The Burger Court Opinion
Writing Database
Baldwin v. New York
399 U.S. 66 (1970)
Paul J. Wahlbeck, George Washington University
James F. Spriggs, II, Washington University
Forrest Maltzman, George Washington University
To: Mr. Justice Black
Mr. Justice Douglas
Mr. Justice Harlan
Mr. Justice Brennan
Mr. Justice Stewart
Mr. Justice White
Mr. Justice Marshall
Mr. Justice Blackmun
1
SUPREME COURT OF THE UNITED Sfi lfitel ° Chief Justice
No. 188.—OCTOBER TERM,
Robert Baldwin, Appellant,
State of New York.
1969
Circulated:
Recirculated:
1 On Appeal From the Court
of Appeals of New York..
[June —, 1970]
MR. CHIEF JUSTICE BURGER, dissenting.
I dissent from today's holding that something in the
Sixth and Fourteenth Amendments commands New York
City to provide trial by jury for an offense punishable
by a confinement of more than six months but less than
one year. MR. JUSTICE BLACK has noted correctly that
the Constitution guarantees a jury trial "in all criminal
prosecutions" (Amendment VI) and for "all Crimes"
(Art. III, § 2, el. 3), but these provisions were not written as a command to the States; they were written at a
time when the Federal Government exercised only a
limited authority to provide for federal offenses "very
grave and few in number." 1 ---T-lieetq mi e num er o
i us acts r were made criminal offenses were
against federal authority, and were proscribed in a period
when administration of the criminal law was regarded
as largely the province of the States. The Founding
Fathers therefore cast the constitutional provisions we
deal with here as limitations on federal power, not the
I See Frankfurter & Corcoran, Petty Federal Offenses and the
Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917,
975-976 (1926), where the authors observe: "Until very recently
the occasion for considering the dispensability of trial by jury in
the enforcement of the criminal law has hardly presented itself to.
Congress, except as to the Territories and the District of Columbia,
because, on the whole, federal offenses were at once very grave and
few in number."
6
'7D
To: The Chief Justice
Mr. Justice Dou.31as
Mr. Justice Harlan
/0.-"tr. .1-1.77tice 37-nnan
Mr.
1
SUPREME COURT OF THE UNITED STATES
No. 188.—OCTOBER TERM, 1969
"
cep
row;
Robert Baldwin, Appellant,,
On Appeal From the 0411121313at
v.
of Appeals of New York..
State of New York.
Recirculated:
[January —, 1970]
2 1 197.Q___ 0
0
MR. JUSTICE BLACK, concurring in the judgment and
dissenting from the Court's opinion.
1-1
I concur in the Court's holding that the appellant here
was entitled to a trial by jury in a New York City
court for an offense punishable by one year's imprison-
ment. I also concur in the Court's holding that his
right to a trial by jury was governed by the Sixth
Amendment to the United States Constitution made
applicable to the States by the Fourteenth Amendment.
I dissent, however, from the statement in the Court's
opinion that a defendant's right to jury trial under
the Sixth Amendment is determinable by whether the
offense charged is a "petty" or "serious" one. The Constitution guarantees right of trial by jury in two separate
places but in neither does it hint of any difference between "petty" offenses and "serious" offenses. Article
III, Section 2, Clause 3, mcrcir5rovides that "The trial
of all Crimes, except in Cases of Impeachment, shall be
by Jury," and Amendment VI provides that "In all
criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed . . . ." Thus the Constitution itself guarantees a jury trial "in all criminal prosecutions" and "in
all crimes." Many years ago this Court, without the
necessity of an amendment pursuant to Article V, decided that "all crimes" did not mean "all crimes,"
but meant only "all serious crimes." 1 Today the Court
1 District
of
Columbia
v.
Clawans,
300
U.
S. 617 (1937).
cn
•
2
SUPREME COURT OF THE UNITED
No.. 188.—OCTOBER
TERM,
To: The Chief Justice
Mr. Justice Douglas
Mr. Justice Harlan
viir. Justice Brennan
Mr. Justice Stewart
Justice White
STATIC: Justice Marshall;
Mr. Justice Blackmun,
1969
Robert Baldwin, Appellant, 1
Fx • Black, J.
