text:
    No. 72-1648.
    McCrary v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Miller v. California, 413 U. S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973); Heller v. New York, 413 U. S. 483 (1973); Roaden v. Kentucky, 413 U. S. 496 (1973); and Alexander v. Virginia, 413 U. S. 836 (1973). Mr. Justice Douglas, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (Douglas, J., dissenting)), would grant certiorari and reverse the judgment of conviction.

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join,

dissenting.

Petitioner was sentenced to 10 years in prison and fined $5,000 when convicted for selling allegedly obscene books and magazines in violation of Okla. Stat. Ann., Tit. 21, § 1021 (Supp. 1973-1974), which provides as follows:

“Every person who wilfully . . .
“(3) writes, composes, stereotypes, prints, photographs, designs, copies, draws, engraves, paints, molds, cuts, or otherwise prepares, publishes, sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, book, picture, photograph, figure or form of any description . . .
“(4) ... is guilty of a felony and upon conviction therefor shall be punished by the imposition of a fine not less than One Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00) or by imprisonment for not less than thirty (30) days nor more than ten (10) years, or by both such fine and imprisonment.”

It is my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to uncon-senting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, § 1021 is constitutionally over-broad and therefore invalid on its face. For the reasons stated in my Paris Adult Theatre I dissent, I would therefore grant certiorari, vacate the judgment of the Court of Criminal Appeals of Oklahoma, and remand for further proceedings not inconsistent with that dissent. Id., at 73.


source: Caselaw Access Project

author: Mr. Justice Brennan,

license: Public Domain

text:
    No. 72-1709.
    Cherokee News & Arcade, Inc., et al. v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Miller v. California, 413 U. S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973); Heller v. New York, 413 U. S. 483 (1973); Roaden v. Kentucky, 413 U. S. 496 (1973); and Alexander v. Virginia, 413 U. S. 836 (1973). Mr. Justice Douglas, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (Douglas, J., dissenting)), would grant certiorari and reverse the judgment of conviction.

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join,

dissenting.

Petitioners were convicted on charges of selling allegedly obscene materials in violation of Okla. Stat. Ann., Tit. 21, §§ 1040.8, 1040.13 (Supp. 1973). Section 1040.8, among other things, makes it “unlawful for any person to knowingly . . . sell ... or otherwise distribute . . . any obscene book, magazine, ... or other article which is obscene, filthy, indecent, lascivious, lewd or unfit, as defined in Title 21 of the Oklahoma Statutes, § 1040.12 . . . Section 1040.13 provides in relevant part that “[e]very person who, with knowledge of its contents, . . . sells, . . . any obscene, lewd, lascivious, filthy or indecent article ... is guilty of a misdemeanor . . . .”

It is my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to uncon-senting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, §§ 1040.8 and 1040.13 are constitutionally overbroad and therefore invalid on their face. For the reasons stated in my dissenting opinion in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, vacate the judgment of the Oklahoma Court of Criminal Appeals, and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent. In that circumstance, I have no occasion to consider at this time whether other questions presented in the petition merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 72-1731.
    Groner, dba Lucky Distributors v. United States.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Miller v. California, 413 U. S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973); Heller v. New York, 413 U. S. 483 (1973); Roaden v. Kentucky, 413 U. S. 496 (1973); and Alexander v. Virginia, 413 U. S. 836 (1973). Mr. Justice Douglas, being of the view that federal obscenity regulation is prohibited by the First Amendment (see United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 130 (Douglas, J., dissenting)), would grant certiorari in this case and reverse the judgment of conviction.

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall

concur, dissenting.

Petitioner was convicted in the United States District Court for the Northern District of Texas on charges of using a common carrier for carriage of allegedly obscene matter in violation of 18 U. S. C. § 1462, which provides in pertinent part as follows:

“Whoever . . . knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
“(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character
“Shall be fined not more than $5,000 or imprisoned not more than five years, or both . . . .”

A panel of the Court of Appeals for the Fifth Circuit reversed the conviction. 475 F. 2d 550 (1972). On rehearing en banc, the panel was overruled and petitioner’s judgment of conviction was affirmed. 479 F. 2d 577 (1973).

I adhere to my dissent in United States v. Orito, 413 U. S. 139, 147 (1973), in which, speaking of 18 U. S. C. § 1462, I expressed the view that “[wjhatever the extent of the Federal Government’s power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face." 413 U. S., at 147-148. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand for further proceedings consistent with my dissent in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73 (1973). In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 72-7000.
    Cline v. Illinois.
   App. Ct. Ill., 4th Dist. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Wardius v. Oregon, 412 U. S. 470 (1973).

Mr. Justice Douglas would grant certiorari and set case for oral argument.


text:
    No. 73-259.
    Edwin L. Wiegand Co. v. Jurinko et al.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Mc Donnell Douglas Corp. v. Green, 411 U. S. 792 (1973).


text:
    No. A-323 (73-578).
    Yassen v. United States.
   C. A. 5th Cir. Application for stay presented to Mr. Justice Douglas, and by him referred • to the Court, denied.


text:
    No. D-11.
    In re Disbarment of Hartzog.
   It is ordered that Benjamin Gerard Hartzog, of Washington, D. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-12.
    In re Disbarment of Isaacson.
   It is ordered that John T. Isaacson, of St. Louis, Missouri, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-13.
    In re Disbarment of Lehrer.
   It is ordered that Isadore Albert Lehrer, of Washington, D. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-14.
    In re Disbarment of MacLeod.
   It is ordered that Douglas C. MacLeod, of St. Louis, Missouri, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-15.
    In re Disbarment of Sevin.
   It is ordered that Marshall Howard Sevin, of Central City, California, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 72-887.
    No. 72-942.
    American Party of Texas et al. v. White, Secretary of State of Texas Hainsworth v. White, Secretary of State of Texas.
   [Probable jurisdiction noted, 410 U. S. 965, sub nom. American Party of Texas v. Bullock]; and

[Probable jurisdiction noted, 410 U. S. 965, sub nom. Hainsworth v. Bullock.] Appeals from D. C. W. D. Tex. Motion for additional time for oral argument on behalf of appellants granted and 10 additional minutes allotted for that purpose. Appellants in No. 72-887 shall have- a total of 20 minutes for oral argument and appellant in No. 72-942 shall likewise have a total of 20 minutes for oral argument. Appellee in these cases also allotted 10 additional minutes for oral argument for a total of 40 minutes. Motions of appellants for divided argument granted and it is ordered that Gloria Tanner Svanas be permitted to present oral argument on behalf of appellants in No. 72-887, and Robert H. Hainsworth, Esquire, be permitted to present oral argument pro se in No. 72-942.


text:
    No. 72-888.
    Zahn et al. v. International Paper Co.
   C. A. 2d Cir. [Certiorari granted, 410 U. S. 925.] Motion of Consumers Union of the United States, Inc., for reconsideration of order denying leave to file a brief as amicus curiae [ante, p. 812] denied.


text:
    No. 72-1371.
    Alexander, Commissioner of Internal Revenue v. “Americans United” Inc.
   C. A. D. C. Cir. [Certiorari granted, 412 U. S. 927, sub nom. Walters v. “Americans United” Inc.] Motion of respondent to permit two counsel to argue orally granted.


text:
    No. 72-1465.
    Procunier, Corrections Director, et al. v. Martinez et al.
   Appeal from D. C. N. D. Cal. [Probable jurisdiction noted, 412 U. S. 948.] Motion of Boston University Center for Criminal Justice for leave to file its brief as amicus curiae in unprinted form denied.


text:
    No. 72-5847.
    Alexander v. Gardner-Denver Co.
   C. A. 10th Cir. [Certiorari granted, 410 U. S. 925.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted, and a total of 15 minutes allotted for that purpose. Respondent also allotted 15 additional minutes for oral argument.


