Alabama v. United States Brief for Appellants

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*





TRANSCRIPT OF RECORD

Supreme Court o f the United States

OCTOBER TERM, 1937

No. 680

JOE HALE, PETITIONER,

vs.

COMMONWEALTH OF KENTUCKY

ON WHIT OF CERTIORARI TO THE COURT OF APPEALS OF THE COM­
MONWEALTH OF KENTUCKY

PETITION FOR CERTIORARI FILED JANUARY 8, 1938. 

CERTIORARI GRANTED JANUARY 31, 1938.





SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1937

No. 680

JOE HALE, PETITIONER,

vs.

COMMONWEALTH OF KENTUCKY

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE COM­
M ONWEALTH OF KENTUCKY

INDEX.

Proceedings in Court of Appeals of Kentucky............................
Caption .....................................................(omitted in printing)..
Record from Circuit Court of McCracken County.....................

Indictment ....................................................................................
Order setting case for trial.......................................................
Order to deliver defendant for trial......................................
Order overruling motion to set aside indictment...............
Order overruling demurrer to indictment............................
Order granting defendant, Joe Hale, a separate trial___
Plea of not guilty ........................................................................
Empanelling of jury....................................................................
Order overruling motion to discharge panel.......................
Minute entries of trial................................................................
Affidavit supporting motion to set aside indictment.........
Supplemental affidavit and stipulation..................................
Motion to discharge panel.........................................................
Order allowing witness fees.....................................................
Order on instructions..................................................................
Verdict ...........................................................................................
Instruction “A”, refund..............................................................
Instructions to jury ....................................................................

Original Print
1 1
1
2 1
2 1
5 3
5 3
6 3
6 4
0 4
7 4
7 4
8 5
8 5
9 6

21 14
22 15
23 16
23 16
24 17
25 17
25 17

Judd & Detweiler (I nc.) , Printers, Washington, D. C„ February 4, 193&

—3814



11 INDEX

Record from Circuit Court of McCracken County— Continued.
Motion for new trial...................................................................
Judgment .......................................... ............................................
Order overruling motion for new trial and granting ap­

peal ............................................................................................
Motion to proceed in forma pauperis and order thereon.
Order approving bill of exceptions........................................
Clerk’s certificate........................... (omitted in printing)..
Bill of exception No. 1 ...............................................................

Testimony of Dr. Leon Higdon........................................
Ed Kirk .......................................................
J. E. Linn.....................................................
Terrell Toon ..............................................
Buddy Mercer ..........................................
Leo Poat .....................................................
Eugenia Hamilton....................................
Lindsey Mae Hamilton...........................
Mrs. Mamma J. Eggester.......................
Prince William Thorpe.........................
Edward Lee Boyd....................................
Terrell Toon (recalled).........................
James Powell ..........................................
Novella Nailing ........................................
Bertie Mae Bradfort................................

Reporter’s certificate...........(omitted in printing)..
Judgment ...............................................................................................
Opinion, Morris, C................................................................................
Order extending time to file rehearing..........................................
Petition for rehearing........................................................................
Order denying rehearing....................................................................
Petition for appeal and order staying execution (omitted

in printing) .......................................................................................
Assignment of errors..............................(omitted in printing)..
Affidavit and motion to proceed in forma pauperis (omitted

in printing) .......................................................................................
Order allowing appeal........................... (omitted in printing). .
Citation and service................................(omitted in printing)..
Pneeipe for record..................................(omitted in printing). .
Clerk’s certificate ..................................(omitted in printing)..
Order dismissing appeal and staying mandate to permit ap­

plication for a writ of certiorari (omitted in printing)-----
Stipulation and addition to record.................................................

Motion to set aside indictment.................................................
Affidavit of clerk..........................................................................

Order allowing certiorari ..................................................................

Original Print

28 20
30 21

30 22
30 22
32 23
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33 23
33 23
36 26
38 27
41 30
45 33
47 34
50 36
59 43
66 48
68 50
75 56
76 57
77 58
79 60
81 62
82
83 63
84 63
99 71

100 72
104 74

105
107

110
117
120
121
122

123
127 74
128 75
130 76
131 77



1

sTb

[fol. 1] [Caption omitted]
[fol. 2]

IN CIRCUIT COURT OF McCRACKEN COUNTY

Commonwealth oe K entucky, Plaintiff,
vs.

Joe Hale, Prince W illiam T horpe, and James Gilbert 
Martin, Alias Junkiiead, Defendants

Pleas Begun, Had and Ended under the Hon. Joe L. Price, 
Judge McCracken Circuit Court, and the Hon. Joe L. 
Price at All Times Presiding
Be it remembered that on the 4th day of the September 

Term, and on the 1st day of October, 1936, the following or­
der was entered herein, v iz :

This day the Grand Jury, in the presence of the entire 
body, by and through its foreman, in open court, returned 14 
indictments, which were received by the Clerk from the 
Judge, each was endorsed A True Bill, and signed E. H. 
Seaton, Foreman; bail was endorsed thereon, and each was 
ordered filed, bench warrants awarded and ordered to issue 
on each indictment as follows:

One against Joe Hall, Prince William Thorpe, and James 
Gilbert Martin, alias Junkhead, charged with the offense of 
“ Wilful Murder” , no bail endorsed. No. 3432.

The indictment, filed pursuant to the above court order, 
is in words and figures as follows, to w it:

[fol. 3] Indictment

T he Commonwealth op K entucky 
against

Joe H ale, Prince W illiam T horpe, and James Gilbert 
Martin, alias Junkhead

M cCracken :
The Grand Jurors of the County of McCracken in the 

name and by the authority of the Commonwealth of Ken­
tucky accuse Joe Hale, Prince William Thorpe, and James 
Gilbert Martin, alias Junkhead, of the offense of wilful mur­
der, committed in manner and form as follows, to-wit: The

1—680



2

said Joe Hale, Prince William Thorpe, and James Gilbert 
Martin, alias Junkhead, in the said county of McCracken on 
the'1st, day of "October, 1936 and with — years before 'find­
ing tins indictment, dicTwillfuliy and unlawfully and ma- 
IiciousIV~and feloniouslv~ancl of tneir malice aforethought, 
hill, slay and murder W. Jtc. Toon by cutting, thrusting, stab­
bing, and wounding said W. R. Toon in and upon the head, 
body, arms, limbs and person with a knife, a sharp-edged 
and pointed instrument, a deadly weapon, from which cut­
ting, thrusting, stabbing and wounding, said W. R. Toon 
did shortly thereafter, and within a year and day and in the 
Commonwealth of Kentucky die, contrary to the form of the 
Statute in such cases made and provided, and against the 
peace and dignity of the Commonwealth of Kentucky.

Second Count
The Grand Jurors of the County of McCracken, in the 

name and by the authority of the Commonwealth of Ken­
tucky accuse Joe Hale, Prince William Thorpe, and James 
Gilbert Martin, alias Junkhead, of the offense of wilful mur­
der, committed in manner and form as follows, to-wit: The 
[fol. 4] said Joe Hale, in the said county of McCracken, and 
on the 1st day of October, 1936, and before the finding of this 
indictment, did willfully and unlawfully and maliciously and 
feloniously, and of his malice aforethought, kill, slay, and 
murder W. R. Toon by cutting, thrusting, stabbing, and 
wounding said W. R. Toon in and upon the head, body, 
arms, limbs and person of said W. R. Toon with a knife, a 
sharp-edged and pointed instrument, a deadly weapon, from 
which cutting, thrusting, stabbing and wounding said W. R. 
Toon did shortly thereafter, and within a year and a day, 
and in the Commonwealth of Kentucky, d id : ------
and the said Prince William Thorpe and James Gilbert Mar­
tin, alias Junkhead, were present at the time and near 
enough so to do, and did wilfully and feloniously and unlaw­
fully, and maliciously, and of their malice aforethought, aid, 
assist abet, counsel, encourage, and command, thn-said Joe 
“Gale tcTso cut, thrust, stab, and wound and kill and murder 
fhe smxTwTK Toon at the time he, the said Joe Hale, did so 
so ; contrary to the form of the Statute in such cases made 
and provided, and against the peace and dignity of Com­
monwealth of Kentucky.

HOLLAND G. BRYAN,
Corn. Atty., Second Judicial Dist.



3

[fol. 5] I n Circuit Court of McCracken County

[Title omitted]

Order Setting Case for Trial— October 2, 1936

On Motion of Commonwealth Attorney, it is ordered that 
this prosecution be placed upon the docket; and by agree­
ment of parties, said prosecution is set for trial on October 
12, 1936.

I n Circuit Court of McCracken County 

[Title omitted]

Order to Deliver Defendant for Trial— October 10, 1936

The above styled prosecution having heretofore on Octo­
ber 2, 1936, been set for trial on October 12th, 1936, as to 
the defendant, Joe Hale, he being now for safe keeping in 
the State Penitentiary at Eddyville, Kentucky, it is now 
ordered that the Warden of said Penitentiary deliver said 
defendant, Joe Hale, into the custody of Cliff Shemwell, 
Sheriff of McCracken County, or his deputy or deputies, for 
the purpose of transporting said defendant, Joe Hale, to 
the above mentioned Court for trial on said date of October 
12, 1936.

[fol. 6] I n Circuit Court of McCracken County

[Title omitted]

Order Overruling Motion to Set A side I ndictment__Octo­
ber 12, 1936

Came defendant, Joe Hale, by attorney, and filed motion 
and moved the Court to set aside the indictment in the above 
staled prosecution, and in support of said motion to set 
aside, filed his own affidavit and his supplemental affidavit, 
and paities hereto also filed stipulation, which stipulation 
is set out at the foot of said supplemental affidavit and said 
motion to set aside being submitted to the Court, and the 
court being sufficiently advised, overrules said motion to set 
aside, to which ruling of the Court the defendant excepts.



4

Order Overruling D emurrer jtjiJusumctment—October 12,
1936

Came defendant, Joe Hale, by attorney, and entered de­
murrer to the indictment herein, which demurrer being sub­
mitted to the Court, and the Court being sufficiently advised 
overruled said demurrer, to which ruling of the Court the 
defendant excepts.

Order Granting Separate Trial— October 12, 1936
Came defendant by attorney, and entered motion and 

moved the Court for a separate trial, and said motion being 
submitted to the Court, and the Court being advised, sus­
tained said motion, it is therefore ordered that the defend­
ant, Joe Hale, have a separate trial. Whereupon the Com­
monwealth by attorney, elected to try the defendant, Joe 
Hale, first.

[fol. 7] Pee a of Not Guilty—October 12, 1936
Came parties to the above styled prosecution and an­

nounced ready for trial.
On motion of Commonwealth Attorney, it is ordered that 

Marshall Jones, this Court’s Official Reporter, report the 
trial of this Prosecution. The defendant, Joe Hale, being- 
present in open court, in person and by attorneyt acknowl­
edged the identity of person, waived the formality of ar­
raignment, and entered a plea of not guilty to the charge of
“ wilful murder.”

E mpanelling of Jury— October 12, 1936
The regular panel of jurors being tested for the jury in 

this prosecution, and four (4) having been accepted and 
Five (5) others having been called but not yet accepted, 
and it appearing to the satisfaction of the Court, that the 
regular panel has been eshausted, deputy sheriffs, Herman 
Englert, Clyde Shemwell, Barkley Graham, J. R. Waller 
and Helen Bohannon, having been duly sworn, took charge 
of the above mentioned Nine (9) jurors until One o ’clock 
P. M. and by agreement of parties, said deputies were 
ordered and directed to go out into the City and County,



5

and into the parts thereof where men would not be likely to 
be disqualified as jurors in this prosecution, and summon 
50 men as jurors to complete the jury in this prosecution. 
One o ’clock P. M. having arrived, the sheriff turned into 
court the names of Kelly Warford, Court Neal, Fayettee 
Trewalla, John C. Kipley, Jesse Carneal and M. V. Miller, 
from among the above mentioned 50 summoned by the 
sheriff, who together with Jim Polk, Jim Travis, Fred Babb, 
Amos Rickman, A. J. Harris, and John Wyatt, from the 
regular panel, were duly tested, accepted and sworn as the 
jury herein. Then at the direction of the Court to turn in 
a name from among the above mentioned 50 as the 13th 
[fol. 8] juror, the sheriff turned into Court the name of 
R. L. Bailey, who was duly tested, accepted and sworn as 
the 13th juror in this prosecution, and who took his place 
with the other 12 regular jurors as above mentioned.

