Spencer v. Texas

PETITIONER:Spencer
RESPONDENT:Texas
LOCATION:U.S. District Court for the Southern District of California, Central Division

DOCKET NO.: 68
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 385 US 554 (1967)
ARGUED: Oct 17, 1966 / Oct 18, 1966
DECIDED: Jan 23, 1967

Facts of the case

Question

  • Oral Argument – October 18, 1966
  • Audio Transcription for Oral Argument – October 18, 1966 in Spencer v. Texas

    Audio Transcription for Oral Argument – October 17, 1966 in Spencer v. Texas

    Earl Warren:

    Number 69, Robert A. Bell, Jr. petitioner versus Texas.

    Mr. Scott.

    Tom R. Scott:

    Mr. Chief Justice, may it please the Court.

    This case is before the Court on a writ of certiorari to the Court of Criminal Appeals of the State of Texas.

    North Carolina has filed an amicus brief.

    In this case, trial was to a jury and the petitioner was charged with armed robbery.

    In addition to the allegations of the primary offense, the state alleged that he had been previously convicted of a similar crime.

    This was done pursuant to a Texas procedure which permitted the allegation of the prior offense for purposes of enhancing the penalty and obtaining a longer sentence in the event of conviction.

    The question presented is whether the state may enter use to a jury evidence of the prior offense for purposes of obtaining an increase penalty prior to a finding by the same jury and the same time of the guilt or innocence of the accused.

    This is a question of first impression in this Court.

    There have been other recidivist procedures before the Court on questions of notice and on questions of equal protection.

    However, none of these cases has had before it has brought to the attention of the Court the question presented in this case.

    There is a conflict below in lower court authorities.

    In the case of Michelson versus the United States, one involving the cross-examination of character witnesses, Mr. Justice Jackson in footnote 8 to that opinion made a reference to the possible fact that such a procedure would be acceptable.

    However, we submit that this is not — that this question is not decided in that case and it is unclear precisely what the reference in that case had reference to — what that footnote had reference to.

    Now this case, involves Article 62 of the Texas Penal Code.

    That Section of the Penal Code provides a mandatory maximum penalty for second noncapital offense of a similar nature.

    The validity of this statute is not contested.

    The policy provision of this statute is not contested.

    The only thing which is contested which is before this Court is propriety of permitting the state to try this in one proceeding and one hearing in which the same jury is used to determine the question of guilt or innocence and at the same time is informed at every step of the procedure throughout the proceeding of the accused prior criminal record.

    Potter Stewart:

    And Texas no longer does this?

    Tom R. Scott:

    That is correct.

    It has been amended.

    It was amended effective January 1st of this year.

    Potter Stewart:

    This year.

    How many states do follow this practice, do you know?

    Tom R. Scott:

    As nearly as I can determine it, it appears to be 23, 23 to 24.

    There are some appendices that have been attached to other applications for certiorari.

    I have not searched it myself.

    It’s difficult to determine because frequently the states will have a statute which appears to be protected and entries on decisions some way it has come in to another point.

    Potter Stewart:

    But as far as you can tell it’s around about that.

    Byron R. White:

    What’s the procedure now?

    Tom R. Scott:

    The procedure now is to try first the issue of guilt or innocence and withhold the reading of the allegations in the indictment which relate to the prior offense.

    Then if there is an issue, if there is a return, if there is a verdict of guilty, that portion is read to the jury and then they make a finding as to whether or not he is the person who have previously committed a prior offense.

    Byron R. White:

    Is it included in the indictment?

    Tom R. Scott:

    It is included in the indictment but it is not read at the jury.

    There are some exceptions on the jurisdictional type offenses but others are not before the Court in this case or any of these three cases.

    Earl Warren:

    Under the present statute what happens if he admits the priors?

    Tom R. Scott:

    On the present statute?

    Earl Warren:

    Yes.

    Tom R. Scott:

    The statute in effect and one before the Court at this time.

    The one in effect is as of January 1st of the statute that’s before the Court in this case.

    Earl Warren:

    This is the new proceeding?

    Tom R. Scott:

    No, this is the old proceeding.

    Earl Warren:

    Well I say what is the new proceeding?

    Tom R. Scott:

    If he admits —

    Earl Warren:

    If the man is arraigned he said, “I lead not guilty but I admit my priors.”

    Tom R. Scott:

    As far as I know that has not been passed on by the Texas Court of Criminal Appeals but I would assume from the past proceedings that that would be permitted and —

    Earl Warren:

    Because it is at way another – in some other states where he admits the priors and they cannot be used on the trial subsequent of the new offense.

    Tom R. Scott:

    Yes.

    Earl Warren:

    But if he denies them they can be.

    Now, —

    Hugo L. Black:

    (Inaudible), I mean Texas is —

    Tom R. Scott:

    There’s language in this case that says that.

    They – I think it’s more difficult to say then there because that proceeding came in late in the effect of practice.

    It came in the series of cases decided on or about 1963, 62 to 63.

    They are cited in the state’s brief.

    I think we referred to them in our brief.

    Here within the last month, it appears that those statutes have been overruled.

    I mean not the statute but those cases have been overruled in a sort of go fashion with the case of Ross against State and the case of Sims against State.

    Tom R. Scott:

    The Ross case is cited or is reported in 401 S.W. 2d.

    The Sims case was reported in 388 S.W. 2d.

    Now there are three cases before the Court at this time on this hearing.

    The Spencer case involves Article 64 which is one which provides that a – in a capital case that on a second capital case a conviction will result in not less than a life sentence.

    In other words, there can be death or life and so they have to make a finding there.

    The Reed case involves a question of habeas corpus case which comes up on Article 63 which is a life on conviction of a third felony.

    This case is on Article 62 which provides for a — the maximum offense of maximum penalty on a cert finding of a second offense under a — of a similar nature.

    Potter Stewart:

    The procedure under all three of these is the same isn’t it?

    Tom R. Scott:

    Right.

    Potter Stewart:

    That is up until the first of issue as the same.

    Tom R. Scott:

    That’s right.

    The basic question and the question before the Court which I understand all of us to be complaining of is the same, the question of reading to the jury informing them of prior complicity in crime.

    Potter Stewart:

    To the same jury that determines guilt in doing so before it determines guilt.

    Tom R. Scott:

    That’s correct.

    Correct.

    Hugo L. Black:

    But no stipulations made?

    Tom R. Scott:

    There were no stipulations — no there were none in any of the cases.

    In the Reed case he was not permitted to stipulate, on Spencer case I beg your pardon.

    That’s the capital case, they said that since he had the option since the jury had to decide whether or not they will give him life or death that they had to be informed with this and they would not permit a stipulation even though it was unresolved.

    The facts of the case are not in dispute, the rest was in 1963.

    There was an armed robbery of a grocery store.

    The indictment wasn’t drawn as we have said allege both of these matters.

    A motion to quash was presented.

    All of this was overruled.

    On the trial, the presentation of evidence, the first bit of evidence to come in were fingerprints and picture.

    Now, the man had prison.

    This was objected to, this was overruled.

    Then a fingerprint expert was placed on the stand and testified that he had taken the fingerprints of the petitioner and he had taken their comparison with the fingerprints taken from the federal records which was certified and place in evidence over this same objection and these were objected to and again overruled.

    Now the primary evidence in the case is summarize in the opinion of the Court on primary offense.

    There’s a prior statement of what happened in that trial of the case.

    Tom R. Scott:

    The evidence it submitted.

    The defense was one of insanity.

    The petitioner did not take the stand, he did not offer character.

    The charge was read to the Court and by the Court and it required the jury to consider.

    It’s a prolonged charge 25 reports from page 25 to page 32 of the record.

    It required the jury to consider the identity of the petitioner and whether or not he committed to prior offense in conjunction with the issue of guilt or innocence.

    The charge contains admonitions of the usual fashion to the jury not to consider the question of prior complicity in crime in connection with the determination of guilt or innocence.

    The finding was guilty.

    It was found that he was the same person, defense of insanity was refused.

    The — an appeal was taken to Texas Court of Criminal Appeals and turned down and this case was brought to this Court on certiorari.

    I think the basic dispute between the parties or perhaps the basic misunderstanding is best exemplified by statements contained in the briefs of Texas and North Carolina.

    Page 9 of the brief of Texas, this statement is made simply logged into the last paragraph.

    The case of habitual offenders, the purpose of the statute is to protect society from a person or from criminals who persists in the commission of crime and by serving as a warning to first offenders.

    These considerations override and logically so the rule forbidding the introduction and proof of other crimes.

    North Carolina states the same concept this way at the very end in the conclusion of their brief.

    When the state legislature says that a prior conviction can bring about increase of punishment and a state Supreme Court holds that the issue as to prior conviction can be tried at the same time as the trial of the subsequent offense and why should a criminal be protected as to his criminal record.

    Answer to both of these questions, both of these proposition is clear until the man is found guilty of the second offense he is not a criminal in this case.

    He is not a habitual criminal, he is not a second offender and there is no reason to protect society against him until he is given a fair trial.

    It has been recognized repeatedly in this Court and as a basic proposition that by fair trial before a fair tribunal is a basic requirement of due process.

    As early as 1892 in Boyd against the United States.

    It was recognized that fairness required one — that one who had a prior criminal record should be secure from the injection of prior criminality into the case unless served.

    Potter Stewart:

    The Boyd case?

    Tom R. Scott:

    Yes, Boyd against the United States 1892.

    Not the certainty of prejudice but the probability of prejudice which is sought to be guarded in this in all of these cases.

    We submit that in this case, there is a probability of prejudice.

    In Marshall against the United States, it was decided that in this Court recognized that reading too that informing the jury remands past criminal history to something that cannot be removed by admonition.

    In that case, you will recall the jurors read in the newspapers, seven among the jurors read in the newspaper account about the prior criminality of the accused.

    And in the case, the district judge went to the — took the precaution of talking to all seven of these people and as to each of them as they can lay that aside.

    And this is the case under the federal procedure one where the court has supervisory jurisdiction.

    In that case, the Court held that they cannot — that this is a sort of thing that cannot be put aside, that cannot be laid aside by the jury.

    Tom R. Scott:

    In Huron against State, a Texas case 40-30 S.W. 2d, that Court recognized that injecting an unrelated offense into the record, into the trial of the case was a sort of thing that cannot be protected against and which would cost much prejudice in the words of the Court.

    The recent case of Seay against State, a Texas case cited in the brief, the court there said that it would then deprive him of an impartial jury and rob him of the fair trial to which he is entitled.

    Byron R. White:

    But isn’t there something more than just prejudice to — behind these cases.

    After all, almost all of the evidence for the prosecution offers is intended to be prejudicial like when you —

    Tom R. Scott:

    Correct.

    Byron R. White:

    When you call an eyewitness to the crime and he testified, the defendants committed a crime.