-1"
•
' On Appeal From the k.;817,11ft,
v.
of Appeals of Newcyork
rculated:
State of New York.
[June —, 1970]
Recirculated.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS!
joins, concurring in the judgment and dissenting from the
Court's opinion.
I concur in the Court's holding that the appellant here
New York City
was entitled to a trial by jury in
court for an offense punishable by one year's imprisonment. I also concur in the Court's holding that his
right to a trial by jury was governed by the Sixth
Amendment to the United States Constitution made
applicable to the States by the Fourteenth Amendment.
I dissent, however, from the statement in the Court's
opinion that a defendant's right to jury trial under
the Sixth Amendment is determined by whether the
offense charged is a "petty" or "serious" one. The Constitution guaranteesitright of trial by jury in two separate
places but in neither does it hint of any difference between "petty" offenses and "serious" offenses. Article
III, § 2, cl. 3, provides that "The Trial of all Crimes,
except in Cases of Impeachment, shall be by Jury,"
and Amendment VI provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed . . . ." Thus the Constitution itself guarantees
a jury trial "in all criminal prosecutions" and "in all
crimes." Many years ago this Court, without the necessity of an amendment pursuant to Article V, decided that "all crimes" did not mean "all crimes,"
but meant only "all serious crimes." 1 Today the Court
tr1
1-1
cn
0
1=1
a
District
of
Columbia v. Clawans,
300 U.
S.
617 (1937).
JUN 1 6 1970
ck
2:)
O
To: The Chief Justice
eVt. Just.ce
Mr,
1
SUPREME COURT OF THE UNITED STATES
No. 188.-OCTOBER TERM, 1969
.
Hobert Baldwin, Appellant,
On Appeal From the Court
v.
of Appeals of New Yorh:-Li
State of New York.
[January —, 1970]
MR. JUSTICE BLACK, concurring in the judgment and
dissenting from the Court's opinion.
I concur in the Court's holding that the appellant here
was entitled to a trial by jury in a New York City
court for an offense punishable by one year's imprisonment. I also concur in the Court's holding that his
right to a trial by jury was governed by the Sixth
Amendment to the United States Constitution made
applicable to the States by the Fourteenth Amendment.
I dissent, however, from the statement in the Court's
opinion that a defendant's right to jury trial under
the Sixth Amendment is determinable by whether the
offense charged is a "petty" or "serious" one. The Constitution guarantees right of trial by jury in two separate
places but in neither does it hint of any difference between "petty" offenses and "serious" offenses. Article
III, Section 2, Clause 3, IReFely jprovides that "The trial
of all Crimes, except in Cases of Impeachment, shall be
by Jury," and Amendment VI provides that "In all
criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed . . . ." Thus the Constitution itself guarantees a jury trial "in all criminal prosecutions" and "in
all crimes." Many years ago this Court, without the
necessity of an amendment pursuant to Article V, decided that "all crimes" did not mean "all crimes,"
but meant only "all serious crimes." 1 Today the Court
1 District of Columbia v. Clawans, 300 U. S. 617 (1937).
JAN
/71)
ct24
In
SSZADRO3 AO INVHATI 'NOTRTATO IATN3SONVW RAI AO SNOI1331703 HHI MONA WAXICIONJRN
5Yr.
To: The Chief Justice
Mr. Justicl Black
Mr. JustceUr. Justic Brenan
JIs. 1,:2 '7wart
SUPREME COURT OF THE UNITED STATE:
Lai 1
Nos. 188 AND 927.—OCTOBER TERM, 1969
From: Earl all, J.
Robert Baldwin, Appellant,
On Appeal From the gstvk at ed MM 197a
v.
188
of Appeals of New York.
State of New York.
Recirculated:
On Writ of Certiorari to.
Johnny Williams, Petitioner,
the District Court of Ap927
v.
peal of Florida, Third.
State of Florida.
District.
