Wolfe v. North Carolina/Opinion of the Court

The appellants were convicted of violating a North Carolina criminal trespass statute, and their convictions were upheld by the Supreme Court of North Carolina, 248 N.C. 485, 103 S.E.2d 846. This appeal, grounded on 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), attacks the constitutional validity of the statute as applied in this case. Because of doubt as to whether any substantial federal question was presented to or decided by the state courts, we postponed further consideration of the question of jurisdiction until the hearing of the case on the merits. 358 U.S. 925, 79 S.Ct. 312, 3 L.Ed.2d 299; 359 U.S. 951, 79 S.Ct. 737, 3 L.Ed.2d 759. For reasons to be stated, we have concluded that the appeal must be dismissed.

There is no dispute as to the basic circumstances which led to the prosecution and ultimate conviction of the appellants. In December, 1955, Gillespie Park Golf Club, Inc., operated an 18-hole golf course on land which it leased from the City of Greensboro, North Carolina, and the Board of Trustees of the Greensboro City Administrative Unit. The bylaws of the lessee limited the use of the golf course to its 'members' and persons in certain other specifically restricted categories. On December 7, 1955, the appellants, who are Negroes, entered the club's golf shop and requested permission to play on the course. Their request was refused. Nevertheless, after placing some money on a table in the golf shop, the appellants proceeded to the course and teed off. After they had played several holes the manager of the golf course ordered them to leave. They refused. The manager then summoned a deputy sheriff, and, after the appellants were again ordered to leave the course and they had again refused, they were arrested upon warrants sworn to by the manager.

The appellants were tried and convicted of violating the state criminal trespass statute. Pending their appeal to the Supreme Court of North Carolina they and others commenced an action against the City of Greensboro, the Greensboro Board of Education, and the Gillespie Park Golf Club, Inc., in the Federal District Court for the Middle District of North Carolina, asking for a declaratory judgment and an injunction forbidding the defendants from operating the golf course on a racially discriminatory basis. The federal court granted the injunction. Simkins v. City of Greensboro, D.C., 149 F.Supp. 562. Its judgment was affirmed by the Court of Appeals for the Fourth Circuit on June 28, 1957. City of Greensboro v. Simkins, 246 F.2d 425. On the same date the Supreme Court of North Carolina, acting on the appeal from the criminal convictions in the state court, held that there had been a fatal variance in amendments to the warrants under which the appellants had been tried, and arrested the judgments against them. State v. Cooke, 246 N.C. 518, 98 S.E.2d 885.

The appellants were again tried de novo in the Superior Court of Guilford County, North Carolina, for violating the state criminal trespass statute. At the outset they made a motion to quash, which was denied. The State presented evidence as to what had happened on the golf course on December 7, 1955. At the conclusion of the evidence the trial judge instructed the jury explicitly and at length that the defendants could not be convicted if they had been excluded from the golf course because of their race. Specifically, the trial judge charged the jury that ' * *  * the law would not permit the City and, therefore, would not permit its lessee, the Gillespie Park Golf Club, Inc., to discriminate against any citizen of Greensboro in the maintenance and operation and use of a golf course. It could not exclude either defendant because of his race or for any other reason applicable to them alone; that is to say, they were entitled to the same rights to use the golf course as any other citizen of Greensboro would be provided they complied with the reasonable rules and regulations for the operation and maintenance and use of the golf course. They would not be required to comply with any unreasonable rules and regulations for the operation and maintenance and use of the golf course.' The jury returned a verdict of guilty. A motion to set aside the verdict was denied.

The Supreme Court of North Carolina affirmed the convictions. In doing so the court recognized that '(s)ince the operator of the golf club was charged with making a public or semipublic use of the property, it could not deny the use of the property to citizens simply because they were Negroes. * *  * Since the decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, separation of the races in the use of public property cannot be required.' 248 N.C., at page 491, 103 S.E.2d 850-851. The court quoted with approval the trial judge's instructions to the jury on this aspect of the case. It is from this judgment of the Supreme Court of North Carolina that the present appeal was taken.