    I don’t know anything more prejudicial.

    But it’s certainly admissible —

    Tom R. Scott:

    (Voice Overlap) —

    Byron R. White:

    Well, then why — what if they decide prejudice here that really includes this kind of testimony?

    Tom R. Scott:

    In fact that it’s unnecessary — this is unnecessary to a — to the proceeding.

    Byron R. White:

    Why isn’t it relevant to the actual charge in the case?

    Is that it that the theory is relevant or is it relevant that it’s just too harmful?

    Tom R. Scott:

    In Michelson, as it is acting as evidence of this type might be relevant but the probability of harm, the probability of prejudice due to defendant is so great that it is excluded.

    In these cases the Court is not admitting it on any question of defense.

    It’s not admitting it to show propensity to commit the crime that he is being admitted for the sole reason of enhancement that shown by the Texas procedure which were committed to be excluded if it were stipulated.

    Byron R. White:

    Well, do you think the evidence in this case is relevant that just because he committed one crime a year ago, it’s more likely that he committed one today, is that — do you think that’s — do you think the evidence is relevant, the fact crime evidence is relevant as to the commission of this one?

    Tom R. Scott:

    It could be argued that it wouldn’t.

    I think that in Michelson case, it’s recognize that that type of evidence might have relevance but if the relevance is so borderline, so small and embraced the danger of prejudice is so great that all – with all jurisdiction excluded and as part of the trial of the case in chief, I believe that that require to the stand.

    Byron R. White:

    General — that’s the general rule all in behalf of these.

    Tom R. Scott:

    Yes.

    Texas speaks in terms of the being here on Texas Court.

    I think that probably there is after shorthand raised for the presence of opinion and perhaps it is relevant for the sole — it is relevant and it’s so prejudicial and it is —

    Byron R. White:

    Well that what makes it a denial of due process that if really be, let’s say — isn’t that what you’re arguing it’s a denial.

    Tom R. Scott:

    Yes, it is a denial by the — and it is so prejudicial this order — is at the weight so heavy.

    Byron R. White:

    And Texas holds that it is irrelevant, does it?

    To the actual charge?

    Tom R. Scott:

    Yes, they hold and they’re irrelevant.

    That’s certainly implicit in fact that they excluded if it is stipulated.

    Hugo L. Black:

    Are the states provided on the question?

    Tom R. Scott:

    On the relevancy question?

    Hugo L. Black:

    Yes, on the relevancy of evidence on the trial conviction.

    Tom R. Scott:

    I think its uniform.

    As far as I can tell that all of them exclude it.

    There may be some other expressions at stake that there is shadow line, border line and relevancy but that they exclude it because of the great danger —

    Hugo L. Black:

    But aren’t the same state, rule differently?

    Don’t we have some other cases here in the United States that is so different?

    Isn’t that a question of the law what the law should be?

    Tom R. Scott:

    I know of no case affirming it.

    Hugo L. Black:

    On what evidence was he admissible?

    Tom R. Scott:

    Yes that is the question.

    Hugo L. Black:

    Question of policy.

    Tom R. Scott:

    Yes sir.

    Hugo L. Black:

    What specific provision of the Constitution aside from due process you rely on and say that that is inadmissible evidence constitutionally speaking?

    Tom R. Scott:

    His right to an impartial — impartial —

    Hugo L. Black:

    What specific provision of the Constitution aside from due process you rely?

    What specific one that points that out?

    Tom R. Scott:

    Article 6.

    Hugo L. Black:

    Which says what?

    Tom R. Scott:

    That the right to an impartial jury or an impartial tribunal is interpreted in these cases which have recognized the right to an impartial tribunal.

    Hugo L. Black:

    Is that a right to an impartial tribunal but does that say anything about the right to what evidence will be admitted or denied against it?

    Tom R. Scott:

    Question of the evidence, question of evidence in the case goes to be two prejudices, the prejudice in gender by this type of evidence, this evidence of a prior crime, that is the significance of the evidence.

    The evidence could be admitted through an alternate procedure — an alternate procedure such as one that has now established in fact.

    Hugo L. Black:

    Is it your argument that a rule of law which pass by legislative by department which said that that evidence would be admissible is far beyond the bounds of any possibility he didn’t like?

    Tom R. Scott:

    Unless it regarded with stringent safeguards.

    Safeguards to — that would determine types of evidence, the types of cases that could be admitted perhaps something closely related.

    Now, our exception of the court to the exclusion which permit —

    Hugo L. Black:

    Certainly those that’s making into a pattern of crime.

    Tom R. Scott:

    Right.

    Certainly those are —

    Hugo L. Black:

    And that’s so that it’s a question of policy.

    Tom R. Scott:

    Yes.

    Hugo L. Black:

    Question of policy what should be the law.

    Tom R. Scott:

    But there are procedures, and procedure that we contended that this is one of those procedures that is so far beyond the realm of reasonableness as to the denial of due process.

    Hugo L. Black:

    You claim that we have the power in this Court to determine this question of policy on the basis of whether we think it goes just a little too far or just not quite far enough?

    Tom R. Scott:

    The close question I would concede that the reference that the benefit should go to the state in the question of this type but I think that this is a kind of question of this case and the other cases here before the Court present the kind of a policy decision, a question which is so clear as to show to the court or to present a question which oversteps the bounds of due process.

    That is our contention in this case.

    Hugo L. Black:

    That’s the only provision of the Constitution on which you can rely to your argument doesn’t it?

    Tom R. Scott:

    The Sixth, the Fifth and due process.

    Hugo L. Black:

    I didn’t rely on the Sixth.

    The Sixth says, “Tried before an impartial tribunal.”

    Would the tribunal be impartial because of the evidences offered or because of some inherent prejudice on his part?

    Tom R. Scott:

    The inherent prejudice is introduced the moment the indictment is read to them —

    Hugo L. Black:

    But you said alleging to the introduction of evidence of that kind.

    Tom R. Scott:

    The reading of the indictment the introduction of evidence the charge itself all of these things go unrelated to the issue of innocence or guilt, the central question on which the defendant is on trial.

    Hugo L. Black:

    Well, that — there are many people that could think that is admissible evidence.

    Those are not, thinking with reference to many crimes that are familiar.

    Tom R. Scott:

    That is of course on cases which are closely related of things of that type and they are — there are certainly cases where —

    Hugo L. Black:

    You want us to decide a constitutional question on the basis of such shadowy reliance as that?

    Tom R. Scott:

    We don’t feel that the question is shadowy.

    The question here before the Court is one where a man is all — any crime can be introduced against him.

    Hugo L. Black:

    So isn’t as a matter of common knowledge.

    A matter of common knowledge that people who commits crime allows them to commit other crimes?

    Tom R. Scott:

    Statistically, that could be looked to and perhaps could be argued.

    That that kind of thing is so happened, because erroneously that it has been marked down, it has been, it has been gone against and in other cases.

    It’s recognized in Michelson that it would not be admissible.

    Hugo L. Black:

    If that thing can be argued why shouldn’t we leave it up to the legislative body to decide that question of policy?

    Tom R. Scott:

    Because in this case, the state, no one is contending that this is being admitted for the purpose of proving propensity.

    It is being admitted for the sole purpose of obtaining a sentence, of obtaining a greater sentence in a procedure where they can do that just as in — when they are different and a protective procedure.

    Hugo L. Black:

    But in affecting the constitutionality, are we not, should we not be compelled?

    Hugo L. Black:

    To look for the reasons that might uphold the law rather than to seek reasons it might take advantage?

    Tom R. Scott:

    Where the state has not continued there and where it has not provided any — whether they have not provided any protective procedure that surrounds the provision under which they are admitted.

    I would say that it would be the duty of the Court to limit our decision in this case that it would be their opinion to hold open the possibility that in a proper case, a proper statute could be passed.

    Hugo L. Black:

    Have any states held that that does violate due process?

    Tom R. Scott:

    The Fourth Circuit has held in the Lane case, Lane against Warden that this procedure does violate due process.

    Hugo L. Black:

    Now, when was that held?

    Tom R. Scott:

    1963.

    Hugo L. Black:

    Was that the first time it was ever been held in this country?

    Tom R. Scott:

    No it is not.

    In Barron against State, Massachusetts case.

    Hugo L. Black:

    When was that?

    Tom R. Scott:

    Barron, that was 1922 or 3.

    Hugo L. Black:

    Has it ever been held before that?

    Tom R. Scott:

    There is English authority uphold.

    Hugo L. Black:

    I am talking about on the written Constitution.

    Tom R. Scott:

    As far as I know that is the first question, first case to pass on the constitutional question and others may have passed on the evidentiary side.

    That would be the first state signature that passed.

    Earl Warren:

    When did these recidivist statute first come into existence in this country, do you happen to know?

    Tom R. Scott:

    The Graham case would indicate that they have a long history to take back at least as far as 1870.

    Earl Warren:

    1870?

    Tom R. Scott:

    I believe that’s the case.

    There have already have been that because of the Virginia statute involved there and brought over in West Virginia, at least again in 1830.

    The history of them in England go back even farther than that in as far as it held in Graham.

    They have a long history.

    It’s interesting that the English statute was passed, a statute protective statute prohibiting this was passed two years after the case which upheld the admissibility of this type of evidence and in the preamble of that statute they point out that there might be doubts as to whether it denies the defendant an impartial trial and a fair determination of his guilt or innocence.

    Byron R. White:

    (Inaudible)

    Tom R. Scott:

    That question is up to the Court but I would say that this does not — I would say that it cannot —

    (Inaudible)

    Tom R. Scott:

    That would me my contention.

    Earl Warren:

    If we sustain your position would that have any effect on the proof of similar offenses to show general plan or scheme to negative innocent intent and so forth?

    Tom R. Scott:

    I would say that it would not, it would not.

    Hugo L. Black:

    Why wouldn’t it?

    Tom R. Scott:

    In those cases, you have a reason.

    There’s a reason for admitting.

    There is a relevant reason recognized.

    In these cases, it is unnecessary.

    There’s no necessity —

    Hugo L. Black:

    That’s your judgment.

    Why can’t a legislative body think that it is relevant and is reasonable?

    Tom R. Scott:

    It is of course relevant to the question —

    Hugo L. Black:

    (Voice Overlap) But you think it’s a fair way to do it.

    Tom R. Scott:

    Because this type of evidence has been recognized in weighing so heavily with the court while with the jury as to overweigh their consideration —

    Hugo L. Black:

    Does that not to decide the constitutionality of a policy on overweighing the policy one way or the other?

    Tom R. Scott:

    We respectfully submit that it is up to this Court to decide that.

    The state makes several contentions.