Order Overruling Motion to Discharge Panel— October
12, 1936

Then came defendant, by attorney, and filed motion and 
moved the Court to discharge the whole panel of the jury 
in this prosecution for cause, he having exercised his 15 
peremptory challenges as allowed T)y law, and in support 
of said motion referred to and made a part hereof the affi­
davit of the defendant, this day filed in support of hi a mn- 
tion to set aside the indictment herein. And said motion to 
discharge coming on to be heard, and the court being suffi­
ciently advised, overruled said motion to discharge, to 
which ruling of the Court the defendant excepts.

Minute E ntries of Trial— October 12, 1936

At the conclusion of a part of Commonwealth’s evidence, 
the defendant, Prince William Thorpe, being unwilling to 
testify, it is thereupon ordered, on motion of Common­
wealth by its Attorney, that the indictment herein as to said 
defendant, Prince Willaim Thorpe, be dismissed absolutely, 
reasons endorsed thereon. Thereupon said Prince William 
Thorpe was called to the witness chair by Commonwealth 
Attorney, and said witness refused to give his testimony, 
whereupon said Prince William Thorpe was ordered to the 
jail of McCracken County in custody of the jailer. The jury



6

was then admonished by the Court and permitted to depart, 
in custody of Deputy Sheriffs, Herman Englert, J. R. 
Waller and Barkley Graham, they having first been duly 
sworn, until tomorrow morning at 8 :00 o ’clock.

[fol.9] I n Cibctxit Court of M cCracken County

[Title omitted]

A ffidavit Supporting Motion to Set A side I ndictment—• 
Filed October 12, 1936

The defendant and affiant, Joe Hale, in support of his 
motion to set aside the indictment against him herein, 
states that the population of McCracken County, Kentucky, 
is approximately 48,000 of which approximately 8,000 are 
colored people, ox negroes; he states that the qualification 
of jurors prescribed by the Kentucky Statutes, section 
2241, are as follows:

“ The commissioners shall take the last returned Asses­
sor’s book for the county and from it shall carefully select 
from the intelligent, sober, discreet, and impartial citizens, 

O  §  resident housekeepers in different portions of the county, 
over twenty-one years of age the following numbers of 
names of such persons, to-wit: * * * Counties having a 
population of twenty thousand and not exceeding fifty 
thousand, not less than five hundred nor more than six 

5 C®? | hundred. ’ ’

Affiant now states that there now appears on the last 
returned Assessor’s Book for the County the names of 
approximately 6,000 white persons and 700 negroes quali­
fied for such jury service under the above requisite.

He states that he can prove this fact by C. C. Cates, the 
Assessor or Tax Commissioner for McCracken County at 

■ the present time.
r~ He states that in December, 1935, by order of the Judge 

of the McCracken Circuit Court, Boyce Berryman, J. JI. 
Hodges, and W. C. Seaton, were duly and regularly ap- 
[fol. 10] pointed Jury Commissioners and filled the wheel 

jjb >5 I with_names for jury service for the year 1936, to the extent 
of between 500 and 600; that he can prove by the three 

g above named commissioners that they did not place the

h _  4 ro
3 V



name of one negro in the wheel but that the whole number 
selected were of white citizens; that they did not exclude 
the name of any negro from said wheel because he was not 
an intelligent, sober, discreet and impartial citizen, resi­
dent housekeeper of this county or twenty-one years of age.

He "states "that it is further prescribed by the Kentucky 
’ Statutes, Section 2243, that the “ Judge, in open Court, 

shall draw from said drum or wheel case a sufficient number 
of names to procure the names of twenty-four persons qual­
ified as hereinafter prelffinbedyfo act as Grand Jurors * * * 
“ The qualification as such Grand Jurors, Section 2248 of 
Ky. Statutes, namely: “ No person shall be qualified to 
serve as a Grand Juryman unless he be a citizen and a 
housekeeper of the county in which he may be called to 
serve and over the age of twenty-one years. No civil offi­
cer, (except trustees of schools) no surveyor of a highway, 
tavern-keeper, vender of ardent spirits by license, or per­
son who is under indictment, or who has been convicted of 
a felony and not pardoned, shall be competent to serve as 
a grand juror * * *

He now says that he can prove by the Hon. Joe L. Price, 
Judge of the McCracken Circuit Court, that the names of 
the grand jurors for the present term of court, at which 
this indictment was returned, was drawn by him from the 
drum or wheel as above prescribed; that he did not draw 
the name of one negro citizen from said wheel, and that 
he did not exclude any negro’s name from the said list of 
[fol. 11] grand jurors so drawn because “ he was not”  “ a 

i citizen and a housekeeper of the county in which he was 
called to serve; because he was not twenty-one years of age; 
because he was a civil officer (except trustee of school) 
because he was a surveyor of a highway; because he was 
a tavern-keeper; because he was a vendor of ardent spirits 
by license; because he was under indictment; nor because 
Jie had been convicted of a felony and not pardoned.

# # # # # # #
/ —

The affiant now states, that he can prove by John W. 
Ogilvie that he was sheriff of McCracken County, Ken­
tucky, during the years 1906 to 1910; that he attended every 
term of the criminal court for said McCracken Circuit 
Court during that time; that he and his deputies sum­
moned the jurors for the grand jury and petit jury service



8

°o
*O T

i

during that tenure, and that not one negro was summoned 
to serve or served on any Grand Jury or petit jury during 
said time; nor were the name of any negro placed in his 
hands to be summoned for such service.

He says that he can prove by Geo. Houser that he was 
the sheriff of McCracken County, Kentucky, from 1910 to 
1914; that he attended every term of the criminal,court for 
the said McCracken Circuit Court during that time; that 
he and his deputirs summoned the jurors for the grand 
jury and petit jury service during that tenure, and that 
not one negro was summoned to serve or served on any 
grand jury or petit jury during said time; nor were the 
name of any negro placed in his hands to be summoned for 
such service.
[fol. 12] He says that he can prove by George Allen that

1 he was sheriff of McCracken County, Kentucky, during the 
years from 1914 to 1918; that he attended every term of the 
criminal court for the said McCracken Circuit Court during 
that time; that he and his deputies summoned the jurors 
for the grand and petit jury service during that tenure, 
and that not one negro was summoned to serve or served 
on any grand jury or petit jury during said time; nor were 
the names of one negro placed in his hands to be sunl­

it moned for such service.
r He says that he can prove by George L. Alliston that 

he was sheriff of McCracken County during the years 1918 
to 1922; that as such he attended every term of the crim­
inal court held in said county for the McCracken Circuit 
Court during that time; that he and his deputies summoned 
the jurors for the grand jury and petit jury service during 
that tenure, and that not one negro was summoned to serve 
or served on any grand jury or petit jury during said time; 
nor were the name of any negro placed in his hands to be 
summoned for such service.

p Tie says he can prove by Roy Stewart that he was sheriff 
of McCracken County, Kentucky during the years ^922 to 
1926; that as such he attended every term of the criminal 
court held in said county for the McCracken Circuit Court 
during that time; that he and his deputies summoned the 
jurors for the grand jury and petit jury service during that 
tenure, and that not one negro was summoned to serve or 
served on any grand jury or petit jury during said time ; 
nor was the name of any negro placed in his hands to be 
summoned for such service.



9

He says he can prove by Claud Graham that he was 
sheriff of McCracken County during the years 1926 to 1930; 
that as such he attended every# term of the criminal court 
[fol. 13] in said county for the McCracken Circuit Court 
during said time; that he and his deputies summoned the 
jurors for the grand jury and petit jury service during 
that tenure, and that not one negro was summoned to serve 
or served on any grand jury or petit jury during said time.; 
nor was the name of any negro placed in his hands to be 
summoned for such service,

I  He saysTthat lie can prove by Herman Englert that he 
was deputy-sheriff under EmmeiH.olLXxhicaaa&d) who was 
sheriff of McCracken County during the years 1930 to 1934; 
that as such he attended every term of the criminal court 
held in and for the McCracken Circuit Court during that 
time; that he and other deputies summoned the jurors for 
the grand jury and petit jury service during said time, and 
that not one negro was summoned to serve or served on 
any grand jury or petit jury during said time; nor was the 
name of any negro placed in his hands to be summoned for 
such service.

He says that he can prove by Cliff Shemwell that he has 
been since 1931 and is now the present sheriff of McCracken 
County, Kentucky; that as such he has attended several 
terms of the criminal court in and for the McCracken Cir­
cuit Courc; that he and his deputies summoned the jurors 
for the grand jury and petit jury service for the past two 
years and that not one negro was summoned to serve or 

1 served on any grand fury or petit jury during said time: 
nor was the name of any negro placed in his hands to be 
summoned for such service.

— He says that he can prove by all of the above named 
ex-sheriffs that they never saw a negro sit on either a grand 
jury or petit jury in the McCracken Circuit Court for the 

I past thirty years.
I r a n i ]  He says he can also prove by Geo. L. Alliston 
that he was deputy U. S. Marshal stationed at Paducah, 
McCracken County, Ky. for eight years consecutively im­
mediately preceding the year 1935: that he is a citizen and 
resident of Paducah, Kentucky and has been for twenty 
years or more, that he is well acquainted with the negro 

l ln| population of Paducah and McCracken County, Kentucky 
rj and will state that there is now and has been for the pas£.
— twenty years negro' citizens in said county that meet all



the requirements of the law relating to jurors and are qual- 
] ified for jury service to the extent of five hundred or more; 

that during that time several negro citizens from this 
county have been summoned, met the qualifications, and 

y served as jurors in the U. S. Court in Paducah, Ky.
He says he can prove by Walter Blackburn that he was 

clerk of the U. S. Court at Paducah, Ky. for twelve years 
immediately preceding the year 1936; that he is wellZ ac­
quainted with the negro citizenship of McCracken County 
and has been during said time; that he will state that there 
are five hundred or more negro citizens in this county that 
meet every qualification under the law for jury service; that 
during his tenure of office several negro citizens have served 
on the juries in the U. S. Court at Paducah; that he has 
never seen a negro serve on a petit or grand jury in the 

UMcCracken Circuit Court. "
T He says Tie can prove by Wayne C. Seaton that he was 
clerk of the McCracken Circuit Court for twelve years im­
mediately preceding the year, 1928; that he attended every 
term of the McCracken Circuit Court during his tenure of 
office, that he never saw a negro set on either grand jury 
or petit jury during his tenure of office; he will also state 
that he is a resident and citizen of McCracken County, 
[fol. 15] Kentucky, and well acquainted with the negro citi­
zenship thereof; that he will state there are several hun­
dred negroes in said county that meet all requirements of 

t the law as to qualifications for jurors—
He says he can prove by J. W. Trevathen that he was 

deputy circuit court clerk under Frances Allem during the 
I years 1928 to 1934; that as such he attended every term of 

the McCracken Circuit Court during that time, and that 
he never saw a negro serve on a jury in the McCracken Cir_- 

■ c-uit Court during that time.
He says he can prove by F. P. Feezor that he is now the 

! clerk of the McCracken Circuit Com t and has been such for 
the past two years; that he has attended every term of the 
McCracken Circuit Court during said time, and that he has- 
never seen a negro sit on a jury in the McCracken Circuit 
Court during that time; that he is well acquainted with the 
negro population of this county and will state that there 
are several hundred negro citizens in said county who meet 
every requirement of the law as to qualification for jury 
service.



He says he can pi’ove by C. B. Crossland, Sr. that he 
was Court reporter for the McCracken Circuit Court dur­
ing the years 1909 to 1914; that as such he attended every 
term of the McCracken Circuit Court; that since_said time 
he has been a practicing lawyer at the McCracken County 
Bar and has attended-every term of the McCracken Circuit 
Court for twenty-seven years, and that during said time 
he has never seen a negro set on a jury in McCracken Cir­
cuit Court; that he has been Police Judge of Paducah, and 
is well acquainted with the negro citizenship of McCracken 
County, Ky. and will state that there is now and has been 
for several years past,^several hundred negroes that meet 
every requirement under the law as to qualification for jury 
service.

” [fol. 16] He says that he can prove by Marshall Jones 
that he is now the Court "Reporter J or the McCracken Cir­
cuit Court and has been such since January 1.1914, and has 
attended every term of the McCracken Circuit Court during 
that time, and that he has never seen a negro set on a jury 
in the McCracken Circuit Court during said time.