The appellants contend that the Supremacy Clause, U.S.Const. art. 6 and the Fourteenth Amendment required the North Carolina Court to hold that the findings of fact and judgment of the federal court in the civil case of Simkins v. City of Greensboro, D.C., 149 F.Supp. 562, conclusively established, contrary to the verdict of the jury in this case, that the state statute was used here to enforce a practice of racial discrimination by a state agency. The Supreme Court of North Carolina took cognizance of the federal court's published opinion in the Simkins case and commented with respect to it:

'Examining the opinion, it appears that ten people, six of     whom are defendants in this action, sought injunctive relief on the assertion that Negroes were      discriminated against and were not permitted to play on what      is probably the property involved in this case. We do not     know what evidence plaintiffs produced in that action. It is,     however, apparent from the opinion that much evidence was      presented to Judge Hayes (in the Federal District Court)      which was not before the Superior Court when defendants were      tried. It would appear from the opinion that the entry     involved in this case was one incident on which plaintiffs      there relied to support their assertion of unlawful      discrimination, but it is manifest from the opinion that that      was not all of the evidence which Judge Hayes had. We are     left in the dark as to other incidents happening prior or      subsequent to the conduct here complained of, which might      tend to support the assertion of unlawful discrimination. On     the facts presented to him, Judge Hayes issued an order      enjoining racial discrimination in the use of the golf      course. Presumably that order has and is being complied with. No assertion is here made to the contrary.' 248 N.C., at page     493, 103 S.E.2d at page 852.

The North Carolina court did not decide, however, whether it was bound under the Constitution to give to the federal court's unpublished findings and judgment in the prior civil action the conclusive effect urged by the appellants in the present criminal case, because it held that as a matter of state law the findings and judgment were not before it.

It is settled that a state court may not avoid deciding federal questions and thus defeat the jurisdiction of this Court by putting forward nonfederal grounds of decision which are without any fair or substantial support. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 455, 78 S.Ct. 1163, 1168, 2 L.Ed.2d 1488; Staub v. City of Baxley, 355 U.S. 313, 318 320, 78 S.Ct. 277, 280, 281, 2 L.Ed.2d 302; Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751. Invoking this principle, the appellants urge that the independent state grounds relied upon for decision by the Supreme Court of North Carolina were untenable and inadequate, and that the question whether the Federal Constitution compelled that the findings and judgment in the federal case operated as a collateral estoppel in this case was properly before the state court for decision. It thus becomes this Court's duty to ascertain whether the procedural grounds relied upon by the state court independently and adequately support its judgment.

The Supreme Court of North Carolina stated in its opinion of affirmance that the 'defendants for reasons best known to themselves elected not to offer in evidence the record in the Federal court case.' 248 N.C., at page 493, 103 S.E.2d, at page 852. This statement is borne out by the record before that court, the so-called 'case on appeal' prepared by the appellants themselves. The appellants now advise us that in fact the federal court's findings and judgment were offered in evidence at the trial and excluded by the trial judge. They ascribe to 'some quirk of inadvertence' their failure to include in their 'case on appeal' the part of the transcript which would so indicate. And they assert that, since the Supreme Court of North Carolina has 'wide discretion' to go outside the record in order to get at the true facts, the Court's refusal to do so here amounted to a refusal to exercise its discretion 'to entertain a constitutional claim while passing upon kindred issues raised in the same manner.' Williams v. State of Georgia, 349 U.S. 375, 383, 75 S.Ct. 814, 818, 99 L.Ed. 1161.

The difficulty with this argument, beyond the fact that the appellants apparently did not ask the North Carolina court to go outside the record for this purpose, is that that court has consistently and repeatedly held in criminal cases that it will not make independent inquiry to determine the accuracy of the record before it. Illustrative decisions are: State v. Robinson, 229 N.C. 647, 50 S.E.2d 740; State v. Wolfe, 227 N.C. 461, 42 S.E.2d 515; State v. Gause, 227 N.C. 26, 40 S.E.2d 463; State v. Stiwinter, 211 N.C. 278, 189 S.E. 868; State v. Dee, 214 N.C. 509, 199 S.E. 730; State v. Weaver, 228 N.C. 39, 44 S.E.2d 360; State v. Davis, 231 N.C. 664, 58 S.E.2d 355; State v. Franklin, 248 N.C. 695, 104 S.E.2d 837.

