your argument.

Mr. Norman B. Smith: Mr.Chief Justice and may it please the Court.

Yesterday afternoon, at closing time I think I had made the proposition that the challenge for a cause should be limited only to people who say they cannot give either the state or the defendant a fair trial.

That only those people should be kept off the jury.

Now I'd like to state my reasons for this proposition.

Justice Potter Stewart: Before you begin, I want to be sure I understood correctly what I -- I thought I understood you to acknowledge and concede yesterday and that is that in this case, there was sufficient opportunity for interrogation of the venary of the respective jurors so that the challenges for cause were allowed only for those respective jurors who said that in this case they could not return a verdict of death, is that --

Mr. Norman B. Smith: Your Honor that's --

Justice Potter Stewart: -- do you concede that?

Mr. Norman B. Smith: That is my opinion and I really -- I don't attempt to make the question any broader than --

Justice Potter Stewart: Right.

So --

Mr. Norman B. Smith: -- what I've just stated.

Justice Potter Stewart: So this is a different case in that respect from the Illinois case here?

Mr. Norman B. Smith: Yes, Your Honor.

Of course, that issue, I suppose could be reached in the Illinois case --

Justice Potter Stewart: Yet --

Mr. Norman B. Smith: -- but this is really, I think a -- were confronted of, I believe here with the collision course really between the right of the state to seek the death penalty and what we contend to be the right of the defendant to seek a fair trial.

Now --

Justice Abe Fortas: May I ask you a question to --

Mr. Norman B. Smith: Yes, Your Honor.

Justice Abe Fortas: Here, there is no statute, is there?

Mr. Norman B. Smith: No, sir.

There's a long line of cases in North Carolina and beginning, I believe about 1870 the earliest one of which is cited in petitioner's brief and we're concerned only with the common law disqualification.

A really common law is not the right word either because I contend there was no disqualification of the common law but it is a court-made rule enforced in North Carolina.

Justice Abe Fortas: And --

Mr. Norman B. Smith: And --

Justice Abe Fortas: Is there -- are you suggesting to us that there is a pattern here of which the pattern here -- or which this -- disqualification as a pattern, a pattern of disqualification for this particular reason?

Mr. Norman B. Smith: Yes, Your Honor, I certainly think so.

The first point, I believe, is it -- that it's numerically significant.

Now, the Attorney General of North Carolina stipulated or conceded in the case of Crawford v. (Inaudible) that 30% of our citizens in North Carolina would be challengeable for a cause on this ground, on the ground of conscientious subjection to the death penalty.

I presume that elsewhere in the United States, the statistics are pretty much the same.

Certainly from the (Inaudible) post and the other indices available to us are -- this is not an unreasonable figure keeping in mind that some of those who at the outset say they are opposed which is something like half of our population may as the study cited by Mr. Jenner (ph) yesterday made by Professor Zeisel indicates, these people when really put to the test of a heinous or atrocious crime might back down and be willing to invoke the death penalty.

But I think that 30% figure is a fair figure for North Carolina since it's conceded by my adversary.

Justice Abe Fortas: Well, forgive me.

Let me ask you another question.

Is that the position here that the state has a right to have persons in this category disqualified for a cause?

Mr. Norman B. Smith: Well, I think --

Justice Abe Fortas: Suppose a judge said, “Alright, this respective witness says that he has a conscientious scruple against returning -- imposing the death penalty in this case” but nevertheless, I think he is taking all and all, he is qualified to serve.

Would that be error under your law or with it be -- regardless of whether you -- there's anything in the District Prosecuting Attorney could do about it.

Would it be error as you understand your law or would it merely be a permissible exercise of discretion by the judge?

Mr. Norman B. Smith: Well, if -- I'm not sure I understand the question, Your Honor.

Is it -- you mean if a prospective juror says that he could do it in some cases but not in all cases --

Justice Abe Fortas: No, prospective jurors says that to his conscientious scruple, he could not -- against imposing the death penalty.

He couldn't do it generally.

He can't do it in this case, in any particular case.

Mr. Norman B. Smith: Yes sir.

Justice Abe Fortas: And the judge nevertheless says, “Well, taking it all and all I'm going to overrule the challenge for cause."

Mr. Norman B. Smith: Oh, I think that would be error.

And although I haven't researched the question, my often opinion would be that the state could have the error reversed by the Supreme Court although appeals by the state are very nearly limited in North Carolina in criminal cases not -- without researching the point, I'd hesitate to say.

But if he recognize this error whether or not the state could procure a reversal is something I noted Mr.McGalliard could answer more correctly than I can.

Justice Hugo L. Black: May I ask you to be answering -- is it clear but your -- does the North Carolina have a death sentence imposed?

Does it authorize the death sentence?

Mr. Norman B. Smith: Yes, Your Honor.

Justice Hugo L. Black: For crimes like this?

Mr. Norman B. Smith: Yes, sir.

Justice Hugo L. Black: And what you're insisting, as I understand it, is that it is a constitutional error for people to be taken off the jury because they tell the jury the -- under no circumstances, would convict and impose the death sentence.

Is that your position?

Mr. Norman B. Smith: Yes Your Honor, it is.

Justice Hugo L. Black: That's the question that you brought to us?

Mr. Norman B. Smith: Yes, sir.

Well --

Justice Potter Stewart: Now it's not that -- I must say I misunderstand you.

It's not that they tell the judge that they would not convict.

They should tell the judge that they would not impose the death sentence, isn't that --

Mr. Norman B. Smith: Yes, Your Honor, that's --

Justice Hugo L. Black: Oh, that's what I mean.

I did --

Mr. Norman B. Smith: That second --

Justice Hugo L. Black: That's what I thought you've said it.

Mr. Norman B. Smith: The second question is not asked under our practice and it's my contention that that second question is the vital question --

Justice Hugo L. Black: That was your point, yeah?

Mr. Norman B. Smith: Now --

Justice William O. Douglas: Would you -- I'm sorry, would you state that again?

Mr. Norman B. Smith: My contention is that the vital question is the second question of whether or not in spite or your scruples you could go on and give both the state and the defendant a fair trial on the issue of guilt or innocence.

If you can do that in spite of your scruples we contend the juror should be ceded and no challenge for cause should be allowed because we believe that the right of a fair trail attaches on this primary issue of guilt or innocence and the state's right to seek the death penalty must be subordinated to that.

Now --

Chief Justice Earl Warren: Well, I under -- I didn't understand that to be Justice Black's question.

Justice Black, I thought, asked you if a juror said that he could not bring in a capital verdict in this or any other case because of his conscientious subjections, and you said that you thought in those circumstances that there would be error for the court to excuse him that.

Mr. Norman B. Smith: By capital verdict, I understood Mr.Justice Black to mean a verdict of guilty without recommendation of mercy.

Justice Hugo L. Black: I meant --

Chief Justice Earl Warren: Well, that means it's a capital verdict, isn't it?