He says that he can prove by Professor D. H. Anderson 
; that he is principal of the Western Kentucky Industrial 
; College, a negro school located in Paducah, McCracken 
County, Kentucky and has been such for twenty years; that 
he is a negro educator, and is well acquainted with the 
negro citizenship of McCracken County, Kentucky, and 
will state that there is now and has been for the past twenty 
years more than five hundred negroes that meet every re­
quirement of the law for qualification for jury service, and 
that during this time he has never seen nor heard of a 

- negro serving on any jury in the McCracken Circuit Court. 
-  He says that he can prove by I. N. Boyd that he is a, 

negro undertaker in the City of Paducah and lias been such 
for the past twenty years, and that he has been a resident 

| of Paducah for Forty vearsu that he is well acquainted with 
the negro citizenship of McCracken County and will state 
that he knows^several hundred negroes in said county that 
meet every requirement of the law as ^qualification for
jury service, and that he never saw or heard of a negro 
serving on a jury in the McCracken Circuit Court.
[fob 17] lie  states that he can prove by K. G. Terrell, a 
wholesale grocer of Paducah, that he is 88 years of age,jand 
has resided in McCracken County all of his life; that there 
,is now and has been during the past fifty years several hun-



12

dred negroes residing in McCracken County who meet every 
requirement of the law as to qualificationfor jury service, 
and that during the past fifty years he never saw nor heard 
of a negro serving either on a Grand or Petit jury in the 
McCracken Circuit Court.

P He states that John Counts, 65 years of age, business man, 
has resided in McCracken County for the past thirty years ; 
that he can prove by him that there are now and have -been 
during the time of his residence here ^several hundred 
negroes residing in McCracken county who meet every re­
quirement of the law as to qualification for jury service, and 
that during the past thirty years he never saw nor heard of 
a negro serving either on a Grand or Petit Jury in the Mc­
Cracken Circuit

He states that he can prove by Henry Houser, ex-jailer 
of McCracken county. 75 years of agtn that he- has lived in 
McCracken county all of his life ; that there is now and has 
been during the past fifty ..years several hundred negroes 
residing in McCracken County who meet every requirement 
of the law as to qualification for jury service, and that dur- 

1 ing the past fifty years he never saw nor heard nr a. negro 
serving either on a Grand or Petit jury in the McCracken 

| Circuit Court.
f[fo l. 18] He states that he can prove by J^D. Mocquot, at- 
\tornev at law. 70 years of age, that he nas lived in" Mc- 
Cracken county all of his life ; that there is now and has been 
during the past fifty years several hundred negroes resid­
ing in McCracken county who meet every requirement of the 
law as to qualification for .jury service: that he. the said 
Mocquot, has been practicing law in the McCracken Circuit 
Court for approximately fifty~years, and that he has at­
tended approximately every session of the McCracken Cir­
cuit Court during that time, and that he has never seen nor 
heard of a negro serving either on a Grand or Petit iurv 
in the McCracken Circuit Court.

r He states that E. J. Paxton. 65 years of age, is the owner 
and publisher of the Paducah Sun-Democrat, a daily news- 

[paper in the city of Paducah, and has resided in McCracken 
- county all of his life, and that he can prove by him that there 

is now and has been during the past 45 years several hun­
dred negroes residing in McCracken county who meet every, 
requirement of the law as to qualification for jury service, 

*  land that during the past forty-five years he never saw nor



13

s

H i -

r e c .

J-

heard of a negro serving either on a Grand or Petit Jury in 
the McCracken Circuit Court.

He states that he can prove by Jacob R. Wallerstein, 80 
years of age, a Paducah business man for more than fifty 
yeais, that there are several hundred negroes residing in 
McCracken countv and have been during the past fifty years. 
who" meet every requirement of the law as to qualification 
for jury service, and that during the past fifty years he 
never heard of nor saw a negro serve on a jury either 
Grand or Petit, in the McCracken Circuit Court.
[fol. 19] He states that he can prove by M. Marks, a 
Paducah business man for over fifty years, that there are 
now and have been during that time several hundred negroes 
residing in McCracken county who meet e v e r y  requirement 
for qualification for jury service, and that during said time

Ihe has never seen nor heard of a negro sitting on either a 
Grand or Petit jury in the McCracken Circuit Court.

He states that he can prove by Col. Robert Noble, 78 years 
of age, capitalist, retired, that there are now and have been 

\ during the past fifty years several hundred negroes resid- 
ing in McCracken county who meet every requirement for 

I qualification for jury service and that during all of said 
l time ne nas never seen nor heard of a negro sitting either on 
j a Grand or Petit jury in the McCracken Uircuit court..

He states that he can prove by R. L. Reeves, President of 
the Peoples National Bank, attorney at law, ex-city at­
torney, about 75 years of age, that there is now and has been 
for the past fifty years several hundred negroes residing 
in McCracken county who meet every requirement for 
qualification for jury service, and that during the past fifty 
years he has never seen nor heard of a negro sitting on 
either a Grand or Petit jury in the McCracken Circuit Court.

He states that he can prove by Jack E, Fisher; attorney at 
law, that he was Commonwealth Attorney of  the McCracken 
Circuit Court for the twelve years immediately preceding 
the year of 1928; that he attended every term of the Mc­
Cracken ClrcrnlTCourt during that time and that he has 
never seen nor heard of a negro sitting on either a Grand or 

Petit jury in the McCracken Circuit Court.
:Lfol. 2d] Affiant states that each and all of the foregoing 
witnesses are residents of McCracken County, Kentucky, and 
within the jurisdiction of this court; that most of said wit­

nesses are actually in court to-day, and that if given the op- 
| portunity all of the witnesses to the above facts can be pro-



14

cured to give their testimony orally in court in the course 
of two hours; that they will testify as indicated herein; that 
same is true and will be true when proven; that this motion 
and affidavit is not made for delay hut that justice may be 

[ done.
Affiant states that the foregoing facts when proved show 

; a long continued, unvarying and wholesale exclusion of 
negroes from jury service in this county on account of their 
race and color; that it has been systematic and arbitrary on 
the part of the officers and commissioners who select the 
names for jury service for a period of fifty years or longer; 
that it is prejudicial to his substantial rights and in violation 
of the Constitution of the United States. He therefore asks 
the Court to hear the proof upon his motion to set aside the 
indictment.

Joe W. Hale.

Subscribed and sworn to before me by Joe Hale this 
the 12th day of Oct. 1936. F. P. Feezor, Clerk, Mc­
Cracken Circuit Court.

[File endorsement omitted.]

[fol. 21] In Circuit Court op McCracken County

[Title omitted]

Supplemental A ffidavit and Stipulation—Filed October
12,1936

Affiant and defendant Joe Hale, states that since the 
preparation of the original affidavit in support of motion to 
set aside the indictment in this case, he has learned that in 
the April, 1921, term of the McCracken Circuit Court, upon 
the trial of a negro in said court upon a minor felony, 
charge, the Hon. Wm. Reed, Judge of said court instructed 
the sheriff of McCracken to summon from bystanders a 
rieg’ro jury to try said case, which was done.

He further states that the names of these negro jurors 
were not drawn from the rurv wheel or drum, never having 
been placed therein by the jury commissioners, but was a 
pick-up jury ordered by the court for this special case, and



that said negro jurors were not regular members of the petit 
jury panel for that term of court.

Joe W. Hale.

Subscribed and sworn to before me by Joe Hale this 
the 12th day of October, 1936. F. P. Feezor, Clerk, 
McCracken Circuit Court.

It is stipulated that this and the original affidavit shall be 
considered as evidence.and that the witnesses named therein 
would testify as set forth therein.
[fol. 22] It is further stipulated that the Judge of the Mc­
Cracken Circuit Court has never at any time Instructed the 
Jury Commissioners to exclude the names of negroes from 
the Jury lists and Jury drum; and that said Judge is now 
serving his 15th year as such Judge. Oct. 12th, 1936.

Holland G. Bryan, Com. Atty. Crossland & Cross­
land, Atty. For Deft.

[File endorsement omitted.]

15

In Circuit Court of M cCracken County 

[Title omitted]

Motion to Discharge Panel— Filed October 12, 1936

Now comes the defendant, Joe Hale, by attorney, and chal­
lenges the entire panel of the jury in this case for cause, and 
in support of said motion he refers to and asks to be made a 
part hereof the affidavit this day filed on the motion herein 
to set aside the indictment.,

Joe Hale, by Crossland & Crossland, Attorneys for 
Defendant.

[File endorsement omitted.]



16

[fol. 23] In Cikcuit Court of McCracken County

[Title omitted]

Order A llowing W itness F ees—October 12, 1936
This day the following named persons appeared in open 

court and claimed their attendance as witnesses for the Com- 
monweath, in the above styled prosecution. Said claims 
were allowed as follows:
Ed Kortz ..................................................  1 day $1.00
J. E. L y n n ................................................  1 “  1.00
W. E. Bryant ........................................... 1 “  1.00
Kelly Franklin ......................................... 1 “  1.00

In Circuit Court of McCracken County 

[Title omitted]
Order on I nstructions— October 13,1936

Came the same jury heretofore empaneled herein, and 
resumed the trial of this prosecution. At the conclusion^ of 
P1aintifF,g flgjdfiBca, the defendant by attorney, offered in- 
stmctLoiL-tLA!.’ to find for defendant, and moved the Court 
to give same to the jury, to the giving of which the Com- 
[fol. 24] monwealth by Attorney, objected, and said objec­
tions being submitted to the Court, and the Court being 
advised, sustained said objections, and refused to give In­
struction “ A ”  to the jury, to which ruling of the Court, the 
defendant excepts.^/Ai Thmciuiclnsion ..of- abLeyjdenee, de­
fendant re-offered Instruction “ A ”  and moved the Court to 
give same to the Jury, to the giving of which the Common­
wealth, by its attorney, objected, and said objections being 
submitted to the Court, and the Court being advised, again 
sustained said objections, and refused to give Instruction 
“ A ”  to the jury, to which ruling of the Court the defendant 
except^/ The Court then gave to the jury, Instructions Nos. 
1 to 9, inclusive, to the giving of each and all of which the 
defendant objects and excepts and moved the Court to give 
the whole law in the case, and the Court being of the opinion 
that he had so instructed, declined to instruct further, to 
which the defendant excepts. It is ordered that all of said 
Instructions both given and refused by the Court, be filed 
and made a part of the record herein.



17

V erdict—October 13, 1936
After argument by counsel, the sheriff was sworn to take 

charge of the jury which retired to its room for deliberation 
and returned into court the following verdict: “ We, the 
jury, find Joe Hale, the defendant, guilty of the first degree 
of murder, fix his penalty death in t.he electric chair ”  
A. W. Rickman, one of the jury. On motion of defendant by 
attorney, the jury was polled, and each juror answered that 
it was his verdict.

\ Came defendant by attorney, and filed motion and reasons 
1 for a new trial.

The defendant in person and by attorney, waived the 
three day stay in jail prior to his sentence.

[fol. 25] In Circuit Court of McCracken County

[Title omitted]

Defendant’s Requested Instruction—Filed October 13,
1936

Instruction “ A ”
The Court instructs the jury to find the defendant not 

guilty.
Refused.

[File endorsement omitted.]

In Circuit Court of McCracken County 

[Title omitted]

Instructions to Jury— Filed October 13, 1936 

Instruction No. 1 

Gentlemen of the Jury:
If you shall believe from the evidence in this case, to the 

exclusion of a reasonable doubt, that in McCracken County,
2—680



18

Kentucky, and before the finding of the indictment herein, 
to-wit, the 1st day of October, 1936, the defendant Joe Hale, 
either by himself or together with Prince William Thorpe 
and James Gilbert Martin, alias Junkhead, did willfully, 
unlawfully, maliciously and feloniously and of his malice 
aforethought kill, slay and murder W. R. Toon, by cutting, 
thrusting, stabbing and wounding the said W. R. Toon in 
and upon the head, body, arms, limbs and person, -with a 
knife, a sharp-edged and pointed instrument, a deadly 
weapon, from which cutting, thrusting, stabbing and 
[fol. 26] wounding the said W. R. Toon did shortly there­
after, and within a year and a day and in the Commonwealth 
of Kentucky, die, then you will find the defendant guilty and 
fix his punishment at death, or by confinement in the peni­
tentiary for life, in your reasonable discretion.

Given.
Instruction No. 2

If you shall not believe from the evidence, beyond a rea­
sonable doubt, that the defendant Joe Hale has been proven 
guilty of murder, as defined in instruction No. 1 above, but 
shall believe from the evidence beyond a reasonable doubt 
that he did in McCracken County, Kentucky and before the 
finding of the indictment herein, to-wit the 1st day of Octo­
ber, 1936, without previous malice and not in his necessary 
or reasonably apparent necessary self-defense, but in a sud­
den affray, or in sudden heat and passion, upon a provoca­
tion reasonably calculated to excite his passions beyond the 
power of his control, cut, thrust, stab, and kill W. R. Toon, 
you shall in that event find him guilty of voluntary man­
slaughter and fix his punishment at confinement in the state 
penitentiary for a period of not less than two years and not 
more than twenty-one years, in your reasonable discretion.