Thus in the Robinson case the court reversed a criminal conviction for insufficiency of the evidence, although noting that:

'The court below, in its charge * *  * (referred) to *  *  *      incriminating facts and circumstances which do not appear in      the testimony included in the record before us. This would     seem to indicate that the record fails to include all the      evidence offered by the State.

'Be that as it may, the record on appeal imports verity, and     this Court is bound thereby. (Citing cases.) This is true     even though the case is settled by counsel (citing cases);      and not by the judge (citing cases) *  *  *.

'The Supreme Court is bound by the case on appeal, certified     by the clerk of the Superior Court, even though the trial      judge has had no opportunity to review it, and must decide      questions presented upon the record as it comes here, without      indulging in assumptions as to what might have occurred.' 229      N.C., at pages 649-650, 50 S.E.2d, at pages 741-742.

In State v. Wolfe the court reversed a criminal conviction on the ground of error in the trial court's instructions to the jury, although pointing out that:

'The quoted excerpts from the charge do not reflect the     clarity of thought and conciseness of statement usually found in the utterances of the eminent and      experienced jurist who presided at the trial below. * *  *      Even so, it (the record) is certified as the case on appeal. We are bound thereby and must decide the question presented     upon the record as it comes here, without indulging in      assumptions as to what might have occurred.' 227 N.C., at      page 463, 42 S.E.2d at pages 516-517.

In the Gause case the court also reversed a conviction upon the ground of error in the charge, although noting that:

'Doubtless the use of the words 'greater weight of evidence'     instead of 'beyond reasonable doubt' was a slip of the tongue      or an error in transcribing. Nevertheless, it appears in the     record, and we must accept it as it comes to us.' 227 N.C.,      at page 30, 40 S.E.2d, at page 466.

In the Stiwinter case, involving a similar issue, the court said:

'We are constrained to believe that this instruction has been     erroneously reported, but it is here in a record duly      certified *  *  * which imports verity, and we are bound by      it.' 211 N.C., at page 279, 189 S.E., at page 869.

The Dee case involved similar issues. There the court noted:

'It is suggested by the Attorney-General that, in all     probability, a typographical error has crept into the      transcript and that the word 'disinterested' was used where      the word 'interested' appears. In this he is supported by a     letter from the judge who presided at the trial, and upon      this letter a motion for certiorari to correct the record has      been lodged on behalf of the State *  *  *. (T)he transcript is     not now subject to change or correction. State v. Moore, 210 N.C.     686, 188 S.E. 421. It imports verity, and we are bound by it. * *  * 'Under C.S. § 643, if the case on appeal as served by      the appellant be approved by the respondent or appellee, it      becomes the case and a part of the record on appeal, and, in      connection with the record (proper), may alone be considered      in determining the rights of the parties interested in the      appeal. * *  * The appeal must be heard and determined on the      agreed case appearing in the record." 214 N.C., at page 512,      199 S.E., at page 732.

It is thus apparent that the present case is not of a pattern with Williams v. State of Georgia, supra. Even if the North Carolina Supreme Court has power to make independent inquiry as to evidence proffered in the trial court but not included in the case on appeal, its decisions make clear that it has without exception refused to do so. This is not a case, therefore, where the state court failed to exercise discretionary power on behalf of appeallants' 'federal rights' which it had on other occasions exercised in favor of 'kindred issues.'

The appellants contend additionally that they brought the federal court's findings and judgment in the Simkins case before the state courts in two other ways: (a) by their motion to quash at the outset of the trial, and (b) by their motion to set aside the verdict at the trial's conclusion. The motion to quash set out the existence and alleged effect of the federal court proceedings, and requested leave to offer in evidence in support of the motion 'the full record and judgment roll in said case.' The motion to set aside the verdict incorporated by reference the motion to quash and also contained an independent summary of the federal court proceedings, requesting the court to take judicial notice of the same. Both motions were denied by the trial court without opinion.