Mr. Norman B. Smith: But I'm trying to distinguish between the jury's function in recommending or not recommending mercy.

That is determining whether or not there will be like imprisonment and its function of adjudicating guilt or innocence.

And if this juror, this prospective juror said that he could give the state and the defendant a fair trial on the issue of guilt or innocence, in spite of his scruples against death -- the death penalty, then he should be ceded.

Even though he says in no case can I impose the death penalty and --

Justice Hugo L. Black: I don't understand that.

Do you say, “Even though he said there's no case would he impose a death penalty”?

Mr. Norman B. Smith: Yes, Your Honor.

I think it's been demonstrated that in many instances, a juror who has opposed to the death penalty would nevertheless be willing to vote on the guilt or innocence issue where the -- with a free and impartial mind in accordance with the instructions given by the judge.

Justice Potter Stewart: What if -- what if --

Justice Hugo L. Black: Just take up the question --

Justice Potter Stewart: Excuse me.

Justice Hugo L. Black: -- as I had it before.

Let's take a juror.

He comes in.

They asked him if he has scruples against the death penalty, he says, “Yes”.

The judge has a long colloquy with you in which he insists that he is qualified because he believes he might impose a death penalty.

The juror continuous to say, “I would not".

What do you say about excusing him as a matter of right?

Mr. Norman B. Smith: Then, at that point, Your Honor, a second question must be asked to the juror.

He must be asked, “In spite of your scruples against the death penalty, can you, on the issue --

Justice Hugo L. Black: Alright, I was giving you one why he'd ask him that?

Why he has to ask him that?

Mr. Norman B. Smith: That he could not give the state --

Justice Hugo L. Black: That he would not, could not and would not impose the death penalty under any circumstance?

Mr. Norman B. Smith: Well, Your Honor, I still think that's a different question because --

Justice Hugo L. Black: Is that not what you have here?

Mr. Norman B. Smith: Yes, sir, but I think they have to ask them another question.

Justice Hugo L. Black: Well, but did you think that when you prepared your certiorari up here or did you cons -- determined that yesterday after you heard this argument?

Mr. Norman B. Smith: Well, it's been my feeling all along Your Honor.

Justice Hugo L. Black: Why is it in your brief?

Mr. Norman B. Smith: Well, it's set out very clearly in my reply brief, Your Honor.

The entire Section 4 beginning on page 10 is directed to that exact problem.

I think I have some reasons that would support this position and I'd like to --

Justice William J. Brennan: And that provision is that there has to be -- even though he had said, "I had never under any circumstances vote to impose the death penalty".

Nevertheless he should then be asked as I understand your position?

But on the issue of guilt or innocence, can you not withstanding those scruples against the death penalty fairly determine whether or not this man is guilty or innocent?

Mr. Norman B. Smith: Yes, Your Honor.

Justice William J. Brennan: That's your position.

Mr. Norman B. Smith: Indeed, that's the holding in the case of Crawford v. (Inaudible) so it's not without some authority.

Justice Potter Stewart: That arises in your jurisdiction because unlike some jurisdictions where a finding of guilt of certain offenses results automatically in the imposition of the death penalty, in your jurisdiction, it's up to the jury to select the penalty to be imposed with this --

Mr. Norman B. Smith: Yes sir.

Justice Potter Stewart: -- certain rather broad limitations.

What is the jury's function?

This is a rape case in North Carolina, now what can the jury do after finding the defendant guilty?

Then what --

Mr. Norman B. Smith: Oh, I --

Justice Potter Stewart: -- discretion is allowed the jury?

Mr. Norman B. Smith: The jury then, I assume -- I've been in a jury room but I assume they find him guilty or innocent first and --

Justice Potter Stewart: Yes.

Mr. Norman B. Smith: -- assuming they find him guilt --

Justice Potter Stewart: Well, (Voice Overlap) they find him guilty --

Mr. Norman B. Smith: -- guilty.

Justice Potter Stewart: Then what do they do?

Mr. Norman B. Smith: Then they go on and consider whether they will recommend mercy.

That's the language we used, “recommend mercy” and this recommendation is binding on the court.

Justice Potter Stewart: And if it's a recommendation of mercy, then the court does not have any power to impose the death penalty?

Mr. Norman B. Smith: Yes, Your Honor.

And it --

Justice Potter Stewart: If there's no recommendation of mercy, does it -- is the court required to impose the death penalty?

Mr. Norman B. Smith: Yes, Your Honor.

The court is without discretion in that case so (Voice Overlap) --

Justice Potter Stewart: Required to impose the death penalty.

If there's no recommendation of mercy then what discretion does the court have, the judge have?

Mr. Norman B. Smith: None.

He must sentence to life imprisonment.

This is not --

Justice Potter Stewart: Well, on the conviction for rape, the most lenient sentence that can be imposed is imprisonment for life, --

Mr. Norman B. Smith: Yes sir.

And --

Justice Potter Stewart: -- is it?

Mr. Norman B. Smith: Yes sir, for rape.

Justice Potter Stewart: That's what we're talking about.

Mr. Norman B. Smith: Now, there are lesser included offenses and as a general rule, indeed in this case, the judge will charge with lesser included offenses: assault on a female, assault on battering, so forth and so on.

And these instances, of course, you get usually the ten-year maximum of -- for felony imprisonment.

Justice Potter Stewart: Well, has this situation never is in your state a jury in a rape case returns to the judge, were unanimously agreed that the defendant is guilty but we cannot reach agreement on whether or not to recommend the life sentence or recommend mercy I gather is your language?

Mr. Norman B. Smith: And they stay stuck on that.

You mean (Voice Overlap) --

Justice Potter Stewart: Yes, what happens then?

Has that happened, number one?

Mr. Norman B. Smith: That has not happened.

There is dictum by our Supreme Court that we would follow the Ambrose case decided by this Court, decided in the briefs here requiring unanimity on both issues.

Justice Potter Stewart: Well, now what does happen there?

Is there a mistrial?

Mr. Norman B. Smith: A mistrial.

And there are other alternatives to this result which I would suggest are avenues that the state can pursue in the event that petitioner is awarded the relief which he request.

I think for instance you can require the -- be reversed that there'd be a --

Justice John M. Harlan: You got to -- are you going to save anytime for your second point, your search and seizure point?

Mr. Norman B. Smith: Yes, sir, I am.

I -- I think that --

Chief Justice Earl Warren: Oh, I'd like to ask you one more question about this, Mr.Smith.

In your state, for a juror to qualify, must he say that he would be willing to set aside any preconceived ideas that he might have of the law and follow the instructions of the court as to the law not withstanding?

Mr. Norman B. Smith: Yes.

Yes Your Honor.

Chief Justice Earl Warren: How could a man who said, “I will under no circumstances bring in a capital verdict” if the judge instructs him that this is a proper case in which such a verdict can be brought in under the law?

