Nelson v. Tennessee

PETITIONER:Nelson
RESPONDENT:Tennessee
LOCATION:Hazlehurst Manufacturing Company

DOCKET NO.: 56
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 355 US 271 (1957)
ARGUED: Dec 12, 1957
DECIDED: Dec 16, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – December 12, 1957 in Nelson v. Tennessee

Earl Warren:

Number 56, Gerald William Nelson and John E. Hatton, Petitioners versus the State of Tennessee.

Mr. Atkins.

Hobart F. Atkins:

Justice Warren.

Earl Warren:

Mr. Atkins, before you get to your argument, I would like to ask you this question, whether your question that we took on certiorari was ever raised in the court below in any of the courts below?

Hobart F. Atkins:

Yes, sir.

Earl Warren:

In your petition for certiorari, there was no mentioned, of course, about it not being raised.

There was nothing said in the response but in petition or in the respondent’s brief, the very first item in its argument is to the effect that this Court is without jurisdiction because the petitioners did not raise a substantial federal question on the jury issue in the state courts nor have they allege a substantial federal question in this Court.

Now, did you raise that question in the courts below?

Hobart F. Atkins:

We did.

Earl Warren:

Where was it first raised?

Hobart F. Atkins:

In the trial code.

Earl Warren:

Would you indicate to us in the record where it was raised please?

Hobart F. Atkins:

In the motion for a new trial.

Earl Warren:

Where does that appear in the record?

Hobart F. Atkins:

On page 12.

Earl Warren:

Page 12.

Then —

Hobart F. Atkins:

Now that is in connection with the jury.

There were two — may I interpose?

There were two assignments of error that had to do with the constitutional guarantee.

Earl Warren:

Alright, now read the first one please.

Hobart F. Atkins:

The first one is Section A.

Because of the removal and discharge for cause from the jury path, violates the letter and spirit of Article 1, Section 6 of the Constitution.

Earl Warren:

Now, isn’t that the Tennessee constitution?

Hobart F. Atkins:

The constitution of Tennessee that we now have was adapted in 1807 and it is the same as the Constitution of the United States, insofar as the rights of a defendant or rights of a citizen to a jury trial or concern.

Earl Warren:

Well, can you raise the issue of — under a state section or article and —

Hobart F. Atkins:

It — it doesn’t —

Earl Warren:

And have the federal question adequately raised.

Hobart F. Atkins:

The other — in the — in the third assignment on page 13.

Earl Warren:

On page 13?

Earl Warren:

What does that say?

Hobart F. Atkins:

That says — the — in speaking of the violation of the rights, the Bill of Rights and the Due Process —

Earl Warren:

Now where is that?

Where do I find that, in what part of the page?

Hobart F. Atkins:

The third assignment.

Earl Warren:

Third Assignment, alright.

Hobart F. Atkins:

In speaking of the statement, the Bill of Rights and the Due Process Clause of the Fourteenth and Fifth Amendments.

Earl Warren:

And now, let’s see what — let me see that third specification.

Does that go to the jury question?

Hobart F. Atkins:

Well, it was so treated and they argued it.

The two questions were — were presented to our appellate court and were brought here as both having to do with the violation of the constitutional rights of the defendants.

Earl Warren:

Yes, but you’re — you’re saying here, Mr. Atkins the honorable trial court erred in admitting the statements of the defendants Nelson, Hatton and Craig when seasonably objected to because said statements were largely irrelevant and immaterial and were conclusions of the district attorney obtained by means of cross-examination, oppression, mental cruelty and the rest and obtained in violation of the Bill of Rights and of the Due Process Clause in the Fourteenth and Fifteenth — and Fifth Amendments.

Now, we denied your certiorari on that question, the only question that we permitted you to raise here was the jury question.

Hobart F. Atkins:

Yes, sir.

Earl Warren:

Well now — then you can’t very well say that this refers to the jury question can you?

Hobart F. Atkins:

But having — having submitted the two questions as being matters that pertain to their constitutional rights then would not to this Court under its rules to have a right to — to grant it on the other assignment, to the exclusion of this assignment having jurisdiction conferred by reason of the matter originating in the trial court and on to the Supreme Court.