As to the motion to quash, the Supreme Court of North Carolina sustained the trial court's ruling on the ground that the "court, in ruling on the motion, is not permitted to consider extraneous evidence. Therefore, when the defect must be established by evidence aliunde the record, the motion must be denied." 248 N.C. at page 489, 103 S.E.2d at page 849. In upholding the denial of the second motion, the Supreme Court of North Carolina declined to take judicial notice of the federal court's findings and judgment, for reasons discussed at some length in its opinion, and concluded that the appellants 'were not, as a matter of right, entitled to have the verdict set aside.' 248 N.C. at page 495, 103 S.E.2d at page 854. An independent examination of North Carolina law convinces us that the state court in both instances was following well-established local procedural rules; it did not make an ad hoc determination operating discriminatorily against these particular litigants.

At least since the decision in State v. Turner, 170 N.C. 701, 86 S.E. 1019, in 1915, it has been the settled rule in North Carolina that '(a) motion to quash * *  * lies only for a defect on the face of the warrant or indictment.' 170 N.C., at page 702, 86 S.E., at page 1020. The rule that a motion to quash cannot rest on matters dehors the record proper has, so far as investigation reveals, been rigidly adhered to in all subsequent North Carolina decisions. See State v. Brewer, 180 N.C. 716, 717, 104 S.E. 655, 656; State v. Cochran, 230 N.C. 523, 524, 53 S.E.2d 663, 665; State v. Andrews, 246 N.C. 561, 565, 99 S.E.2d 745, 748. In the present case the state court simply followed this settled rule of local practice.

A similar conclusion must be reached as to the denial of the motion made at the end of the trial. That motion requested '(t)hat the verdict rendered by the jury * *  * be set aside, that the Court withhold and arrest judgment and discharge the defenadants notwithstanding the verdict, or grant the defendants a new trial *  *  * .' Whether the motion be technically considered as one to set aside the verdict and grant a new trial or as one to arrest the judgment and dismiss the defendants, the action of the North Carolina Supreme Court in upholding its denial was clearly in conformity with established state law. 'A motion to set aside the verdict and grant a new trial is addressed to the discretion of the court and its refusal to grant such motion is not reviewable on appeal.' State v. McKinnon, 223 N.C. 160, 166, 25 S.E.2d 606, 610; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250; State v. Johnson, 220 N.C. 252, 17 S.E.2d 7. See also State v. Wagstaff, 219 N.C. 15, 19, 12 S.E.2d 657, 660; State v. Brown, 218 N.C. 415, 422, 11 S.E.2d 321, 325; State v. Caper, 215 N.C. 670, 2 S.E.2d 864. 'A motion in arrest of judgment can be based only on matters which appear on the face of the record proper, or on matters which schould, but do not, appear on the face of the record proper. * *  * The record proper in any action includes only those essential proceedings which are made of record by the law itself, and as such are self-preserving. * *  * The evidence in a case is no part of the record proper. * *  * In consequence, defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment.' State v. Gaston, 236 N.C. 499, 501, 73 S.E.2d 311, 313; State v. Foster, 228 N.C. 72, 44 S.E.2d 447; State v. Brown, 218 N.C. 415, 422, 11 S.E.2d 321, 325; State v. McKnight, 196 N.C. 259, 145 S.E. 281; State v. Shemwell, 180 N.C. 718, 721, 104 S.E. 885.