Mr. Norman B. Smith: Well, I would suggest, Your Honor that he would still feel himself free to join with the other jurors and find the defendant guilty.

And then when it comes to the penalty phase of the deliberations, he would refuse to join the other jurors in failing to recommend mercy and he would come back in and possibly hung the jury.

On the other hand, it's possible that he could be talked out of this position.

And I -- of course, if the mechanics of the jury, the deliberation process are still I suppose quite much of a mystery, I don't think we know a lot about it.

But it appears from the results in cases that hung jurors are relatively few when it -- it's either some kind of a compromise that's worked out such as a lesser included offense possibly or the moral persuasion of the majority and finally bends the will of the minority on the jury.

I think this is a usual thing.

It happens all the time.

Justice Potter Stewart: What are your reasons for suggesting that your client doesn't get a fair trial when these jurors were excluded -- are excluded for these reason, which is -- relates only on the penalty?

Mr. Norman B. Smith: Yes, sir.

Well, first of all, Your Honor, I point out that it's a large group.

And secondly, I tried -- attempt the juxtapose the interest of the state, which I say is relatively slight in it that for few executions are ever carried out and this interest of the state is a very, very small one.

They only executed one person say in 1966 in a handful in the few years proceedings.

And so we rely --

Justice Potter Stewart: Of course that cuts both ways, I suppose.

Mr. Norman B. Smith: Yes, sir.

We rely on this studies, I crossed on Wilson, Goldberg and Zeisel coincidentally which are to some extent in the public domain, I realized that was questioned yesterday but they have been cited on the basis (Voice Overlap) --

Justice Byron R. White: You mean in the terms of the type -- in the terms of the type of person that is left on the jury --

Mr. Norman B. Smith: Yes sir.

Justice Byron R. White: -- (Inaudible) are excluded?

Mr. Norman B. Smith: But the very --

Justice Byron R. White: But what's the -- what interest did the defendant has violated --

Mr. Norman B. Smith: Well, I --

Justice Byron R. White: -- under the consti –

Mr. Norman B. Smith: I think --

Justice Byron R. White: -- what caused the constitution --

Mr. Norman B. Smith: Our claim, it's an equal protection violation and a due process violation and a deprivation of the impartial jury right.

Justice Byron R. White: Well, what --

Mr. Norman B. Smith: And the important thing --

Justice Byron R. White: Deprivation of an impartial jury?

Justice Potter Stewart: Mr.Smith, you have a very interesting and important second point in this case.

I hope that (Voice Overlap) --

Mr. Norman B. Smith: Yes Your Honor.

Justice Potter Stewart: -- I hope you're taking your time to get to it.

Mr. Norman B. Smith: I'm going to move on if I may only say one more thing.

Justice Byron R. White: Well, I would just like to -- you should finish your answer with my question --

Mr. Norman B. Smith: Yes sir.

Justice Byron R. White: -- if you don't mind.

Mr. Norman B. Smith: The important thing about these studies is the -- you don't have to accept or to prove --

Justice Byron R. White: I think -- I just want to know what provision of the constitution you're claiming -- this isn't a Sixth Amendment claim?

Mr. Norman B. Smith: Yes, sir.

We claim three things, Your Honor: the Sixth Amendment, which is applicable to the states and in accordance with this Court's decision in Parker versus Gladden and the Fourteenth Amendment due process clause; and the Fourteenth Amendment equal protection clause.

Justice Byron R. White: Well, how was it a due process violation?

Mr. Norman B. Smith: Because the fact-finding process itself, the integrity of the fact-finding process is impugned.

And we --

Justice Byron R. White: By what?

Mr. Norman B. Smith: By the exclusion of jurors who are likely, who are less likely to be prosecution (Voice Overlap) --

Justice Byron R. White: And how is it an equal protection claim?

Mr. Norman B. Smith: Well, it's a very related question, Your Honor, but it's an exclusion of a class of jurors which is injurious to the defendant.

I think the important thing in it --

Justice Byron R. White: That falls down to the same argument, I guess, doesn't it?

Mr. Norman B. Smith: Well, I think it does.

I think these are related arguments.

I think that's what the Fourth Circuit ultimately determined.

I guess I better talk about the search and seizure for in the moment.

The defendant was arrested on the day after the search.

I made a misstatement of that fact in the brief.

I said the -- vice-versa but the search was before the arrest.

The defendant lives with his grandmother who was a 66 years old Negro widow who lived at the end of a one mile dirt road in the rural section of Alamance County, North Carolina.

I've been down that road and it's quite generous to call it a road because it's a pretty rough track.

The point I suppose, is it is an isolated place and at the time the officers came, four of them and four sheriffs in a sheriff's car, all white, the grandmother was -- at the house along with some of her infant grandchildren not including the defendant who was 18 but some younger children and her adult son was away from the house.

These officers came up to the door.

This woman is elderly and I think that if -- from reading the record, you can indicate -- the record indicates she's deficient in education.

And the officers pulled out some kind of a paper and presented it to her instead they had a warrant or a notice or something.

She called it a warrant on one occasion, notice on the other for searching her premises.

They didn't explain why they were searching or on what connection and she acquiescently opened the door and stepped aside and said, “Alright, come in, you may search” and they did.

And they looked around in the house and found in the kitchen, which was a common room of the house, a rifle, which was a common article of the household.

I suggest owned and possessed among all the individuals in the household including the defendant.

This rifle was seized and taken and it later became material evidence in the case.

They also stripped some of the clothing of one of the 14 year old grandson who was present.

His clothing, however, was later returned and not used in the trial.

Incidentally, it didn't match the kind of clothing that the defendant supposedly wore on the occasion in question anyway.

This matter was brought up to trial by a motion to suppress and I tendered an affidavit by the grandmother explaining these things which I have just set out, this one.

And then attended to her as a witness and she was cross-examined by the Solicitor and in -- on a redirect and I supposed, would say I examined her again and she testified to me the essential --

Justice John M. Harlan: Does the record show what the piece of paper was?

Mr. Norman B. Smith: No, sir.

The piece of paper is nowhere in the record and what the Solicitor did, and it could be found on page 43 of the appendix of the -- the Solicitor said to the judge -- I see my time is --

Chief Justice Earl Warren: You may have five minutes more Mr.Smith.

You may have five more minutes left as to what you must fill in if you wish.

Mr. Norman B. Smith: Thank you, Your Honor.

The Solicitor said that the court of the state is not relying on the search warrant and the court said, “Are you so stating for the record” and the Solicitor said, “Yes, sir”.

And then I said, “Then we're concerned only with consent” and the court indicated we were.

So the warrant was never introduced, not part of the record.

And the Solicitor never at any time relied on it.

Yet, I contend that the officers relied on it at the time they made the search.

This woman thought she was yielding to a search by warrant, an official warrant, brought by officers of the law.

Justice John M. Harlan: What did the court find?

Mr. Norman B. Smith: The court found --

Justice John M. Harlan: That there was a consent?