    They —

    Potter Stewart:

    I don’t quite just agree that might and would it continue but I don’t quite understand why it is that the admission of prior offenses does not violate due process clause on the point as to show a common scheme or plan and that it does and permissibly it’s the same kind of prejudice in either case, isn’t it?

    Tom R. Scott:

    In this case, it’s irrelevant to any issue before that has to be decided at this time by the jury.

    Those cases planned or designed the fingerprint of the same type of crime, all of these things are relevant to the present guilt on the primary offense.

    Potter Stewart:

    But I should think just that if it’s prejudicially unfair and violative of due process to introduce evidence of prior criminal offenses before jury that’s determining the guilt of this offense that it is in the one case than it is in the other.

    There might be a more of a reason in one case, and a more illogical reason to do in one case than in the other but if the introduction of that evidence is violative of the due process I should think that would be the end of it.

    Tom R. Scott:

    Certainly.

    Potter Stewart:

    But you’re asking us to balance the point of it with the prejudicial effect of it, is that it?

    Tom R. Scott:

    This is prejudicial and that’s admitted.

    Potter Stewart:

    Or unfairly prejudicial.

    Tom R. Scott:

    Unfairly prejudicial because it goes to no question.

    Potter Stewart:

    If Justice White pointed out every bit of the evidence of the prosecution is supposed to damage the defendant and lead to his conviction, that’s the purpose of introducing it.

    The question is whether it’s unfairly or unconstitutionally prejudicial.

    Is that it?

    Tom R. Scott:

    That’s correct and it’s unfair because there is a simple means, there are other simple means of protecting against this which the state knows of and has known of —

    Potter Stewart:

    And is now using since the first this year?

    Tom R. Scott:

    As it was the case in Lane, they all sort of amended their statute.

    William J. Brennan, Jr.:

    Mr. Scott, in Texas if a defendant takes a stand may he be examined on his part criminal records in the future —

    Tom R. Scott:

    Yes.

    William J. Brennan, Jr.:

    — purposes?

    Well what effect on that practice did the rule you asked for?

    Tom R. Scott:

    Distinction in all of these cases is that the defendant there is attempting to gain some advantage.

    I would say that that would still be permitted.

    If he is willing to —

    Byron R. White:

    Why?

    William J. Brennan, Jr.:

    It’s constitutional?

    Tom R. Scott:

    If he is willing to take — to attempt to gain an advantage by (Inaudible), well certainly been the state should be permitted to cross-examine on his prior criminal record.

    William J. Brennan, Jr.:

    Well the rule you’re asking us to announce, the constitutional rule?

    Tom R. Scott:

    That is correct.

    William J. Brennan, Jr.:

    Why in the circumstances cross-examination, would not the constitutional similarly bar question to that point?

    Tom R. Scott:

    Because he has taken as to him, he is gone —

    William J. Brennan, Jr.:

    The waiver concept?

    Tom R. Scott:

    He has elected freely.

    Yes, it is a waiver concept.

    He has elected to —

    William J. Brennan, Jr.:

    Well, as I — I could see that if these were a Fifth Amendment privilege problem but I gather that is not your position.

    Tom R. Scott:

    Well this case — that case of course is not involved.

    That question is not involved in their case so the case is not before the Court here.

    But I would be willing to say that in our case that time that it could — that it would be upheld.

    Byron R. White:

    They posed a credibility doesn’t it not a propensity but when he takes the stand well he really do in terms of the (Inaudible)?

    Tom R. Scott:

    If he were allowed to take the stand by showing this type of — without showing his prior criminality he would be standing without state —

    Byron R. White:

    None of the states allow the — prohibit these kinds of evidence as an evidence to prove of the time witness on trial?

    Tom R. Scott:

    Yes, they don’t.

    Byron R. White:

    They always have another reason for letting this.

    One is credibility or crucial pattern and the Patton and (Inaudible)?

    Tom R. Scott:

    Yes.

    Hugo L. Black:

    Do you say that none of the states since the beginning of this Government have held that this evidence could be admitted, there is relevance to show the propensity to commit a crime?

    Tom R. Scott:

    Under Patton or (Inaudible) is the only case — are the only cases that I know of.

    Hugo L. Black:

    That if it’s you know of?

    Tom R. Scott:

    Yes.

    Hugo L. Black:

    That’s a different statement.

    Tom R. Scott:

    Yes, sir.

    Earl Warren:

    You may have three minutes at the end of your argument to conclude if you wish and you may have that much time also.

    Mr. Phillips, you may proceed with your argument.

    Hawthorne Phillips:

    Mr. Chief Justice and may it please the Court.

    Mr. Scott advice here that there are a number of cases that follow this particular procedure that was used by Texas and is now no longer used.

    I am not here to of course argue to this Court which is the fair procedure.

    The legislature has determined the procedure that they want to follow in the future.

    Question before this Court certainly again is not quite that this old procedure is better than the new but whether or not it’s constitutionally impermissible.

    We do not have figures as to the number of people or number of those in confinement throughout the United States that might be affected by your decision.

    Texas keeps only information as far as the State of Texas is concerned as to those who have the received the life sentence and there are some 537 of those in the State of Texas or where at first of the year.

    William J. Brennan, Jr.:

    Well I suppose Mr. Attorney General, naturally a problem whether if we agreed with Mr. Scott that this is a constitutional principle we should make it retroactive —

    Hawthorne Phillips:

    That I am bringing that out for that particular reasoning.

    Of course —

    Earl Warren:

    Mr. Phillips, may I ask you at the outset if you tell us what the elements of the statute is the one under which this case is to be governed and then the change that was made in it recently?

    Hawthorne Phillips:

    Alright sir the provision of the penal code, Article 62 has not been changed.

    It provides of course for an enhancement of punishment for a like offense.

    Earl Warren:

    For a like offense?

    Hawthorne Phillips:

    For a like offense.

    That’s the situation in Bell.

    In case is proof of a life offense, a second, the second offense of a like crime then it’s mandatory that the maximum set up our statute for that particular crime be awarded as a sentence.

    A prior procedure provided at the matter of the included in the indictment, the prior offense is a separate count in spite of course the original offense on which he’s now charged than in the second offense.

    The jury was charged not only with determining guilt or innocence but was charged to the duty of assessing the punishment.

    There was only one hearing.

    There was no provision under the law for a separate hearing.

    Hawthorne Phillips:

    Nothing like we have in federal courts on a presentence investigation and then a man coming back end of the sentence.

    It all had to be done by the jury in one procedure.

    Now under the present amendment —

    Earl Warren:

    Now may I — may I just interrupt you once more, suppose on his arraignment he plead not guilty of the subsequent offense and plead guilty to the prior offenses.

    Would that then be given to the jury?

    Hawthorne Phillips:

    It would not be given to the jury because it would no longer be relevant.

    Earl Warren:

    That’s the law under which we’re governing this case?

    Hawthorne Phillips:

    That is correct sir.

    He would not plead guilty at the second offense or up to the previous offenses because it’s a procedural matter.

    It does not create a new offense.

    He would be merely admitting to identity that I am the same man who was charged.

    William J. Brennan, Jr.:

    And if that happen, Mr. Phillips, I take it then on a verdict of guilty the jury knowing nothing about this automatically the 40-year penalty would follow, is that it?

    Hawthorne Phillips:

    If that is the maximum for the (Voice Overlap) crime.

    William J. Brennan, Jr.:

    But the jury here has not — heard nothing about it?

    Hawthorne Phillips:

    The jury would hear nothing of it.

    William J. Brennan, Jr.:

    Then it’s only that where he denies and makes an issue of fact of the allegations of that count that the jury is —

    Hawthorne Phillips:

    That is correct sir.

    He has injected the issue by refusing to admit it down.

    Potter Stewart:

    Well I thought it went into the indictment in any event and if the indictment went into the jury then —

    Hawthorne Phillips:

    It’s never given by the jury.

    It’s not evidence the Court instructs the jury that the rating of the indictment —

    Potter Stewart:

    But it’s read — that indictment is read to the jury?

    Hawthorne Phillips:

    Not in its entirety if the question of identity has (Voice Overlap).

    Potter Stewart:

    So I mistaken, I see.

    Thank you.

    Hugo L. Black:

    (Inaudible)

    Hawthorne Phillips:

    On the second count which would be as to the prior offenses would not be read.

    William J. Brennan, Jr.:

    That is if he admits it?

    Hawthorne Phillips:

    If he admits it.

    William J. Brennan, Jr.:

    What if he doesn’t admit it?

    Hawthorne Phillips:

    If he doesn’t admit it then the entire indictment.

    William J. Brennan, Jr.:

    He’s led to the jury —

    Hawthorne Phillips:

    And then evidence presented.

    William J. Brennan, Jr.:

    And evidence presented in support of the allegation of that second count.

    Hawthorne Phillips:

    That’s correct, sir.

    William J. Brennan, Jr.:

    Yes.

    Earl Warren:

    Now, I interrupted you before you got to the change in the statute, would you give us that now please.

    Hawthorne Phillips:

    Alright in every case except the capital case, in our Court of Criminal Appeals that’s held, that there has been no changes as far as capital cases are concerned.

    But in the other case, the indictment is now read under the first count to the jury.

    The second count containing the prior offense is not read until after a determination of guilt or innocence by the jury.

    Then under our present statute, it is provided that at that time, the defendant has the right elect whether or not the jury will assess punishment or whether or not the Court without a jury will assess punishment.

    At this particular time, after the election by the defendant, then the matter of the second count has brought it.

    If it’s the hearing before a jury that the count is read in the jury and evidence is not introduced.

    William J. Brennan, Jr.:

    The same jury Mr. Phillips?

    Hawthorne Phillips:

    Same jury.

    If before the Court, of course I am sure the Court has already seen the indictment not having to determine guilt or innocence then evidence is presented before the Court.

    I do not — of course the man would be — could admit at the time and it will no longer be an issue.

    We do not have a procedure like you set out under your federal narcotics cases where the Court questions the individual concerning his identity and connection with the fast crime.

    It is a matter still in fact questioned for determination unless he admits it.

    Now, I don’t personally would not feel that the blanket of the Fifth Amendment was protecting that on a procedural matter.

    However, the courts have not done so far nor has our legislature can align the defendant could be placed on the witness stand in question about the offense or the previous offenses unless they voluntarily wish as to take the stand.

    Now, certainly I think that here, we have a question of rules of evidence and I think the court is quite aware of the fact that rules of evidence sometimes the court is quite cumbersome.

    They are designed, I think we all admit to try ensure a fair trial and to almost every rule that I know of prohibiting certain types of evidence except some to have a risk.

    Take to his favor as to some exceptions to the hearsay.

    I think the rule concerning the admission of the character of the defendant.

    This is an evidentiary rule, trying again to ensure a fair trial.

    He submitted that there are quite a number of exceptions in this particular instance and one of those has been or several had been mentioned previously to this Court when the defendant takes the stand.