text:
    No. 73-187.
    Kewanee Oil Co. v. Bicron Corp. et al.
   C. A. 6th Cir. [Certiorari granted, ante, p. 818.] Motions of the Bar Association of the District of Columbia and the Chamber of Commerce of the United States for leave to file briefs as amici curiae denied.


text:
    No. 72-6823.
    Ault v. Swenson, Warden.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 73-5035.
    Bottos v. Beamer, U. S. District Judge, et al.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 73-78.
    Kahn v. Shevin, Attorney General of Florida, et al.
   Appeal from Sup. Ct. Fla. Probable jurisdiction noted.


text:
    No. 73-206.
    Parker, Warden, et al. v. Levy.
   Appeal from C. A. 3d Cir. Further consideration of question of jurisdiction postponed to hearing of case on the merits and case set for oral argument with No. 72-1713 [Secretary of the Navy v. Avrech], ante, p. 816.


text:
    No. 72-1570.
    Donnelly v. DeChristoforo.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 72-1167.
    Alabama v. Congo.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 72-6509.
    Meador v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6794.
    Johnson v. Anderson, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 72-6808.
    Griffin v. California.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 72-6865.
    Braun v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 73-55.
    Ralph Williams Ford, Inc. v. California Department of Motor Vehicles et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-150.
    Vuci v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-166.
    Jackson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-169.
    Messina v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-177.
    Goldstein, Receiver v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 73-179.
    West v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-197.
    Frank et al. v. Wolf et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-211.
    Shelton v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 73-222.
    Riblet Tramway Co. v. Simon.
   Ct. App. Wash. Certiorari denied.


text:
    No. 73-224.
    Rose et ux. v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-226.
    Stark et ux. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-227.
    Continental Baking Co. v. Old Homestead Bread Co. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-228.
    New Jersey County and Municipal Council No. 61 et al. v. American Federation of State, County, and Municipal Employees, AFL-CIO, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-229.
    Safir v. Blackwell, Assistant Secretary of Commerce for Maritime Affairs, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-230.
    Pennsylvania v. Groce.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 73-234.
    Safeguard Mutual Insurance Co. v. Pennsylvania et al.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 73-237.
    Henrikson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-238.
    Moynahan v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 73-245.
    Draskovich et al. v. Pasalich et al.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 73-251.
    Meily v. Agricultural Investment Corp., S. A., et al.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 73-252.
    United States et al. v. Sarkisian et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-253.
    Lemar Towing Co., Inc. v. Fireman’s Fund Insurance Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-261.
    Textile Workers Union of America, AFL-CIO v. Kayser-Roth Corp.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 73-430.
    Dickey et al. v. Robinson et al.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 73-5061.
    Frye v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5068.
    Clements v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5087.
    Bolar v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5108.
    Speakman v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 74-5120.
    No. 73-5140.
    Marshall v. United States; and Harmon v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below:-F. 2d-.


text:
    No. 73-5131.
    Alvarez-Rodriguez v. Immigration and Naturalization Service.
   C. A. 9th. Cir. Certiorari denied.


text:
    No. 73-5136.
    Davis v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5141.
    Gardner v. United States.
   C. A. 10th Cir.. Certiorari denied.


text:
    No. 73-5142.
    Eatmon v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5143.
    House v. Clerk, U. S. District Court for the Southern District of Indiana.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5155.
    Serman v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5171.
    Harris v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5172.
    Gonzales v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5174.
    Johnson, aka Anderson, et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5187.
    Gustave v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-5199.
    Scopolites v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 73-5210.
    Hallinan v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-5212.
    Edwards v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5215.

      Duffy v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5219.
    Barkley v. Slayton, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5223.
    McCray v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5225.
    Chandler v. Maryland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5229.
    Cole v. Chevron Chemical Co., Oronite Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5231.
    Payne v. Lowery, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5233.
    Marshall v. Young.
   Ct. App. D. C. Certiorari denied.


text:
    No. 73-5235.
    Clark v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5236.
    Bargar v. Ohio Civil Rights Commission et al.
   Ct. App. Ohio, Franklin County. Cer-tiorari denied.


text:
    No. 73-5238.
    Stevenson v. Montanye, Correctional Superintendent.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 73-5241.
    Aikens v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 73-5243.
    Anderson v. Froderman et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 72-1511.
    Dickinson et al. v. United States.
   C. A. 5th Cir. Motions to dispense with printing amici curiae briefs of National Association of Broadcasters and Reporters Committee for Freedom of the Press denied. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1543.
    Drumgo v. Superior Court of California in and for the County of Marin et al.
   Sup. Ct. Cal. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1684.
    Schu v. Virginia.
   Sup. Ct. Va. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-107.
    Manuszak v. United States.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-244.
    Main Line Board of Realtors et al. v. Collins et al.
   Sup. Ct. Pa. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-248.
    McCord et ux. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5080.
    No. 73-5090.
    Legato v. United States; and Migdall v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.

Reported below: 480 F. 2d 408.


text:
    No. 73-5159.
    Matusewitch v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5166.
    Moore v. United States.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5193.
    Cobbs v. United States.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5244.
    Ryles v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1568.
    New Jersey v. Wright.
   C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Mr. Justice Douglas,

text:
    No. 72-1578.
    Hartel, Administratrix v. Long Island Railroad Co.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs,

dissenting.

Petitioner’s husband, a ticket agent of the respondent railroad, was required to open the ticket office of the Mineóla, Long Island, station in the early hours of a Sunday morning. In order to open the steel shutter covering the ticket window it was necessary to leave the security of the ticket office and enter the passenger waiting room. Since there was no peephole in the shutter or in the door leading to the waiting room, there was no way for the agent to view the waiting room from the ticket office. Upon entering the waiting room, petitioner’s husband encountered armed robbers who shot and killed him. Petitioner brought this suit to recover damages under the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seg.

In Lillie v. Thompson, 332 U. S. 459, this Court held that the Act provides relief for breach by a railroad of its duty to protect employees from foreseeable third-party assaults. In order to demonstrate foreseeability in this case, petitioner offered to prove 10 robberies or attempted robberies at respondent’s stations located between five and 30 miles of the Mineóla station. All had occurred within four years, and two occurred in the month immediately preceding the Mineola holdup. Petitioner further offered to prove communications between the ticket agents’ union and respondent relating the dangers of armed robbery and requesting the installation of peepholes and silent alarms. Since none of the prior robberies occurred at the Mineóla station and none of the union communications made specific reference to the dangers at that particular station, the evidence was excluded.

After finding that petitioner had “introduced no evidence showing that [respondent] should have reasonably foreseen the possibility of a holdup at the Mineola Station,” the District Court granted respondent’s motion for a directed verdict. 356 F. Supp. 1192, 1194.

As this Court has repeatedly pointed out, Congress expressed a strong preference for jury determinations of actions arising under the Act. See Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 508. When the evidence is viewed in the light most favorable to petitioner, I conclude that a fair-minded juror could well conclude that failure to provide a peephole was negligence and that this negligence played some part in the agent’s death. The District Court thus erred in taking this case from the jury. Gallick v. B. & O. R. Co., 372 U. S. 108; Rogers v. Missouri Pacific R. Co., supra.

The District Court also erred in disallowing evidence which tended to establish respondent’s knowledge of the hazards which ticket agents faced. Whether it was reasonable for respondent to refrain from implementing safety suggestions at the Mineóla station until the wave of robberies reached that station was for the jury to determine. The evidence of robberies at other stations and of union warnings about the dangers of robberies was relevant to that determination.-

I would vacate the judgment below and remand for a new trial.


text:
    No. 72-6539.
    Fiorini v. Wayne Circuit Judge.
   Sup. Ct. Mich. Motion to strike respondent’s memorandum denied. Certiorari and other relief denied.


text:
    No. 72-6931.
    Lawrence Gay Liberation Front et al. v. University of Kansas et al.
   C. A. 10th Cir. Motion of petitioners for leave to proceed in forma pauperis and certiorari denied.


author: Mr. Justice Powell, Mr. Justice Douglas,

text:
    No. 73-26.
    Albers, Executor, et al. v. Commissioner of Internal Revenue.
   C. A. 3d Cir. Certio-rari denied.