Given.
Instruction No. 3

If you shall believe from the evidence in this case to the 
exclusion of a reasonable doubt that the defendant has been 
proven guilty, but shall have a reasonable doubt whether 
proven guilty as defined in instruction No. 1 or as defined in 
instruction No. 2 you will find him guilty of the lesser offense 
as defined in instruction No. 2.

Given.



19

Instruction No. 4
If you shall believe from the evidence that at the time 

[fol. 27] the defendant Joe Hale, cut, thrust, stabbed and 
killed W. R. Toon, if he did do so, he believed and had rea­
sonable grounds to believe that he was then and there in 
imminent danger of death or infliction of some great bodily 
harm at the hands of W. R. Toon, and that it was necessary 
or was believed by the defendant, in the exercise of a reason­
able judgment to be necessary to so cut, thrust, stab and kill 
the deceased in order to avert that danger, real or to the 
defendant apparent, then you ought to acquit the defendant 
upon the ground of self-defense or apparent necessity 
therefor.

Given.

Instruction No. 5
The words “ with malice aforethought”  as used in the 

indictment and instructions herein, mean a predetermina­
tion to do the act of killing without lawful excuse, and it is 
immaterial how recently or suddenly before the killing such 
predetermination was formed.

Given.

Instruction No. 6

The words “ willful”  and “ willfully”  as used in the in­
dictment and instructions herein, mean “ intentional”  not 
“ accidental”  or “ involuntary” . The word “ feloniously”  
as used in the indictment and the instructions herein mean 
proceeding from an evil heart or purpose, done with the 
deliberate intention to commit a crime.

Given.

Instruction No. 7
The law presumes the defendant to be innocent of any 

offense until proven guilty to the exclusion of a reasonable 
doubt, and if upon the whole case you shall have a reason­
able doubt of the defendant having been proven guilty, or 
[fol. 28] as to any material fact necessary to establish his 
guilt, you will find him not guilty.

Given.



20

Instruction No. 8
A conviction cannot be had upon the testimony of an ac­

complice or accomplices, unless corroborated by other evi­
dence tending to connect the defendant with the commission 
of the offense, and the corroboration is not sufficient if it 
merely show that the offense was committed, and the circum­
stances thereof.

Given.
Instruction No. 9

An “ accomplice”  within the meaning of these instruc­
tions, is one who has been concerned in the commission of 
the crime charged, and has either performed some act or 
taken some part in its commission, or who, owing some duty 
to the person against whom the crime was committed to 
prevent the commission thereof, has failed to perform or to 
endeavor to perform such duty.

Given.

[File endorsement omitted.]

I n  C ir c u it  C o u r t  of  M c C r a c k e n  C o u n t y  

[Title omitted]

M o t io n  a n d  R e a s o n s  for  N e w  T r ia l — Filed October 13,1936
Now comes the defendant, Joe Hale, by attorney and 

[fol. 29] moves the Court to set aside the verdict of the jury 
herein for the following reasons, to-wit:

First. Because the Court erred in overruling defendant’s 
motion to set aside the indictment herein.

Second. Because the Court erred in overruling defend­
ant’s motion to challenge the entire panel of the petit jury 
empaneled in this case.

Third. Because the Court erred in overruling the defend­
ant ’s demurrer to the indictment herein.

Fourth. Because the court erred in excluding from the 
jury important and material evidence in his behalf.



21

Fifth. Because the Court erred in allowing the Common­
wealth to introduce before the jury incompetent, immaterial 
and irrelevant evidence.

Sixth. Because the Court erred in refusing to give in­
struction “ A ”  offered by defendant at the conclusion of the 
evidence for the Commonwealth.

Seventh. Because the verdict of the jury is contrary to the 
law and evidence herein.

Eighth. Because the Court erred in giving to the jury in­
structions 1, 2, 3, 4, 5, 6, 7, 8, & 9, and in refusing to give the 
whole law of the case.

To all of which the defendant objected and excepted at 
the time, and each and all of which were prejudicial to the 
substantial rights of the defendant, and upon this he asks 
the judgment of the Court.

Crossland & Crossland, Attorneys.
[File endorsement omitted.]

[fol. 30] lx  C ie c u it  C o u r t  of  M c C r a c k e n  C o u n t y

[Title omitted]

J u d g m e n t — October 13, 1936
The defendant this day being in open court and being in­

formed of the nature of the indictment on the charge of 
“ Wilful Murder’ ’, plea and verdict, was asked if he had any 
legal cause to show why judgment should not be pronounced 
against him; and none being shown, it is therefore adjudged 
by the Court that the defendant, Joe Hale, be taken by the 
Sheriff and Jailer of McCracken County as expeditiously, 
privately and safely as may be, to the State Penitentiary at 
Eddyville, Kentucky, where he will be safely kept until the 
18th day of December, 1936, on which day the Warden of 
said Penitentiary or his Deputy will cause him to be electro­
cuted by causing to pass through his body a current of elec­
tricity of sufficient intensity to produce death as quickly as 
possible and continue the application of such current until 
he is dead.



22

Order Overruling Motion for New Trial and Granting 
A ppeal— October 13, 1936

Defendant’s motion and reasons for a new trial, hereto­
fore filed herein on this date, coming on to be heard, and 
the Court being sufficiently advised, overruled said motion 
and reasons for a new trial, to which ruling of the Court, 
the defendant objects and excepts, and prays an appeal j o  
the Court of Appeals which is granted. and~defendanl is 
given 60 days in which to prepare and filed his bill of Ex­
ceptions and Transcript of Evidence.

Motion to Proceed in F orma Pauperis and Order T hereon

Then came defendant by attorney, and entered motion and 
[fol. 31] moved the Court to permit him to prosecute this 
Appeal, in forma pauperis, and in support of said motion 
filed his own affidavit; and said motion being submitted to 
the Court and the Court being sufficiently advised, sustained 
same, and it is ordered that he be permitted to appeal this 
prosecution in forma pauperis, and the Clerk of this Court 
is directed to prepare the record, and the Official Stenog­
rapher to transcribe the evidence heard upon the trial of the 
case, to be used by him for the purpose of appeal, the same to 
be paid for by McCracken County in accordance with Ken­
tucky Statutes.

The affidavit filed in the above and foregoing order is as 
follows, to-wit:

Affidavit

The defendant, Joe Hale, states that he is a poor person 
without money or property and is unable to pay the fees to 
the Clerk and official stenographer of this Court for tran­
scripts of the record and evidence herein to be used on his 
appeal to the Court of Appeals of Kentucky and is unable 
to obtain the money to pay said feeds.

He, therefore, asks the court to direct the Clerk of this 
Court to make up the record, and the Official Stenographer 
to transcribe the evidence heard upon the trial of the case, 
to be used by him for the purpose above stated, the same to



23

be paid for by McCracken County in accordance with Ken­
tucky Statutes.

Joe W. Hale.

Subscribed and sworn to before me by Joe Hale this 
the 12th day of October, 1936. David R. Reed, 
Notary Public McCracken County, Kentucky. My 
Commission expire- July 31, 1940.

[File endorsement omitted.]

[fol. 32] In Circuit Court of McCracken County

[Title omitted]

O r d e r  A p p r o v in g  B i l l  o f  E x c e p t i o n s —November 10, 1936
This day came defendant, by attorney, and tendered Bill 

of Exceptions and Transcript of Evidence herein, and en­
tered motion and moved the Court to approve and sign same, 
and the Court having examined said Bill of Exceptions and 
Transcript of Evidence and finding same correct, sustained 
said motion, approved and signed same, and it is ordered 
that same be filed in duplicate and made a part of the record 
herein without being spread upon the Order Book; the origi­
nal to be taken to the Court of Appeals, and the carbon copy 
to remain on file in the office of the Clerk of this Court.

Clerk’s certificate to foregoing transcript omitted in print­
ing.

[fol. 33] In Circuit Court of M cCracken County 

Bill of Exception No. 1
Be it remembered that upon the trial of this case the 

Commonwealth introduced and had sworn Dr. L eon H igdon, 
who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. What is your business or profession?
A. Physician.
Q. Did you know W. R. Toon during his life time?



24

A. Yes sir.
Q. Is he now living or dead?
A. He is dead.
Q. When did he die?
A. I don’t recall the date.
Q. You remember the occasion of his being stabbed?
A. Yes sir.
Q. How long from that time did he live?
A. He lived approximately one hour from the time I 

first saw him. He had been in the hospital about fifteen 
minutes when I got out there.

Q. Do you know what time you got out there?
A. It was shortly after midnight.
Q. What was the cause of his death?

[fol. 34] A. He died because of hemorrhage; from the loss 
of blood from the stab wound in the left arm.

Q. Did you examine his body in the hospital?
A. Yes sir.
Q. Will you describe the wounds he had and the nature 

of them?
A. He had three wounds. One wound in the left thigh; 

there was a little wound in his left thigh about that broad 
(indicating) and about four inches long. We took a groove 
director and followed it up. He had a small wound on his 
chest, his left chest about the nipped That was not over %  
of an inch and it went just to the rib. We could not trace 
it into the chest wall. He had one wound on his left arm, 
not over %  inch wide, and in tracing that it went up this 
way (indicating) and when we opened it we found the 
Avound had gone through the big axillary artery. This 
wound had cut through the axillary artery and had almost 
cut it in two. There Avas a little blood clot around the 
wound but he had lost considerable blood before he came 
to the hospital.

Q. Neither of those A vounds were very large?
A. In our first examination Ave did not think he was badly 

injured, but when Ave took this groove director we could tell 
the axillary artery Avas almost entirely severed. All three 
of the wounds were on the left side of his body.



25

Cross-examined.

By Hon. C. B. Crossland:
Q. How old was Mr. Toon, if you know?
A. I don’t know exactly, he was past 40 years I am sure. 
Q. Do you know about his height ?
A. He was about five feet six inches.
Q. Do you know about his weight?
A. I would say he weighed about 160 pounds.
Q. What was the color of his hair?
A. I am not sure of that, I don’t know.

[fol. 35] Q. Did he have light sandy hair?
A. He was a little darker I think, I am not positive about 

that.
Q. Did he have his clothes on when you examined him ?
A. Yes sir.
Q. How was he dressed?
A. He had his shirt on when I saw him, his trousers had 

been removed in the operating room. He had on his shirt 
and underwear.

Q. What kind of shirt did he have on?
A. A light colored shirt.
Q. Did you see his trousers?
A. Yes sir.
Q. What color were they?
A. They were grey looking trousers.
Q. Where they light or dark?
A. I don’t know whether they were light or dark. I recall 

seeing the trousers because I helped to examine them.
Q. Was he ever conscious after you reached there?
A. He had one or two periods where I think perhaps he 

recognized the members of his family and myself, he called 
me “ Doctor.”

Redirection.

By Hon. Holland G. Bryan:
A. Did you notice the cut places in his clothes to see 

whether or not they corresponded with his wounds ?
A. We examined them carefully and they corresponded 

exactly with his wounds.
Q. The holes in his shirt and trousers ?
A. Yes sir, they were all stained with blood.



26

[fol. 36] Be it remembered that upon the trial of this case 
the Commonwealth introduced and had sworn Ed K irk, 
who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. Where do you live, Mr. Kirk?
A. 3220 Kentucky Avenue.
Q. What is your business?
A. Mail Carrier.
Q. How long have you been a mail carrier ?
A. About 17 years.
Q. Did you know W. R. Toon during his life time ?
A. Yes sir.
Q. How long had you known him?
A. Ten or twelve years.
Q. Do you remember the occasion of his being stabbed to 

death?
A. I remember it.
Q. Was any kind of gathering being held anywhere in 

Paducah that night?
A. Yes sir.
Q. What was it ?
A. A  K. C. picnic.
Q. Where was that held?
A. At 28th and Kentucky Avenue.
Q. Are you a member of the K. C. (Knights of Colum­

bus)
A. I am not, but I was working out there.
Q. You say you were working out there at this picnic?
A. Yes sir.
Q. What kind of work did you do out there ?
A. I had a bottle rack.
Q. I believe you say you knew Mr. Toon?
A. I did.
Q. Was he out there that night?
A. He was.

[fol. 37] Q. Do you know what time he came out there. 
When did you first see him?

A. I don’t — when was the first time I saw him, I know 
when was the last time I saw him.

Q. When was that?
A. I checked out of my stand ten minutes after ten and 

I carried my things over to my car, and then I went over



27

to the meat stand to get some meat, and he was standing 
there and I spoke to him.