    The question of his guilt or innocence, the effect of his prior convictions or even prior reputation might definitely affect his guilt or innocence or the finding of the jury concerning guilt or innocence I should say but still it submitted.

    William J. Brennan, Jr.:

    Yes but for what reason?

    Hawthorne Phillips:

    For impeachment purposes.

    William J. Brennan, Jr.:

    Certainly, is to admit the —

    Hawthorne Phillips:

    Not to —

    William J. Brennan, Jr.:

    But is relevant to the —

    Hawthorne Phillips:

    Not to the offense himself.

    William J. Brennan, Jr.:

    But it does in — really does —

    Hawthorne Phillips:

    Then you have as much —

    William J. Brennan, Jr.:

    Then that truly bear on credibility though.

    Hawthorne Phillips:

    To some extent whether or not the man is —

    William J. Brennan, Jr.:

    The mere fact that it happen 20 years ago may have committed another robbery to that —

    Hawthorne Phillips:

    It goes to remote —

    William J. Brennan, Jr.:

    He is not when if he takes the stand that he is not to be believed in his version of the events to these charges?

    Hawthorne Phillips:

    Depends on our remote the crime has actually.

    Hugo L. Black:

    What about the truthful reputation as the man retrieve his character has been lawless?

    Hawthorne Phillips:

    Sir?

    Hugo L. Black:

    What about the truth when and then he state the fact, the defendant’s general reputation has been on the lawless character?

    Hawthorne Phillips:

    I do know that has occurred and I am of the opinion probably under Michelson now that it would be held to be possibly by this Court if it present it to be constitutionally impermissible to go into that.

    Hugo L. Black:

    What case do you say that we have withheld as constitutional impermissible?

    Hawthorne Phillips:

    Michelson case has discussed the fact of injection of character in the trial.

    Hugo L. Black:

    Character, you mean of lawlessness?

    Hawthorne Phillips:

    The general character of the witness and certainly the lawlessness —

    Hugo L. Black:

    Well, isn’t that — isn’t that admissible in nearly all the states of the union?

    Hawthorne Phillips:

    I do not think so Mr. Justice Black that the character of the witness can be admitted at all unless the character is in some manner put in the issue.

    William O. Douglas:

    Of course, as I remember that is the federal case, wasn’t it?

    Hawthorne Phillips:

    Michelson?

    William O. Douglas:

    Yes.

    Hawthorne Phillips:

    Yes sir by this Court.

    William O. Douglas:

    Yes.

    Hawthorne Phillips:

    We do have the exceptions at Wigmore, the fact that character generally can’t be put in there except for these various things we’ve been discussing.

    One of which he says.

    Hugo L. Black:

    Well, that’s the general rule not the constitutional rule?

    Hawthorne Phillips:

    Not the constitutional rule.

    This Court has not written the constitutional rules on admissions of evidence nor the Constitution specify admissions of evidence.

    Constitution only hopes and guarantees that an individual will be given a fair trial.

    Hugo L. Black:

    The guarantee is another thing; he should not be compelled to be a witness against himself.

    Hawthorne Phillips:

    That’s correct but I’m talking about due process.

    Hugo L. Black:

    Yes.

    Hawthorne Phillips:

    Now, certainly there is very good reason just as there is reason to say in such crimes to show previous sex offenses, where the issue of character is actually in the trial.

    It then becomes relevant to that particular case.

    It’s relevant in this type of case because the defendant by failing or refusing to admit identity that puts his character an issue before the jury.

    Now I can’t believe that under federal practice where your rules allow and particularly have noticed in narcotics cases over 200 similar offenses to be set out in one single day and tried at one time or where under some of the cases on pornography where this Court decided recently there were numerous counts in the indictment.

    Something that had occurred fairly recent that that is not informing the jury of the character of the defendant and that they would be much more likely to say that, here is a man of bad character than they would say, the same thing based on one remote offense.

    I leave that to you but I do want to state that this exact practice is not unknown to federal practice under the National Provision Act where a procedure was not specified, and you had an enhancement procedure.

    Federal courts uniformly held that at that particular time there are circuit court cases that it was a proper procedure, tried both for substance and offense and the question of identity in the existence of prior offenses at the same time and the same trial and read to the jury the indictment containing these as prior to determination of guilt.

    There has been quite a reveal of the cases or the prior cases in that regard in Massey versus United States 281 F.293 and that was carried on forward as long as the National Provision Act was in existence.

    Of course enhancement under Narcotics Act —

    Potter Stewart:

    That case has been —

    Hawthorne Phillips:

    — now, the procedure is said.

    Potter Stewart:

    Is that case in your brief?

    Hawthorne Phillips:

    In the supplemental brief we filed an answer to the reply brief filed by petitioner.

    Potter Stewart:

    Massey against United States, I see it.

    Thank you.

    Earl Warren:

    Were those prohibition cases that you mentioned exactly like this or were they under a statute which says a person who convicts or who commits the second act of sale after a conviction of a prior sale is guilty of a higher degree of crime than it was a first offense?

    Hawthorne Phillips:

    I didn’t read them that way.

    Earl Warren:

    I just asked I didn’t suggest that they were.

    I’m just asking.

    Hawthorne Phillips:

    My impression to these cases were that they did provide for enhanced punishment for greater punishment.

    He did not have a different crime just as we do not have a different crime under Texas State.

    Earl Warren:

    In other words, it wouldn’t raise it from a misdemeanor from a felony or a low misdemeanor up to a high misdemeanor?

    Hawthorne Phillips:

    It would not.

    We do have the same situation on driving while intoxicated and driving while intoxicated second offense and I think under the National Firearms Act you have transportation across the state line of a firearms by a person who has been previously convicted, but that is not in this case.

    Hawthorne Phillips:

    This Court also has recognized in the past that it was a common practice to handle these cases in this time.

    And again I call the Court’s attention on the supplemental brief in Brown versus West Virginia when Mr. Justice Hughes stated it was a familiar practice to set forth in the indictment the fact of the prior conviction and submit to the jury the evidence upon that issue together without relating to the commission of the crime on which the indictment charge.

    And Mr. Chief Justice Warren, in 1954 in Chandler versus Fretag, made a summary statement that while this could be a separate issue and could be tried separately, that it was common practice to try it in this manner.

    Again, Mr. Justice Clark in Oyler versus Boles and Crabtree versus Boles made the same statement referring back in that instance that authority to Chandler versus Fretag.

    So it’s a practice that has been followed and while not this question was not before the Court as to the constitutionality of this practice certainly test the approval was given by this Court in stating this is a practice that may followed.

    William O. Douglas:

    In Graham also?

    Hawthorne Phillips:

    Sir?

    William O. Douglas:

    I think Graham versus West Virginia when he was suggesting —

    Hawthorne Phillips:

    West — Graham versus West Virginia.

    William O. Douglas:

    (Inaudible)

    Hawthorne Phillips:

    That contains that language and you said it in Graham versus West Virginia also.

    Now, I would like to go a little farther that in this particular case I think the facts of the case itself come within the rule that even though harsh as it may be that this Court set out in Fay versus Connecticut and that is that it must — that there cannot be any reasonable probability that the evidence in question affected the verdict to the jury.

    Now, in this case I don’t think that a jury of 12 reasonable men could have reached any other conclusion where a man robbed the store.

    He left the store manager and the assistant in the vault.

    He had held them up with a gold-plated pistol.

    He forced them to put money in a bag that had the store marking on it.

    They were able to secure their release from the vault because it had a provision where it could always be opened from the inside, they called the authorities.

    The highway patrol, among other law enforcement officers were notified.

    The officers were starting to set up a roadblock.

    They then noticed a car that approached and then made a U-turn.

    They gave pursuit.

    The car violated the speed limit.

    They stopped the car and in result in action in giving a ticket.

    One of the officers looked in the car and saw the gold-plated pistol on the seat.

    They went through the car, they found the money bag where the money, the change still in them and the bills under the seat.

    The store manager then identified the defendant.

    He identified the money bags, the amount taken corresponded with the amount that had been taken from the store.

    There was a case of actual identity and arrest just a very short time after the crime and the proceeds of the crime in the possession of the individual.

    There was no rebuttal evidence offered whatsoever to explain these facts nor did the defendant take a stand in an attempt to explain.

    Now, the only evidence that was offered in his defense was by his mother who said that she believed that he must be insane if he did it that he had had a head injury and that she had noticed that he had acted peculiarly.

    Hawthorne Phillips:

    And that he had him treated or attempted to have him treated in a mental institution.

    There was rebuttal evidence in the issue of insanity.

    It’s not — it was given to the jury decided against the defendant and is not a part of the issues in this case.

    The only question is under the rulings then in Fay versus Connecticut is whether or not there is a reasonable possibility that this evidence by the inclusion, should it be constitutionally impermissible which we still deny and whether or not any jury of 12 unbiased persons would have reached a different verdict and I do — I present to the Court that in examining this record.

    Now the opinion of the Court of Criminal Appeals of Texas which is included in the record details this evidence.

    These facts have not been denied and in fact counsel admitted that the statement was fair.

    We did not reproduce all of the evidence in the transcript this Court has asked.

    You of course have the original transcript from the Court of Criminal Appeals, the one copy.

    We reproduced a remainder of the evidence of the Court, for the convenience of the Court if they want to examine the acts of facts rather than take word of counsel both of us feel though that the Court of Criminal Appeals fairly sets this matter out.

    If you wish it in entirety we have it in, we’ll be glad to leave it with the clerks for the convenience of the Court.

    Earl Warren:

    Thank you.

    Hawthorne Phillips:

    Now, I do think that this Court certainly is designed to protect the individual.

    It was created for that purpose.

    Our very Constitution gives it that duty but also there is a duty to society and the individual is protected because he’s a member of that society.

    In facts as we have in this type of case, I think this Court would be doing a great service to society to establish a rule that would release these people who to say the least that has shown that they are not quite adjusted to live in a social society.

    For all laws are liberal, that of course would not waive any question of constitutionality, as I grant you that.

    But I do urge the Court to carefully consider this record and the facts of this case as well as the facts that the defendant by his own acts in refusing to admit identity as a procedural matter not as an element of crime injected into this case the question of which he now complains.

    Thank you.

    Earl Warren:

    Mr. Phillips I would like to ask you just one other question that occurred to me.

    It may not be relevant to this case but suppose the man was charged with prior convictions and he denied them and he was convicted and then later they found that they established that he had not committed the priors, what effect would that have on the trial?

    Hawthorne Phillips:

    Let me see if I understand the question.

    Earl Warren:

    I don’t think it’s material to your case.

    I just —

    Hawthorne Phillips:

    You’re asking if the alleged prior convictions then do not prove?

    Earl Warren:

    Yes.

    Hawthorne Phillips:

    But he was found guilty of first offense.