Examination of the whole course of North Carolina decisions thus precludes the inference that the Supreme Court of North Carolina in this case arbitrarily denied the appellants an opportunity to present their federal claim. The judgment before us for review is the judgment which the Supreme Court of North Carolina made on the record before it, not the action of the state trial court. 'Without any doubt it rests with each State to prescribe the jurisdiction of its appellate courts, the mode and time of invoking that jurisdiction, and the rules of practice to be applied in its exercise; and the state law and practice in this regard are no less applicable when Federal rights are in controversy than when the case turns entirely upon questions of local or general law. Callan v. Bransford, 139 U.S. 197, 11 S.Ct. 519, 35 L.Ed. 144; Brown v. Commonwealth of Massachusetts, 144 U.S. 573, 12 S.Ct. 757, 36 L.Ed. 546; Jacobi v. State of Alabama, 187 U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106; Hulbert v. City of Chicago, 202 U.S. 275, 281, 26 S.Ct. 617, 618, 50 L.Ed. 1026; Newman v. Gates, 204 U.S. 89, 27 S.Ct. 220, 51 L.Ed. 385; Chesapeake & Ohio Railway Co. v. McDonald, 214 U.S. 191, 195, 29 S.Ct. 546, 548, 53 L.Ed. 963.' John v. Paullin, 231 U.S. 583, 585, 34 S.Ct. 178, 58 L.Ed. 381. '(W)hen as here there can be no pretence that the (state) Court adopted its view in order to evade a constitutional issue, and the case has been decided upon grounds that have no relation to any federal question, this Court accepts the decision whether right or wrong.' Nickel v. Cole, 256 U.S. 222, 225, 41 S.Ct. 467, 468, 65 L.Ed. 900.

A word of emphasis is appropriate, before concluding, to make entirely explicit what it is that is involved in this case, and what is not. There is no issue here as to the constitutional right of Negroes to use a public golf course free of racial discrimination. From first to last the courts of North Carolina fully recognized that under the Constitution these appellants could not be convicted if they were excluded from the golf course because of their race. The trial judge so instructed the jury, and the Supreme Court of North Carolina so held. Cf. Constantian v. Anson County, 244 N.C. 221, 93 S.E.2d 163. Upon the evidence in this case the jury's verdict established that no such racial discrimination had in fact occurred. 'On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple.' Watts v. State of Indiana, 338 U.S. 49, 50, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801.

What is involved here is the assertion of a quite different constitutional claim-that the Supremacy Clause and the Fourteenth Amendment require a state criminal court to give conclusive effect to fact findings made in a civil action upon different evidence by a Federal District Court. While intimating no view as to the merits of this constitutional claim, we note only that it is a completely novel one. Cf. Hoag v. State of New Jersey, 356 U.S. 464, 470-471, 78 S.Ct. 829, 833-834, 2 L.Ed.2d 913. The North Carolina Supreme Court did not decide this asserted federal question. We have found that it did not do so because of the requirements of rules of state procedural law within the Constitutional power of the States to define, and here clearly delineated and even-handedly applied. We have no choice but to determine that this appeal must be dismissed because no federal question is before us. That determination is required by principles of judicial administration long settled in this Court, principles applicable alike to all litigants, irrespective of their race, color, politics, or religion.

Dismissed.

Mr. Chief Justice WARREN, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join, dissenting.

I do not agree that the decision below rests on adequate nonfederal grounds. And-whether it does or not-it seems to me that the case should not be dismissed in view of developments since the argument.

The crucial holding below is that the North Carolina courts could not consider the Simkins record because appellants 'for reasons best known to themselves elected not to offer (it) in evidence.' 248 N.C. 485, 493, 103 S.E.2d 846, 852. It goes without saying that the procedural rule thus invoked-that appellants must rely on evidence which was offered at the trial-is, in itself, reasonable. In fact, that rule is elementary in most types of practice. The difficulty here lies not in the rule, but in its application to this case, on this record, and in the light of the fact, acknowledged by the State, that appellants offered the Simkins record in evidence.

The relevant facts are few. When the federal court granted its injunction in Simkins, it found that appellants had been excluded from Gillespie Park on the occasion in question because they are Negroes. Simkins v. City of Greensboro, D.C., 149 F.Supp. 562, 565. As was held below, such exclusion, if established as a fact in this case, would be a complete defense to the State's trespass charge. 248 N.C., at pages 491-493, 103 S.E.2d, at pages 851-852. Therefore, appellants offered the Simkins record in evidence during their trial. They claimed, under the Supremacy Clause and the Fourteenth Amendment, that the federal court determination barred the state prosecution. However, the State objected to appellants' offer of proof, and the trial court sustained the objection. Thereafter, the jury convicted.