Mr. Justice Powell,

with whom Mr. Justice Douglas and Mr. Justice Blackmun join,

dissenting.

The five petitioners in this case own virtually all the outstanding stock of a small corporation, A & S Transportation Co. (A & S). The company operates a barge. The barge fell into such disrepair as to require replacement, but A & S lacked the necessary resources and credit. A & S requested the Federal Maritime Commission to guarantee, as it is empowered by law to do, a proposed first mortgage loan from a bank. Before the Commission would extend its guarantee, it required of A & S at least $150,000 of additional private capital. The Commission presented A & S with two options. A & S could resort either to subordinated debt or to the issuance of nonvoting, nondividend paying, noncumulative preferred stock unredeemable until full payment of the desired loan.

A & S chose the latter course. In proportion to their holdings of A & S common, petitioners in 1959 purchased $150,000 of preferred stock possessing all the attributes required by the Commission. The loan was then consummated with the Commission's guarantee, and A & S purchased a replacement vessel. By 1964 the loan was paid off in full. Having no further need for the $150,000, and in accord with the wishes of petitioners, A & S redeemed the preferred stock in 1965 and 1966 in two equal installments. No premium was paid, and petitioners received precisely the amount each had previously invested. The Commissioner of Internal Revenue treated the redemptions as the receipt of ordinary income, taking the view that they were “essentially equivalent to a dividend” within the meaning of § 302 (b)(1) of the Internal Revenue Code of 1954, 26 U. S. C. § 302 (b) (1). Citing United States v. Davis, 397 U. S. 301 (1970), the Tax Court agreed. Miele v. Commissioner, 56 T. C. 556 (1971); La Fera Contracting Co. v. Commissioner, T. C. Memo 1971-161. The Court of Appeals for the Third Circuit affirmed without published opinions. Miele v. Commissioner, 474 F. 2d 1338 (1973); La Fera Contracting Co. v. Commissioner, 475 F. 2d 1395 (1973); Spiniello v. Commissioner, 475 F. 2d 1396 (1973).

On the above facts it seems plain that the redemption of preferred stock provided petitioners nothing more than a return of the capital they were compelled by the Commission to pay into A & S to obtain the additional financing the corporation needed to remain in business. To tax that return of capital at ordinary income rates is an extraordinary result, yet one that I recognize to be mandated by the full sweep of United States v. Davis, supra. Because of strong doubts as to the correctness of any decision that produces such a bizarre result, I would grant certiorari to reconsider Davis.

Section 302 (b)(1) of the Code shelters from dividend treatment, and accompanying potential ordinary income consequences, any stock redemption that “is not essentially equivalent to a dividend.” A majority of the Court in Davis read that provision to mean that a stock redemption by a small, closely held corporation is “always ‘essentially equivalent to a dividend’ ” where there is no “change in the relative economic interests or rights of the stockholders.” 397 U. S., at 307, 313 (emphasis added). Undoubtedly the Court sought to promote ease of administration through adoption of a simplistic, per se rule. Yet the Court explicitly recognized that the weight of authority in the lower federal courts was contrary to its mechanical approach. Id., at 303 n. 2. Furthermore, the Court conceded' that the “legislative history is certainly not free from doubt.” Id., at 311.

In my view, the result produced by Davis in this case is justified neither by the language of the Code nor by the legislative history, and certainly not by precedent prior to Davis. In these circumstances, ease of administration is too high a price to pay for the presumably unforeseen and undeniably harsh consequences visited on these and similarly situated taxpayers.

The Tax Court noted petitioners’ position “that the preferred stock was no longer needed after the loan had been paid in full and that redemption of the stock was consistent with the business purpose for which the stock was issued.” Miele v. Commissioner, 56 T. C., at 567. The Tax Court did not refute the factual correctness of this position, or consider whether there had been a tax evasion motivation. Rather, that court simply disregarded all factual considerations as immaterial to an application of the Davis per se rule:

“We consider [petitioners’] argument as having been foreclosed and the issue determined by the case of United States v. Davis, 397 U. S. 301 (1970). In Davis, the United States Supreme Court held that a redemption without a change in the relative economic interests or rights of the stockholders is always essentially equivalent to a dividend under section 302 (b)(1). It is the effect of the redemption and not the purpose behind it which is determinative of dividend equivalence.” Ibid. (Citations omitted.)

Mr. Justice Douglas,

dissenting in Davis with the concurrence of The Chief Justice and Mr. Justice Brennan, viewed the majority opinion as reading § 302 (b)(1) out of the Code:

“When the Court holds it [the redemption under consideration in Davis] was a dividend, it effectively cancels § 302 (b)(1) from the Code. This result is not a matter of conjecture, for the Court says that in the case of closely held or one-man corporations a redemption of stock is 'always’ equivalent to a dividend.” 397 U. S., at 314.

The Tax Court’s decision in this case abundantly bears out Mr. Justice Douglas’ view. In light of the deliberate retention of the “essentially equivalent to a dividend” language in the 1954 revision of the Code, most courts prior to Davis had assumed that § 302 (b)(1) required a factual determination as to the business purpose of the stock redemption. Had such a factual inquiry been made in this case, it is evident that the result would have been different.

In addition to the presence of a legitimate business purpose and the absence of any evidence of tax evasion, the preferred stock in question here was nondividend paying — a highly unusual provision for a preferred stock. Thus petitioners, having been induced by the Commission to advance additional private capital to A & S, found themselves either locked in without income on their investment or compelled, as the price of recouping it, to pay taxes at ordinary income rates on a nonexistent gain. It is difficult to think of a more unjust result, and yet this is the inevitable consequence of the sweeping Davis requirement that a redemption “always” be deemed “ 'essentially equivalent to a dividend’ ” in the absence of “a change in the relative economic interests or rights of the stockholders.” 397 U. S., at 307, 313.

One may recognize the tax-avoidance concern underlying the Court’s opinion in Davis without concluding that the only remedy with respect to closely held corporations is “always” to tax stock redemptions as dividends without regard to facts and circumstances. It may indeed have been reasonable to create a rebuttable presumption in favor of the Government, but it is difficult to see a justification for a result as harsh and inequitable as that often produced by the Davis rule. Moreover, if Congress’ purpose was to enact the Davis per se rule, it could have been expressed in the simplest language. As the Court notes in Davis, the Senate Finance Committee deliberately chose not to take that option. Id., at 310-311.

In my view the Davis rule, often a trap for unwary investors in small businesses and facially contrary to the relevant Code provision, should be reconsidered.

       One may understand the desire of petitioners to have their capital contributions returned, as the preferred stock was nondivi-dend paying.

       I am not unaware of the importance of stare decisis, especially with respect to the tax Code. Yet, even in the tax area, the Court has recognized that the policies underlying stare decisis do not require “adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.” Helvering v. Hallock, 309 U. S. 106, 119 (1940).

       The section treats such redemptions as tax-recognizable exchanges of stock, which generally means that the capital gains provisions are applicable, to the extent that there is any return above basis. Section 302 provides, in pertinent part:
      “Distributions in redemption of stock.
      “(a) General Rule. If a corporation redeems its stock . . . , and if paragraph (1) ... of subsection (b) applies, such redemption shall be treated as a distribution in part or full payment in exchange for the stock.
      “(b) Redemptions treated as exchanges.
      “(1) Redemptions not equivalent to dividends. Subsection (a) shall apply if the redemption is not essentially equivalent to a dividend.”

       No finding was made by the Tax Court, for example, that an earned surplus was available from which ordinary dividends could have been paid.

       See cases cited in United States v. Davis, 397 U. S. 301, 303 n. 2 (1972).