Earl Warren:

Well, Mr. Atkins, you can’t raise a federal constitution question as to the admissibility of confessions, as one question and expected to hold over on the — on the question to whether your jury was properly impaneled, can you?

Hobart F. Atkins:

Accepting in — in this situation.

Earl Warren:

Without raising it?

Hobart F. Atkins:

Yes, but I think I have.

Earl Warren:

Where — I put now all — I don’t want to argue this with you.

Hobart F. Atkins:

I know, Your Honor.

Earl Warren:

All I want to find out is where you raised these questions and where it is in the record?

Hobart F. Atkins:

Well, the —

Earl Warren:

Now, are those the only two places?

Hobart F. Atkins:

That and then I filed a petition with the Supreme Court of our State in which are stated in the petition.

Earl Warren:

Where is — where do I find that in the record?

Hobart F. Atkins:

It isn’t — it isn’t printed in the record but it’s a part of the record.

Earl Warren:

And what do you — what — what do you raise there?

Hobart F. Atkins:

That the defendants allowed — let me read if that will (Voice Overlap) —

Earl Warren:

Yes.

Hobart F. Atkins:

It isn’t — it isn’t in the printed record.

This record was printed for four persons and I didn’t complete — have all of the record printed, only that part which directly pertain to the jury question or included in the printed record here.

Now, that —

Earl Warren:

Of course you got to show on printed record how you raise the — raise the federal question or we can’t determine whether it was raised.

Hobart F. Atkins:

That’s true — that’s true, Your Honor.

But, there comes the appellants and each of them and show and represent to this Court that they were petitioned to the Supreme Court of the United States with a writ of certiorari to this Court to review the judgment of this Court and that on July the 20th, 1956 wherein the verdict of the jury and sentences are from one to three years and two cases to run consecutively against that.

The said review being based upon the federal question that they are denied due process of law and that their rights does violated on the Constitution and particularly the Fourteenth Amendment of the Constitution and that they were denied an opportunity to consult counsel, required unwillingly to be witnesses against themselves in violation of the Fourth Amendment to the Constitution of the United States.

And because they were members of labor unions, organizations, they were denied the right and privilege of having other citizens who were qualified as jurors but who belonged to labor organizations from participating as jurors in the administration of justice.

A discrimination against all union members, inconsistent with and in violation of Amendment Fourteenth of the Constitution, they being denied the equal protection of the laws by reason of the exclusion of our members of labor union.

The said petition for writ of certiorari will be immediately filed but due to the fact the Supreme Court of the United State is now or soon will be in vacation said petition were probably not be considered until the Court convince at the October term 1956.

That probable conviction in the trial court and while the cost is spending in the trial court the appellants were allowed to pay bail in the sum of $1000.

And that they and each of them, at all times, had perform the condition of bail and that they and each of them are citizens and resident of Knox County, Tennessee and have families that they are each employed outside of the state but with at all times be available for the performance of the condition of the bail and will immediately upon notification return to the state or permitted to go back to the State of Ohio where they are in fraud.

Earl Warren:

May I ask what — what you’re reading from there?

Hobart F. Atkins:

I’m reading from a petition filed with the Supreme Court at the — at Knoxville, petitioning that Court who suspend this judgment until it could be reviewed in this Court and to allow these men bail or while the cost was pending.

Earl Warren:

Well — well you — you can’t raise the federal question on an application for bail.

Can you sufficiently do to give this Court jurisdiction if it isn’t otherwise raised?

Hobart F. Atkins:

But, if Your Honor please, the question was presented.

It was argued to the Supreme Court.

Earl Warren:

Now where was it presented?

Hobart F. Atkins:

At the —

Earl Warren:

Show me in the record some place please so we can — so we can determine whether it’s before us.

Hobart F. Atkins:

Well, in the — in the brief that the state filed.

Earl Warren:

I beg your pardon.

Hobart F. Atkins:

In the brief that the state filed, in the brief filed in this Court.

Earl Warren:

Well, we’re talking about what happened before you came to this Court because under the rules of this Court, we don’t hear those matters unless a federal question is adequately raised below.

