Following the decision in
Witherspoon v. Illinois,
391 U. S. 510,
petitioners sought to supplement their bills of exceptions to raise
issues thereunder in their pending appeals from convictions for
rape in which they were sentenced to death, but were precluded by
time limitations of the Tennessee Code. The State Supreme Court
affirmed their convictions and sentences without considering
Witherspoon's possible effect. The time limitation
provision was later amended, while petitions for certiorari were
pending here, and petitioners should be afforded an opportunity to
apply to the State Supreme Court for leave to supplement their
bills of exceptions under the new statute.
Certiorari granted; 222 Tenn. 672,
440
S.W.2d 1, vacated and remanded.
PER CURIAM.
The motions for leave to proceed
in forma pauperis and
the petitions for writs of certiorari are granted.
After a joint trial in the state courts of Tennessee,
petitioners were convicted of rape and sentenced to death. While
their appeals were pending in the Tennessee Supreme Court, this
Court announced its decision in
Witherspoon v. Illinois,
391 U. S. 510
(1968). Petitioners sought to supplement their bills of exceptions
to raise issues under that decision, but they were precluded from
doing so by the provisions of former Tennessee Code Annotated
§ 27-111 (1955), which, as it then stood, prohibited the
filing of bills of exceptions more than 90 days after judgment. The
Tennessee Supreme Court therefore
Page 403 U. S. 712
affirmed petitioners' convictions and sentences without
considering the possible effect of
Witherspoon. 222 Tenn.
672,
440
S.W.2d 1 (1969). While the petitions for certiorari were
pending in this Court, the Tennessee Legislature amended §
27-111 to authorize the state appellate courts to order the filing
of bills of exceptions in criminal cases at any time, for good
cause shown. Tenn.Code Ann. § 27-111 (Supp. 1970). With
matters in this posture, we believe that sound judicial
administration requires us to vacate the judgments below and remand
the cases to the Tennessee Supreme Court so as to afford
petitioners an opportunity to apply to that court under the new
Tennessee statute for leave to supplement their bills of
exceptions. In so doing we, of course, intimate no view on the
merits of petitioners' contentions or as to the applicability of
the new Tennessee statute to these cases.
It is so ordered.
MR. JUSTICE BLACK dissents.
* Together with No. 5098,
Harris v. Tennessee, No.
5101,
Houston et al. v. Tennessee, and No. 5103,
Hunter et al. v. Tennessee, also on petition for writ of
certiorari to the same court.