Q. You closed your stand ten minutes after ten?
A. Yes sir.
—. Then you went over to the stand to get some meat 

and Mr. Toon was there?
A. Yes sir, and I spoke to him.
Q. Do you know whether or not he left there?
A. I don’t know, he was still standing there when I got 

my meat and left.
Q. Did you see him around there at this gathering that 

night ?
A. I saw him two or three times that night.

Cross-examined.
By Hon. C. B. Crossland:

Q. You have known Mr. Toon for ten or twelve years?
A. Something like that.
Q. What was his height ?
A. About as high as his brother, about the same height 

or build, maybe a little heavier set.
Q. About how much would he weigh?
A. I don’t know, I am not very much of a judge of a 

man’s weight.
Q. He would weigh about 180 or 190 pounds ?
A. I don’t know his weight, I am not very much of a 

judge of a man’s weight.
Q. What was the color of his hair?
A. He was slightly bald-headed.

[fol. 38] Q. How was he dressed?
A. He only had on a light shirt, no coat.
Q. And light pants?
A. I never paid any attention to his pants.
Q. Was he bare headed?
A. He was bare headed when I saw him.

Be it remembered that upon the trial of this case the Com­
monwealth introduced and had sworn J. E. L inn , who tes­
tified as follows:

Examined by Hon. Halland G. Bryan:
Q. Where do you live, Mr. Linn?
A. At 25th and Kentucky Avenue.



28

Q. What is your business or profession?
A. I work on the rip track, am car repairer and inspector. 
Q. Did you know W. R. Toon in his life time?
A. I have known him around sixteen years.
Q. Do you remember the night he was killed?
A. Yes sir.
Q. Where were you that night about eleven o ’clock?
A. I was working with him about that time.
Q. You mean you was working on him at the hospital? 
A. No sir.
Q. Where did you first get in company with him that 

night ?
A. He passed me before I got to Tenth Street, and when 

he got to Tenth Street where he should have stopped he 
did not stop but went on through.

Q. How were you traveling?
A. I was on a bicycle.
Q. On what street?
A. On Kentucky Avenue.
Q. Between 9th and Tenth Streets?
A. Yes sir, about the length of this building before I got 

[fol. 39] to 10th street.
Q. You were between W ater’s restaurant and 10th 

street?
A. Yes sir.
Q. Which way were you going?
A. I was going the same way he was going.
Q. He overtook you and passed you?
A. Yes sir.
Q. At what speed was he traveling?
A. At an ordinary speed.
Q. In his automobile?
A. Yes sir.
Q. What attracted your attention to him?
A. He was supposed to stop at 10th street, hut he did 

not stop, he went on through.
Q. Did you notice that it was Mr. Toon?
A. No sir, I did not know who it was.
Q. What time of night was that?
A. It was about five, six or seven, possibly ten minutes 

to eleven o ’clock.
Q. Five or ten minutes before eleven o ’clock?
A. Yes sir.



29

Q. When he headed on through this boulevard at 10th 
and Kentucky Avenue what happened?

A. His car kept on bearing over to the left when he should 
have stayed on his side of the street, and it went on and 
hit this pole and went between this pole and the building 
out there.
[fol. 40] Q. Between this warehouse and the laundry?

A. Yes sir.
Q. Did you go on up there ?
A. I stopped and watched it.
Q. What did you do after his car hit this building ?
A. I stood there a few minutes and a big negro came 

along and I hallowed to him and said “ Let’s go over and see 
if that fellow is drunk or hurt” . We went over there and I 
walked up near the car and said, “ Mister can I be of any 
help”  and nobody replied and I called the second time and 
nobody replied, and I said to this negro, “ That is a hunch 
of drunks, let’s go up and see how badly they are hurt,”  and 
Toon was in the car in this position (indicating stooped over 
the steering wheel) and the engine was still running. I 
straightened him up and said “ Toon—Toon is this you”  
and he said “ Yes”  and he had some kind of stuff on his face 
where he had thrown up, and that excited me, and I took my 
finger and wiped it off of his face, and I said, “ You have 
hurt yourself”  I never knew him to drink and — not think 
about him being drunk------

Objection by Attorney for Commonwealth.
Objection sustained by the Court.
Exception by Attorney for Defendant.

A. Well, I straightened him up and the blood just gushed 
out of his left arm or side, and then some police came up 
there and I told them to call the law and they did, and when 
they flashed their light on him his shirt was all bloody and 
I said, “ Go and get Terrell” , and he said he did not know 
where he lived, and I said, “ I will go get him”  and we 
rushed out to Terrell’s house and he was in bed and I told 
him about it and he put on some clothes and his shoes and 
we lit out down there and somebody had already taken him 
to the hospital, and when I got out there Toon was in a room 
and they was trying to sew him up as best they could.



30

[fol. 41] Cross-examined.

By Hon. C. B. Crossland:
Q. You was going west on Kentucky Avenue?
A. We were both traveling in the same direction.
Q. That was after he had passed 10th street that he ran 

into this pole ?
A. Yes sir.
Q. Between 10th and 11th street?
A. Yes sir.

Be it remembered that upon the trial of this case the 
Commonwealth introduced and had sworn Terrell Toon, 
who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. You are Mr. Terrell Toon?
A. Yes sir.
Q. Where do you live ?
A. 435 South 19th Street.
Q. How long have you lived in Paducah?
A. Eighteen years.
Q. Before that time where did you live?
A. Out in McCracken County on the Contest Road.
Q. Out near St. John?
A. I was born at Fancy Farm and moved out there near 

St. John.
Q. What relation was W. R. Toon to you?
A. Brother.
Q. What was his age ?
A. 48 years old.
Q. What family did he have?
A. A wife, two daughters and two small sons.
Q. Where did he live?
A. 2022 Kentucky Avenue.
Q. Where did he work?

[fol. 42] A. For the Illinois Central Railroad Company. 
Q. What kind of position did he have ?
A. He was lead man over the switchengine department.
Q. Did he have anybody working under him by the name 

of Powell ?
A. A  colored switchman who worked with the crew by the 

name of Jim Powell.



31

Q. Do you know what kind of car Jim Powell drove?
A. A big Hupmobile.
Q. Do you remember the time your brother was killed?
A. Yes sir.
Q. What day of the month was that?
A. A ugust 18th.
Q. Your brother was a member of the Catholic Church?
A. Yes sir.
Q. How long had he belonged to it ?
A. All of his life.
Q. Did the Knights of Columbus have a picnic that night?
A. Yes sir.
Q. Do you know how long your brother was out there?
A. I was out there early but I went home before 7 :30.
Q. Was anything else going on that night by which you 

can fix the time ?
A. The reason I came home at that time was in order to 

get Joe Louis-Sharkey fight, which was to be at 8 o ’clock.
Q. You heard the Joe Louis fight that night?
A. Yes sir.
Q. What time of the night did you learn of your brother’s 

condition ?
A. We had company that night listening to the fight with 

us. After we had retired a few minutes after ten o ’clock, 
[fol. 43] we were in bed and somebody came up on the porch 
and knocked on the door and asked if I was there------

Objection by Attorney for Defendant.
Q. Just about what time was that ?
A. At that time it was around 10:30 or later, because we 

had gone to bed. Our company stayed until ten o ’clock.
Q. After you received that information where did you go?
A. I went with Mr. Kirk, they said his name Avas, back to 

the wreck and when we got there they told me they had 
taken him over to the hospital, so this man carried me over 
to the hospital.

Q. Your brother Avas there when you got over there?
A. Yes sir.
Q. Did he ever regain consciousness sufficient to tell you 

Avhat happened?
A. No sir.
Q. How long did he live?
A. He died at tAvo o ’clock, sometime after tAvo o ’clock.



32

Q. Mr. Toon what kind of automobile was your brother
driving?

A. A  1934 model Chevrolet.
Q. Did you look in this car that night or the next day?
A. Yes sir that night and also the next day.
Q. Describe the inside of that car to the jury?
A. The front seat of the car, on the left hand side, where 

he sat was all clotted with blood, and the bloJd was about 
[fol. 44] three inches high up here (indicating). The blood 
had run down in the car. It had run clear across the floor 
mat off on the fender and dripped on the ground. There 
was blood spattered on the wind shield, the dash of the car 
and on the door post and on the side of the door of the car.

Q. You say blood had dripped out on the ground from 
the car?

A. Yes sir.
Q. That was at 10th and Kentucky Avenue ?
A. About 60 feet the other side of 10th and Kentucky 

Avenue.
Q. Was there any blood on the outside of the fender?
A. No sir.
Q. Was there any blood on the outside of the door or any­

where else except what had run out there from the inside of 
the car?

A. No sir.
Q. Did you examine your brother’s body?
A. Yes sir.
Q. Tell the jury where the wounds were ?
A. The wound was up in here, that was the fatal wound, 

so the Doctor said——
Objection by Attorney for the Defendant.
By the Court: The Doctor has described the wounds.
Q. You heard the Doctor describe those wounds, is that 

correct?
[fol. 45] A. Yes sir.

Q. Just stab wounds?
A. Yes sir.

Cross-examined.
By Hon. C. B. Crossland:

Q. How high was your brother?
A. Five feet seven inches, or something like that.



33

Q. Do you know how much he would weigh?
A. About 168 or 170 pounds.
Q. What was the color of his hair?
A. Well it was black mingled with gray.
Q. Did you see his clothes that night?
A. I helped to take them off of him.
Q. What clothes did he have on?
A. A  light shirt and a pair of gray summer weight 

trousers.
Q. Did he have on a hat?
A. No hat.

Be it remembered that upon the trial of this case the Com­
monwealth introduced and had sworn Buddy Mercer, who 
testified as follows:

Examined by Hon. Holland G. Bryan:
Q. Mr. Mercer, you are a member of the Paducah Police 

Department ?
A. Yes sir.

[fol. 46] Q. And were you such on the night of August 
18th?

A. Yes sir.
Q. Were you riding in one of the patrol cars ?
A. Yes sir, Mr. Green and I.
Q. Did you know W. R. Toon in his life time?
A. No sir.
Q. Were you one of the officers who came up to the scene 

of this accident ?
A. Yes sir.
Q. Tell the jury what you discovered when you arrived on 

the scene?
A. When we got there the car was up against this tele­

phone pole, and I asked somebody if it was a drunk and they 
did not seem to know. I looked in the car and he was stooped 
over the steering-wheel. I threw my flash light in the car 
and then walked around to the side where he was and opened 
the door and threw my light in again and I saw that blood 
was running out of his arm and it was all over his clothes. I 
then telephoned in for the ambulance and it got out there in 
five or six minutes and they took him to the hospital.

3—680



34

Q. Do you know what time it was when you got out there ? 
A. About ten minutes after eleven o ’clock. We were 

down at 9th and Kentucky Avenue, and got some water and 
sat there a minute or two and then we got this call.

Q. You drove from 9th Street down to 10th street?
A. Yes sir.

[fol. 47] Be it remembered that upon the trial of this case 
the Commonwealth introduced and had sworn Leo Poat, 
who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. Where do you li/e, Mr. Poat?
A. At 2008 Broadway.
Q. What is your business ?
A. Traveling Salesman.
Q. Were you any relation to W. R. Toon?
A. By marriage, he was my brother in law.
Q. Do you remember the occasion of his death, the night 

he was killed?
A. I do.
Q. Were you out at this picnic that night?
A. No sir I was not out there.
Q. When did you first receive information that anything 

had happened to your brother-in-law ?
A. About four o ’clock the next morning, I was down at 

Ripley, Tennessee.
Q. Did you immediately come up here then?
A. Yes sir, I got here about noon.
Q. Did you then take possession of Mr. Toon’s clothes?
A. I did.
Q. Do you have them now?
A. Yes sir.
Q. Has there been any changes made in them since that 

time?
A. There has not been.
Q. Will you show those clothes to the jury?
A. Well here are his shoes and socks.

[fol. 48] Q. Just pass them to the jury, one at a time and 
let them see them.

A. There is no blood on either of them. This is his shirt, 
it is as bloody now as it was then. It shows the stab wounds.



35

His shirt was cut off of him at the hospital, but under his 
arm there is a hole showing where the knife went in. I have 
his trousers here and they show that no blood run below his 
knees, all of the blood run down into his lap. There is one 
stabbed place in his trousers. This is his underwear and it 
is all bloody. (Showing the jury his clothes.)

Q. How old was your brother-in-law?
A. I think he was 44 years old.
Q. He was between 40 and 50 years old?
A. Yes sir.
Q. Do you know whether or not he lived in McCracken 

County and in Paducah all of his life ?
A. He was born in Graves County and came to Mc­

Cracken County a number of years ago.
Q. What kind of work did he do?
A. He worked for the Illinois Central Railroad Company 

in the yards, he had charge of the switch engine and switch­
ing crew.