Hobart F. Atkins:

Well that —

William O. Douglas:

The Supreme Court of Tennessee discussed (Inaudible)

Hobart F. Atkins:

It was presented in this way that the State has rights but it also had an obligation that is that the State Court agreed that these were errors.

Earl Warren:

That what?

Hobart F. Atkins:

That the two errors or two assignments that we have insisted on were errors.

Earl Warren:

So that was under the state law?

Under your state constitution wasn’t it?

Hobart F. Atkins:

They’re errors under both cases.

Earl Warren:

Now, will you show us in the opinion of the — of the Court where they considered this question and decided it?

If they did, if your Supreme Court considered this question, jury question and decided it no matter how it was raised, I guess that’s sufficient but show me where they did say that, if they did.

Hobart F. Atkins:

In the opinion has such it — the reason why it was error is not given but the reason that it was error is because it violated their rights.

In the — in the published opinion, recorded in the Southwestern Report, the appellate court said that “The fact that a person is a member of a particular order, association or other organization, does not of itself render such person incompetent as a juror”.

Earl Warren:

Well, did they cite any federal cases or — or mentioned the constitutional section?

Hobart F. Atkins:

They didn’t mention either constitution or either section.

Felix Frankfurter:

This isn’t the question of (Inaudible)

Hobart F. Atkins:

They — they decided that those were errors but didn’t say why.

Felix Frankfurter:

(Inaudible)

Hobart F. Atkins:

They didn’t give the basis for the decision.

Earl Warren:

Well, it would be one thing if you could show us where you raised it and they didn’t discussed it perhaps where they neither discussed it nor can you show where you raised it — it raises most serious question Mr. Atkins as to whether you hear it properly or not.

Hobart F. Atkins:

If Your Honor please, we — the assignments of error of the Supreme Court and the argument on those assignments, the two assignments that is the assignment pertaining to the impaneling of the jury and the assignment pertaining to the — the obtaining of the confession were presented as one assignment of rights that were violated.

And in the — in the brief of the State filed in response to the petition for certiorari, the State’s statement of fact on page 3, this has been the position of the State.

It was before the State Supreme Court.

The question raised by the petition is first, that their confessions were improperly admitted under the Fourteenth Amendment.

And second, that the trial court violated the same amendment when it sustained challenges for cause to members of labor unions when called for jury service.

These questions will be discussed in this order.

Earl Warren:

Yes, but that’s —

Hobart F. Atkins:

Now, those are the same —

Earl Warren:

Mr. Atkins, that refers to the petition in this Court not as to anything that happened below this Court.

It says the questions raised by the petition that means the petition for certiorari in this Court, that’s what this brief is opposing.

Hobart F. Atkins:

Yes.

Earl Warren:

So that can’t help you any so far as what happened before you came here.

It’s unfortunate that the response didn’t mention the fact that a question haven’t been raised before but it did — but we do have it before is now.

Hobart F. Atkins:

Then on page, if Your Honor please, on pages 9.

Earl Warren:

Of what document?

Hobart F. Atkins:

Of the same document here.

Earl Warren:

Yes.

Hobart F. Atkins:

They — they rely on this Court’s opinion in the Fay versus New York, 332 U.S. 261.

Earl Warren:

Well, I know but that doesn’t — what they relied on doesn’t mean what you raised (Voice Overlap) —

Hobart F. Atkins:

That’s — that’s true.

Earl Warren:

Perhaps we could — Mr. Atkins, I wonder if we could hear from the other side for just a few moments on this and then you can resume your argument.

Hobart F. Atkins:

Well —

Earl Warren:

I won’t take all your time but I — I would likely want to straighten out.

Yes sir, will you please — proceed please?

James M. Glasgow:

Mr. Chief Justice and may it please the Court.

I think that I can clarify this rather briefly as to what situation here is in regard to the record.

On page — under the Tennessee procedure, it was necessary at the conclusion of the trial for the petitioners to file a motion for a new trial, setting forward the various grounds of error in the trial court.

After that, it was necessary for them to perfect their appeal by filing assignments of error and a brief in the Supreme Court of Tennessee.

Now, both of those instruments or documents are in this record.

On page 13 is the motion for a new trial —

Earl Warren:

13 of what?