    Earl Warren:

    Subsequent offense, yes.

    Hawthorne Phillips:

    I would think there again it was an issue and the jury would be more likely to not believe the state if they could not prove all of their indictment even though if they had — if they failed in proof here of that regard certainly the jury would be finding it’s nothing to it.

    This man was a good character at that time.

    Earl Warren:

    I see.

    Hawthorne Phillips:

    Thank you.

    Potter Stewart:

    Just before you sit down, in referring now to the old procedure the one that was in existence in this case now before us, would it have been possible for the defendant to have avoid the jury knowing anything about the charge against him of prior offenses.

    Hawthorne Phillips:

    It would by admitting that his identity as being the same person charged and convicted of the prior offenses.

    If he had made that admission then that evidence could not or the charge in the indictment could not have been raised in the jury nor could have evidence it’s been presented.

    Potter Stewart:

    And therefore you’re telling me as I understand that the jury would not have known and would have no way of knowing that he was charged or that he had admitted his identity as the one who had been previously convicted?

    Hawthorne Phillips:

    That is correct.

    Potter Stewart:

    If he had — if he had admitted his identity.

    Hawthorne Phillips:

    That is correct under Texas procedures, there are number of them saying.

    Potter Stewart:

    And we’re now talking about the old procedure —

    Hawthorne Phillips:

    The old procedure.

    Potter Stewart:

    — which is the issue in this case.

    Thank you very much.

    Byron R. White:

    Mr. Phillips how does the State of Texas justify the admission of this testimony without prior time?

    Hawthorne Phillips:

    Mr. Justice White under the ground that the defendant has injected this element into a case by not admitting his identity.

    Certainly, it was a procedure that has been filed in Texas since 1853 and —

    Byron R. White:

    Would you say then that Texas also constitutionally could generally have a — what if by statute the legislature they are hereby changing all of our rules of evidence in the District Court heretofore evidence of prior crime will be generally admissible in the trial of any criminal case.

    Hawthorne Phillips:

    I think if possibly that this Court if I presented to them with a —

    Byron R. White:

    What about you — what’s your idea with state power to do that constitutionally?

    Hawthorne Phillips:

    Legislature has the power to pass statute —

    Byron R. White:

    And there would be — there would be no federal constitutional bar in your opinion to the state —

    Hawthorne Phillips:

    I think that under the decisions, I don’t think — I think that the interpretation given to the Constitution by this Court.

    Or the statute can be given fact.

    Byron R. White:

    Would bar?

    Hawthorne Phillips:

    Yes.

    Byron R. White:

    Why?

    On what ground?

    Hawthorne Phillips:

    On the grounds that as set out in Michelson.

    Hugo L. Black:

    Well, that’s a federal case.

    Hawthorne Phillips:

    I see but it would be applied I believe it’s correct to state procedure now.

    Hugo L. Black:

    Why would it?

    Hawthorne Phillips:

    Under the Fourteenth Amendment, you have held that it would extend the question of procedural due process to state cases.

    Potter Stewart:

    I just read the Michelson opinion.

    I read it frequently right here on the bench as well as the concurring opinion and the dissenting opinion and in my hasty reading I didn’t quite find a single reference to the United States Constitution, the Fifth Amendment or the Fourteenth Amendment.

    Hawthorne Phillips:

    I might be — I might been here as to particular case but I was – it is my impression that it was in Michelson.

    Potter Stewart:

    I thought it was just the — the question for the Court was about whether or not this Court was going to promulgate a rule of evidence for the federal courts.

    I don’t see a single reference to the Constitution.

    Hawthorne Phillips:

    It’s a question — it goes to the question of the admission of character evidence.

    And it is impermissible I would think in federal court under the interpretations we submitted this Court has made under the Fourteenth Amendment it would extend the state practice.

    Hugo L. Black:

    Why would it?

    The due process holding of law is unconstitutional under constitutional claim against it in holding that this Court is — was called at supervisory statute federal court both in law (Inaudible) does, it’s quite different.

    Hawthorne Phillips:

    Well you have held a number of state laws in the application to be unconstitutional.

    For example the denial of counsel.

    Hugo L. Black:

    Federal constitution prohibits that specifically.

    They could have it specifically.

    Hawthorne Phillips:

    Also, Mr. Justice Black, under the question of due process whether or not the man received a fair trial.

    I am thinking about say possibly under the Riddo (ph) case where the confession with broadcast or the Turner case where the deputy sheriff had jury to mind.

    Hugo L. Black:

    That there’s a provision in the Constitution that says that should be tied by the impartial tribunal.

    Hawthorne Phillips:

    That is correct sir.

    Now, the question of character injection of character into the trial where it is not relevant then it becomes a question as to whether or not you have an impartial jury from the time that that element is undertaken.

    Hugo L. Black:

    But in the very case to which you referred Michelson, Mr. Justice Jackson referred to the facts.

    The evidence that he had committed many crimes might be persuasive evidence if you submitted another one even if the character is not the same.

    Hawthorne Phillips:

    Certain type of crimes under again I think our preponderance rules of evidence as I have seen them (Inaudible).

    Hugo L. Black:

    Yes, we’re talking here about constitutional rules evidence.

    William O. Douglas:

    What do you say to the type of case where these charges about the man’s character printed and handed in the newspapers and slipped into the jury rule where we set jury verdict?

    Hawthorne Phillips:

    I think that your answer in that in my impression is in line with what Mr. Justice Black was asking.

    I think that the man is being denied a fair trial before an impartial tribunal by slipping those matters to a jury they could not be entered to as an evidence in the case of the trial.

    Byron R. White:

    But what about then when the — but what about my — suppose that Texas says that the general proposition you can introduce evidence of prior crime because they are relevant.

    We think — the legislature we think that evidence is relevant through trial that’s being tried.

    Do you say that he could have the rule under the federal constitution?

    Hawthorne Phillips:

    I would feel that possibly they were going a little too far Mr. Justice White.

    Byron R. White:

    Do you have to say it’s a due process law?

    Hawthorne Phillips:

    I would think that it would go to the fairness of the trial of impartiality of the jury that that would be say — shall we say stretching the rules of evidence to such an extent.

    Byron R. White:

    Not the circuit came along to say that the –- we know we can’t do that.

    At least there must be evidence then to one of these recidivist statutes to do job half through.

    We know that they haven’t (Inaudible).

    Hawthorne Phillips:

    I go back to the premise again that it is very relevant to the sentence itself and has been injected by the defense.

    Abe Fortas:

    Mr. Philips.

    Hawthorne Phillips:

    Sir?

    Byron R. White:

    The jury sentence is in Texas?

    Hawthorne Phillips:

    The jury sentence is in Texas.

    Byron R. White:

    Would you have to have the evidence that the man have pleaded guilty?

    Hawthorne Phillips:

    Under the former procedure that was the only way that it could be done.

    There were no other provisions by law.

    Byron R. White:

    It changed that?

    Hawthorne Phillips:

    It has been changed now.

    Whether the legislature says the present method is better but it’s a question of whether it’s constitutionally impermissible.

    Tom C. Clark:

    But you used both statutes.

    Hawthorne Phillips:

    Some places —

    Tom C. Clark:

    I mean in Texas, you have the capital case.

    Hawthorne Phillips:

    In capital case, you’re right Mr. Justice Clark.

    They still use the old procedure in the capital case.

    William J. Brennan, Jr.:

    I suppose Mr. Phillips statistics on this may not be available but I was just wondering how often do defendants deny identity under the old procedure and require this to be tried out?

    It happened often?

    Hawthorne Phillips:

    We have no way of knowing.

    Abe Fortas:

    Mr. Phillips, I’d like to find out this very specifically in answer to the question that Justice Stewart asked a little while ago.

    That is under the old procedure, the procedure that we have of course in the Bell case and in other two cases, (Inaudible) Amendment statute.

    Is it possible to — for the defendant by his own action to withhold from the jury to see if there is withheld from the jury information as to his prior conviction?

    Hawthorne Phillips:

    Only in —

    Abe Fortas:

    Right.

    Now I want to take it through that very carefully.

    Hawthorne Phillips:

    Alright.

    Abe Fortas:

    This may be an important question.

    First under Article 64, the waiver by the defendant as to reading the indictment and the making of proof was not permitted.

    Hawthorne Phillips:

    I didn’t hear you.

    Abe Fortas:

    Under Article — under the old procedure prior to the amendment of the statutes, in Article 64 cases that is to say capital cases a waiver procedure was not permitted is that correct?

    Hawthorne Phillips:

    It’s not — it was not permitted and it’s still not permitted.

    Abe Fortas:

    In other words that in capital cases the prosecuting had to read to the jury the portion of the indictment charging the prior convictions and it also had to make proof that those portions of the indictment is that correct?

    Hawthorne Phillips:

    That’s correct.

    Abe Fortas:

    Alright so that in Article 64 that is capital cases, the defendant could not arrange to withhold this information from the jury?

    Hawthorne Phillips:

    All because the jury had the sentence.

    Abe Fortas:

    Alright.

    That’s number one and number two let’s take the Article 62 and Article 63 cases that is to say cases involving less than capital indictment.

    As I understand it, recently when the Texas Court of Criminal Appeals devised a procedure by which the defendant could avoid the reading of those portions of the indictment and the defendant could also avoid the state making proof of his prior convictions, is that correct?

    Hawthorne Phillips:

    If he admitted it out.

    Abe Fortas:

    Right.

    But even in those situations Article 62 and Article 63, did the jury receive information as to prior convictions by way of the trial judges’ charge to the jury or by way of the prosecution summation or both of them?

    Hawthorne Phillips:

    They were not suppose as to whether — as a matter of fact I think on some of the cases they did.

    Abe Fortas:

    Now the current, does the jury fix the sentence — does the jury fix the sentence in non-capital cases?

    Hawthorne Phillips:

    Fix the sentence except under the enhancement statutes.

    Automatically it becomes a question of law on page 62 and page 63 cases.

    Because if the jury finds or if the man admits the prior offenses then as a matter of law his sentences shall be like under 63 cases and shall be the maximum allowed under 62 cases.

    Abe Fortas:

    Well would the — would the trial judge in such cases with his charge to the jury include reference to the prior convictions, does you answer that it need not?

    Hawthorne Phillips:

    It need not, if it did it will lead grounds for reversal.

    Abe Fortas:

    Are you sure there would be grounds for reversal?

    Hawthorne Phillips:

    That’s to determine — the way I understand the interpretation of the Court of Criminal Appeals.

    Abe Fortas:

    There’s no case under this.

    Hawthorne Phillips:

    It stated that it would not be necessary but they could avoid, there are number of cases which say that they can avoid the injection of this issue before the jury by admitting that.

    Abe Fortas:

    Yes, but now I want you to be careful about this if there were Mr. Phillips because what I am talking about is a trial judge’s charge, the prosecutor summation.