Q. Do you know who his employes were. Do you know 
whether or not he had a colored man working for him by the 
name of Powell?

A. Yes sir, Jim Powell.
Q. Do you know where Jim Powell lived?
A. I did not until this took place. I know where he lives 

now.
[fol. 49] Q. Where does he live now?

A. At 8th & Ohio streets, I believe. I did not know where 
he lived until after this took place. His brother and I were 
trying to trace his movements and it was a thought of his 
that he had probably gone to see this colored man------

Objection by attorney for defendant.
Objection sustained by the court.
Exception by attorney for commonwealth.

Q. In trying to trace his movements you located this 
colored man?

A. Yes sir.
Q. And he lived where?
A. I believe it was at 8th & Jones street.
Q. How close is that to 7th and Ohio streets?
A. It would be a short distance of about three blocks, if I 

am not mistaken.



36

Cross-examined.

By Hon. C. B. Crossland:
Q. Do you know how long Jim Powell worked for him?
A. No I do not, I have heard him speak of Jim several 

times.
Q. From 7th and Jackson streets to 8th & Jones streets 

would be four blocks, wouldn’t it?
A. Probably so.
Q. Mr. Terrell Toon, I will ask you, how long did Jim 

Powell work for your brother W. R. Toon?
A. For four or five years.

[fol. 50] By Mr. Bryan: I want to introduce these clothes 
as a part of the evidence in this case.

By the Court: All right.
(Clothes above referred to, viz, shoes, socks, shirt, pants 

and underwear are herewith filed as a part of the evidence 
in this case and are marked for identification “ Common­
wealth’s Exhibits No. 1).

Be it remembered that upon the trial of this case the Com­
monwealth introduced and had sworn E u g e n i a  H a m i l t o n , 

who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. Your name is Eugenia Hamilton?
A. Yes sir.
Q. Where do you live?
A. At 727 Jackson street.
Q. That is on Jackson street between 7th and 8th streets? 
A. Yes sir.
Q. On which side of the street, towards Broadway or on 

the other side of the street?
A. On the side towards Broadway.
Q. Who lives there with you?
A. My sister.
Q. What is her name?
A. Lindsey Mae Hamilton.
Q. How old is she?
A. Sixteen.



37

[fol. 51] Q. Where do your parents live ?
A. In the bottoms up about Unionville, 111.
Q. Do you know Joe Hale?
A. Yes sir.
Q. How long have you known him?
A. I have known him for four or five months.
Q. Had Joe Hale been coming to see your sister?
A. Yes sir.
Q. For how long ?
A. Ever since she came back over here to stay. Off and 

on I would say around two or three months.
Q. Do you remember the night that Mr. Toon was stabbed 

up there?
A. I remember it was the night of the Joe Louis fight in 

August.
Q. That was the night this man got stabbed?
A. Yes sir.
Q. What time did Joe Hale come to your house?
A. Between 7 :30 and 8 :00 o ’clock.
Q. Did you leave there at any time?
A. Yes sir.
Q. "What time was that?
A. I left home about ten or fifteen minutes to eight 

o ’clock.
Q. Where did you go ?
A. I went across the street to Huey Nailing’s house.
Q. Did you leave Joe Hale and your sister there?
A. I left them at home.
Q. Did you listen to the fight over the radio ?

[fol. 52] A. Yes sir, over at Nailing’s house.
Q. How long was it before you came back home?
A. Between 10:00 and 10:30.
Q. I believe you played cards over there for a while and 

came home ?
A. Yes sir.
Q. When you got back home was Joe Hale there?
A. He and my sister.
Q. Was anybody else there?
A. Willie Hughes.
Q. He is the boy you keep company with?
A. Yes sir.
Q. How long did you stay until you left again?
A. Maybe ten or fifteen minutes. I started over to Dolley



38

Shelbey’s house. I heard her across the street and I holloed 
and told her I wanted a drink of ice water.

Q. Where does she live?
A. There is just one house between her house and mine. 
Q. You heard her across the street and you holloed to her? 
A. Yes sir.
Q. What did she do ?
A. She came across the street and asked me what I 

wanted, and I told her I wanted a drink of ice water.
Q. Then did you start doAvn to her house?
A. Yes sir.
Q. What time was that if you know ?
A. I would say between 10:00 and 10:30.

[fol. 53] Q. You started over to Dolley Shelbey’s house. 
Did you see anybody then ?

A. Yes sir.
Q. Who was it, if you know?
A. I don’t know.
Q. White or colored?
A. White.
Q. Man or woman?
A. A man.
Q. You say you did not know him?
A. I did not.
Q. Could you identify him if you were to see him?
A. No sir.
Q. What kind of looking man was he ?
A. He was a man of medium height, about five feet—eight 

inches, he was not fat, I judge he would weigh about 150 
or 160 pounds, and he looked to me like he had short curley 
hair, and he had on a white shirt.

Q. How was he dressed?
A. He had on a light shirt, I don’t know what color his 

trousers were, he was bare-headed and in his shirt sleeves. 
Q. Which way was he going?
A. ToAvards 8th street.
Q. From 7th street?
A. Yes sir.
Q. As he passed you did he say anything?
A. He said “ Howdy” .
Q. Did he say anything else ?
A. No sir.

[fol. 54] Q. Did he stop?
A. No sir.



39

Q. Just walked on by?
A. Yes sir.
Q. Where did you go?
A. I went to Dolley Shelbey’s and got a drink of ice water.
Q. How long were you over there ?
A. Not over five minutes.
Q. Then did you start back to your house?
A. Yes sir, back through the yard like I had gone over 

there.
Q. Did you see this man again?
A. I met him again.
Q. What way was he going?
A. Back towards 7th street.
Q. Did he say anything to you that time?
A. He just said “ Howdy” .
Q. Did he say anything else ?
A. No sir.
Q. And he walked on by you?
A. Yes sir.
Q. Then what did you do ?
A. I went on home and sat down on the steps and re­

marked to my sister and Joe Hale “ I wonder who he is ” .
Q. Where were they when you got back home?
A. Sitting on the door step.
Q. Do you have a porch to your house ?
A. No sir.
Q. How close is your house to the sidewalk?

[fol. 55] A. It is right out to the sidewalk.
Q. You all were sitting there on the door step?
A. Yes sir.
Q. What was it you said to them?
A. I said, “ I wonder who he is, he spoke to me twice.”
Q. Then what happened ?
A. The man went on up towards 7th street. Wre sat there 

and looked at him, and he stood on the corner a few minutes 
and then he opened the car and got in and Joe Hale said, 
‘ ‘ That is the man who has been stopping colored women and 
asking them to get in his car.”  I said, “ Do you reckon he 
is ”  and he said, “ Yes, I know his car,”  and then a colored 
woman came by there and got within six or eight feet of his 
car, and then she went on down the street. This man came 
on down Jackson street to 8th and turned down 8th street, 
and was gone about long enough to go around the block and



40

he came back again and parked. He did not stay there very 
long and then he drove off again and I don’t remember 
which way he went. After this man drove off Joe Hale got 
up and went up the street and I went up the street behind 
him. I went up the street and he went down 7th street. I 
went up the street to where Skeeter was watching some 
people dancing, and I spoke to Big Hurley and asked him 
if he had seen Skeeter and he------

Objection by Attorney for Defendant.
Objection sustained by the Court.
Exception by Attorney for Commonwealth.
A. Well, I stood there and talked to Hurley a few minutes, 

and then I talked to Willie Hughes and said, “ Come on 
and let’s go home.”  We went up 7th street to Jackson and 
doAvn Jackson to my house and Joe Hale was there, and he 
said, ‘ ‘ That man went up on Ohio street and parked in the 
dark and I digged him a time or two and told him to quit 
stopping these colored women.”  And I said, “ Did you 
hurt him”  and he said “ No I just gigged him a little.”  I 
asked him on Thursday night when he came back up there 
[fol. 56] if he had hurt this man and he said, “ No I just 
gigged him a little.”

Q. When you went up there behind Joe Hale, did he have 
any weapon in his hand?

A. I saw a knife.
Q. What kind of a knife was it ?
A. I just saw the knife in his hand.
Q. Was it open?
A. Yes sir, I just saw the blade.
Q. How big a knife was it?
A. I just saw the blade.
Q. He had it out in his hand ?
A. Yes sir.
Q. Did you say anything to him about the knife ?
A. I told him to close it up and put it in his pocket, and 

he did.
Q. This man never said anything to you except ‘ ‘ Howdy. ’ ’
A. He said “ Howdy”  twice.
Q. He never said anything else to anybody that you 

know of?
A. No sir.
Q. When this colored woman came by did he get out of his 

car?



41

A. No sir, he was sitting in his car.
Q. Could you hear anything that was said?
A. No sir.
Q. Then the man drove off ?
A. She went on down 7th street and he came down Jack- 

son street to 8th and was gone long enough to go around the 
block.

Q. At 7th and Jackson street where the car was stopped, 
what kind of a building is down there ?

A. There is a great big brick building there that has 7 or 
8, or maybe 10 departments in it and it takes up nearly 1/3 
of a block.

Q. Mr. Libel has a grocery in it?
[fol. 57] A. Yes sir.

Q. Is that w-ere this car was parked along there by 
Libel’s Grocery?

A. Yes sir.
Q. Was there any gathering of colored people down there 

that night?
A. Not that I saw.
Q. Where did you listen over the radio to the fight?
A. They had a radio at A lf Strass’ pool room and res­

taurant.
Q. That was across 7th street from where this car was 

parked.
A. The car was on 7th and Jackson and Alf Strass’ is 

on 7th and Adams street.
Q. This man you met you say you did not know him?
A. No sir.
Q. And you would not know him now if you saw him ?
A. No sir.
Q. Had you ever seen him or anybody who looked like 

him up there before ?
A. I never paid any attention to him.

Cross-examined.

By Hon. C. B. Crossland:
Q. He had on a light shirt and was bare-headed ?
A. Yes sir.
Q. When you first met him were you going after some ice 

water ?
A. Yes sir.
Q. Which way was he going?



42

A. Towards 8th street.
Q. Going west on Jackson street?
A. Yes sir.
Q. You met him and he said, “ Howdy” .
A. Yes sir.
Q. How long did you stay over there?
A. Not over five minutes.
Q. Then you started back home?

[fol. 58] A. Yes sir.
Q. And you met him again?
A. Going towards 7th street.
Q. And he said “ Howdy”  again?
A. Yes sir.
Q. That is all he said to you?
A. That is all he said to me.
Q. He did not inquire for anybody?
A. No sir, he just said “ Howdy” .
Q. Why was it you was wondering who he was ?
A. Because he spoke to me going and coming back and 

1 did not know who he was.
Q. White people don’t have a habit of speaking to colored 

women at that time of night, do they?
Objection by Attorney for Commonwealth.
Objection sustained by the Court.
Exception by Attorney for Defendant.
Q. 7th and Jackson, 8th and Jackson and 7th and Adams 

is all a negro community, isn’t it?
A. Most colored.
Q. After he had said “ Howdy”  to you twice you saw 

him talking to another colored woman?
A. After he got in his car.
Q. Where was his car then?
A. At 7th and Jackson.
Q. He got in his car and talked to her?
A. He got in his car and then I saw her and she stopped 

within 6 or 8 feet of his car.
Q. And they talked awhile?
A. I don’t know.
Q. How long did they talk?

[fol. 59] A. Not over five minutes.
Q. Then he drove around the block?
A. Yes sir.
Q. And came back up there again?



43

A. Yes sir.
Q. And stopped again?
A. Yes sir.
Q. Where?
A. At the same place.
Q. That was about 11:00 o ’clock at night?
A. Between 10:00 and 10:30.
Q. Then he moved up again?
A. He drove on off.
Q. Is that the last time you saw him?
A. Yes sir.
Q. Joe Hale went where?
A. He went up 7th street towards Ohio street?
Q. Then came back towards Adams st.?
A. Yes sir.

Redirect by Hon. Holland G. Bryan:
Q. On Jackson street between your house and 8th street 

is there any barbecue stand there?
A. Between my house and 8th street?
Q. Back up that way?
A. Not that I know anything about.

Be it remembered that upon the trial of this case the 
Commonwealth introduced and had sworn L indsey Mae 
Hamilton, who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. Your name is Lindsey Mae Hamilton?
A. Yes sir.
Q. How old are you?
A. Sixteen.

[fol. 60] Q. Talk out a little louder. Where is your home? 
A. At Metropolis, 111.
Q. Your parents live over there close to Brookport, 111. 
A. Yes sir.
Q. Where have you been staying over here ?
A. At 727 Jackson street with my sister.
Q. That is Eugenia Hamilton?
A. Yes sir.
Q. Did anybody else live there with you all?