James M. Glasgow:

12 and 13 — pages 12 and 13 of the record.

Earl Warren:

Yes.

James M. Glasgow:

Now, in the motion for a new trial, the only thing that I can find under Roman numeral one, subsections (a), (b), and (c) with reference to the jury question is in reference to the state constitution, Article 1, Section 6 of the Constitution.

Now, otherwise, this motion for a new trial is completely devoid of any substantial federal question except in regard to the confessions which are not before this Court, because on the writ for certiorari, we were limited to the jury question.

Now, on page 30 of the printed record, in the assignments of error, brief and argued.

I beg your pardon, page 29 and then continuing over on page 30, 31, 32, and 33.

There is nothing in regard to a substantial federal question.

No reference is made to the Constitution of the United States and the whole argument is pitched upon the constitution of Tennessee.

Now further in the same record on page 55, in the opinion of the Supreme Court of Tennessee, it is said in the fourth paragraph, the defendant have — defendants have filed several assignments of error but they have argued only two propositions as a ground for reversal.

The one was the confession.

The other was the jury of proposition.

The jury proposition is resolved in the later part of the opinion by reference to four Tennessee cases.

Each of those Tennessee cases you will find, deal only with a construction of the constitution of Tennessee, and therefore, it is necessary to look behind the opinion to see actually what the grounds were upon which the state court reached its decision.

And we submit, may it please the Court, that it’s improper not only under the decisions of this Court for them to raise this question here for the first time but also that it’s unfair to the state courts that it’d be treated in that way.

James M. Glasgow:

Now, I would like to say this in regard to my position in the case.

I did not argue this case before the Supreme Court of Tennessee that was done by the then acting advocate general of the state whose name appears upon brief in reply to the petition for certiorari.

I took this record just as you have it and worked on this case from that point.

And from what I have found, I cannot find anything which partakes or even smacks of the federal question.

Hobart F. Atkins:

If Your Honors please, the assignments of error in our appellate court are the same as the motion for a new trial.

Now, under C on the first assignment of error of our jury or about the jurors, I said this — now this is prior to the statement in the third article where I spelled out the Fourth and Fifth Amendment.

Because the only means on speaking at the under C provided and limited to each side, is that a preempt charge which is intended and does permit the exclusion of those suspected advice or prejudice.

These rights of challenge were assured at common law as procedural instruments for the purpose of maintaining the traditional rights of the fair and impartial jury.

There is no doctrine of exclusion other than that setout in the Constitution and statute.

Now, the Constitution — there is, as I say, our constitution of 1890 and the constitution, the national constitution are comparable.

But the constitution doesn’t say the constitution of the State of Tennessee.

Earl Warren:

To the constitution on the statute that (Voice Overlap) —

Hobart F. Atkins:

The constitution in the statute.

Earl Warren:

— that they have the same jurisdiction?

Hobart F. Atkins:

You Honor that would be a useless statement to — to go ahead say the constitution and then say of the Federal Constitution and the State Constitution.

We considered these two questions in the light of the Constitution of the United States and of the State.

And frankly, I think our appellate court agree that it was true that this action did violate the constitutional rights and for the first time, the Court applied to these constitutional rights the harmless error of statute.

And of course the first time we had in the — that we could object to it was when I filed this petition that I was intending to appeal to this Court to review the action of our state appellate court.

That is the first emanation that we have, that it would be considered a harmless error to violate the constitutional rights of these defendants and that is the substance of what occurred.

We thought that we had reserved every right in the in paneling of the jury that we exhausted the rights of these defendants to preempt toward a challenge.

We objected to each juror being excluded and there were 27 excluded.

And we presented the matter to the trial judge after our objections were overruled in the trial.

And in the — in the brief that we filed, we ask that these constitutional rights be enforced.

We presented it as forcefully as we could.

There has not been a holding by this Honorable Court that we could find on this identical proposition.

But we did find cases where this Court had said that those states have rights and they have responsibilities and that this Fourteenth Amendment and be invoked to require a State to treat all citizens equally.

And we have, we think in our brief, establish that this is the only case that our Supreme Court has ever applied to a constitutional right, this harmless error statute.

Did you move for rehearing in the state court?

Hobart F. Atkins:

We did not.