Mr. Norman B. Smith: That there was voluntary consent to the search and it was upheld by the Supreme Court of North Carolina.

Justice William J. Brennan: You say we should've said that finding?

Mr. Norman B. Smith: Yes, sir, I certainly do.

Justice William J. Brennan: Oh, if there was -- do you think this woman could consent for the petitioner?

Mr. Norman B. Smith: Well, I don't raise that point, Your Honor.

I'm inclined to think that she could.

Justice Potter Stewart: Oh, if the woman said this was her rifle?

Mr. Norman B. Smith: Yes.

Justice Potter Stewart: She was -- it's her home and it's her rifle.

Mr. Norman B. Smith: And the children, of course, live in --

Justice Potter Stewart: That's what I read in the record.

Mr. Norman B. Smith: Yes, sir.

Justice Potter Stewart: (Inaudible)

Mr. Norman B. Smith: And the children of course used the rifle and lived in the home.

They went out hunting rabbits with it and shooting to scare off the mule and things like that which I (Voice Overlap) --

Justice William J. Brennan: Anyway, you don't care to raise that issue anyway --

Mr. Norman B. Smith: I don't think it's a sound -- that my personal opinion is that it's not a sound point.

I say unquestionably there is standing for the petitioner to raise the issue.

But I do think that the woman had the right to consent since it was her house.

Justice Byron R. White: And your point, I gather, is a narrow one that there could've been no consent in the circumstances that the officers represented to her insofar as this record is concerned, this hasn't been substantiated that they had a warrant which authorized them to come and that her consent was worst to what word you used.

Mr. Norman B. Smith: Yes, sir.

Justice Byron R. White: -- by this representation, is that it?

I think that's the point.

And even if leaving that aside, I think the, circumstances of the case were such that given her isolation, age, sex, race and so forth that you have a clear case of implied coercion.

I suggest to the court that the --

Justice Byron R. White: The rule --

Justice Potter Stewart: Its misrepresentation, isn't it?

It's something akin to fraud.

Mr. Norman B. Smith: Well, I argued that in the brief and I say that is --

Justice John M. Harlan: Was there in fact a warrant?

Mr. Norman B. Smith: Sir?

Justice John M. Harlan: Was there in fact a warrant?

Mr. Norman B. Smith: Well, sir, it was never introduced.

I'm going beyond the record now to say that there was a paper writing which purported to be a warrant.

I don't know.

Chief Justice Earl Warren: Issued by the court?

Mr. Norman B. Smith: Issued by a magistrate.

And I don't know whether it was valid or not.

I argued -- I submitted a brief attacking its validity.

And apparently, the Solicitor felt that it wasn't any good because he didn't use it at the trial.

He quit it and went off on consent.

I suppose if he had any faith in his warrant, he would've presented it to the trial court, it would be a part of the record but it's not.

And I'm going beyond the record to say this but those are the facts as I find the case and I know.

Chief Justice Earl Warren: Was this woman literate or illiterate?

Mr. Norman B. Smith: I think semi illiterate, Your Honor, although again unfortunately, that doesn't appear from the record.

I can say that that reading, the dialogue, reading the testimony would indicate that she was not an educated person.

She clearly didn't have any conception of constitutional law or political science or matters of that nature.

I'm suggesting to the court that Mapp versus Ohio is being evaded and detoured perhaps by the excessive use of this device of the consensual search.

And if the exclusionary rule which this Court put -- lay down in Mapp is to be preserved that the case is such as Amos and Johnson versus United States must be declared Fourteenth Amendment law, a Fourteenth Amendment law and made applicable to the states.

Taking a phrase from the case of Johnson v. United States granted in submission to authority rather than as an understanding in the intentional waiver of the constitutional right.

Clearly, I think you -- epitomizes the behavior of the woman under these circumstances.

And I don't think her testimony, which is somewhat confused and earning a heat of the courtroom proceedings and under a rather stiff cross-examination.

It was a crowded courtroom of a controversial case.

It takes a lot of pressure.

I don't think that this can be deemed conclusive.

So for these reasons, the petitioner respectfully prays that the court to set aside the conviction of the petitioner and order that he be granted a new trial.

On behalf of the petitioner, I thank the court for hearing the case.

Chief Justice Earl Warren: Thank you.

Mr.McGalliard.

Argument of Harry W. Mcgalliard

Mr. Harry W. Mcgalliard: Mr.Chief Justice, may it please the Court.

In view of all the discussions in the Witherspoon case yesterday unless before I certainly don't want to be repetitious on the jury question.

But I'd like to emphasize one or two points that might help clarify.

In North Carolina we have four capital crimes, first degree murder, arson, first degree burglary, rape.

The punishment as the statute reads is death unless the jury shall make a recommendation of life imprisonment.

In which case, it shall be mandatory that the judge impose by --

Justice Potter Stewart: I thought the jury's recommendation was of mercy?

Mr. Harry W. Mcgalliard: Well, that's the newspaper phrase casually used down there often but our statute does not use the word “mercy” and our judges have continued the harping on the, it's a recommendation of life imprisonment --

Justice Potter Stewart: So it's an explicit recommendation by the jury of life imprisonment?

Mr. Harry W. Mcgalliard: That's correct.

In which case, it is mandatory that a judge impose life imprisonment and nothing else.

Justice Potter Stewart: And otherwise, it's mandatory that he impose the death sentence, (Voice Overlap)?

Mr. Harry W. Mcgalliard: That's correct.

Justice Potter Stewart: Yes.

Mr. Harry W. Mcgalliard: In other words, if they are silent, the death penalty is mandatory.

If they make a recommendation of life imprisonment, that is mandatory.

Now, I think the principle to be decided in this jury case has a great deal more significance for North Carolina in the future of its criminal procedure practices than perhaps the mere question of a single new trial of the man because of a possible error of this -- the search and seizure.

So I'd like to say a little more about this.

As mentioned before, North Carolina does not by statute control the matter of challenge of a juror for cause.

Whether you call it common law or whether it's been judicial practice over the years, certainly by court holding, the first general principle recognized is that a person who has biased may on the challenge be excused for cause which of course in no ways effects his right to take his full number for preemptory challenges which affixed by statute.

Now, in our court, I -- but I'd like to say this, not only does the statute not cover it but actually our Supreme Court in North Carolina has not had squarely presented to it the question of how far must you prove the man who originally says he has opposed the capital punishment.

In order to reach a point where he may be disqualified by challenged for bias.

But the assumption, underlying assumption as I read it in our court decisions, is that they assume he has been examined to the point that he could not in this particular case under any circumstances imposed the death penalty.

Now the judge writing the case in the opinion below uses this sentence: Where a juror states in advance that under no circumstances would he accept the contentions or positions of a party which in this case would be the imposition of the death penalty.

He is not impartial to that party but as a corollary, he must necessary be partial to the adversary.