       This one qualification (namely, a change in the relative economic interests or rights of stockholders) may immunize from Davis consequences the larger corporations, where a congruitv of interest between common and preferred stockholders is found far less frequently than in the family type of small corporations. But even where it can fairly be said (and often the facts as to this are ambiguous) that there has been no such change, this does not mean that minority stockholders are not severely penalized by the Davis rule. In this case, the Tax Court noted that the redemption was made at the insistence of petitioners, who were in the unhappy position of holding nondividend preferred stock. But nothing in Davis protects a minority stockholder in a close corporation (and their number is legion) who may have little or no influence as to whether or .when preferred stock is redeemed. If the majority shareholders. in such a corporation effect a pro rata redemption, a minority shareholder has no means to avoid Davis consequences In this connection, the language of the Senate Finance Committee in restoring the “essentially equivalent” language to § 302 of the Code is relevant. The Senate Committee stated that the House bill, which had deleted this language, “appeared unnecessarily restrictive, particularly, in the case of redemptions of preferred stock which might be called by the corporation without the shareholder having any control over when the redemption may take place.” S. Rep. No. 1622, 83d Cong., 2d Sess., 44 (1954). See United States v. Davis, supra, at 310. The truth is that minority shareholders, even in close corporations, frequently have no such control.

       See B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 9-2 (3d ed. 1971).

       It has been suggested that since Davis was decided March 23, 1970, Congress has had more than three years to repudiate or ameliorate the Davis per se rule. With all respect, this suggestion seems unrealistic. Congress has had under consideration during this period a general revision of the Code as well as a broad re-examination of many of the fundamental assumptions underlying the present Code. It is unlikely that piecemeal adjustments would have been made during this period of study and re-examination. Furthermore, the Davis rule falls most heavily on small family corporations unlikely to have specialized tax counsel capable of warning that Davis has converted § 302. (b) (1) into “a treacherous route to be employed only as a last resort.” B. Bittker & J. Eustice, supra n. 7, at 9-9. It is these very corporations that are least likely to make their voices heard in Congress, since they have limited “lobbying” capabilities.


text:
    No. 73-134.
    Cole v. Tennessee.
   Ct. Crim. App. Tenn. Motion to dispense with printing petition granted. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-142.
    Cole v. Tennessee.
   Ct. Crim. App. Tenn. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 73-199.
    Andrus et al. v. Convoy Co. et al.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Stewart would grant certiorari.


text:
    No. 73-236.
    New Jersey Citizens for Clean Air, Inc., et al. v. New Jersey Sports & Exposition Authority.
   Sup. Ct. N. J. Certiorari denied.

Mr. Justice Douglas and Mr. Justice Brennan took no part in the consideration or decision of this petition.


text:
    No. 73-5206.
    Gelb v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 27,
    Orig.
    Ohio v. Kentucky,
   410 U. S. 641. Motion for leave to file petition for rehearing as to denial of State of.Ohio for leave to amend its original complaint denied.


text:
    No. 71-1270.
    McKee v. United States,
    [For earlier orders herein, see e. g., 412 U. S. 914.]
   407 U. S. 910. Motion for leave to file fourth petition for rehearing denied.


text:
    October 29, 1973
    No. 73-15.
    Communications Satellite Corp. et al. v. Shannon.
   Sup. Jud. Ct. Me. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    November 5, 1973
    No. 73-5124.
    Holifield v. Mississippi.
   Sup. Ct. Miss. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    No. 73-320.
    Pirincin et al. v. Board of Elections of Cuyahoga County et al.
   Affirmed on appeal from D. C. N. D. Ohio.


text:
    No. 73-336.
    Catoor et al. v. Blair et al.
   Affirmed on appeal from D. C. N. D. Ill.


text:
    No. 72-1582.
    Johnson v. City of Cheyenne et al.
   Appeal from Sup. Ct. Wyo. Motion to dispense with printing jurisdictional statement granted. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 73-10.
    Johnson v. Laramie County School District No. 1.
   Appeal from Sup. Ct. Wyo. Motion to dispense with printing jurisdictional statement granted. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 72-1612.
    Connor v. Arkansas.
   Appeal from Sup. Ct. Ark. dismissed for want of substantial federal question.


text:
    No. 72-6799.
    Canfield v. Oklahoma.
   Appeal from Ct. Crim. App. Okla. dismissed for want of substantial federal question.


text:
    No. 72-6880.
    Smith et ux. v. Reeder et ux.
   Appeal from Ct. App. Okla. dismissed for want of substantial federal question.


text:
    No. 73-273.
    No. 73-274.
    Montenegro et al. v. New Jersey et al.; and Meadowlands Regional Development Agency et al. v. New Jersey et al.
   Appeals from Sup. Ct. N. J. dismissed for want of substantial federal question. Reported below: 63 N. J. 35, 304 A. 2d 545.


text:
    No. 73-275.
    No. 73-335.
    No. 73-340.
    No. 73-341.
    No. 73-342.
    Alabama Great Southern Railroad Co. et al. v. Louisiana; Illinois Central Railroad Co., now Illinois Central Gulf Railroad v. Louisiana; Southern Pacific Transportation Co. v. Louisiana; Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans v. Louisiana; and Louisiana & Arkansas Railway Co. v. Louisiana.
   Appeals from 24th Jud. Dist. Ct. La., Jefferson Parish, dismissed for want of substantial federal question.

Mr. Justice Powell took no part in the consideration or decision of these appeals.


text:
    No. 72-1630.
    Board of Education of Tri-Valley Central School District No. 1 of Town of Neversink et al. v. Board of Cooperative Educational Services of the Sole Supervisory District of Sullivan County.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction.


text:
    No. 73-5303.
    Dun Leavay v. Lutz Appellate Printers, Inc., et al.
   Appeal from D. C. S. D. N. Y. dismissed for want of jurisdiction.


text:
    No. 72-6749.
    Owens v. Gold, District Attorney of Kings County.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


author: Me. Justice Brennan,

text:
    No. 72-1576.
    Little Art Corp. v. Nebraska.
   Sup. Ct. Neb. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Miller v. California, 413 U. S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973); Heller v. New York, 413 U. S. 483 (1973); Roaden v. Kentucky, 413 U. S. 496 (1973); and Alexander v. Virginia, 413 U. S. 836. Mr. Justice Douglas, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (Douglas, J., dissenting)), would grant certiorari in this case and reverse the judgment of conviction.

Me. Justice Brennan,

with whom Me. Justice Stewart and Mr. Justice Marshall concur,

dissenting.

Petitioner was convicted on charges of circulating and publishing allegedly obscene motion pictures in violation of Neb. Rev. Stat. §28-921, which provides as follows:

“Whoever knowingly sells or offers for sale, or gives to another, or otherwise circulates or publishes or causes to be circulated or published, or has in his possession with intent to sell, loan, or give to another, or to otherwise circulate or publish or cause to be circulated or published, any obscene, lewd, indecent, or lascivious book, pamphlet, paper, movie films, drawing, lithograph, engraving, picture, photograph, model, cast, or any instrument or article of obscene, lewd, indecent or lascivious use, or advertises the same for sale, or writes or prints any letter, circular, handbill, card, book, pamphlet, advertisement, or notice of any kind, giving information, directly or indirectly, when, where, how, or by what means any of the articles or things hereinbefore mentioned can be purchased or otherwise obtained or made, shall, upon conviction thereof, be punished by a fine of not more than one thousand dollars nor less than fifty dollars, or by imprisonment in the county jail not more than one year, or both. . .

It is my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (dissenting opinion). It is clear that, tested by that constitutional standard, § 28-921 is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, vacate the judgment of the Supreme Court of Nebraska, and remand for further proceedings not inconsistent with my dissent in Paris Adult Theatre I. In that circumstance, I have no occasion to consider whether the questions presented in the petition merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 73-4.
    Gay Times, Inc. v. Louisiana.
   Sup. Ct. La. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Miller v. California, 413 U. S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973); Heller v. New York, 413 U. S. 483 (1973); Roaden v. Kentucky, 413 U. S. 496 (1973); and Alexander v. Virginia, 413 U. S. 836. Mr. Justice Douglas, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (Douglas, J., dissenting)), would grant certiorari in this case and reverse the judgment of conviction.