[May —, 1970]
MR. JUSTICE HARLAN, dissenting in No. 188, and concurring in No. 927.
In Duncan v. Louisiana, 391 U. S. 145 (1968), the
Court held, over my dissent and that of MR. JUSTICE
STEWART, that a state criminal defendant is entitled to
a jury trial in any case which, if brought in a federal
court, would require a jury under the Sixth Amendment.
Today the Court holds, in No. 188, Baldwin v. New
York, that New York cannot constitutionally provide
that misdemeanors carrying sentences up to one yearshall be tried in New York City without a jury.' At
the same time the Court holds in No. 927, Williams v.
Florida, that Florida's six-member jury statute satisfies.
the Sixth Amendment as carried to the States by the
Duncan holding. 2 The necessary consequence of this
decision is that 12-member juries are not constitutionally
required in federal criminal trials either.
The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does
1 Outside of New York City, such cases are triable before sixmember juries.
2 Florida provides for a jury of 12 in capital cases and a six-member
jury "to try all other criminal cases." Fla. Stat. § 913.10 (1)(1967).
C
P
2
CI
To: The Chief Justice
Mr. Justice Black
My Justice Douglas
WITT. Justice Brennan
Mr. Justice Stewart
Mr. Justice White
Mr. Justic. Marshall
6
SUPREME COURT OF THE UNITED STVIS
c
Harlan, J.
4
Nos. 188 AND 927.—OCTOBER TERM, 1969 Circulated:
Robert Baldwin, Appellant,
culat e
On Appeal From the Niriti
188
v.
of Appeals of New York.
State of New York.
Johnny Williams, Petitioner, On Writ of Certiorari tothe District Court of A.p927
v.
peal of Florida, Third
State of Florida.
District.
[June —, 1970]
MR. JUSTICE HARLAN, dissenting in No. 188, and concurring in No. 927.
In Duncan v. Louisiana, 391 U. S. 145 (1968), the
Court held, over my dissent and that of MR. JUSTICE
STEWART, that a state criminal defendant is entitled to
a jury trial in any case which, if brought in a federal
court, would require a jury under the Sixth Amendment.
Today the Court holds, in No. 188, Baldwin v. New
York, that New York cannot constitutionally provide
that misdemeanors carrying sentences up to one year
shall be tried in New York City without a jury.' At
the same time the Court holds in No. 927, Williams v.
Florida, that Florida's six-member jury statute satisfies
the Sixth Amendment as carried to the States by the
Duncan holding.' The necessary consequence of this
decision is that 12-member juries are not constitutionally
required in federal criminal trials either.
The historical argument by which the. Court undertakes to justify its view that the Sixth Amendment does
not require 12-member juries is, in my opinion, much
1 Outside of New York City, such cases are triable before sixmember juries.
2 Florida provides for a jury of 12 in capital cases and a six-member
jury "to try all other criminal cases." Fla. Stat. § 913.10 (1)
(1967).
m
c
MAY
S1SCSTIC
III 1EE-Kz /
To: the Chief Justice
Mr. Justice Black
Mr. Jus%:ce Dougla
r. Justice Brenna
Mr. ,71-1tice Stewart
Mr. Justice White
arsnall
-
T7CFNUT.
V V , 1..
A
7
SUPREME COURT OF THE UNITED STATES
Nos.
188 AND 927.—OCTOBER TERM, 1969From: Earlan, J.
Circulated:
Robert Baldwin, Appellant,
On Appeal From the Court
v.
188
of Appeals of NewRiortir.culat ect
State of New York.
Johnny Williams, Petitioner, On Writ of Certiorari to
the District Court of Ap927
v.
peal of Florida, Third
State of Florida.
District.
[June —,
'.c
9 N 4 19
.
f
F-
1970]
Cr
MR. JUSTICE HARLAN, dissenting in No. 188, and concurring in No. 927.
In Duncan v. Louisiana, 391 U. S. 145 (1968), the
Court held, over my dissent and that of MR. JUSTICE
STEWART, that a state criminal defendant is entitled to
a jury trial in any case which, if brought in a federal
court, would require a jury under the Sixth Amendment.