And in this opinion below in the Bumper case, the judge did not discuss at much length to this but made great reference to a case a few months or few years earlier.

The Charles case in which Chief Justice Parker wrote at length on the disqualification of the juror by reason of bias that he was opposed to capital punishment and Judge Parker there again assumed also apparently that we are talking about situation where the man has said, “I cannot in this case” under any circumstances.

Not just a general -- I'm opposed to capital punishment attitude.

And there again, the judge below holding Judge, the Chief Justice Parker, who in terms quoting ALR "upon the theory, the conscientious scrupulous against infliction of the death penalty under any circumstances or equivalent beliefs equally disqualify a jury for cause of prosecution for a corrupted crime for so long.

So I think we can fairly say that although the question hasn't been presented in exactly that fashion our court has adopted the position that it does not make this test, that it was much discussed in the Witherspoon case.

Now as -- going a little further to the practice, defense counsel, I suggested that every juror was questioned to that point in this case.

I think in all fairness to him of the 16 excluded, perhaps two of them were questioned quite that far.

Two of them, one of them merely said, “I do not believe in capital punishment”.

It's Ms. (Inaudible) record page 19 and Ms. Fuller record page 16.

I have conscientious or religious group was against the imposition of the capital punishment.

That they all --

Justice Byron R. White: Were they all present when the others were questioned?

Mr. Harry W. Mcgalliard: Yes, sir.

They were all -- (Inaudible) I don't know.

I assumed they were, one of the large group.

They were, counsel said.

Now I take it, if there's error, it would be in a systematic exclusion of a group.

And I think, in the light of what our Supreme Court has said, the court practice in this case of 14 of the 16 were excluded only when they did make this proper test that we could not well say that an error as to two indicated in a systematic exclusion on the part of the state or the court system.

Certainly, the trial judges, as far as I know, the prosecuting attorneys --

Justice Byron R. White: Are you suggesting that as to those two, there was a constitutional error?

Mr. Harry W. Mcgalliard: I -- of course, I'd be willing to -- although it's necessary, I don't think North Carolina's point of view, I'd be willing to go much farther.

Yesterday -- I mean not yesterday, in line with the arguments yesterday and take the view, there's enough bias perhaps just in those expressions.

But I'm saying that for the sake of argument even if we should say that is error as to those two.

I don't think it's a type of error that shows a systematic exclusion of a nature which should result in sending the case back.

Justice John M. Harlan: What did you say (Inaudible)?

Mr. Harry W. Mcgalliard: I beg your pardon?

Justice John M. Harlan: What did they two jurors say?

Mr. Harry W. Mcgalliard: Mrs. (Inaudible) says, “I do not believe in capital punishment”.

Ms. Fuller, the other says, “I have conscientious or religious scruples against the imposition of capital punishment."

Justice Byron R. White: But do I understand, Mr.Galliard -- McGalliard, we have -- this is on the premise that in effect your court decisions have said that this is a problem tailored made to the particular case and the particular veniremen and that the exclusion is only on the situation where it is in fact developed that the veniremen -- and he says, “And under no circumstances could I impose a death penalty."

Mr. Harry W. Mcgalliard: That is my understanding of the practice.

That is what I regard as the proper inference from what they have -- say it.

Justice Byron R. White: And you suggest that in this case, as to all but two at least, that's in fact the course of the inquiry took of the respective jurors.

Mr. Harry W. Mcgalliard: That is true.

The evidence of the voir dire examinations of all 16 are set out in the appendix.

I examined them carefully and those two, it seems to me, perhaps did not make full test of being pushed all the way.

What I'm --

Justice Byron R. White: Well, are you suggest -- you suggest that, as I understand it, that in that posture both of your law and but actually happened in this case, that precludes any constitutional area placed on a theory of systematic exclusion?

Mr. Harry W. Mcgalliard: I don't think --

I don't think that's evidence of systematic exclusion.

Justice Byron R. White: Right.

But aren't -- their other -- their two other propositions that are suggested, I think, by Mr.Smith.

The due process argument that this goes to the infection of the find -- fact-finding process --

Mr. Harry W. Mcgalliard: That it --

Justice Byron R. White: -- and the other is the Sixth Amendment argument, fair trial.

Or are they all the same --?

Mr. Harry W. Mcgalliard: Well, I take it that he appeals to those constitutional protections and principles as a basis for fighting systematic exclusion and not proceeding --

Justice Byron R. White: Not independently?

Not independently of the systematic exclusion in order to --

Mr. Harry W. Mcgalliard: I had not so understood but I maybe thereon -- maybe I should not --

Justice Byron R. White: Well, suppose that -- if it --

Mr. Harry W. Mcgalliard: -- simply interpret his --

Justice Byron R. White: If we are to understand him as saying that independently of a systematic exclusion, equal protection argument, I rely on these other two, what's your answer to those?

Mr. Harry W. Mcgalliard: Well, my answer to those is that after all, there's no suggestion that the jurors he in fact later got and who tried him were qualified.

And that the constitutional error or the fault with a state system in jury exclusion is because of the states proceeding to -- in a wholesale fashion exclude a group because of national original or race or religion or economic situation and that having those such systematic exclusion and none being argued for, the mere fact that one or two instances, the judge may have wrongly excused a particular person is not the type of situation that would invoke the protection of this Court would be my argument on that.

Justice Abe Fortas: May I ask you, how many people were executed in North Carolina last year or some other year, do you know?

Mr. Harry W. Mcgalliard: I checked back for ten years.

In ten years, there have been two.

One of those was in 1958.

That was for rape.

I handled that in our own Supreme Court, certiorari denied, I believe in this Court.

Then, there was one for rape and murder in 1961.

They are the last two in the even ten years.

I did -- they have statistics back with that but did not bother to bring them with me.

Justice Abe Fortas: May I --

Mr. Harry W. Mcgalliard: We now have four on death row if you were interested in any further --

Justice Abe Fortas: Do you know as compared with that, how many verdicts were returned or recommendations made or whatever the correct phrase is by juries to -- that the capital punishment should be imposed --

Mr. Harry W. Mcgalliard: And -- I'm not sure.

Justice Abe Fortas: -- in those ten years?

Mr. Harry W. Mcgalliard: Or you mean, did they -- how many verdicts were returned that would've resulted in the death penalty had not something in the way --

Justice Abe Fortas: Yes, that --

Mr. Harry W. Mcgalliard: -- of new trials or executive clemency?

Justice Abe Fortas: Thank you, yes, sir.

Mr. Harry W. Mcgalliard: I'm not sure but there were several.

Justice Abe Fortas: There were --

Mr. Harry W. Mcgalliard: There are several.

Justice Abe Fortas: There could have been more than two?

Mr. Harry W. Mcgalliard: Yes, yes sir.

Justice Abe Fortas: I -- as I understand Mr.Smith's argument, it is to the effect that a state has a very little interest as compared with the interest of defendants because of -- you've had only two executions in the last ten years.