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall concur,

dissenting.

Petitioner was convicted on charges of exhibiting allegedly obscene motion pictures in violation of La. Rev. Stat. Ann. § 14:106 (A)(2) (Supp. 1973), which provides as follows:

“A. Obscenity is the intentional:
“(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character.”

It is my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (dissenting opinion). It is clear that, tested by that constitutional standard, § 14:106 (A)(2) is constitutionally over-broad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, vacate the judgment of the Supreme Court of Louisiana, and remand for further proceedings not inconsistent with my dissent in Paris Adult Theatre I. In that circumstance, I have no occasion to consider whether the questions presented in the petition merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 72-6914.
    Robbins v. Tennessee.
   Ct. Crim. App. Tenn. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of the decision of the Supreme Court of Tennessee in Franklin v. Tennessee, 496 S. W. 2d 885.

Mr. Justice Douglas would grant certiorari and set case for oral argument.


text:
    No. A-335.
    Heutsche v. United States.
   C. A. 7th Cir. Reapplieation for bail presented to Mr. Justice Rehnquist, and by him referred to the Court, denied.

Mr. Justice Douglas would grant the application.


text:
    No. A-352 (73-5426).
    O’Reilly v. United States.
   C. A. 8th Cir. Application for stay presented to

Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-420.
    Warden, Lewisburg Penitentiary v. Marrero.
   C. A. 3d Cir. Motion of respondent to vacate stay entered by Mr. Justice Brennan on October 25, 1973, denied.


text:
    No. A-421.
    Kaplan v. Amalgamated Lithographers of America, Local One, et al.
   C. A. 3d Cir. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. 64,
    Orig.
    New Hampshire v. Maine.
   [Motion for leave to file bill of complaint granted, ante, p. 810.] It is ordered that Mr. Justice Clark (retired) be, and he is hereby, appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court hereinafter may direct.

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court herein.


text:
    No. 72-914.
    No. 72-1318.
    Scheuer, Administratrix v. Rhodes, Governor of Ohio, et al.; and Krause, Administrator, et al. v. Rhodes, Governor of Ohio, et al.
   C. A. 6th Cir. [Certiorari granted, 413 U. S. 919.] Motion of Mexican American Legal Defense & Educational Fund for leave to file a brief as amicus curiae granted.


text:
    No. 72-1154.
    Foley et al. v. Blair & Co., Inc., et al.
   C. A. 2d Cir. [Certiorari granted, 411 U. S. 930.] Consideration of respondents' suggestion of mootness deferred to hearing of case on the merits.


text:
    No. 72-1168.
    United States v. Maze.
   C. A. 6th Cir. [Certiorari granted, 411 U. S. 963.] Motion of respondent for appointment of counsel granted. It is ordered that William T. Warner, Esquire, of Louisville, Kentucky, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case.


text:
    No. 72-1410.
    Edelman, Director, Department of Public Aid of Illinois v. Jordan.
   C. A. 7th Cir. [Certiorari granted, 412 U. S. 937.] Motion of NLSP Center on Social Welfare Policy and Law, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 72-6520.
    Lau et al. v. Nichols et al.
   C. A. 9th Cir. [Certiorari granted, 412 U. S. 938.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae in support of petitioners granted and 15 additional minutes allotted for that purpose. Respondents also allotted 15 additional minutes for oral argument.


text:
    No. 72-6902.
    Gooding v. United States.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 907.] Motion of petitioner for appointment of counsel granted. It is ordered that Herbert A. Rosenthal, Esquire, of Washington, D. C., a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case.


text:
    No. 73-187.
    Kewanee Oil Co. v. Bicron Corp. et al.
   C. A. 6th Cir. [Certiorari granted, ante, p. 818.] Motion of petitioner with respect to limited printing of record granted.


text:
    No. 73-298.
    Vela et al. v. Vowell, Commissioner of Public Welfare of Texas, et al.
   Appeal from D. C. W. D. Tex. The Solicitor General is invited to file a brief expressing the views of the United States.


text:
    No. 75-5340.
    Diggs v. Palman et al.
   Motion for leave to file petition for declaratory and mandatory relief denied.


text:
    No. 72-6921.
    No. 73-5335.
    No. 73-5343.
    Richardson v. United States District Court for the District of New Mexico; Campbell v. Walker, Warden; and Williams v. Henderson, Warden.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 72-1454.
    Davis v. United States.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 73-263.
    Commissioner of Internal Revenue v. Idaho Power Co.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 72-1513.
    Shea, Executive Director, Department of Social Services of Colorado, et al. v. Vialpando.
   C. A. 10th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 72-1428.
    No. 72-1737.
    Eller et al. v. Vaughns et al.; and Board of Education of Prince Georges County et al. v. Vaughns et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-1499.
    Tsoi v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 72-1619.
    Hardy v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 72-6750.
    Boyd v. Cardwell, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 72-6756.
    Brown v. Wainwright, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6772.
    Bell v. Wainwright, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6791.
    Watkins v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 72-6820.
    Reed v. Caldwell, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6846.
    Jaramillo v. New Mexico.
   Ct. App, N. M. Certiorari denied.


text:
    No. 72-6847.
    Attwood v. Patterson, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 72-6851.
    Dover v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 73-19.
    In re Crowne.
   Sup. Ct. Fla. Certio-rari denied.


text:
    No. 73-156.
    Texas v. Burkhalter.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 73-172.
    Fowler et al. v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 73-185.
    No. 73-186.
    No. 73-5179.
    Burns v. United States; McCollum et al. v. United States; and Jenkins v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-193.
    Jefferson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-198.
    Abrams v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-214.
    Cardi v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-240.
    Christopher v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-257.
    Hawkins et al. v. North Carolina Board of Dental Examiners.
   Ct. App. N. C. Certiorari denied.


text:
    No. 73-264.
    Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, et al. v. Sam Kane Packing Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-266.
    Borys v. United States.
   Ct. Cl. Cer-tiorari denied.


text:
    No. 73-268.
    Polcover v. Secretary of the Treasury et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-269.
    Heart of the Black Hills Stations v. Federal Communications Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-271.
    Alvarez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-276.
    Landry v. Hemphill, Noyes & Co. et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-277.
    Missouri Pacific Railroad Co. v. Peters et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-278.
    Westinghouse Electric Corp. v. National Labor Relations Board.
   C. A. 3d Cir. Certio-rari denied.


text:
    No. 73-279.
    Rizzo et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-280.
    Christensen et al. v. New York Times Co. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-282.
    Chalonec v. Prudential Lines, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-284.
    Amalgamated Local Union 355 v. National Labor Relations Board et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-286.
    Reese v. Kassab, Secretary, Department of Transportation of Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-288.
    Pratt v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 73-290.
    Douglas v. Arizona.
   Ct. App. Ariz. Certiorari denied.


text:
    No. 73-291.
    Sports Diversified, Inc. et al. v. National Bank of Commerce of Tulsa et al.
   Ct. App. Okla. Certiorari denied.


text:
    No. 73-293.
    City of North Las Vegas v. County of Clark, Nevada, et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 73-294.
    Zimmerman v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 73-299.
    Mesa Oil Co. v. Business Men’s Assurance Company of America.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-301.
    Howard, Trustee v. County of Weld et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-302.
    Deutsche Dampfschiff. Ges. “Hansa” v. Cummins Sales & Service, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-303.
    Martin, Trustee in Bankruptcy v. Mizrahi et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-308.
    Cota v. Chandler et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-310.
    Allen v. Virginia.
   Sup. Ct. Va. Cer-tiorari denied.