Today the Court holds, in No. 188, Baldwin v. New
York, that New York cannot constitutionally provide
that misdemeanors carrying sentences up to one year
shall be tried in New York City without a jury. 1 At
the same time the Court holds in No. 927, Williams v.
Florida, that Florida's six-member jury statute satisfies
the Sixth Amendment as carried to the States by the
Duncan holding. 2 The necessary consequence of this
decision is that 12-member juries are not constitutionally
required in federal criminal trials either.
The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does
not require 12-member juries is, in my opinion, much
1 Outside of New York City, such cases are triable before sixmember juries.
2 Florida provides for a jury of 12 in capital cases and a six-member
jury "to try all other criminal cases." Fla. Stat. § 913.10 (1)
(1967).
is
7'j
0
e3
0
3
IL
To: The Chi
j'..7:Et
ice
311:Jk
-7-71as
Jun'
r. Eren-an
Mr. Jt:.sti ,:a Stewart
Mr. JUSta Vihite
Marshall
Mr.
Mr.
8
SUPREME COURT OF THE UNITED STATp, : : „
Nos. 188 AND 927.—OCTOBER TERM, 196 %ir culat cd :
Robert Baldwin, Appellant,
lath--1-9-7,
0On Appeal From tAcebue
188
v.
of Appeals of New York.
State of New York.
Johnny Williams, Petitioner,
927
v.
State of Florida.
r
On Writ of Certiorari to
the District Court of Appeal of Florida, Third
District.
[June
—,
MR. JUSTICE HARLAN, dissenting in No. 188, and concurring in No. 927.
In Duncan v. Louisiana, 391 U. S. 145 (1968), the
Court held, over my dissent and that of MR. JUSTICE
STEWART, that a state criminal defendant is entitled to
a jury trial in any case which, if brought in a federal
court, would require a jury under the Sixth Amendment.
Today the Court holds, in No. 188, Baldwin v. New
York, that New York cannot constitutionally provide
that
that misdemeanors carrying sentences up to one year
shall be tried in New York City without a jury.' At
the same time the Court holds in No. 927, Williams v.
Florida, that Florida's six-member jury statute satisfies
the Sixth Amendment as carried to the States by the
Duncan holding.: The necessary consequence of -this
decision is that 12-member juries are not constitutionally
required in federal criminal trials either.
The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does
not require 12-member juries is, in my opinion, much
Outside of New York City, such cases are triable before sixmember juries.
2 Florida provides for a jury of 12 in capital cases and a six-member
jury "to try all other criminal cases." Fla. Stat. § 913.10 (1)
(1967).
c
r
1970]
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I, I crx-i.
To: The Chief Justice
Mr. Justice Black
Justice Douglas
Jurtice Brennan
Mr,
Stewart
Mr.
White
/r:
9
SUPREME COURT OF THE UNITED STATE*
NOS. 188 AND 927.—OCTOBER TERM, 1969 From: Hari l n J.
Robert Baldwin, Appellant,U.rculated:
On Appeal From the uourt
v.
188
of Appeals of New Xnalc.
e d :J
State of New York.
Johnny Williams, Petitioner,
927
v.
State of Florida.
On Writ of Certiorari to
the District Court of Appeal of Florida, Third
District.
[June —, 1970]
MR. JusTicE HARLAN, dissenting in No. 188, and concurring in No. 927.
In Duncan v. Louisiana, 391 U. S. 145 (1968), the
Court held, over my dissent and that of MR. JUSTICE
STEWART, that a state criminal defendant is entitled to
a jury trial in any case which, if brought in a federal
court, would require a jury under the Sixth Amendment.
Today the Court holds, in No. 188, Baldwin v. New
York, that New York cannot constitutionally provide
that misdemeanors carrying sentences up to one year
shall be tried in New York City without a jury. 1 At
the same time the Court holds in No. 927, Williams v.
Florida, that Florida's six-member jury statute satisfies
the Sixth Amendment as carried to the States by the
Duncan holding.' The necessary consequence of this
decision is that 12-member juries are not constitutionally
required in federal criminal trials either.