44

A. No sir.
Q. Do you know Joe Hale?
A. Sure I do.
Q. Have you been keeping company with Joe Hale?
A. He has been my boy friend since I have been over 

here?
Q. Do you remember the night this man got stabbed up 

there ?
A. Yes I remember it.
Q. Do you know what day of the month it was?
A. No I just remember the night, it was the night of the 

Joe Louis fight.
Q. What time did Joe Hale come over to your house that 

night ?
A. About eight o ’clock, between 7:00 and 8:00 o ’clock.
Q. Did your sister go over to Huey Nailing’s house to 

hear the fight?
A. Yes sir and Joe Hale and I went down to Mr. Daw­

son ’s to hear the fight and then came back home.
Q. After you heard the fight you came back home?
A. Yes sir.
Q. How long had you been there when your sister came 

back home?
A. Not very long.
Q. What time do you suppose your sister got back from 

across the street?
A. We had been there a good while when sister came 

back from across the street. After we heard the fight we 
came home.
[fol. 61] Q. The fight was very short and you came back 
home ?

A. Yes sir.
Q. Did she leave home again?
A. She went to get a drink of ice water.
Q. Where?
A. Over at Dolley Shelbey’s house.
Q. Where did she live?
A. The second door from us.
Q. Back towards 7th street, is that right?
A. Towards Smith’s drug store.
Q. How long was she gone down there?
A. She was not gone so long, it did not take her long to 

get a drink of ice water.



45

Q. From the time she left until she got hack' where were 
you and Joe Hale?

A. We was in the house.
Q. In the back part or the front part of the house?
A. In the front room.
Q. Did you see anybody pass there?
A. Yes sir.
Q. Where were you when they passed there?
A. I was laying across the bed looking out the window 

when this man passed there.
Q. Do you know who he was ?
A. No sir.
Q. Was he white or colored?
A. He was a white man.
Q. Had you ever seen him before ?
A. I don’t know that I had.
Q. Would you know him if you were to see him?
A. No sir.
Q. Did this man say anything?

[fol. 62] A. Not that I know of.
Q. Did you go back out in front then ?
A. Joe and I went and sat out on the door steps.
Q. On the sidewalk?
A. Yes sir.
Q. Did this man come back?
A. The same one.
Q. How long was it from the time he went up towards 8th 

street until he came hack ?
A. It was not very long, long enough to go around the 

block and then he came back and went down towards Smith’s 
drug store, and then across l.oke he was going to Smith’s 
drug store, and then he came back to a big mail box that was 
sitting out there, and directly a colored woman appeared, 
she was a tall dark brown skinned woman and her hair was 
sticking up this way (indicating) and him and her talked, 
I don’t know what they said, but anyway they had a little 
conversation and then she went on down down towards Ed­
die Hudson’s.

Q. Which way was that ?
A. You know where Alf Strass’ place is?
Q. That is on 7th and Adams street?
A. Yes sir.
Q. Is that the way this woman went?



46

A. Yes sir and this man comes by our house on Jackson 
street and went down to the other block and then he came 
back and parked in the same place and stayed there a little 
while and then he went up to Ohio street.

Q. Do you know that this man was talking to this colored 
woman, could you hear anything they said !

A. No sir.
[fol. 63] Q. That was %  block from you!

A. Yes sir.
Q. Did he get out of his car ?
A. I don’t know whether he was out or not. The car was 

parked there near a mail box and I don’t know whether he 
was out of the car or not.

Q. You saw this woman come across the street and stop!
A. Yes sir, right after.he came to his car.
Q. How long did she stay there!
A. I never looked at my watch to see.
Q. Could you say whether or not she stood there a few 

minutes ?
A. Yes sir.
Q. He was not around her, was he!
A. She was from here to you from the car. She came 

across the street and the car was parked in the street.
Q. The car was parked at the corner by this street light!
A. Yes sir.
Q. After this woman went away this man started up his 

car and drove to 8th street!
A. Yes sir.
Q. Which way did he turn on 8th street!
A. I don’t know after he came by Jackson street and went 

down towards Mr. Massey’s.
Q. Did he turn to the right or the left after he got to 8th

street!
A. He turned straight on around.
Q. Back towards Broadway!
A. I guess so.
Q. He went around the block and came back and stopped!
A. Yes sir.
Q. Was that the same car!

[fol. 64] A. Yes sir, I knew it was the same car.
Q. How long did the car stay down there!
A. It did not stay very long and then it went on.
Q. Was Joe Hale still at your house when this car pulled 

away the second time!



47

A. When the car started up towards Tennessee street I 
gets up and goes in the house and leaves sister and Joe Hale 
sitting out on the door step.

Q. What did you do in there?
A. I went in the house and got a drink and started to eat 

supper, but I did not eat. I stayed in there awhile and then 
came back out there and both Joe Hale and Eugenia had 
gone. In a few minutes Joe came back.

Q. Did he say what had happened?
A. He said he saw this man parked up there in the dark 

and he gigged him a few times for stopping these colored 
women, and I asked him if he hurt him and he laughed and 
said he did not believe he hurt him.

Q. Did you talk about it after that?
A. No sir, he would not talk about it and neither did I 

because he was sorry he gigged him.
Q. Did you see him with a knife ?
A. No sir, but I heard him say a week before that of find­

ing a knife.
Q. Did he say what kind of a knife it was ?
A. Yes sir.
Q. What kind was it?
A. It seems to me like it was a fish knife.
Q. After he came back and said he had gigged this man 

a few times, did he say anything about his knife?
A. Not to me.
Q. Did he have the knife there with him?

[fol. 65] A. I never noticed it.
Q. You don’t know what he did with this knife?
A. I don’t know what he did with it.
Q. Did this man say anything to you either in going by or 

coming back?
A. I f he did I never heard him.
Q. You was within one foot of him on the sidewalk?
A. Yes sir.
Q. I f he said a word you never heard it?
A. No sir.

Cross-examined.

By Hon. C. B. Crossland:
Q. When this man first passed there where was your sis­

ter, Eugenia Hamilton?



48

A. When he first passed I was in the house, she might 
have been over at Nailing’s playing cards.

Q. How long had she been gone when he passed the first 
time?

A. I don’t know.
Q. Don’t you know how long it was?
A. While we were at another place listening to the fight 

she was at another place listening to the fight.
Q. Do you know whether she had been gone 15 minutes or 

30 minutes or an hour ?
A. She left before me and Joe left.
Q. Where did you and Joe Hale go ?
A. We went down to Mr. Dawson’s to listen to the fight.
Q. How long did you stay down there ?
A. Long enough to listen to the fight and------
Q. Which way was he going when you saw him the first 

time?
A. He was going down towards Mr. Massey’s.
Q. How long until he came back?
A. He just went down the block and came back, I don’t 

know how long it was.
[fol. 66] Q. How long until your sister Eugenia Hamilton 
came in?

A. She was over there getting a drink of ice water and 
she came back and sat down on the door step by me and Joe 
Hale, I don’t know how long it was.

Be it remembered that upon the trial of this case the Com­
monwealth introduced and had sworn M r s . M a m m a  J. E g- 
g e s t e r , who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. What is your name ?
A. Mammie J. Eggester.
Q. Your husband was John Eggester, who was a colored 

lawyer ?
A. That is right.
Q. What do you do ?
A. I teach at the West Kentucky Industrial College.
Q. Where do you live ?
A. At 615 Ohio Street.
Q. Between 6th and 7th streets on Ohio?
A. Yes sir.



49

Q. Do you r-member the night when Mr. Toon was stab­
bed?

A. I remember reading about it the next morning in the 
paper.

Q. The night before you read it the next morning, did you 
see any commotion up there by your house ?

A. I did after this fight of Joe Louis and Sharkey (or 
Schmeling) I was sitting next door, at my neighbors, dis­
cussing the fight and I presume it was between 10:00 and 
10:30. I know it was after 10:00 because the lights at the 
ice station were out, and they go out at 10:00 o ’clock. A car 
came into Ohio street from towards 8th street. I recognized 
it because the lights shone in my face, and just about the 
time it drove up by the side of Allen’s grocery on the south 
west corner and stopped the lights went out; and in a few 
minutes after the lights went out I heard a man’s voice—I 
saw the car but did not see any individuals. This man’s 
[fol. 67] voice said, “ My God, don’t do that, don’t do that” , 
and then an oath passed, and then immediately the car 
started up and went at a very rapid speed towards the 
boulevard, without ever stopping for the boulevard and 
turned north on 6th street.

Q. This car stopped by the side of Allen’s grocery?
A. It did.
Q. On which corner is that?
A. It is on the south west corner.
Q. Of 7th and Ohio Streets?
A. Yes.
Q. You live farther down in the block?
A. I live in the middle of the block.
Q. Could you see anybody moving around the car?
A. After he halloed several people came to the corner. 

I did not leave the porch. I stood up when I heard the hollo 
and several people came to the corner. I never saw any­
body get in or out of tl\e car, I don’t know whether they 
were white or colored people.

Q. You heard this voice hollo “ My God, don’t do that, 
don’t do that?”  and then the car drove away?

A. Yes sir.
Q. Who was the other woman with you?
A. Allie Durrett.

4— 680



50

Cross-examined.

By Hon. C. B. Crossland:
Q. That grocery store was closed?
A. Yes it was.
Q. Up in that neighborhood around where you live and at 

7th and Jackson, 8th and Ohio and 7th and Adams is a 
colored community.

A. Largely so, a few white people are scattered around 
there.

[fol. 68] Be it remembered that upon the trial of this case 
the Commonwealth introduced and had sworn P r i n c e  W il­
l i a m  T h o r p e , who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. Your name is Prince William Thorpe?
A. Yes sir.
Q. Do they call you Prince or William?
A. Prince.
Q. How old are you?
A. Nineteen.
Q. Where do you live?
A. At 720 Jackson street.
Q. Who do you live with?
A. My father.
Q. Do you know Joe Hale?
A. Yes sir.
Q. Do you know this other boy, “ Junkhead. ” ?
A. Yes sir.
Q. What is his right name ?
A. James Gilbert Martin.
Q. Do you remember the night that Mr. Toon was stabbed 

to death up there in your part of town?
By the Court: Prince William you can testify or you 

don’t have to testify, but if you do testify whatever you say 
might be used against you.

A. (No answer.)
By Mr. Crossland: Tell the court whether or not you 

want to testify?



51

A. I refuse to testify because I will incriminate myself.
Q. Who told you to say that ?
By the Court: You cannot compel him to testify.
By Mr. Bryan: The Commonwealth will dismiss the in- 

[fol. 69] dictment against Prince William Thorpe for 
reasons endorsed.

By the Court: All right, now you can testify. The indict­
ment has been dismissed against you and you can testify 
now, and the court will require you to testify.

Q. Do you remember the night this man was killed up 
there ?

A. Yes sir.
Q. That was the night of the Joe Louis fight?
A. It was.
Q. Do you know Joe Hale?
A. Yes, sir.
Q. Where did you see him?
A. At 7th and Jackson streets.
Q. About what time did you see him?
A. I don’t recall.
Q. Was it before or after the fight?
A. I refuse to testify.
By the Court: You will have to testify now. You cannot 

ask to be excused from testifying, the indictment has been 
dismissed against you. You go ahead and testify and tell 
the truth.

Q. What time was it? What is the matter with you?
A. Not anything.
Q. "What time was it?
A. I refuse to testify.
Q. The Court has told you that you have to testify now.
By the Court: You cannot be prosecuted in this case now. 

You go ahead and testify.
Q. Are you going to testify or are you going to refuse to 

testify?
A. I refuse to testify.
By the Court: 'Why are you refusing to testify?
A. It might incriminate myself.
By the Court: There is no chance of incriminating your- 

[fol. 70] self now. The indictment has been dismissed



52

against you. Now you go ahead and testify and tell the truth 
about it.

Q. Was it before or after the Joe Louis fight when you 
saw him up there ?

A. (No answer.)
By the Court: Go ahead and answer his question.
A. I refuse to testify.
By the Court: You will testify or I will keep you in jail 

until you do testify. Go ahead and answer his question 
now.

Q. Was it before or after this fight that you saw him 
there on the corner. Are you going to answer that question 
or not?

A. No sir.
By the Court: Look around here. Who told you not to 

testify since the indictment has been dismissed against you, 
has anybody told you not to testify?