text:
    No. 73-311.
    Smith v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-313.
    Fraser v. Continental Realty Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-316.
    National Association of Women’s & Children’s Apparel Salesmen, Inc., et al. v. Federal Trade Commission.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-319.
    Clark et al. v. United Bank of Denver National Assn. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-322.
    Baum et al. v. Lefrak Forest Hills Corp. et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 73-323.
    Hegyes v. South River Rescue Squad.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-329.
    Marra v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-330.
    Ruiz v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-331.
    Salik et al. v. United California Bank.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-333.
    Indiana Real Estate Commission et al. v. Satoskar.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-338.
    Carr v. Vann, County Commissioner of Thomas County, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-349.
    Wineglass Ranches, Inc., et al. v. Federal Deposit Insurance Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5009.
    Mead v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5013.
    Holtzinger v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5016.
    Saxon v. Wolff, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5021.
    Hesbett, aka McIver v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5044.
    Cuthrell v. Director, Patuxent Institution.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5065.
    Mills v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5091.
    Perry v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5095.
    Hill v. Cardwell, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5105.
    Easley v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5110.
    Williamson et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5111.
    Sharpe v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5117.
    No. 73-5145.
    No. 73-5177.
    Blank v. United States; Gornish v. United States; and Weinberg v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: 478 F. 2d 1351.


text:
    No. 73-5126.
    Flemmons v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5127.
    Flemmons v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5128.
    Harlan v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5130.
    Zwillich v. City of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5132.
    No. 73-5191.
    Dixon v. United States; and Fanning et al. v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 477 F. 2d 45.


text:
    No. 73-5137.
    Rickus et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5139.
    Orand, aka Bear v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5148.
    Hardison v. Rose, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5149.
    Beasley v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5150.
    O’Brien v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-5154.
    Brown v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-5167.
    Esquer v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5170.
    Chinn v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 73-5176.
    Riley v. LaVallee, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5182.
    Housden v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5184.
    Anderson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5189.
    Martinez-Rodriguez et al. v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5197.
    Kaczynski v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5200.
    Peterson v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-5208.
    Newman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5213.
    Fawcett et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5216.
    Benedetto v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5220.
    Curry v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5222.
    Walker v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 73-5224.
    Walters v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5227.
    Wilcoxson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5239.
    Abercrombie v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5242.
    Bruce v. Cacheris et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5246.
    Harris v. Rhode Island.
   Sup. Ct. R. I. Certiorari denied.


text:
    No. 73-5247.
    Miles v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5248.
    Palmer v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-5249.
    Mack v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-5252.
    Sweeney v. Henderson, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5253.
    Resnick v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5254.
    McKinley v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5255.
    Baca v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-5262.
    Gibson v. Ziegele, Prison Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5263.
    Mitchell et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5264.
    Lewis v. Johnson et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5266.
    Impson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5267.
    Johnson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5268.
    Johnson v. Dailey.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5270.
    Clay v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5271.
    Taylor et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5274.
    Tyra et al. v. Texas.
   Ct. Crina. App. Tex. Certiorari denied.


text:
    No. 73-5275.
    Greco v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 73-5276.
    Sellers v. Vance, District Attorney of Harris County, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5277.
    Patterson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5279.
    Evans v. Vincent, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5281.
    Bloeth v. Montanye, Correctional Superintendent.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 73-5285.
    Granato v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 73-5286.
    Chatman et al. v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 73-5287.
    Johnson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5289.
    Williams v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5291.
    Collins et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5294.
    Esser v. Scott et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5295.
    Gomori v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5298.
    Slaughter v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-5300.
    Williams v. Procunier, Corrections Director.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5301.
    Harrison v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 73-5307.
    Hines v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 73-5310.
    Atonick v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5312.
    Bedgood v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5329.
    Sorio v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-5332.
    Monsour v. Cady, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5333.
    Greco v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5350.
    Wahrlich v. Arizona et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5351.
    Hunt v. Arizona.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 73-5363.
    Harrington v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 72-1624.
    Claytor v. Runge et al.
   C. A. 9th Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 72-6918.
    Moore v. New York.
   Ct. App. N. Y. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-6933.
    Bethel v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-109.
    Millenson v. New Hotel Monteleone, Inc.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-325.
    Brown et ux. v. United States.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5012.
    Mauch v. Salmon, Judge.
   Sup. Ct. Mich. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5183.
    Taylor v. Indiana.
   Sup. Ct. Ind. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5207.
    Hudson v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5302.
    Webb v. United States.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-34.
    Ross et al. v. Mobil Oil Corp. et al.
   C. A. 5th Cir. Motion for leave to substitute Mrs. John Ross et al. in place of John Ross, deceased, as party petitioners granted. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 73-56.
    Williams v. Texas.
   Ct. Crim App. Tex. Motion to dispense with printing petition granted. Motion of respondent to dispense with printing brief in opposition denied. Certiorari denied.


text:
    No. 73-258.
    United States v. Scafo.
   C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 73-262.
    Ramirez et al. v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas,

dissenting.

I would grant and reverse for the reasons set forth by Judge Hufstedler in the Court of Appeals, 480 F. 2d 76. The majority had affirmed on Bradley v. United States, 410 U. S. 605. Judge Hufstedler said:

“Section 1103 (a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 provides in pertinent part: 'Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals . . . made by [it] or abated by reason thereof.’ The keystone of the Bradley rationale is its construction of the word 'prosecutions’ in section 1103 (a) as ‘clearly import[ing] a beginning and an end.’ The ‘end,’ as Bradley squarely held, is the conclusion of sentencing. The ‘beginning’ of a prosecution is the return of an indictment. These indictments were returned after section 176a had been repealed. There was no prosecution to be saved by section 1103 (a). Bradley means that any prosecution initiated before repeal of the statute carries with it the old section 176a penalty. Conversely, any prosecution under section 176a begun after repeal of section 176a for the substantive offense committed before repeal carries with it the milder penalties of the successor statute.
“The substantive offense was specifically saved. Prosecutions initiated before repeal were ‘not . . . affected’ ar ‘abated.’ Prosecutions begun after repeal of section 176a could be neither affected nor abated, because they were nonexistent when the old statute was repealed.” 480 F. 2d, at 79.

That is my view.


text:
    No. 73-337.
    Seven-Up Co. v. Federal Trade Commission et al.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Stewart took no part in the consideration or decision of this petition.


author: Mr. Justice Marshall,

text:
    No. 73-5201.
    Delle Rose v. LaVallee, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan join,

dissenting.

By an earlier per curiam opinion in this case, this Court reversed the judgment of the Court of Appeals which had affirmed a District Court judgment granting Delle Rose’s petition for a writ of habeas corpus. See LaVallee v. Delle Rose, 410 U. S. 690 (1973). In the view of a majority of the Court, the courts below erred in holding that the state courts had not made an “adequate” determination within the meaning of 28 U. S. C. § 2254 (d) that Delle Rose’s confession was voluntary. Since an “adequate” state court determination had been made, the District Court was wrong in imposing on the State the burden of showing voluntariness by a preponderance of the evidence. Rather, under the terms of the presumption in § 2254 (d), the burden was on Delle Rose “to establish in the District Court by convincing evidence that the state court’s determination was erroneous.” 410 U. S., at 695. The Court therefore remanded the case “for further proceedings consistent with this opinion” — presumably referring to a redetermination by the District Court of the voluntariness issue under a corrected allocation of the burden of proof.

Upon receiving the mandate from this Court, however, the Court of Appeals did not remand the case to the District Court for such a redetermination. Instead, without explanation, it remanded with instructions to dismiss the petition. In my view, the Court of Appeals thereby not only misconstrued this Court’s opinion, but also deprived petitioner of his constitutional and statutory right to attempt “to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 U. S. C. § 2254(d).

At the outset, it seems clear from a reading of the earlier per curiam decision that this Court never even addressed, let alone decided, the question of whether petitioner had satisfied his burden of proving erroneous the state court finding of voluntariness. Nor would it have been proper to have done so. Neither the District Court nor the Court of Appeals had yet confronted the question, having mistakenly placed the burden of proof on the State. As we have said in similar circumstances, “it is not our function to deal with this issue in the first instance.” Swenson v. Stidham, 409 U. S. 224, 231 (1972).