The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does
not require 12-member juries is, in my opinion, much
1 Outside of New York City, such cases are triable before sixmember juries.
2 Florida provides for a jury of 12 in capital cases and a six-member
jury "to try all other criminal cases." Fla. Stat. § 913.10 (1)
(1967).
U N 18 1 q
Azprzutt qtrlirt re tittgniteb .tzt.tts
itelriltgtatt, P. (C.
zug4g
CHAMBERS OF
JUSTICE WM. J. BRENNAN, JR.
January 16, 1970
RE: No. 188 - Baldwin v. State of New York
Dear Byron:
I agree but would hold it for No. 927 Williams v. Florida.
To : The
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
1
SUPREME COURT OF THE UNITED STAT&From:
Nos. 188 AND 927.—OCTOBER TERM, 1969
Robert Baldwin, Appellant,
On Appeal From the Court
v.
188
of Appeals of New York.
State of New York.
Johnny Williams, Petitioner, On Writ of Certiorari tothe District Court of Ap927
v.
peal of Florida, Third
State of Florida.
District.
[June —,
1970]
MR. JUSTICE STEWART, dissenting in No. 188, and
concurring in No. 927.
I substantially agree with the separate opinion MR.
JUSTICE HARLAN has filed in these cases—an opinion that
fully demonstrates some of the basic errors in a mechanistic "incorporation" approach to the Fourteenth Amendment. I cannot subscribe to his opinion in its entirety,
however, if only for the reason that it relies in part upon
certain dissenting and concurring opinions in previous.
cases in which I did not join.
The "incorporation theory" postulates the Bill of
Rights as the substantive metes and bounds of the Fourteenth Amendment. I think this theory is incorrect as
a matter of constitutional history, and that as a matterof constitutional law it is both stultifying and unsound.
It is, at best, a theory that can lead the Court only to a
Fourteenth Amendment dead end. And, at worst, the
spell of the theory's logic compels the Court either to
impose intolerable restrictions upon the constitutional
sovereignty of the individual States in the administration of their own criminal law, or else intolerably to
relax the explicit restrictions that the Framers actually-
Juotc- 7.".1-k;
Justice D,!:-"la:1'
Justice Ha-rlal)
.712Ss_;77
-..;.1.14.11 rt
C
c
r.
To: The Chi
Mr. Just i
:-t
Mr. Justice Dougla.i
Mr. Just ice Harlan
Just ice Brennair:
te
s
Mr . T-4
2
Mr .
SUPREME COURT OF THE UNITED STATES
NOS.
188 AND 927.—OCTOBER TERM, 1969
e
from: Stara=t
y J,
C1 u1ated;
Robert Baldwin, Appellant,
ula+ ed
On Appeal From the dioeuert rc
v.
188
of Appeals of New York.
State of New York.
Johnny Williams, Petitioner, On Writ of Certiorari to.
the District Court of Apv.
927
peal of Florida, Third
State of Florida.
District.
[June —,
_
1970]
MR. JUSTICE STEWART, dissenting in No. 188, and
concurring in No. 927.
I substantially agree with the separate opinion MR.
JUSTICE HARLAN has filed in these cases—an opinion that
fully demonstrates some of the basic errors in a mechanistic "incorporation" approach to the Fourteenth Amendment. I cannot subscribe to his opinion in its entirety,
however, if only for the reason that it relies in part upon
certain dissenting and concurring opinions in previous
cases in which I did not join.
The "incorporation theory" postulates the Bill of
Rights as the substantive metes and bounds of the Fourteenth Amendment. I think this theory is incorrect as
a matter of constitutional history, and that as a matter
of constitutional law it is both stultifying and unsound.
It is, at best, a theory that can lead the Court only to a
Fourteenth Amendment dead end. And, at worst, the
spell of the theory's logic compels the Court either to
impose intolerable restrictions upon the constitutional
sovereignty of the individual States in the administration of their own criminal law, or else intolerably to
relax the explicit restrictions that the Framers actually
_114.4Y 21_19Z
.6
-3
To: The Chief J7,.