    Now I know ex parte Reyes or Reyes or how it is pronounced, R-E-Y-E-S.

    Now, so far as I know is, you made mistakes on that and that involved the reading of the portions of the indictment but it did not involve the question of the trial judge’s charge of summation.

    Hawthorne Phillips:

    All I can answer in that regard is that since the sentence becomes important a matter of law if that provision is not necessary in the charge.

    I would have — it would be my question if it were included in the charge in saying that they are — that the Court would reverse it.

    William O. Douglas:

    (Inaudible)

    Hawthorne Phillips:

    Thank you.

    Earl Warren:

    Mr. Scott, you have three minutes.

    Tom R. Scott:

    The argument which the state is now giving is that the right can stipulate — the opportunity to stipulate is a good protection for the defendant that it protects his constitutional right to a fair trial.

    It affects they are arguing that he can — that it is prejudicial, they are admitting it is prejudicial and they are saying that he can purchase a fair trial by admitting a major portion of the state’s case.

    If this is their argument, we say that it would be in violation of the Fifth Amendment here and be against self-incrimination against supplying a vital part a link a vital link in the state’s case.

    Now even with regard to the stipulation there are these cases, there is the Pitcock case in 1963 which as far as I know was the first to suggest the so-called stipulation.

    Here they had it since 1907 and finally in 1963 they devised this so-called protective procedure of stipulation.

    But here in 1966, they have overruled those cases or at least they have severely limited them to the proposition that if the trial judge wishes, he can refuse to accept the stipulation in a non-capital case as is not a reversible error.

    Both that case with Ross against Texas 401 S.W. 2d —

    Potter Stewart:

    Why — why is that in 1966, the question no longer arise?

    Tom R. Scott:

    But the case prior to the 19 — the 1st of January reaching appeal in 1966 but —

    Potter Stewart:

    I see.

    Tom R. Scott:

    — prior to that.

    They back away for this protective procedure without citation of these cases without overruling they permit the trial court that it permit the prosecution to go ahead and read into evidence the proof of the prior offense.

    Earl Warren:

    What is the name of that case?

    Tom R. Scott:

    Ross against State 401 S.W. 2d.

    It’s also foreshadowed in Simms against Texas.

    Most of these cases come out of Tarrant County.

    Hugo L. Black:

    What you say, same here?

    Tom R. Scott:

    388 S.W. 2d.

    Hugo L. Black:

    388.

    Thank you.

    Tom R. Scott:

    With regard to the earlier cases which you referred to this as being inseparable procedure, the Oyler case, the Graham case.

    The Graham case is interesting because there they were using a split proceeding.

    Back at that time, they — the person who was being tried long after, long after the time that he had been primarily convicted.

    They brought him back in, tried him again and he was complaining of the split procedure.

    He was complaining of the fact that he had not been given those on the earlier trial.

    Tom R. Scott:

    In that case, (Inaudible), just as you stated that that is permissive procedure but that it was not required.

    Byron R. White:

    Could you tell me what’s the theory of the recidivist cases the statutes of Texas is or why did they — why, in terms of, (Inaudible)?

    Tom R. Scott:

    To give a greater penalty as to the portion granted in the brief that it would be an example to multiple offenders that deter multiple offenders —

    Byron R. White:

    Was this to deter others rather than (Inaudible) committed the crime more than once, is that —

    Tom R. Scott:

    That is the way I see it and also they could take him out of society.

    That is —

    Byron R. White:

    Because it is more likely that he will commit another one?

    Tom R. Scott:

    That is — as I understand the argument that is the proposition advised by the case.

    Hugo L. Black:

    You don’t think that’s an unreasonableness?

    Tom R. Scott:

    No, it is not.

    We have no argument to the procedure having recidivist statute.

    Our only argument is the way in which it is applied the application of it through this in Article 672.

    Earl Warren:

    Mr. Scott, we understand that your client is an indigent and that by appointment of the courts below you will carry this case through to this Court as a public service and we want you to know that we appreciate that.

    In lawyers, it is a real public service and we thank you for having done it.

    And Mr. Philips, we also want to thank you for the earnest manner that you have protected the rights of your state.

    The next case is number 68, Leon Spencer, appellant versus Texas.

    Michael D. Matheny:

    May it please the Court.

    Earl Warren:

    Mr. Matheny.

    Michael D. Matheny:

    Defendant in this case Leon Spencer was charged under the terms and provisions of Article 64 with the offense of murder with malice and murder with malice reputation.

    He was charged with the offense of murdering with malice, his common-law wife Lavinia Erdie.

    The reputation for it of the indictment charge at some 15 years prior to this that he had been convicted in the same courtroom of the offense of murder with malice of the former wife.

    Not the same wife sir.

    The defendant from the very beginning, I tried this case on the trial court level and recognized the problem that this man would have on trial for his wife to receive a fair and impartial verdict from a fair and impartial jury on the question of his guilt or innocence of murder with malice.

    Attempts were made before the trial actually even began or before any juror were questioned to prevent the introduction of this prior evidence because under Article 64, it was not admissible for any purpose except in the situation when the jury found the defendant guilty of murder with malice and the jury in this case found this defendant guilty of only murder without malice under the applicable Texas cases the first conviction would have been inadmissible for any purpose.

    Potter Stewart:

    Without — certainly this much would have been admissible in this particular case I should think quite apart from the statute.

    The briefs indicate that the evidence was that this man had threatened his second wife and he said when they were arguing in a room, he told her that if she didn’t shut up, he would kill her like he did his first wife.

    Michael D. Matheny:

    Yes, sir.

    Potter Stewart:

    And that evidence would be admissible quite apart from the statute.

    Michael D. Matheny:

    No, sir, not in the State of Texas, it would not and it was ruled inadmissible by the trial court.

    This is taken out of context.

    Michael D. Matheny:

    It’s not in the printed record and if a close check is made on the certified record, he would repeal that an objection was made because this was testimony put up by the state by the daughter of the deceased woman and was in regards to testimony that occurred three years before this woman was killed or said to be killed.

    Three years before in the trial court rule that it was entirely too remote and should not be considered for any purpose.

    Potter Stewart:

    How about your State of Baker against State.

    Michael D. Matheny:

    Baker versus States is the testimony of threatening and in that case the trial court ruled that it was admissible.

    Potter Stewart:

    And that was six years before.

    Michael D. Matheny:

    Yes, sir but the trial court in the trial of this case decided what the law is in the State of Texas decided that this was too remote and was not admissible and this would be a threat and not a prior conviction of murder with malice.

    Potter Stewart:

    I see.

    Hugo L. Black:

    In three years?

    Michael D. Matheny:

    I beg your pardon, sir?

    Hugo L. Black:

    Three years?

    Michael D. Matheny:

    Yes, sir.

    The defendant further entered into a judicial stipulation that he was the same individual that have been convicted before and further that for the first conviction was constitutionally valid and there was nothing for the jury to decide before they determined his guilt or innocence and this was overruled.

    Now, when it falls down to this Court although I recognize the distinction that Mr. Justice Black is making and what he is saying about with the Marshall case and supervisory powers of this Court over the federal court but we have up here is a man is being tried for his very life.

    And this goes beyond the rules of evidence of a blurting out of a witness that there has been a prior conviction.

    This exaggerates the entire fact-finding procedure guilt or innocence of this man.

    When he went all the way back to the questioning of each individual juror who finally set up a jury it was explained to them that the state was contending in this very courtroom that this man had been convicted a murder before.

    This was read to him from the —

    Hugo L. Black:

    Is it your argument that that is unconstitutional?

    Michael D. Matheny:

    Yes, sir.

    When a complete wide of reason, yes sir.

    The reason that I would say this is unconstitutional goes back to what this Court says on due process, in Betts versus Brady as to the situation of —

    Hugo L. Black:

    Betts versus Brady?

    Michael D. Matheny:

    Betts versus Brady what would constitute the due process in one case might not in another.

    And this goes further than this Court saying to the states what is fair, there is fair way, not what is a fair and what is fair.

    I am saying that when a man is on trial for his life the effect he was tried for this first conviction that half of the proofs put on by the state went to the first conviction.

    That each juror has been told he’s been convicted before that the indictment signed by a grand jury was introduced into evidence as the first Court has been approved by the state the certified copy which in the former case the state said was not admissible.

    The certified copy was admitted.

    The verdict of the prior jury was admitted showing that he had been convicted.

    Hugo L. Black:

    I had an idea that that question (Inaudible)?

    Michael D. Matheny:

    No sir it comes back as to in this line of reasoning I still believe that the main issue was whether man has been denied of fair and impartial jury and not as a rule of evidence of one thing in that there has been — has there been in this matter this individual case of this man charged with a capital offense of continuing and continuing and continuing and continuing, going into this again and again two live witnesses who testified they were present before and he was the same man and the same courtroom that was convicted introducing a picture of them with a number of cases.

    Hugo L. Black:

    If it’s admissible, why wouldn’t be unconstitutional?

    Michael D. Matheny:

    If it is admissible, Your Honor?

    Hugo L. Black:

    Yes.

    Michael D. Matheny:

    It is not admissible.

    What I was saying is this Court has have then when we go into past opinions that the jury should enter into a jury box with a clear mind.

    The behavioral scientist call this something called tabula rasa, it means, I may not pronounce this correctly.

    Meaning a clean slate, that they have no fixed opinion as to this man’s guilt or innocence and the state —

    Hugo L. Black:

    Who was — what was the first murder.

    Michael D. Matheny:

    The first murder was a conviction 15 years before the murder of the former wife.

    Potter Stewart:

    His then wife?

    Michael D. Matheny:

    His then wife, yes, sir.

    Hugo L. Black:

    What was his charge?

    Michael D. Matheny:

    His charge was to the conviction, was a charge of murdering another wife.

    Hugo L. Black:

    Another wife?

    Michael D. Matheny:

    Yes, sir.

    Hugo L. Black:

    And what they offered was to show that he has been convicted of killing wife already?

    Michael D. Matheny:

    Except Mr. Justice —

    Hugo L. Black:

    Is your argument that that’s unreasonable to offer that an evidence?

    Michael D. Matheny:

    Yes, sir, Mr. Justice Black I believe the people who that studied the civilizations of the world had stated that each culture is determined by the guarantees that it gives to each individual person no matter what type of person he is, what type of evil may he is or what he has been involved before and under our Constitution you are entitled to have an impartial finding by an impartial jury from the basis of what you’re charged with this time that just because you’ve done something before is no evidence that you’ve done it this time.

    Hugo L. Black:

    No evidence?

    Michael D. Matheny:

    No, sir, it is none.

    And the reason again, does this procedure prevent the probability of unfairness?

    I say not only does it not prevent the probability of unfairness, it fosters unfairness.