Our state court didn’t hold but three days at the Knoxville time.

Hobart F. Atkins:

It was a short court with only a few cases and we didn’t — we didn’t ask for a rehearing.

We did petition for a bail and it granted bail and gave us still proceedings that we might have these two federal question reviewed.

Felix Frankfurter:

And what is the constitutional right?

I don’t mean to Tennessee state constitution but I mean —

Hobart F. Atkins:

The federal constitutional right is that defendants be treated equally.

Felix Frankfurter:

Well, the nonequality here consisted in what?

Hobart F. Atkins:

Discrimination against all members of organized labor.

Felix Frankfurter:

Well, is that what your Supreme Court said that they discriminate it consciously?

Hobart F. Atkins:

That is —

Felix Frankfurter:

This Court has said that in order to find discrimination, there must be a systematic exclusion of a class that obviously is entitled out of which obviously are to be drawn jurors.

Now, was that out here?

Hobart F. Atkins:

That — that is what our — the trial judge said that any men — any member of organized labor of any union would be discharged for a cause for that reason.

Felix Frankfurter:

And that’s because some union problems are involved in the controversy.

Hobart F. Atkins:

Because two members of a local union were to be tried for itself.

Felix Frankfurter:

Well, that’s what I mean.

Hobart F. Atkins:

The union will add such that was not involved.

Felix Frankfurter:

No, no, no, but there was a trial — the trial judge said that in as much — I’m not now suggesting that he was right or wrong.

I’m not even suggesting that he wasn’t wrong (Inaudible)

The trial judge said that in as much as two men who were members of the union were on trial, a natural sympathy of other union members with such person, constituted the challenge or cost.

Is that what he said?

Hobart F. Atkins:

Not in those words, he may —

Felix Frankfurter:

No, but that’s the thought.

Hobart F. Atkins:

That may have been.

I would — what he said was that —

Felix Frankfurter:

He didn’t say, I don’t want to have any union members in my courtroom.

He said in this trial considering the nature of the defendant to the issues involved and the motion that would be aroused, no union member is — is — every union member presumptively to (Inaudible)

Now, the question is whether that is obviously a systematic exclusion for the sake of exclusion —

Hobart F. Atkins:

Yes, sir.

Felix Frankfurter:

— unrelated to any — what might be called rational consideration.

Hobart F. Atkins:

Yes, sir.

Felix Frankfurter:

Isn’t that the question?

Hobart F. Atkins:

That is one of the questions.

Felix Frankfurter:

That’s a very different thing from saying we have no legals on the jury isn’t it?

Hobart F. Atkins:

Well if you — if you’re classifying Negroes as such, I see no difference.

If — if you are to classify all union men, you can extend it to classify all Baptist or all Methodist or all members of the Masonic order or — if we are to engage in classification for jury purposes or for purposes of neutral responsibility in the judicial and governmental departments then we could extend it ad infinitum.

Felix Frankfurter:

Will this judge exclude members of the union in every case that comes before him?

Did he excluded in the case immediately before this one and the need to be following this one?

Hobart F. Atkins:

No, sir.

Felix Frankfurter:

He just made a rule that — with reference to the issues in this case that he thought the — the appealing is too close and connected to make him wholly a disinterested juror.

Hobart F. Atkins:

Well he would —

Felix Frankfurter:

Or rather he might have thought that no matter how hard he tries, he’s naturally advised in favor of his fellow.

Hobart F. Atkins:

Well each — each —

Felix Frankfurter:

Isn’t that — I’m not now saying that he was justified in that.

I’m just trying to see exactly what happened.

Hobart F. Atkins:

I wouldn’t agree that he did that.

Felix Frankfurter:

What?

Hobart F. Atkins:

Let me put it in my language and see if we have a meeting place.

Felix Frankfurter:

Have you tried the case before the judge who has to tried that in this case?

Hobart F. Atkins:

Yes, sir.

Felix Frankfurter:

In other cases?

Hobart F. Atkins:

Yes, sir.

Felix Frankfurter:

Well now, are you suggesting that it always exclude labor union men?

Hobart F. Atkins:

No, sir.

I am saying that he should have excluded them this time.