Kr. Justice Black
Mr. Justice Douglas
Mr. Justice Harlan
Mr. Justice Brennanie`*—
Mr. Justice White
Mr. Justice Fortas
Mr. Jutice Marshall---3
SUPREME COURT OF THE UNITED STATES` ste'rt" J.
Nos. 188 AND 927.—OCTOBER TERM, 1969
Circulated:
JUN 4
Recirculated:
Robert Baldwin, Appellant,
On Appeal From the Court
188
v.
of Appeals of New York..
State of New York.
Johnny Williams, Petitioner, On Writ of Certiorari to
the District Court of Ap927
v.
peal of Florida, Third
State of Florida.
District.
[June —, 1970]
MR. JUSTICE STEWART, dissenting in No. 188, and
concurring in No. 927.
I substantially agree with the separate opinion MR.
JUSTICE HARLAN has filed in these cases—an opinion that
fully demonstrates some of the basic errors in a mechanistic "incorporation" approach to the Fourteenth Amendment. I cannot subscribe to his opinion in its entirety,
however, if only for the reason that it relies in part upon
certain dissenting and concurring opinions in previous
cases in which I did not join.
The "incorporation" theory postulates the Bill of
Rights as the substantive metes and bounds of the Fourteenth Amendment. I think this theory is incorrect as
a matter of constitutional history, and that as a matter
of constitutional law it is both stultifying and unsound.
It is, at best, a theory that can lead the Court only to a
Fourteenth Amendment dead end. And, at worst, the
spell of the theory's logic compels the Court either to
impose intolerable restrictions upon the constitutional
sovereignty of the individual States in the administration of their own criminal law, or else intolerably to
relax the explicit restrictions that the Framers actually
•
+Kr
To: The Chief Justice
Mr. Justice Black
Mr. Justice Douglas
Mr. Justice Harlan
Mr. Justice Brennan
Mr. Justice White
Mr. Justice Marshall
Mr. Justica Blackmun
4
m.-
SUPREME COURT OF THE UNITED STATES
Nos. 188
AND 927.—OCTOBER TERM,
From: Stewart, J.
1969
Circulated:
Robert Baldwin, Appellant,
On Appeal FromittimiCouitat ed
v.
188
of Appeals of New York.
State of New York.
Johnny Williams, Petitioner, On Writ of Certiorari to
the District Court of Apv.
927
peal of Florida, Third
State of Florida.
District.
[June —,
1970]
M.R. JUSTICE STEWART, dissenting in No.
188,
and
concurring in No. 927.
I substantially agree with the separate opinion MR.
JUSTICE HARLAN has filed in these cases—an opinion that
fully demonstrates some of the basic errors in a mechanistic "incorporation" approach to the Fourteenth Amendment. I cannot subscribe to his opinion in its entirety,
however, if only for the reason that it relies in part upon
certain dissenting and concurring opinions in previous
cases in which I did not join.
The "incorporation" theory postulates the Bill of
Rights as the substantive metes and bounds of the Fourteenth Amendment. I think this theory is incorrect as
a matter of constitutional history, and that as a matter
of constitutional law it is both stultifying and unsound.
It is, at best, a theory that can lead the Court only to a
Fourteenth Amendment dead end. And, at worst, the
spell of the theory's logic compels the Court either to
impose intolerable restrictions upon the constitutional
sovereignty of the individual States in the administration of their own criminal law, or else intolerably to
relax the explicit restrictions that the Framers actually
3
ALIN 1
1W
REPRODUCED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS
The Chief Justice !Mr. Justice Black:
Mr. Justice Douglas
Mr,. Justice Harlan
Orr. Justice Brennan-Mr. Justice
Mr. J.Lnttce Foras
Mr. Justice Marshal l
To:
1 8
From: White, J.
1
SUPREME COURT OF THE UNITED STAMulatedz /
No. 188.—OCTOBER TERM, 1969
Robert Baldwin, Appellant,
V.