    The — I have been unable to find one case and I am not saying there are no cases like this mentioned before.

    I have been able to find no case and the state in its brief has cited no case.

    It states that this prior conviction was admissible for the purpose showing a man propensity for trial.

    Hugo L. Black:

    How was the first murder committed and how was the second committed?

    Michael D. Matheny:

    First murder was convicted by this man stabbing the woman in the neck.

    Hugo L. Black:

    How was the second murder?

    Michael D. Matheny:

    The second murder was convicted by this man shooting his wife in the head as to what the facts alleged by the statute.

    Michael D. Matheny:

    It came — but it still comes back to this man as entitled to have a fair and impartial hearing on the question of his guilt or innocence on the primary offense and that the courts have held that this testimony override, it’s so overwhelming in the average person’s mind that would sit upon a jury that he could not separate.

    And in Texas, it would not have been admissible for any purposes other than to accept the punishment of the defendant.

    This Court of Criminal Appeals of the State of Texas has held that in another habitual criminal offense when you have a non-capital prior offense and a charge capital offense that you could not combine because it is unfair to do so because this would overweigh with the jury and they would not be able to have a impartial jury under the terms of provision to the Sixth Amendment and they reverse such a case.

    In the case of Leon Spencer in any jurisdiction that I have been able to find in the United States has this prove been introduced in any other case except in habitual criminal situations.

    If he had been charged with running a stop sign, with speeding, with parking on the wrong side of the street the Court would say that this evidence is not admissible to show his propensity of the crime in the so overwhelming it is prejudicial.

    And that in the State of Texas had he been charged — with his — haven’t been convicted once before, haven’t been charged on any other crime, any other crime on the trial of that same courtroom for running a red light, for running a stop sign, this evidence would not have been admissible and Court would say if you did, if it’s so overbearing that you could not get an impartial jury.

    So it falls down to this, can we have two standards for what an impartial hearing is.

    A person that’s been involved with a crime that the state says that we’re going to show this time that he be denied an impartial hearing should he be denied comes back in not one case studied by the state as the Court has sustained the state’s position giving any reason for doing so except because the state in its prior argument to the question asked by Mr. Justice White did not answer what is the basis, what necessity is there for confusing the jury and prejudicing the jury with the existence of the prior conviction before the determination of the guilt or innocence of the defendant and the answer is there is no necessity this is known throughout the State of Texas as the prosecutor’s door.

    Earl Warren:

    That’s what?

    Michael D. Matheny:

    The prosecutor’s door.

    And many people had been convicted on slim facts on the question of guilt or innocence because there is no way to tell.

    You can’t go back into the juror line.

    But how many weak facts where the determination and it’s the burden on the state to prove beyond the reasonable doubt based on moral certainty that this man’s action that resulted in the crime.

    It resulted on the guilt because of that overriding fact, the procedure that we have in Texas now according to the state’s attorney in every case besides the capital case.

    I have read the Roxas case and I disagree.

    That’s a concurring opinion that talks about — that case, I don’t believe that has been cited by the Court.

    But it comes back to makes it even more important if it’s still there in this type of case.

    Byron R. White:

    Do you — do you concede the theory of the Texas recidivist statute to be that we’re going to give an apt sentence because the person who has committed two crimes is more likely to commit a third?

    Michael D. Matheny:

    No, sir, it is not they are more likely to commit a third and what I have read about it is Your Honor, that the state is taking crimes for which the punishment for a first defense should not be but five years based upon the theory which probably is incorrect that you should make the punishment fit the crime and that consciously or conscientiously the state cannot inflict a punishment for the primary offense of stealing a car of the maximum of 10 years in the penitentiary and on the third time if a man steals a car again that for the primary offense that they cannot consciously again make a punishment of life for stealing an automobile then therefore when a man has done it three times that they are trying to make an additional burden on this person not to create an additional punishment for this individual but all of these does not go to jurisdiction.

    Byron R. White:

    But why do you think the state poses a greater sentence for the third theft of an automobile and for the (Inaudible)?

    Michael D. Matheny:

    Well, I am sorry.

    I believe they pose a greater sense for an individual on the third theft to punish that individual because he cannot —

    Byron R. White:

    I mean just to say punish.

    Michael D. Matheny:

    Yes, sir.

    I think that’s what it.

    Byron R. White:

    (Inaudible)

    Michael D. Matheny:

    No, sir because (Voice Overlap).

    No sir I do not believe it is.

    Hugo L. Black:

    You don’t think that has anything to do?

    Michael D. Matheny:

    I beg your pardon, sir?

    Hugo L. Black:

    You don’t you think it has anything to do with a man who has committed a number of crimes that commit another?

    Michael D. Matheny:

    I believe that that may be perhaps relevant but that may be relevant.

    I would think in that, that’s the whole basis of the whole — of the contention here Mr. Justice Black is that because of human nature I personally would think that a man that has been involved with a trouble with the law before is the type of person that would be involved and has trouble with the law.

    But our system —

    Hugo L. Black:

    Why then should it be dealt constitutionally that that couldn’t be offered as evidence?

    Michael D. Matheny:

    Because of the reason that this would overbear so much for the jury that it would cloud their mind so much that the average juror or the average judge or the most educated attorney could not completely separate this man this from his mind and only use it to determine the punishment to be inflicted.

    Hugo L. Black:

    Do you think this Court has trouble and look into the state law where they have reason that can offer evidence on one theory on another theory on another theory and reached its own conclusion that they ought not be permitted to do for this protection constitutionally speaking?

    Michael D. Matheny:

    Yes sir.

    It comes back to — if these were an isolated instance in trial of the rule of evidence and whether this particular piece could come in that would be one.

    But in the case of Leon Spencer from beginning to end, his trial was such that he did not receive due process of law that the standards that our Constitution required and that’s I can see and what you’re saying Mr. Justice Black I realize you’re saying that although it may be unfair to do this wherein the Constitution doesn’t say you can.

    But I am saying is that based on the facts of this case, this man did not receive a fair and impartial trial before a fair and trial impartial jury because of the accumulation of all these evidence being introduced for no other purpose than decide his punishment and this will not come into play to the defending guilty of murder with malice.

    Hugo L. Black:

    Do you think that it’s a legislative function or a judicial function to determine that we in different policy or whatever should be introduced in cases aside from some specific constitutional provisions?

    Michael D. Matheny:

    (Voice Overlap)

    Hugo L. Black:

    Do you think it is a legislative function or a judicial function?

    Take up various reasons why evidence should be admitted in the case, is it a judicial function basically or a legislative function?

    Michael D. Matheny:

    If the legislators or attorneys and people well-versed in either human nature in the trial of lawsuits it should be the legislature.

    I would be the first person to say that the offense —

    Hugo L. Black:

    Yes both would be pretty well-versed.

    Michael D. Matheny:

    Yes, sir but —

    Hugo L. Black:

    But what makes the common person safeguard —

    Michael D. Matheny:

    But he comes back to all of these people and all what the jurisdiction says because of what makes the common person take that this evidence weigh so heavily that a person accused of crime cannot receive a fair and impartial hearing.

    Hugo L. Black:

    But suppose all the states did do that and in the reason for the federal constitution that should adopt it as a rule.

    Michael D. Matheny:

    The Court of Criminal Appeals in the State of Texas has stated that such evidence denies the person of a fair trial and a fair and impartial jury.

    The courts have said that such evidence denies a man fair trial and if the legislature produces this evidence — produces the statute it would be up for the Court of Criminal Appeals to decide it.

    And I say that this is so universally acknowledge that this evidence bears too much on the eyes of the jury that they cannot separate.

    Abe Fortas:

    Now, may I ask you Mr. Matheny, was the sentence in the first case that indicated to the jury on the second case?

    Michael D. Matheny:

    Yes sir, a copy of the verdict has been given to the jury and the jury by simple mathematic computation that the person wasn’t even old.

    Abe Fortas:

    Well the first sentence was 2 to 15 years, wasn’t it?

    Michael D. Matheny:

    Yes, sir.

    Abe Fortas:

    And so there must be under some circumstances that produces relatively light sentence for murder with malice.

    Michael D. Matheny:

    Yes, sir but you can’t go back —

    Abe Fortas:

    But you’re not allowed to develop that to this jury, is that right?

    Michael D. Matheny:

    Yes, sir but the question is was he convicted before he was even making the —

    Abe Fortas:

    So they went to the jury against in your kind of case as the fact that he was convicted by getting copy of the sentence, is that right?

    Michael D. Matheny:

    Yes sir.

    The indicted them, the judgment of conviction and the verdict.

    Abe Fortas:

    And the verdict?

    Michael D. Matheny:

    Yes, sir.

    Abe Fortas:

    So that would include the sentence, wouldn’t it?

    Michael D. Matheny:

    Yes, sir.

    Abe Fortas:

    So they know that it’s 2 to 15 years in this case?

    Michael D. Matheny:

    Yes, sir.

    Abe Fortas:

    But that there were some litigating circumstances, are you telling us that those could not be brought out in the second trial.

    Michael D. Matheny:

    I don’t believe that they could Your Honor.

    Hugo L. Black:

    As I understand you to say you are mitigating system?

    Michael D. Matheny:

    Yes, sir the question was if there were or were not mitigating circumstances as to first conviction that that is not a question for the court or the jury at the second time.

    The question has he been convicted before if he had received just two years conviction, he would still receive the maximum, I mean the minimum penalty of life in the second conviction.

    Hugo L. Black:

    For what crime?

    Michael D. Matheny:

    Because of the fact that he had been convicted of the crime with an alternate punishment of the crime.

    Leon B. Douglas:

    What crime, murder with malice?

    Michael D. Matheny:

    Any crime Your Honor.

    Leon B. Douglas:

    What was this crime?

    Michael D. Matheny:

    The first one was murder with malice, now the state attempts to say that there are fair things in the federal, there are unfair things in the state but the federal rule provides them the Ruled 32 (c) (2) as to the defendant not being able to see the pre-sentence report and I believe there is a longer report and a shorter report of summary in the federal court.

    I believe Mr. Justice Douglas, the defendant should be able to see it but the state has not mentioned in the preceding section 32 (c-1) specifically states that the pre-sentencing report shall not be submitted to the Court for contents thereof disclosed to anyone until after the defendant has plead guilty or has been founded.

    Then we come back to the mention of the Narcotics Act and I may be incorrect with my research shows that Title 26 Section 7237 as to the penalty on narcotics provides that after the conviction of the first — conviction on the primary offense that Court has been informed as to this man’s status as to the first conviction and said that a federal judge in a very well reasoned opinion, Haggard versus the State of Tennessee that the threat of prejudice is inseparable from such a procedure.

    A threat so real, so ever pressed and so immune from judicial review in correction and it cannot be reconciled with present day conceptions of the degree of fairness requiring in criminal proceedings.