On appeal to the Supreme Court of North Carolina, appellants sought review of their contention that the federal court findings were binding on the State in the subsequent criminal proceedings. At this point they made the mistake which deprived them of the opportunity to have that federal question reviewed. They failed to include their offer of proof and the rejected exhibits in their case on appeal, although they did include the ruling on the State's objection. With the resulting defective record before it, the State Supreme Court held that it could not review appellants' federal question because, as has been indicated, appellants 'for reasons best known to themselves elected not to offer (the Simkins record) in evidence.'

The Court holds that the state ground is adequate to support the decision below because, although we know the fact to be to the contrary, the assertion that appellants failed to offer the Simkins record in evidence 'is borne out by the record' which the state court had before it. I cannot read that record-appellants' case on appeal-as does the Court. Therefore, I do not agree that the state ground is adequate. But even if it were, it does not follow that the case must-or should-be dismissed. Rather, the State's stipulation-a supervening event which may be of critical significance under North Carolina law-requires a different disposition, in the interests of justice, under controlling precedent.

First. It cannot be said, even on the defective record which the State Supreme Court had before it, that appellants 'for reasons best known to themselves elected not to offer (the Simkins record) in evidence.' On the contrary, appellants' case on appeal indicates clearly that appellants offered the Simkins record in evidence. When the portions of that record set out in the Court's opinion are read as a whole with the entire case on appeal, it seems reasonably clear that the Simkins record was offered in evidence, that the State objected to the offer, and that the objection was sustained. Therefore, whether the result below could have been based on other grounds or not, the factual premise for the ground on which it was based lacks fair and substantial support in the record. That ground, therefore, is not adequate. Cf. Creswill v. Grand Lodge, 225 U.S. 246, 32 S.Ct. 822, 56 L.Ed. 1074; Union Pacific R. Co. v. Public Service Comm., 248 U.S. 67, 39 S.Ct. 24, 63 L.Ed. 131; Cedar Rapids Gas Light Co. v. City of Cedar Rapids, 223 U.S. 655, 32 S.Ct. 389, 56 L.Ed. 594; see United Gas Public Service Co. v. State of Texas, 303 U.S. 123, 143, 625, 58 S.Ct. 483, 493, 82 L.Ed. 702. 'Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143. Since the only state ground mentioned in the opinion below is inadequate, this Court should either proceed directly to a consideration of the federal question or-if deemed desirable should remand the case to the state court for further consideration.

Second. Even if the state ground were adequate, the case should not be dismissed. After the argument in this Court, the State furnished the Court with a copy of the actual stenographic transcript of the trial. The State stipulated to the accuracy of that transcript. The transcript shows, beyond peradventure, that the decision below was based 'upon a supposed state of facts which does not exist.' Gorham v. Pacific Mut. Life Ins. Co., 215 N.C. 195, 200, 1 S.E.2d 569, 572. The North Carolina court apparently recognizes infirmity in its decisions in such cases. State v. Marsh, 134 N.C. 184, 47 S.E. 6, 67 L.R.A. 179. Therefore, the State's stipulation, an event 'which has supervened since the judgment (below) was entered,' may very well 'affect the result.' Patterson v. State of Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082. Accordingly, under firmly established principles, either the case should be remanded for a decision by the state court on the legal effect of the State's stipulation, or we should decide this question of state law ourselves. To take such action 'is not to review, in any proper sense of the term, the decision of the state court upon a non-federal question, but only to deal appropriately with a matter arising since its judgment and having a bearing upon the right disposition of the case.' Patterson v. State of Alabama, supra, 294 U.S. at page 607, 55 S.Ct. at page 578. State Tax Commission of Utah v. Van Cott, 306 U.S. 511, 515-516, 59 S.Ct. 605, 607, 83 L.Ed. 950.