And I supposed that it would be arguable that the state's real interest, really substantial interest here may not be so much in obtaining capital punishment as it is in selecting jurors who have a kind of a predisposition towards bringing in a verdict of guilty regardless of the penalty.

Now, what do you say to that?

Is this a question in your judgment and experience?

Does this question with respect to scruples about conscientious -- about the attitude towards capital punishment?

Does that question in your judgment in fact served to get into the jury box more people who are disposed to bring in a verdict of guilty?

Mr. Harry W. Mcgalliard: I have a run down on all of those access, what happened on this other -- there were about five or six, maybe eight new trials resulting in life sentences at the second trial.

One instance, one man was committed to life.

There might have been ten cases where new trials -- one, the Elmer Davis case which was up here resulted in nothing because the principal evidence was a confession which was held improper.

Now to come back to your question, I suppose what's your aiming at now is what the petitioner's counsel has described as a conviction prone attitude of people who are not opposed to capital punishment as against the opposite.

Justice Abe Fortas: Yes, and I take it that implicit in his argument as a suggestion that that's the real objective or one of the real objectives of the question about conscientious or religious scruples.

Mr. Harry W. Mcgalliard: I take it that -- I don't know and I don't think he knows.

And I don't think the studies have been made are adequate to draw conclusions as to whether people who are the ones I'm familiar with, the ones petitioner to counsel has cited in his brief and referred to do not go far toward convincing me.

I think they are taken from small, selected, unrepresentives group -- unrepresented groups.

The numbers involved are numerically small.

There are conclusions, to me, would be about it, a petty thing upon which to base such a broad conclusion as to the psychological attitudes and predilections of what, 80 million people (Inaudible) make the 120 might be subject to jury service.

Justice Byron R. White: Were any of these put in evidence in this record?

Mr. Harry W. Mcgalliard: One of them was or may be more were filed to -- were filed and came along to our Supreme Court as exhibits.

Justice Byron R. White: They were filed -- they were -- it didn't --

Mr. Harry W. Mcgalliard: I'm not sure.

Where they filed was the Georgian trial court.

Justice William O. Douglas: And only at the appellate level?

Mr. Harry W. Mcgalliard: Only at the appellate level.

Justice Byron R. White: So there was no -- these people hadn't appeared personally or something like that?

Mr. Harry W. Mcgalliard: No sir.

These were references in -- of the -- in part of these manuscripts but in part to --

Justice Byron R. White: Published?

Mr. Harry W. Mcgalliard: I believe that's correct.

And as far as I'm personally concerned, I reject the whole idea.

I don't think, I -- of course, I'm a poor judge myself and I don't think I'm anymore conviction prone because I do not have a last ditch opposition to capital punishment.

But I don't think we have yet reached that point: I -- where you concede, (Inaudible) and others show that, perhaps the majority of the American people at present take your position “opposed to capital punishment”, whatever that means.

Well, I'll oppose to it if there's a way to effectively organize our prison systems, our parole systems and what not to -- maybe keep out of circulation indefinitely some known dangerous types at the systems at present don't effectively occur.

But on that, all I could say is certainly not proven so far as I am concerned that those of us who do not oppose capital punishment or authoritarian or they've got pages of attitudes of what we are and I --

Unknown Speaker: Counsel, are we going to get to search and seizure?

Mr. Harry W. Mcgalliard: Yes, sir.

Chief Justice Earl Warren: Just before --

Unknown Speaker: But, I have --

Chief Justice Earl Warren: Oh, pardon me.

Had you finished --

Unknown Speaker: Sir?

Chief Justice Earl Warren: Had you finished your --

Unknown Speaker: No sir, I just to ask him where is the search warrant?

Mr. Harry W. Mcgalliard: Let me say this.

I gathered from Mr.Justice Harlan's question a while ago and yours.

If this takes me out of the record of course, I can tell you what I've found out about the search warrant if you want me to.

Chief Justice Earl Warren: Mr.McGalliard, before we get to that, may I ask you just one question in the procedure.

As I understood Mr.Smith, it is his belief that if the jury could not agree on whether there should be the death penalty or life imprisonment should be imposed that the defendant would be entitled to a new trial.

I understood him say that for instance if one juror held out against capital punishment that that would have to result in a new trial.

Is that the situation?

Mr. Harry W. Mcgalliard: I understood defense counsel to say he believed that to be true on the basis of a dictum.

I have no current recollection of the dictum.

The situation, so far as I know, has not arisen but I rather think and I have nothing here to cite, I rather think that the situation is this: the jury is instructed first to consider guilt or innocence.

If they return a verdict of guilty, then they're instructed to consider whether they will recommend life imprisonment or not.

I think once they voted guilty, they have a verdict of guilty and would come out with that and could only come out with a recommendation of mercy or life imprisonment rather if they all agree.

I'd rather think that might be but I don't think either if it would say that North Carolina has decided that.

Chief Justice Earl Warren: Do you think you could enlighten us any by researching that somewhat more?

Mr. Harry W. Mcgalliard: I have been handling great many of this -- it's over 200 criminals appeals in the last ten years.

They're in our Supreme Court and I have -- we've only had the recommendation for mercy about 25 years.

I've been in the Attorney General's office longer than that.

Chief Justice Earl Warren: I see.

Mr. Harry W. Mcgalliard: Twenty-five to 30 and this has never crossed my path.

Justice Byron R. White: You must be just about the best authority in North Carolina.

Mr. Harry W. Mcgalliard: No, I find everyday -- I think -- more things I don't know.

Now, coming very quickly and I gathered from Mr. Justice Harlan and Mr. Justice Marshall's question, I frankly was a little annoyed upset when I picked up the record and saw just two things.

First, the officers went into the lady's house and said, ”We want to search.

We have a warrant”, that's as far as the officers went and then I saw: Solicitor says, "Whether you rely on consent, judge by consent.

I didn't even look at that again till the next day because I know this general principle is rather hard to overcome the presumption that the consent was merely acquiescence to the authority of the law under such circumstances.

However that may be, that is what they did and the question is, under those circumstances, is it still possible to consent?

You cannot volunteer a consent to be shown.

The only way I know would be to try to determine the frame of mind of this person, the attitude with which she did or did not consent.

She said, I would pay him much attention.

I told Mr.Stockard, that's the sheriff, that's on page 47 of the appendix, to go ahead and look them -- look all over the house.

I had no objection them making a search on my house.

I was willing to let them look in any room or drawer in my house they wanted to.

And further on: “And I just give them a free will to look because I felt like the boy wasn't guilty."

Justice Thurgood Marshall: Is there any dispute on the record that a piece of paper allegedly a search warrant was shown to this lady?

Mr. Harry W. Mcgalliard: I want them be to be satisfied.

The record, the only testimony on that is that the lady, whose house was searched, say it, “They told me they had a notice or a warrant to search my house.”