    They are — in the case of Leon Spencer because of this from the beginning to end it is just — the state has put the burden on him of an evil character and he is endeavored from beginning to end to try him for the first crime and not the second.

    The state in its brief has said that the facts were overwhelming against Leon Spencer and that no fair-minded jury could reach any other verdict.

    Well if this be true, then it’s all of the more reason that that this mean should receive such a trial that would be fair and impartial and that there would be no possible threat whatsoever of any degree of unreasonableness and risk of harm to this man.

    Now, we come back to what if a jury in such a case believes that he’s not the same man and for the some reason the first conviction is constitutionally invalid.

    Michael D. Matheny:

    What do we come back to then?

    We come back to the idea that is not admissible for any purpose and you’ve injected in front of the jury any visible testimony that’s not admissible for any purpose whatsoever.

    Thank you very much.

    Earl Warren:

    Mr. Matheny your case was tried was it under the same statute as the case we have before?

    Michael D. Matheny:

    No, sir.

    Mine was under Article 64 which provides that in a case of the accusation that carries a capital punishment, if such a person has been previously convicted for the alternate punishment could be a capital punishment that he shall receive not less than life or death in the electric chair.

    Earl Warren:

    I thought that was just changed this year?

    Michael D. Matheny:

    No, sir.

    Earl Warren:

    It’s been that way all through the years.

    Michael D. Matheny:

    Yes sir.

    This goes back in the State of Texas at about 1836.

    Earl Warren:

    Yes, I see.

    Byron R. White:

    And this rule has not been changed.

    Michael D. Matheny:

    My personal opinion sir is that in — the State of Texas says in its brief and his attorney is the attorney for the Court of Criminal Appeals and is upon appellate lawyers we had in Texas, he has not been charged.

    Byron R. White:

    So your view is that the new — that the statute reached statutory changes has changed this proceeding?

    Michael D. Matheny:

    That’s my feeling Your Honor but I am probably incorrect I guess because he knows more about the criminal law in Texas than I do.

    But this is just a concurring opinion in the Rojas case and I don’t believe it is entirely correct.

    Thank you.

    Earl Warren:

    Thank you Mr. Matheny.

    Mr. Douglas.

    Leon B. Douglas:

    Mr. Chief Justice and may it please the Court.

    This has been mentioned before like the other cases.

    I’ll try not to rehash the other law.

    I will try to answer some of the other questions maybe you’ve asked before.

    This is a murder case, murder with malice and punishment is death.

    The defendant was — bought a gun about in the afternoon about 4 o’clock to 5.

    7:30 that evening, he went to shot his wife between the eyes.

    Her daughter was in the room, her son was there.

    She fell over on the floor, the daughter got on top of her.

    The defendant pulled him off and shot her four times in the head and face and he walked out and says that she is no good.

    Leon B. Douglas:

    He grinned and took the gun and went to the sheriff’s office.

    Those were the facts in the case and the when I say the facts overwhelming I cannot see how any jury could reach any other verdict guilty in this particular case and then it was the matter of punishment of getting in the prior offense.

    Potter Stewart:

    Mr. Douglas, just so I can you know and hopefully basic understanding of your law, if this had been a first offense, and that is the first offense for which capital punishment can be imposed, then of course there would have been nothing to come before the jury and what would the jury’s power would have -– what were the jury’s power have been after its finding, the reaching the verdict of guilt, then what power would they have had with respect to punishment?

    Leon B. Douglas:

    They could have given a suspended sentence.

    They could have given two years in the penitentiary up to life or death.

    Potter Stewart:

    Any of those options are within the — would have been within the power of the jury.

    Leon B. Douglas:

    And you mentioned a moment ago I believe about 15 years of being life sentence.

    I can see that murder is cheap in Texas and under this particular type of case that is a fairly good high verdict on the first case.

    Potter Stewart:

    I notice that the jury apparently has 15 years in the first case but then when the judge imposes a sentence of two to 15 years.

    Leon B. Douglas:

    That we have —

    Potter Stewart:

    Is that the same statutory reason?

    Leon B. Douglas:

    Yes, sir.

    We have indeterminate sentence in Maine.

    Potter Stewart:

    Yes.

    William O. Douglas:

    How long did he serve the first sentence?

    Leon B. Douglas:

    I do not know Your Honor but in 1951 conviction and I did not — I do not know how long he served it.

    Byron R. White:

    How long — what could he have done?

    Leon B. Douglas:

    He’s eligible for — and the oldest code before 1966 in the third of his time.

    Byron R. White:

    Five years.

    Leon B. Douglas:

    And he can make that five years in two-and-a-half years.

    Earl Warren:

    Mr. Douglas in your case what is the purpose of the charge of the prior conviction is it, is it just to increase punishment or is it designed to have some relevancy to guilt in the instant case?

    Leon B. Douglas:

    It only has to do with penalty and for the overall recidivist statute that made an answer to one of questions.

    They say it is to deter others and to rehabilitate and of course where one gets the maximum penalty you can’t rehabilitate there but I mean for your general recidivist, they go on rehabilitation and deterrent.

    Earl Warren:

    Yes.

    But as I understand it is not designed to have any influence on the jury in determining whether he’s guilty or innocent in the past.

    Leon B. Douglas:

    That is correct and the jury has so instructed that they will not consider that as a matter of guilt.

    Earl Warren:

    Well now, I understood counsel a short while ago to say that this whole trial was permeated with the introduction of malice concerning that prior conviction when he had already admitted it ready to concede it in court.

    Now if that is true why was the trial permeated with that — that kind of matter?

    Leon B. Douglas:

    I will give you the reasoning Your Honor in the Court’s opinion.

    They say where the penalty is absolutely fixed by law and he admits that he is person previously convicted the jury shall not hold back but where there is a leeway in the punishment then the jury hears all that evidence to assess punishment but where it’s absolutely fixed by law, well then their reasoning was that the jury shouldn’t notice.

    Earl Warren:

    Well, I still come back to this question, is the jury entitled to go into the issues of the first trial if the defendant admits that he was convicted of that offense?

    Leon B. Douglas:

    Under — not in capital cases.

    Earl Warren:

    Well, that’s — this was a capital case.

    Leon B. Douglas:

    This capital case, no.

    Earl Warren:

    Alright.

    But then again I ask why this was a matter of this time permeating the whole trial, why was it — why did the prosecution bear down on it?

    Why isn’t the admission that he was the person sufficient to accomplish that purpose?

    Leon B. Douglas:

    The only answer I can give to you, it was our procedure established by our legislature and it has been followed all these times in the — I don’t know where it was borne down, it was borne in this case or in the other case.

    Byron R. White:

    What was your theory at the trial?

    Leon B. Douglas:

    It was — it was read to the jury.

    Byron R. White:

    In the indictment?

    Leon B. Douglas:

    Read to the jury and then the evidence was introduced.

    I believe in this particular case the evidence of its prior conviction was introduced first.

    By fingerprints the showing with his record and by fingerprint experts showing that they are known — yes and plus his indictment, plus his judgment, plus his sentence and then the evidence as to his guilt.

    Byron R. White:

    And then what?

    Leon B. Douglas:

    And then the matter was — they had —

    Byron R. White:

    How long was trial tried whether it was for the prior crime, was there any instruction?

    Leon B. Douglas:

    The — no they were instructed not to consider the prior crime on Hill.

    Byron R. White:

    Also there was —

    Leon B. Douglas:

    Not to consider, yes.

    And then —

    Byron R. White:

    What about the second offense?

    Leon B. Douglas:

    I don’t know (Voice Overlap).

    Oh!

    I’m sure that there’s nothing up here on it but I am sure it is mentioned and assessed.

    If I’ve been prosecutor, I would mention it.

    Earl Warren:

    Is there anything in the record concerning the facts of the first case?

    Leon B. Douglas:

    No, Your Honor.

    Earl Warren:

    There was nothing.

    Leon B. Douglas:

    Except.

    Leon B. Douglas:

    No, no, nothing.

    Now in this particular case, the threat that was mentioned a moment ago, the trial judge ruled that out.

    But I take it had about much fact ruling that out.

    I kill you like I killed my first wife.

    I take it that that had as much bearing as the first instruction don’t get it consider the prior one on guilt.

    They probably considered both of them.

    And our Article 1257 (a) and I cited it in the brief and in the Baker case that was cited I think the trial judge was in error in ruling it out.

    The jury had that before you and you take a case of this type, many cases like one of them in the case I remember says where did you learn the (Inaudible) like that, a murder case, a robbery case.

    He says, I learned it in the penitentiary.

    It was raised (Inaudible) where we lose the colleague it was introduced and it’s inadmissible.

    Another one like that says, please quit it and you get in trouble.

    The man says I’ve been in the penitentiary before.

    This evidence is going to get before the jury in most instances and it probably — it got before the jury but the judge took it out.

    Now someone asked a question a moment ago on admitting a prior I believe Mr. Justice Clark, if the defendant on the ordinary procedure admits his prior convictions not a capital case.

    If I may attempt to answer that question that he will be found guilty and then he may select the judge or the jury to assess the punishment.

    They are priors of the amount of punishment.

    And then the record under the new code is admissible and they will know of the prior convictions before they assess the punishment.

    Even though it is absolutely fixed by law the legislature so provided that the jury would assess the punishment and now prior crimes on Texas are not admissible generally.

    In the case, that decided this Roxas versus State and that discusses our new code in the procedure on it which holds that as they argue them more and they don’t want to take it.

    I say this same rule is applied to capital cases and I think the Roxas case said so.

    And it’s in 403 2d 30.

    And Judge Woodley in his opinion points out that Texas does not allow crimes committed yesterday or the day before to be admitted in the present trial.

    We do not have that rule in Texas, but most states do have that.

    We’re in the minority in there.

    And Mr. Justice White stole my argument when he said this everything you put in is prejudicial.

    So this is prejudicial.

    But the evidence that he shot his wife is prejudicial.

    It’s all prejudicial but it’s a Texas rule.

    It’s an exclusionary rule there of evidence.

    It does not meet constitutional standards and I think that the Court Mr. Justice Black pointed out in Wolfe versus Nash is 313 F.2d 393 and in dealing with an individual criminal statute, this is Eighth Circuit and it says that the Due Process Clause does not and the Fourteenth Amendment does not enable us to review errors in state law.

    Leon B. Douglas:

    And we submit that if this is — that if it is an error it’s an error of state law and it does not have constitutional prohibitions.

    Now, someone asked a question a moment ago what happens to this statute.

    What does this do to the extraneous offense?

    Article 3707 Section (f) of the Code of Criminal Procedure provides that it does not affect the rules on 27.

    This procedure does not specifically on the statute.

    The —

    Earl Warren:

    We’ll recess now Mr. —