This case would not be so troublesome but for the fact that the record indicates that the District Court might well find the confession involuntary, even were the burden of proof assigned to petitioner. Indeed, in granting the petition in the first place, the District Court remarked: “Far from satisfying the State’s burden of showing voluntariness by a preponderance, the evidence preponderates heavily the other way.” United States ex rel. Delle Rose v. LaVallee, 342 F. Supp. 567, 574 (SDNY 1972) (citation omitted). And certainly there is ample evidence in the record to support that factual finding. In the words of the District Court, this was

“a case of a man of little education and poor understanding of the language; racked with physical pain and psychological distress; weakened by hunger and lack of sleep; questioned for long hours by teams of vigorous and increasingly hostile officers; not told of his rights to silence, counsel, etc., but given by tone and manner to understand that each questioner ‘has a right to, and expects, an answer’; shoved before television cameras after six hours or so of being moved about and assailed by his questioners in the police station; subjected to the coercion of a reenactment (including the forced placement of his hand into the seat back torn by the lethal pellets and wet with his late wife’s blood) which he perceived with powerful reason as compulsory, hostile and ultimately damaging to his claims of innocence; then, finally, overpowered by the macabre — if, fortunately, rare- — stunt of a visit to the morgue, with pious explanations thereafter . . . that serve only to highlight the quality of relentless manipulation.” Id., at 574—575 (footnotes omitted).

It may be that the Court of Appeals did not feel that petitioner had satisfied his burden of proof. But again, the question was not for that court in the first instance, but rather for the District Judge, to whose “sound discretion must be left in very large part the administration of federal habeas corpus.” Townsend v. Sain, 372 U. S. 293, 313 (1963). Of course, any factual finding by the District Court would be subject to review by the Court of Appeals under the “clearly erroneous” standard of Fed. Rule Civ. Proc. 52 (a). In the first instance, however, the factual finding belongs to the trier of fact, the court which had an opportunity to hear petitioner’s story and observe his demeanor, not a court of appeals.

By preventing the District Court from considering whether petitioner could prove by convincing evidence that the state court determination of voluntariness was erroneous, the Court of Appeals, now with this Court’s acquiescence, in effect turned the presumption of correctness in § 2254 (d) into an irrebuttable presumption. In my view, such a result plainly foreclosed petitioner’s constitutionally guaranteed opportunity to seek relief on federal habeas corpus upon proving that his detention violates his fundamental rights. See Townsend v. Sain, supra, at 312. I would grant the writ of certiorari, reverse the judgment of the Court of Appeals, and remand the case to the District Court with instructions to reconsider, under the burden of proof set forth in this Court's earlier per curiam opinion, whether petitioner's confession was voluntary. I respectfully dissent.


text:
    No. 72-6798.
    Gernand v. United States,
   ante, p. 844. Petition for rehearing denied.


text:
    No. 72-1440.
    Olenz v. Marovitz, U. S. District Judge, et al.,
   ante, p. 877. Motion to dispense with printing petition for rehearing granted. Petition for rehearing denied.


text:
    November 12, 1973
    No. 73-359.
    Pennsylvania et al. v. United States et al.
   Affirmed on appeal from D. C. M. D. Pa.


text:
    No. 73-378.
    Fuld et al. v. Elliott, Chairman, City Planning Commission, et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 73-270.
    Eakes v. South Dakota.
   Sup. Ct. S. D. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Miller v. California, 413 U. S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973); Heller v. New York, 413 U. S. 483 (1973); Roaden v. Kentucky, 413 U. S. 496 (1973); and Alexander v. Virginia, 413 U. S. 836 (1973).

Mr. Justice Douglas, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (Douglas, J., dissenting))., would grant certiorari in this case and reverse the judgment of conviction.

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall concur,

dissenting.

Petitioner was convicted on charges of possessing with intent to exhibit an obscene film in violation of S. D. Comp. Laws Ann. § 22-2L-12 (Supp. 1973), which provides as follows:

“Every person who knowingly sends or causes to be sent, or brings or causes to be brought, by any means, into this state for sale or distribution, or in this state, prepares, writes, composes, stereotypes, prints, publishes, sells, offers to sell, keeps for sale, exhibits, makes, distributes, offers to distribute, or has in his possession with intent to distribute, or to exhibit or to offer to exhibit, any obscene matter, is guilty of a misdemeanor.”

Obscenity for purposes of § 22-24-12 is defined by § 22-24-11 (1) as

“that which, by contemporary standards as hereinafter set forth, considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.”

It is my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, § 22-24-12, in conjunction with § 22-24-11 (1), is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, vacate the judgment of the Supreme Court of South Dakota, and remand for further proceedings not inconsistent with my dissent in Paris Adult Theatre I. In that circumstance, I have no occasion to consider whether the questions presented in the petition merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 73-5054.
    Bush v. United States.
   C. A. 7th Cir. Motion for leave to proceed in forma pauperis and petition for writ of certiorari granted. On representation of the Solicitor General set forth in his memorandum for the United States filed October 17, 1973, judgment vacated and case remanded for reconsideration in light of the position presently asserted by the Government.


text:
    No. A-472.
    Banks v. Holder, U. S. District Judge.
   C. A. 7th Cir. Application for acceleration of filing of petitions for writs of certiorari presented to Mr Justice Rehnquist, and by him referred to the Court, denied.


text:
    No. D-16.
    In re Disbarment of Mades.
   It is ordered that Herbert S. Mades of Winthrop, Massachusetts, be suspended from the practice of law in this Court and that a rule issue returnable within 40 days requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-17.
    In re Disbarment of Englert.
   It is ordered that Charles E. Englert of Boston, Massachusetts, be suspended from the practice of law in this Court and that a rule issue returnable within 40 days requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-18.
    In re Disbarment of Stanton.
   It is ordered that John J. Stanton of Boston, Massachusetts, be suspended from the practice of law in this Court and that a rule issue returnable within 40 days requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 72-1125.
    Allee et al. v. Medrano et al.
   Appeal from D. C. S. D. Tex. [Probable jurisdiction noted, 411 U. S. 963.] Motion of Mexican American Legal Defense and Educational Fund for leave to file an untimely brief as amicus curiae denied.


text:
    No. 72-1660.
    Blackledge, Warden, et al. v. Perry.
   C. A. 4th Cir. [Certiorari granted, ante, p. 908.] Motions of respondent for leave to proceed in forma pauperis and for appointment of counsel granted. It is ordered that James E. Keenan, Esquire, of Durham, North Carolina, a member of the Bar of this Court be, and he is hereby, appointed to serve as counsel for respondent in this case.


text:
    No. 73-297.
    Alliance for Consumer Protection, Hill District Branch, et al. v. Milk Marketing Board of Pennsylvania et al.
   Pa. Commw. Ct. Motion to dispense with printing petition denied with leave to file a printed petition in conformity with Rule 39 of the Rules of this Court on or before December 12, 1973.


text:
    No. 73-5121.
    Bankston v. Salcines et al.
   D. C. M. D. Fla. Motion for leave to file petition for writ of certiorari denied.


text:
    No. 73-5392.
    No. 73-5419.
    No. 73-5465.
    Kochel v. United States; Wion v. Attorney General of the United States et al.; and Hightower v. Michigan et al.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 73-368.
    No. 73-5365.
    No. 73-5379.
    Hernandez v. Brown, Chief Judge, U. S. Court of Appeals, et al.; Magee v. Nelson, Warden, et al.; and O’Clair v. Edenfield, U. S. District Judge.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 72-1613.
    No. 73-5486.
    Huffman et al. v. United States District Court for the Northern District of Ohio et al.; and O’Clair v. Freeman, U. S. District Judge.
   Motions for leave to file petitions for writs of mandamus and/or prohibition denied.


text:
    No. 73-328.
    Lehman v. City of Shaker Heights et al.
   Sup. Ct. Ohio. Certiorari granted.


text:
    No. 72-1388.
    Selenberg v. Louisiana State Bar Assn.
   Sup. Ct. La. Certiorari denied.