Justice Thurgood Marshall: Is that disputed in the record?

Mr. Harry W. Mcgalliard: That is not disputed in the record.

Justice Thurgood Marshall: If there was a search warrant and it was a valid search warrant, that were to settle that issue, wouldn't it?

Mr. Harry W. Mcgalliard: That it would.

Justice Thurgood Marshall: (Inaudible) wouldn't it?

Mr. Harry W. Mcgalliard: That it would.

Justice Thurgood Marshall: Well, what conclusion they had drew that it was never produced at the trial?

Mr. Harry W. Mcgalliard: It was not produced at the trial.

As I understand --

Justice Thurgood Marshall: What conclusion could I draw from that?

Mr. Harry W. Mcgalliard: If I had nothing else to go on and I think you're bound by the record, I would take it they either had a defective search warrant or no search warrant --

Justice Thurgood Marshall: They'd be --

Mr. Harry W. Mcgalliard: -- be my conclusion.

Now I was curious enough, as Mr.Justice Harlan has asked, was there a piece of paper?

Now I did not know whether you meant me to answer that by going out of the record or not.

Justice John M. Harlan: (Inaudible) My understanding of this case was that there is a misrepresentation by the officers that they have a certain search warrant, it wasn't a search warrant at all, maybe I got that outside of the record but that's (Inaudible).

Mr. Harry W. Mcgalliard: Well, I was curious enough finally after certiorari was granted.

I called the Solicitor asked him, “What was going on?”

I said, “Why -- what's wrong with your search warrant I seem to have what I didn't think they are also rely on but I'm seeing -- do something wrong with the warrant.

He said, “Well, that's months ago.

I don't remember now why I don't use it” said the lady consented.

If you could've seen the way she talked, how open, cooperative she was in the courtroom with -- not thinking about they had any question about his being a genuine consent.

I said, there was something wrong with the warrant.

He said, “Well, I have to look it up”.

He said, “I'll send your copy”.

So the next morning in the mail, I get an -- Xerox, I guess it is copy of the search warrant.

With this note from the Solicitor enclosed by (Inaudible) search warrant in the case State against Bumper about which you called today.

I remember now why I elect you to go on a consent to search basis.

After Mrs.Leath, told the officers they didn't need a search warrant, they didn't serve it.

Please pardon the informality and without (Inaudible).

There -- at the place where the officers returned with ordinarily be filled in that we own this day search, a such a place and found such argument.

There is nothing.

I would argue, I don't know how far it would get on --

Justice Byron R. White: For that letter, a little -- the last part of that little fast.

I didn't get the last.

Mr. Harry W. Mcgalliard: I remembered now why I elected --

Justice Byron R. White: Yes.

Mr. Harry W. Mcgalliard: -- to go on a consent to search basis.

Justice Byron R. White: Yes.

Mr. Harry W. Mcgalliard: After Miss Leath, that's the lady in question, told the officers they didn't need the search warrant, they didn't serve it.

Justice Potter Stewart: They didn't?

Mr. Harry W. Mcgalliard: Serve it.

Justice Potter Stewart: Serve it?

Mr. Harry W. Mcgalliard: Serve it.

Justice Potter Stewart: I thought you said --

Mr. Harry W. Mcgalliard: Of course the Solicitor's notion and my notion of service are two different things.

I take it once you have a search warrant, announced you have it and proceeds search with it, and that's an adequate service unless the person they're in charged demands that it would be read.

I would argue under Ms.Leath's testimony that they served -- that they served this at a -- in a subsequent trial, they wanted to show the validity of the search.

And it's ruled out that there was no -- I mean, ruled that there was no consent here.I'd like to go a little --

Chief Justice Earl Warren: Did they make a return of this search warrant in due course?

Mr. Harry W. Mcgalliard: It's absolutely blank.

Chief Justice Earl Warren: They did not?

Mr. Harry W. Mcgalliard: Does not say, received this day, I mean the form was error, received this day, I entered so and so where I found, so that's --

Chief Justice Earl Warren: That was -- was that -- this is not a record of the court then in (Voice Overlap) --

Mr. Harry W. Mcgalliard: No, sir.

This is simply -- the prosecuting attorney, we call it solicitors, sent me a copy of the search warrant because of my annoyance with him and talking to him over the phone.

So it's off the record, as I say and I was very careful to inquire whether you wanted me to discuss it.

But that's what I found out in my own satisfaction.

I'd like to move one --

Chief Justice Earl Warren: Could you tell me where in the record she said, “You don't need any search warrant for me”.Is that in the record?

Mr. Harry W. Mcgalliard: I don't find the Solicitor's words in the record.

The strongest words I found on the record are the ones I just read before such as “I gave them a free will to look because I felt like the boy wasn't guilty.

I wanted them to be satisfied.

I had no objection to the making of search of my house”.

Now all of that's on page 47 of the appendix.

Chief Justice Earl Warren: But as far as you know, there's nothing in the record that says that they didn't need that search warrant.

Mr. Harry W. Mcgalliard: No, that was the officer's conclusion from apparently the he is stating that they didn't need it because when they walked in they apparently -- they --

Justice Hugo L. Black: That's what he said, wasn't it?

Mr. Harry W. Mcgalliard: I beg your pardon?

Justice Hugo L. Black: That is absolutely what she said, wasn't it?

Mr. Harry W. Mcgalliard: That's --

Justice Hugo L. Black: That he didn't -- they didn't have to have a search warrant.

Mr. Harry W. Mcgalliard: That's what I said.

Justice Hugo L. Black: You mean -- alright.

Mr. Harry W. Mcgalliard: I think this language is susceptible to that interpretation that --

Chief Justice Earl Warren: But isn't there -- there is quite a difference between saying, “You didn't have to have any search warrant” on the one hand and saying, after they told her that they had a search warrant, saying “Well, I have no objection to you, to you searching my place” there's quite a difference between (Voice Overlap) --

Mr. Harry W. Mcgalliard: Well, I thought it's rather significant that apparently neither the prosecution or defense counsel cared to put apparently that question directly to her which would've settled it.

Whether the search warrant made any difference or whether she was consenting with or without it, neither side cared to ask her the very appointed question that could've helped resolve the issue.

Justice William J. Brennan: But the fact is that the -- all of this happened after the officers told her that they had had a search warrant?

Mr. Harry W. Mcgalliard: That's as (Voice Overlap) --

Justice William J. Brennan: I gather that --

Mr. Harry W. Mcgalliard: For about the first thing the officers said (Voice Overlap) --

Justice Potter Stewart: That's about the first thing they said, they had a search warrant.

Mr. Harry W. Mcgalliard: I think that's true.

Justice Potter Stewart: So a little different to be cooperative and agreeable when you've told by the officers they have a search warrant.

Mr. Harry W. Mcgalliard: That's true but she had yet --

Justice Potter Stewart: Well, when you didn't -- when they didn't have one.

