441 F2d 657 Evans v. A L Dutton

441 F.2d 657

Alex S. EVANS, Appellant,
A. L. DUTTON, Warden, Georgia State Prison, Reidsville,
Georgia, Appellee.

No. 25348.

United States Court of Appeals, Fifth Circuit.

May 6, 1971.

Robert B. Thompson, Gainesville, Ga., for appellant.

Alfred L. Evans, Jr., Asst. Atty. Gen., Atlanta, Ga., for appellee.

Before GEWIN and THORNBERRY, Circuit Judges, and EDENFIELD, District judge.


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In the decision of the Supreme Court, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, reversing the judgment of this court in Evans v. Dutton, 400 F.2d 826 (5th Cir. 1968), the cause was remanded to this court for consideration of other issues presented in this habeas corpus proceeding. The Supreme Court dealt only with the evidentiary and and confrontation issues involved in the case.


On oral argument before the Supreme Court it was conceded that the death penalty imposed could not be carried out, because the jury was qualified under standards violative of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.1 See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 note 20. Prior to that time this court had already set aside, pursuant to the Witherspoon decision, the death sentence imposed in the companion case involving Vincent Williams, an alleged accomplice of Evans. See Williams v. Duttjon, 5 Cir., 400 F.2d 797, 804-805. Accordingly, there has been appropriate disposition of the Witherspoon issue.


We have carefully reviewed all other issues presented to the court and it is our judgment that such issues have been dealt with fully and were properly disposed of in our decision in Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968). We adhere to our decision in that case.2 See also United States ex rel. Williams v. Dutton, 431 F.2d 79 (5th Cir. 1970).


It is now here ordered and adjudged by this court that this cause be, and the same is hereby remanded to the United States District Court for further proceedings in conformity with the opinion and judgment of the Supreme Court and this opinion.


It is so ordered.


Following remand we requested briefs from the parties. The Attorney General of the State of Georgia, counsel for Dutton, has likewise expressly conceded in this court the applicability of Witherspoon v. Illinois, supra


The following appears in the brief of Evans filed after remand:

Those questions, numbered 2 through 8, enumerated on pages 3-5 of our original brief, are still insisted upon, although this Court has already considered them in the companion case, Williams v. Dutton, 400 F.2d 797. See also United States ex rel. Williams v. Dutton, 431 F.2d 70.