Felix Frankfurter:

I understand that.

Hobart F. Atkins:

Now then our appellate court or the argument in our appellate court was, that while this is wrong, it’s an error and we won’t do it anymore.

Now then you — you’ve come to this proposition, do we administer law to those two defendants, those two individuals as a personal proposition or are they here equal with all others at the bar of justice.

If they are equal, they should have an equal opportunity in the selection of a jury, if they are not, then they’re not entitled to it.

Now basically that is the situation with reference to this application of this harmless error statute.

There are three cases that our Supreme Court has decided where the matter of print challenges or allowing too many challenges to the state or in law, the one Levine’s case that is cited that was argued to the Supreme Court.

Hobart F. Atkins:

And in this opinion you notice that they undertook to differentiate and say that that was a colored man.

There — there were two other cases that we have cited and in both of those cases, one juror, one challenge by the state, worthy of a qualified juror more than what’s allowed was held to be irreversible error.So this is the only case which the — on this error, a statute has been applied.

I think that I have another minute or (Voice Overlap) —

Earl Warren:

You have five minutes.

Hobart F. Atkins:

Now then — this was the argument I made apart of the argument in the Supreme Court.

We have a number of cases where men violate both the rights of a man in his home and the right to search in seizure.

If you say that because these men were guilty in your opinion, they were not entitled to these frauds then couldn’t you as reasonably say when you found something that’s a violation in the man’s home that — it’s all right to go and search it illegally.

Charles E. Whittaker:

You’re not arguing, are you that (Inaudible) was without power to whether these jurors were conflicting the law, are you?

Hobart F. Atkins:

I — I —

Charles E. Whittaker:

Somewhat you did here and the things that(Inaudible) not even have that right to —

Hobart F. Atkins:

If he had — if he had cause but the cause was insufficient.

That cause is — he’s not allowed for cause to just — to strike discriminately.

The cause was that they were members of labor union which is not a sufficient cause.

Earl Warren:

Mr. Glasgow.

James M. Glasgow:

Mr. Chief Justice, may it please the Court.

Going back to the jurisdictional question for one observation only, I should like to say that it seems to me that if these petitioners wanted to protect their rights by raising federal questions in the state courts they might well have done so by filing a petition to rehear which under the rules of the Court maybe filed within 15 days after the opinion is announced in any decision.

And it seems to me that otherwise we’re on the same grounds when we say that a substantial federal question has not been raised that certainly we don’t want to weigh that by going forward with these other questions.

But I do want to address the Court very briefly if I may on those subjects.

Senator Atkins is always very persuasive and he raises the very interesting proposition of discrimination as between the various cases that have been decided by the Supreme Court of Tennessee.

He says that — first of all in the (Inaudible) case, our Court held that it was reversible error for a trial court to do what was done in this case.

Now, our Court distinguished that proposition by saying that that error was coupled with other errors which required a reversal in the case and although they said it was error to do what was done in this instance that it would not be sufficient when standing alone to require a reversal.

Now, I submit that that’s purely a question of the state law that has been resolved by the state courts and certainly it’s not a thing that this Court would look into.

Now, there are two propositions on which we say that this Court should dismiss the writ in this case.

The first is that the state court opinion rest upon an adequate and independent non-federal ground, and that is that these petitioners, under the Tennessee constitution received a fair and impartial trial by a fair and impartial jury.

And our court has said over and over again that that satisfies the constitutional requirement in our State.

Now, I take it that under the adjudicated cases, come into this Court or coming from this Court, that there could be no question whatever about the construction which the Supreme Court of Tennessee places upon its own constitution.

Felix Frankfurter:

What is the scope of review on the fact by your Supreme Court, Mr. Attorney General in criminal cases, I mean.

James M. Glasgow:

I — It will review all the facts.

Felix Frankfurter:

In a case like this?

James M. Glasgow:

Yes, sir, and the rule is or the rule of evidence is this or in regard to the weight of the evidence that the weight of the evidence must preponderate against the verdict and in favor of the innocence of the accused before the court will reverse upon the facts.

James M. Glasgow:

But now the factual situation was resolved aside and apart from these legal questions which were raised which were in regard to the confession and in regard to the jury question.