State of New York
Recirculated:
On Appeal From the Court
of Appeals of New York
[January —, 1970]
MR. JUSTICE WHITE
delivered the opinion of the Court_
Appellant was arrested and charged with "jostling"—
a Class A misdemeanor in New York, punishable by a
maximum term of imprisonment of one year.' He was
brought to trial in the New York. City Criminal Court.
"Jostling" is one of the ways in which legislatures have attempted
to deal with pickpocketing. See Denzer & McQuillan, PracticeCommentary, N. Y. Penal Law § 165.25 (McKinney 1967) ; Pickpocketing: A Survey of the Crime and its Control, 104 U. Pa.
L. Rev. 408, 419 (1955). The New York law provides:
"A person is guilty of jostling when, in a public place, he intentionally and unnecessarily:
1. Places his hand in the proximity of a person's pocket orhandbag; or
2. Jostles or crowds another person at a time when a third
person's hand is in the proximity of such person's pocket or handbag." N. Y. Penal Law § 165.25 (McKinney 1967).
Appellant was convicted on the testimony of the arresting officer.
The officer stated that he had observed appellant, working in
concert with another man, remove a loose package from an unidentified woman's pocketbook after the other man had made a "body
contact" with her on a crowded escalator. He arrested both men,
searched appellant, and found a single $10 bill. No other testimony or evidence was introduced on either side. The trial judge
thought the police officer "a very forthright and credible witness"
and found appellant guilty. He was subsequently sentenced to one
year in the penitentiary. See separate Appendix for Appellant at
1-17, 21.
-76
1
0
To: The Chief Justice
. Mr. Justice. Black
Mr. Justice Douglas'
Mr. Justice Harlan
41141-Justice Brennan
Mr. Justice Stewart— Mr. Justice Marshall; g
Mr. Justico
ckrc.AUn
• STYLISTIC CHANGES THROUGHOUT.
SEE PAGES: /, 6 J1
2
1,C
From:
White,
J. g
SUPREME COURT OF THE UNITED STAMc
uint:
No. 188.—OCTOBER TERM, 1969
Recirculated •
-/
Robert Baldwin, Appellant,
On Appeal From the Court.
v.
of Appeals of New York
State of New York
[June —, 1970]
MR. JUSTICE WHITE announced the judgment of theCourt and delivered an opinion in which MR. JUSTICE
BRENNAN and MR. JUSTICE MARSHALL join.
Appellant was arrested and charged with "jostling"-a Class A misdemeanor in New York, punishable by a
maximum term of imprisonment of one year.' He was
brought to trial in the New York City Criminal Court..
"Jostling" is one of the ways in which legislatures have attempted
to deal with pickpocketing. See Denzer ez McQuillan, Practice
Commentary, N. Y. Penal Law § 16525 (McKinney 1967) ; Pick-pocketing: A Survey of the Crime and its Control, 104 U. Pa.
L. Rev. 408, 419 (1955). The New York law provides:
"A person is guilty of jostling when, in a public place, he intentionally and unnecessarily:
1. Places his hand in the proximity of a person's pocket or.
handbag; or
2. Jostles or crowds another person at a time when a third
person's hand is in the proximity of such person's pocket or handbag." N. Y. Penal Law § 16525 (McKinney 1967).
Appellant was convicted on the testimony of the arresting officer._
The officer stated that he had observed appellant, working in
concert with another man, remove a loose package from an unidentified woman's pocketbook after the other man had made a "body
contact" with her on a crowded escalator. He arrested both men,
searched appellant, and found a single $10 bill. No other testimony or evidence was introduced on either side. The trial judge
thought the police officer "a very forthright and credible witness'
and found appellant guilty. He was subsequently sentenced to oneyear in the penitentiary. See App., 1-17, 21.
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(Court of tl/zPaitrtr
tlasitiagton,
CHAMBERS OF
p. cr.
2.1)ig
January 21, 1970
JUSTICE THURGOOD MARSHALL
Re: No. 188 - Baldwin v. State of New York
Dear Byron:
Please join me.
Sincerely,
T .M.
Mr. Justice White
cc: The Conference