text:
    No. 72-1657.
    F. H. McGraw & Co. v. Fellows Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-1719.
    Bender v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 72-6710.
    Bjerkan v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-6764.
    Fitzgerald v. Williams.
   Ct. App. D. C. Certiorari denied.


text:
    No. 72-6874.
    Nichols v. Clanon, Prison Superintendent.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 72-6892.
    Heberling v. Wyoming.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 73-46.
    New Orleans Steamship Assn. v. General Longshore Workers, I. L. A., Local Union No. 1418 et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-72.
    Peerless Pressed Metal Corp. v. International Union of Electrical, Radio & Machine Workers, AFL-CIO, et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-140.
    Agrashell, Inc. v. Hammons Products Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-146.
    Winn v. Florida State Board of Nursing.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 73-178.
    No. 73-188.
    Board of Education of the City of Chattanooga, Tennessee, et al. v. Mapp et al.; and Board of Commissioners of the City of Chattanooga et al. v. Mapp et al.
   C. A. 6th Cir. Certiorari denied. Reported below: 477 F. 2d 851.


text:
    No. 73-196.
    No. 73-351.
    Sclafani v. United States; and Ross v. United States.
   C. A. 2d Cir. Certiorari denied. Reported below: 487 F. 2d 245.


text:
    No. 73-201.
    Tracey v. Janco, Sheriff.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-260.
    Andrews v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-267.
    Baral v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 73-304.
    Cianciotti et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-305.
    Holley v. United States et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-309.
    Lagattuta et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-314.
    Craig, Administratrix v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-315.
    Brown v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-317.
    Chambers v. Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 73-321.
    Musgrave v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-332.
    Superior Court of New Jersey, Law Division, Passaic County, et al. v. Russo.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-343.
    Donlon et ux. v. Internal Revenue Service.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-350.
    Watson v. Nevada National Bank.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-353.
    Abbott et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 73-355.
    May v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 73-356.
    Riva v. Immigration and Naturalization Service.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-357.
    2,431.4 Acres of Land, More or Less, Situated in Hancock County, Mississippi, et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-358.
    Jones et ux. v. Credit Bureau of Nashville.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-363.
    Nix v. Grand Lodge of the International Association of Machinists & Aerospace Workers.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-365.
    O'Connor v. O’Connor et al.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 73-367.
    Losers, Inc., et al. v. Superior Court of California, County of Los Angeles.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-371.
    Wells v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 73-372.
    Harvey v. Saulnier et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-373.
    Alaska Barite Co. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-385.
    Womack v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-387.
    Mobil Oil Corp. v. Woolard et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-388.
    Jennings v. Boenning & Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5011.
    Costello v. Wainwright, Corrections Director.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 73-5024.
    Rodriguez v. New Mexico.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-5052.
    Smith v. Texas.
   Ct. Crina. App. Tex. Certiorari denied.


text:
    No. 73-5116.
    Norris v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5164.
    Brown v. Cardwell, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5165.
    Summerville v. Britton, Reformatory Superintendent.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5196.
    Brooks v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5218.
    Williams v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5240.
    Hamlet v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5283.
    Mayfield v. Weinberger, Secretary of Health, Education, and Welfare.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5293.
    Conner v. Brierley, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5296.
    Castaneda-Campos v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5304.
    Madden v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5306.
    Whitman v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5309.
    McKenna v. United States.
   C- A.

7th Cir. Certiorari denied.


text:
    No. 73-5318.
    Harris et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5319.
    Williams v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5320.
    Oglesby v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5326.
    No. 73-5330.
    Lyon v. United States; and Irion v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5328.
    Dyer v. Nelson, Warden.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 73-5334.
    Durham v. MacDonald.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5336.
    Olden v. McCarthy.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5352.
    Sailer v. California Adult Authority.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 73-5356.
    Soles v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5358.
    Fontana v. State Roads Commission of Maryland et al.
   Ct. App. Md. Certiorari denied.


text:
    No. 73-5361.
    Rendel v. Gomes, Prison Superintendent, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5362.
    Hamburg et ux. v. Jones et ux.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 73-5373.
    Sallas v. Department of Health, Education, and Welfare.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5374.
    Hammonds v. Mantia et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5378.
    Martinez v. Arizona.
   Ct. App. Ariz. Certiorari denied.


text:
    No. 73-5382.
    Lombardi v. Gordon et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5384.
    Brink v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5395.
    McKinney v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 72-1699.
    Muscolino v. United States.
   C. A. 7th Cir. Certiorari denied.

Me. Justice Douglas would grant certiorari.


text:
    No. 72-6934.
    Siske v. Virginia.
   Sup. Ct. Va. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-6988.
    Nelson v. Railsback et al.
   C. A. 7th

Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-352.
    Brass v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-374.
    Union Equity Cooperative Exchange, Inc. v. Commissioner of Internal Revenue.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-377.
    Osser v. United States.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5188.
    Nasiriddin v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5381.
    Robertson v. Stone, Warden.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-6784.
    Chase v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.

Petitioner was stopped by Deputy Sheriff James Leland Johnston for driving on the wrong side of the highway. Petitioner and the passengers in his car then overpowered the deputy and took his .38-caliber service revolver. Using that gun, petitioner forced the deputy to drive to two different houses where the deputy was kicked and beaten. Petitioner finally released the deputy after taking his wallet. Petitioner was tried and convicted by a jury in Muskegee County, Oklahoma, for the offense of kidnaping for extortion and was. sentenced to a term of 35 years’ imprisonment. Subsequently, the State brought separate charges against petitioner for his possession of the deputy’s service revolver. After a jury trial in Tulsa County, Oklahoma, petitioner was convicted for the offense of carrying a firearm, after former conviction of a felony (the former felonies were other than the kidnaping conviction), and sentenced to a term of 10 years’ imprisonment. The Oklahoma Court of Criminal Appeals modified petitioner’s term of imprisonment to five years, but otherwise affirmed the conviction, rejecting petitioner’s claim that the second prosecution violated his constitutional protection against double jeopardy. See 509 P. 2d 171 (1973).

Although the charges of kidnaping for extortion and carrying a firearm, after former conviction of a felony, both arose out of the same transaction or episode, they were prosecuted by the State in separate proceedings. That, in my opinion, requires that we grant the petition for certiorari and reverse, for I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the prosecution, except in extremely limited circumstances not present here, “to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring); see Miller v. Oregon, 405 U. S. 1047 (1972) (Brennan, J. dissenting); Harris v. Washington, 404 U. S. 55, 57 (1971) (statement of Douglas, Brennan, and Marshall, JJ.); Waller v. Florida, 397 U. S. 387, 395 (1970) (Brennan, J., concurring).


text:
    No. 72-6785.
    Hysaw v. Estelle, Corrections Director.
   Ct. Crim. App. Tex. Certiorari denied.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.

Petitioner was sentenced to eight years' imprisonment upon his plea of guilty to a charge of burglary. Later on the same day, the same conduct was the basis of a charge of theft, for which he received a consecutive eight-year sentence when he also pleaded guilty to that charge. Although neither conviction was directly appealed, petitioner sought state habeas corpus, claiming that, since both charges arose out of the same criminal transaction, his second conviction for theft violated his constitutional protection against double jeopardy. Petitioner’s application was denied by the 179th District Court of Harris County and the Texas Court of Criminal Appeals.

Brief for Respondent in Opposition 2 conceded that the charges of burglary and theft arose out of the same-criminal transaction. That, in my opinion, requires that we grant the petition for certiorari and reverse, for I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the prosecution, except in extremely limited circumstances not present here, “to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring); see Miller v. Oregon, 405 U. S. 1047 (1972) (Brennan, J., dissenting); Harris v. Washington, 404 U. S. 55, 57 (1971) (statement of Douglas, Brennan, and Marshall, JJ.); Waller v. Florida, 397 U. S. 387, 395 (1970) (Brennan, J., concurring).