Third. It should not be assumed that other state grounds, not relied on below, would preclude reconsideration by the state court if the case were remanded. As has been indicated, the State's stipulation may create infirmity in the state court's decision, under North Carolina law. See State v. Marsh, supra. A remaining obstacle to appellate review of appellants' federal question, under North Carolina practice, may be the omission of the rejected exhibits from appellants' case on appeal. See In re Smith's Will, 163 N.C. 464, 465, 79 S.E. 977. But records can be corrected. The Court refers us to cases which show that the North Carolina court may permit corrections in the record proper and in the case on appeal. It may authorize corrections not only when fault is attributable to the lower court, but also when it is chargeable to the parties. It may do so pursuant to agreement between the parties and pursuant to motion of one of the parties. Indeed, it appears that it may be able to do so in its own motion. Its power to inquire into the accuracy of the record before it is established- to some extent at least-by recent decisions, and its power to order the lower courts to send up 'additional papers and parts of the record' is explicitly recognized by its rules. Therefore, the state court could permit a correction of the record-and consequently could decide the federal question-if the case were remanded.

It is true that there is language in North Carolina cases, to which the State has called our attention, that indicates that a record settled by agreement-rather than by the trial court-may only be corrected by agreement. See Smith v. Capital Coca-Cola Bottling Co., 221 N.C. 202, 19 S.E.2d 626; Gorham v. Pacific Mut. Life Ins. Co., supra. And language from State v. Dee, 214 N.C. 509, 512, 199 S.E. 730, 732, quoted by the Court in another connection, suggests that the state court is disinclined to permit the correction of a defective record when the case on appeal is settled by the parties. But these cases are not in point in the circumstances of the case before us.

The rule stated in Smith and Gorham-that a record settled by agreement can only be corrected by agreement-is subject to a very relevant qualification. For in Gorham, the North Carolina court observed, in denying a losing party's request for a certiorari to correct the record, that:

'(T)here is no concession on the part of the (prevailing     party) that the case has been decided 'upon a sham issue,' or      'upon a supposed state of facts which does not exist,' nor      yet upon a misconception of the record. Cook v. Mfg. Co.,     (183 N.C. 48, 110 S.E. 608); State v. Marsh, (supra). These are allegations of     the (losing party), and (the prevailing party) says they rest      only in allegation. She further says that the interpretation     placed upon the record 'was and is absolutely correct'; *  *  *      and that the transcript admits of no other interpretation.'      215 N.C., at page 200, 1 S.E.2d, at page 572.

Here, on the other hand, the State has stipulated to facts which do establish that the case was decided below 'upon a supposed state of facts which does not exist.' That is precisely what the prevailing party in Gorham did not concede. This case, therefore, is governed by Cook and Marsh, not by Gorham.

Likewise, in Dee, the North Carolina court denied the State's request for a certiorari to correct an alleged error in the case on appeal. But in Dee, as in Gorham, the prevailing party did not concede that there was any error in the record. In fact, the court itself expressed skepticism about the State's claim:

'It is suggested by the Attorney-General that, in all     probability, a typographical error has crept into the      transcript and that the word 'disinterested' was used where      the word 'interested' appears. In this he is supported by a     letter from the judge who presided at the trial, and upon      this letter a motion for certiorari to correct the record has      been lodged on behalf of the State. The solicitor apparently     took a different view of the matter when he agreed to the      statement of case on appeal with an exception pointed      directly to the expression.' 214 N.C., at page 512, 199 S.E.      at page 732.

On these facts, quite different from those before us, it is perhaps understandable that the state court refused to entertain the State's appeal to its discretion.

Therefore, it appears that if the case were remanded, appellants would very likely be permitted to correct their case on appeal, in view of the State's stipulation. And, as has been indicated, a correction could now be allowed even if the State objected to it. But I am sure that the State would not object, for North Carolina has no interest in depriving its citizens of their liberty on assumptions that do not accord with fact. It seems clear, therefore, that under North Carolina law, appellants may yet have their federal question reviewed-unless we dismiss.

In view of the federal court finding that the appellants were excluded from Gillespie Park because of their race, these convictions give rise to serious constitutional doubts. Unless dismissal cannot be avoided, the appellants should not be deprived of their liberty without being heard on their federal question. Our own precedents require that we either remand the case or decide the questions which it presents.