And we take it that from the standpoint of the factual situation that there is no serious dispute as to the facts because counsel, as I understand it, representing the petitioners, conceives that the facts were cited by the Supreme Court of Tennessee are accurate in its opinion.

Now, the other proposition, it seems to me, that might be raised in the case is whether or not the action of the Supreme Court of Tennessee by saying that the error that occurred in the trial court was cured by its harmless error of the statute, violates the Fourteenth Amendment.

Now, it has been argued that it violates the Fifth Amendment, the Sixth Amendment and others.

And certainly this Court has held repeatedly that under that Sixth Amendment, all that is raised there or protected there are federal rights and not state rights.

And it is also saying that in regard to the Fifth Amendment that the Fourteenth used the same protection that is supported under the Fifth.

Therefore, I take it that the only possible question which could be raised would be in regard to the Fourteenth Amendment.

Now, this Court has had before it the problem of construing statutes in regard to various classes of people from jury service in the states.

It’s had before it the question of whether or not there can be a structure and a regular jury system coexisting in the same state where an unequal number of challenges are involved.

It is has had the Blue Ribbon jury case before it from the State of New York, and then all of those cases this Court has concluded that so long that as a fair and impartial trial is afforded and accused by a fair and impartial jury that that is all that is necessary.

That substantially is what the Supreme Court of Tennessee held was required under the Constitution of Tennessee.

Therefore, we submit that under those cases that which are mostly akin and by analogy are very similar to the proposition which we have here that they — that control the question at bar.

We respectfully submit, may it please the Court, that the case — that writ should be dismissed and thank you very much.

Felix Frankfurter:

Mr. Glasgow.

James M. Glasgow:

Yes?

Felix Frankfurter:

I wonder if I may ask you as a matter of curiosity, whether the office of advocate general is something very peculiar to Tennessee.

James M. Glasgow:

It is created by a statute.

Under our statute of course the Attorney General is appointed by the Supreme Court of Tennessee.

The statute then provides for two advocate generals, one solicitor general and three field attorneys.

Felix Frankfurter:

That — that title, is that prevail in other states for that function?

James M. Glasgow:

I can’t answer that.

His jurisdiction is limited to the handling of criminal cases primarily.

Felix Frankfurter:

And if there no title (Inaudible)

James M. Glasgow:

Since the — about 30 years, if Your Honor please.

Charles E. Whittaker:

Also as a matter of curiosity, I would like to know, does your Supreme Court knew the facts (Inaudible)

James M. Glasgow:

That depends upon how the civil case gets to the court may —

Charles E. Whittaker:

Some cases they do?

James M. Glasgow:

Some cases they do.

Now, we have a Court of Appeals which is an intermediate court in Tennessee.

If there is a concurrent finding of fact by the Court of Appeals and the trial court, the Supreme Court of Tennessee is foreclosed.

James M. Glasgow:

I’m looking into the facts.

On the other hand, if there is a difference of opinion between the trial court and the Court of Appeals as to the meaning of those facts or what the facts actually were, the Court will look into.

And we get some very difficult situations as a result.

Earl Warren:

Mr. Atkins, you have about three minutes if you have anything in conclusion, you would like to say?

Hobart F. Atkins:

May it please your — gentlemen, the matter of rights was fully discoursed in the trial before the Supreme Court of our State.

So they didn’t spell it out in the opinion.

That is the basis, I think, without fear of contradiction, the basis on which they say in the opinion reported as I have previously indicated that it was an error that the court erred in this matter of excluding these 27 jurors because they were members of labor union, but that — the harmless error statute would prevent a reversal.

I think that is the factual picture.

There was no question in the Supreme Court opinion as I understood it but what it was an erroneous rule and it was error to have excluded these men for no other reason.

They were competent jurors before they are tendered, their bias, prejudice kinship, or ten or twelve reasons.

Those were disposed of before the jury — juror is tendered for jury service.

Then after he is tendered as a qualified juror, that is when this withdrawal took place.

Earl Warren:

Gentlemen, as to the next case, number 79.

I think it would sever a little purpose to start arguing that tonight.

We’d have to go over until after the first year anyway.

So, let it be the first case of the year, January 5th.