Mr. Harry W. Mcgalliard: She -- although we are here to qualify it but said, “I gave them a free will to look because I felt like the boy wasn't guilty.

I want them to be satisfied.

I have no objection of making the search”.

And she says all of that.

I don't know that that is mere acquiescence to the authority of the law.

Justice Abe Fortas: Well, why do you suppose the officers said, “We've got a search warrant”?

Mr. Harry W. Mcgalliard: I think the officers had the search -- here's what I think.

I think they had one.

I think they went in.

I think here was this elderly lady and they had a search warrant in his pocket, say, "We got a search warrant, we're going to search your house."

Said, “Go ahead, help yourselves, go right in."

Justice Abe Fortas: Well, what would happen she has said, "Well, I don't want you to search my house anyway”?

Mr. Harry W. Mcgalliard: Then I think that they said, “Well, we have a paper writing here.

You have to let us”.

Justice Abe Fortas: And then she wasn't able to read were she?

Mr. Harry W. Mcgalliard: I don't know.

Justice Abe Fortas: Does the record show?

Mr. Harry W. Mcgalliard: I don't know.

I gather that the literacy was not great if any.

I don't know.

Chief Justice Earl Warren: Well, under your law, must a search warrant be returned after they served --

Mr. Harry W. Mcgalliard: They --

Chief Justice Earl Warren: -- return to the court?

Mr. Harry W. Mcgalliard: I think there's a statutory requirement that it should be returned.

They hold the goods return to keep them subject to the order of the court file the return.

Chief Justice Earl Warren: Right.

Mr. Harry W. Mcgalliard: But I don't know if that filing -- the filling of this (Inaudible), if in fact they did the things as ordered, would be requisite to its validity in court, the mere fact that it did not been properly returned.

Chief Justice Earl Warren: Well, why wouldn't they return it when they did take a gun and took some other things, why wouldn't they return it to the court in accordance with law?

Mr. Harry W. Mcgalliard: I don't know.

I don't know, Your Honor.

I suspect they took it back in through a van so they didn't need warrant at all.

Chief Justice Earl Warren: And this (Voice Overlap) --

Mr. Harry W. Mcgalliard: We had a sheriff and a -- two deputies of the county.

They were accompanied by, I must say in all honesty by agent of the State Bureau of Investigation which is a State Investigating Agents.

Chief Justice Earl Warren: And this document never came to light until after the trial and you wrote to the Solicitor about it?

Mr. Harry W. Mcgalliard: Of the record does not disclose any existence of a search warrant beyond the statement to the officer as relayed by Ms.Leath to the state and of the officer.

Anything else I know is off the record.

As far as I know, it's not brought up.

No search warrant was introduced at the trial.

Chief Justice Earl Warren: What did the officers say at the trial as to whether he had told her that?

Mr. Harry W. Mcgalliard: Apparently, and this surprised me, the only person that was put on the witness stand was the lady in question and when she finished talking, the judge said, “I find there was voluntary consent”.

They thought she had said enough.

They've took her manner, --

Justice Hugo L. Black: What did she --

Mr. Harry W. Mcgalliard: -- her demeanor, and her words is to mean she consented it.

Justice Hugo L. Black: What did she say on the stand?

Mr. Harry W. Mcgalliard: She said, part of what I've just been -- when the officers asked me to let them search, well, I would tell you what I've though about, what went through my mind.

They didn't tell me what they're searching for, what it was all about.

They didn't talk to me at all.

They just went to head.

I had in mind what they was looking for and searching for.

And I felt like well, whatever they was looking for, they had found it.

And I didn't think it amount to anything with the boy.

I just give them a free will to look because I felt like the boy wasn't guilty”.

Justice Hugo L. Black: And is that document a search warrant?

Mr. Harry W. Mcgalliard: This?

Justice Hugo L. Black: Yes.

Mr. Harry W. Mcgalliard: In my opinion, it is a valid search warrant but that's off the record again.

Justice Hugo L. Black: Well -- but it's been talked about here and filed on the notes.

Mr. Harry W. Mcgalliard: Well --

Justice Hugo L. Black: Is there any indication that they went there without a search warrant and deceived her and that's -- to believing that they did have warrant.

Mr. Harry W. Mcgalliard: Not one out of it.

Justice Potter Stewart: Well, so far as the record shows, there's plenty of indication of that, isn't there?

Mr. Harry W. Mcgalliard: I beg your pardon?

Justice Potter Stewart: If we just stuck to the record, that's what the record shows.

Mr. Harry W. Mcgalliard: That they went there without --

Justice Potter Stewart: That there was misrepresentation.

Mr. Harry W. Mcgalliard: No, sir.

Justice Potter Stewart: Oh, I think the --

Mr. Harry W. Mcgalliard: I would interpret that a different way.

I would say they told the lady they have a search warrant.

They went back in the court and said we won't rely on the search warrant.

We think there was consent.

The judge who listened to her and watched her on the witness stand interpreted it as being consent.

And the Supreme Court of North Carolina thought that Judge (Inaudible) findings were justified by the record.

I see nothing to -- from the record they would make you conclude the officers were lying.

There's no evidence of that.

Justice Abe Fortas: So you wouldn't think it was quite or -- in good order would you to for instructions to be issued to the sheriff always go to the premises with the search warrant, inform the occupant that you have a search warrant.

If the occupant then says, “Alright, go ahead and search and don't use a warrant”.

That wouldn't be very good practice for any --

Mr. Harry W. Mcgalliard: Not any that I could instruct --

Justice Abe Fortas: You have the Fourth Amendment?

Sir?

Mr. Harry W. Mcgalliard: No sir.

Not in the light of the decisions of this Court.

I would always use one.

If we're ever to get by the consent question, I have raised in my brief, my time is about up, considerable question as to whether this defendant has any standing to challenge this on the ground that it was his grandmother's premises, his grandmother's rifle, he was not present, as far as I could gather, at the time of the search and the only theory I can think of would be whether we have invaded an area of his privacy in that he was also domicile in the same home.

But we must remember it was grandmother's rifle and even as suggested here, there's no evidence, members of the family had a free right to use grandmother's rifle and she said it was her rifle.

I don't believe there's any implied permission to take the rifle and go after to commit two capital offenses of rape and two attempted murders.

And we don't think his area of privacy was invaded.

Chief Justice Earl Warren: Would you mind leaving that document with the clerk of court, please?

Mr. Harry W. Mcgalliard: Alright.

Shall I leave this Solicitor's note with it?

Chief Justice Earl Warren: Yes.

Gentlemen, before we conclude the cases, I said yesterday we -- the court appreciates the service that lawyers rendered in defending indigent defendants and we do appreciate your service in this case.

And Mr.Smith and --

Mr. Harry W. Mcgalliard: Thank you.

Chief Justice Earl Warren: -- Mr.McGalliard, I would say that the court equally appreciates the frank and fair manner in which you have helped us in presenting your side of the case on behalf of the state.