A. My lawyer.
By the Court. You don’t need a lawyer now, you are 

not being prosecuted. You go ahead and testify now.
Q. Are you going to testify now or not?
A. No sir.
By the Court: Take him back over to the jail.
(The hour of adjournment having arrived, the court per­

mitted the jury to go until tomorrow morning at 8 :00 A. M. 
after giving them the usual admonition not to discuss the 
case, etc.)

(Met pursuant to adjournment this the 13th day of Oc­
tober, 1936, and proceeded with the examination of this 
witness Prince William Thorpe.)

Q. Are you willing to testify this morning in this case?
A. Yes sir.
Q. On the night of the Joe Louis fight, August 18th, 1936, 

did you come up around 7th and Jackson streets?
[fol. 71] A. Yes sir.

Q. About what time was that?
A. Between a quarter to eleven and eleven o ’clock.
Q. At night.
A. Yes sir.



53

Q. Do you know Joe Hale?
A. Yes sir.
Q. Do you know Junkkead?
A. Yes sir.
Q. What is his right name?
A. James Gilbert Martin?
Q. Did you see them anywhere?
A. When I first went up there I did not.
Q. Was anybody there at the corner?
A. Yes sir.
Q. Did you see an automobile there?
A. An automobile drove up there after I got up in front 

of Chas. White at 7th and Jackson and parked?
Q. Were you up at the corner ?
A. I had passed the corner.
Q. And had started where?
A. Home.
Q. Did that car stay there for any length of time. How 

long did that car stay there?
A. About five minutes.
Q. Then when it left which way did it go ?
A. It backed up a little bit and then went down 7th street 

towards Adams.
Q. Did you know who was in this car?
A. I know there was just one person in it.
Q. Was it a man or a woman?
A. When at 7th and Jackson streets I don’t know whether 

it was a man or woman.
[fob 72] Q. Could you tell who was in it?

A. I just saw the figure of one person.
Q. Could you tell whether this person was white or 

colored ?
A. No sir.
Q. Was Joe Hale and Junkhead there at that time?
Objection by Attorney for Defendant.

By the Court: Who else was there, if  anybody?

Exception by Attorney for Commonwealth.

A. Who else was there in the crowd?
Q. Yes?
A. I  was talking to Will Durrell at this time.
Q. Was anybody else there?



54

A. Dolley Skelbey, and Pearl Bowland was at the door 
of her house on the proch.

Q. How far from 7th and Jackson streets?
A. The second door.
Q. What did you do?
A. I saw Junkhead and Joe Hale running up the street 

towards 7th and Ohio.
Q. What did you do?
A. I went on up there behind them.
Q. How far did you go?
A. We went all the way to 7th and Ohio streets.
Q. What happened when you got up there?
A. When I got up there Junkhead said, “ I wonder what 

he wants up in this neighborhood”  and I said, Is that the 
car that was down at 7th and Jackson street”  and he said, 
“ Yes,”  and then I walks up to the car ans asked him if he 
was looking for someone, and he said, “ Yes, I am looking 
for a man with a big car.”  and I asked him if he knew his 
name, and he said, “ Jim Powell”  and I said, “ He lives at 
7th and Jones Street”  and about that time Joe Hale walks 
[fol. 73] up on the other side of his car and said, “ I seen 
you on the other corner awhile ago talking to a colored 
woman,”  and this man said, “ Yes, I was asking for some 
information”  and then Joe Hale opened the car door and 
began cutting him.

Q. Did this man ever get out of his car ?
A. I never seen him.
Q. Do you know how many times Joe cut him?
A. No sir.
Q. What did this man say or do?
A. He hallowed and then he drove his car towards 6th 

street and turned left on 6th street towards town.
Q. Then what did you do ?
A. I run back down to the corner of 7th and Jackson 

street.
Q. How long did you stay in Paducah before you left?
A. Until Friday.
Q. When you left here where did you go ?
A. I went to Paris, Tenn.
Q. How long did you stay down there?
A. Three weeks.
Q. Then where did you go ?
A. to Louisville.



55

Q. How long did you stay in Louisville?
A. I went up there and------
Objection by Attorney for Defendant.
By the Court. This is a witness and it is not material 

where he went.
Exception by Attorney for Commonwealth.

[fol. 74] Cross-examined.
By Hon. C. B. Crossland:

Q. Prince, you have been hid in the Commonwealth’s At­
torney’s office for the last V2 hour or more, haven’t you?

A. Yes sir.
Q. They have been talking to you about this case ?
A. No sir, they never said anything about this case.
Q. Have not said anything to you about this case at all? 
A. No sir.
Q. Have not said anything to you about it at all ?
A. They just asked me was I willing to testify.
Q. A  colored girl came in there and talked to you?
A. She was in there but never said anything to me.
Q. What did they have her in there for?
A. She was in there when I got there.
Q. Is that your girl?
A. Yes sir.
Q. These officers went out and told her to try and get you 

to change your testimony?
Objection by Attorney for Commonwealth.
By the Court. He would not know about that.
Exception by Attorney for Defendant.
Q. She was in there when you came in there?
A. Yes sir.
Q. You was indicted with Joe Hale and charged with 

murder ?
A. Yes sir.
Q. And this indictment was dismissed against you ?
A. Yes sir.

Redirect by Hon. Holland G. Bryan:
Q. Didn’t you send word over here that you wanted to 

come over here this morning and testify?
A. Yes sir, I sent word that I wanted to come over here.



56

[fol. 75] Be it remembered that upon the trial of this case 
the Commonwealth introduced and had sworn E dward L ee 
B oyd, who testified as follows:

Examined by Hon. Holland G. Bryan:
Q. Where do you live?
A. At 417 North 13th Street.
Q. How long have you lived in Paducah?
A. Seven years.
Q. How old are you?
A. Eighteen.
Q. Do you remember the night of August 18th, when this 

man was stabbed, and said to have been stabbed up in the 
south part of town, the night of the Joe Louis fight?

A. I remember the night of the fight.
Q. You remember when this was supposed to have hap­

pened?
A. Yes sir.
Q. Do you know Joe Hale?
A. Yes, sir.
Q. How long have you known him?
A. For about a year.
Q. Did you see Joe Hale the next morning after this 

stabbing occurred?
A. Yes, sir.
Q. Did he have any knife with him?
Objection by Attorney for Defendant.
Objection overruled by the Court.
Exception by Attorney for Defendant.
A. Yes, sir.
Q. Did he say anything about that knife to you?
A. No sir he never said anything about the knife.
Q. Did he show you the knife the next morning?
A. Yes, sir, I saw the knife.
Q. What kind of knife was it?
A. A long knife.

[fol. 76] Q. Was it one of these fish knives?
A. Yes sir.
Q. Did that knife have any bood on it?
Q. Did that knife have any blood on it?
A. No sir, I don’t think so.
Q. Did not have any blood on it?
A. No sir.



57

Q. Did he tell you anything he had done with this knife ? 
A. Yes sir.
Q. What did he say?
A. He said he cut a man with it.

Be it remembered that upon the trial of this case the 
Commonwealth recalled T errell T oon, who testified as fol­
lows :

Examined by Hon. Holland G. Bryan:
Q. I believe you said you examined your brother’s car 

that night ?
A. Yes sir.
Q. Tell the jury whether or not there was anything in the 

car?
A. There was a package of barbecue, I judge 4 or 5 

pounds of it in the car. It was still hot, it was in my broth­
er ’s car.

Cross-examined.

By Hon. C. B. Crossland:
Q. He would not have been hunting a barbecue stand up 

on 8th Street to get some barbecue ?
A. How is that?
Q. I f  he had this barbecue in his car, he would not have 

been hunting a barbecue stand on south 8th street, would
he?

A. I don’t know.

Redirect by Hon. Holland G. Bryan:
Q. You said this man Jim Powell worked under your 

brother ?
A. Yes sir.
Q. Do you know whether or not Jim Powell had been 

sick. Had he been off from his work sick?
A. Yes sir, for something like a month.

Recross by Hon. C. B. Crossland.
Q. Is barbecue good for a sick negro ?

[fol. 77] Objection by Attorney for Commonwealth.



58

By the Court: Let’s don’t have any of that foolishness. 
By Mr. Crossland: I don’t think that is foolishness.
By the Court: I think it is.
Exception by Attorney for Defendant.

Be it remember- that upon the trial of this case the De­
fendant introduced and had sworn James Powell, who tes­
tified as follows:

Examined by Hon. C. B. Crossland:
Q. Tell the jury your name ?
A. James Powell.
Q. Are you the same James Powell who worked for the 

Illinois Central Railroad Company?
A. Yes sir, I am connected with the crew.
Q. Where do you live?
A. At 9th and Jones street.
Q. How far is that from 7th and Jackson street?
A. About five squares.
Q. State whether or not Mr. W. R. Toon knew where 

you lived?
A. Mr. Toon knew where I lived.
Q. State whether or not he had passed there and seen 

you at your home and waved at you on ditferent occasions ?
A. He passed there several times and waved at me.
Q. Did you have any engagement with Mr. Toon on that 

night ?
A. No sir.
Q. Did he ever visit your home before ?
A. No sir, he never has been to the house.

Cross-examined.

By Hon. Holland G. Bryan:
Q. You have been sick for sometime and off from your 

work?
A. I have been sick ever since July 31st, that is the last 

[fol. 78] day I seen Mr. Toon.
Q. You drive a big car, don’t you?
A. Yes sir.
Q. You say that Mr. Toon knew where you lived?
A. Yes sir.



59

Q. Do you remember talking to Mr. Terrell Toon last 
Sunday.

A. Yes sir.
Q. Didn’t you tell Mr. Terrell Toon that you could not 

say whether W. R. Toon knew where you lived?
A. No sir, I never told him that I could not say whether 

Mr. W. R. Toon knew where I lived. I said that Mr. Toon 
passed there. I told him I had seen him pass there several 
times in his car going south on 9th street.

Q. W. R. Toon looked very much like his brother Ter­
rell?

A. Yes sir.
Q. Didn’t you tell Terrell Toon that they looked so much 

alike that you did not know which one it was ?
A. I said they looked very much alike, but I did know 

one from the other.
Q. How do you know that W. R. Toon knew where you 

lived, he has never been to your house ?
A. I spoke to him several times while on the job with 

him and told him that I seen him pass my house, and he 
said, “ Yes.”  He would wave at me every time he passed.

Q. Did you tell Terrell Toon anything like that ?
A. Yes sir.
Q. Didn’t Terrell Toon say, “ I have been passed your 

house several times, we both have the same washerwoman, 
and I have waved at you too. ’ ’

A. Yes sir.
Q. Didn- you tell Terrell Toon that W. R. Toon waved 

at you?
A. Yes sir.
Q. Didn’t you tell Terrel- Toon that you could not tell 

one from the other?
[fol. 79] A. I said they both looked very much alike but 
I could tell one from the other.

Redirect by Hon. C. B. Crossland:
Q. You have been working for Mr. Toon for four or five 

years ?
A. I have been working on the same job, off and on, for 

that length of time.
Q. How long had you been sick at this time?
A. Ever since July 31st.
Q. State whether or not W. R. Toon knew you was sick?



6 0

A. Yes, he knew I was off sick.
Q. At that time, in your physical condition being sick, 

were you in any condition physically to eat barbecue?
A. No sir, I never ate any barbecue all Summer.

Be it r-membered that upon the trial of this case the 
Defendant introduced and had sworn Novella Nailing, who 
testified as follows:

Examined by Hon. C. B. Crossland:
Q. Where do you live?
A. At 718 Jackson street.
Q. I will ask you to state whether or not before this 

killing, a white man stopped you on the street or followed 
you up there in this neighborhood?

Objection by Attorney for Commonwealth.
By the Court: I will hear what she has to say.
Exception by Attorney for Commonwealth.
A. Yes sir.
Q. You did not know that man?
A. No sir, I did not know him.
Q. Where did he stop you?
A. I was at my club, I was coming from my club, and 

just as I got to 9th street------
Objection by Attorney for Commonwealth.

[fol. 80] By the Court: Fix the time and the date.
Exception by Attorney for Commonwealth.
Q. When was that, as near as you can remember?
A. I don’t remember the time, it was in the Winter, it 

was cold.
Q. Look at this man and state whether or not the man 

who stopped you resembled him, and was about his size? 
(Pointing to Terrell Toon.)

A. He looked like he was about his size. I don’t remem­
ber just how he looked, he had on a hat and he looked like 
he might have been in his shirt sleeves, he was in a nice 
looking black car.



61

Q. Do you know what kind of car it was ?
A. I don’t know the name of it.
Q. What did this man say to you ?
A. Every time he passed me he would say “ Hello girlie, 

let’s go riding.”
Q. What time of night was this?
A. About 11 o ’clock.
Q. The store was closed up at that time?
A. Yes sir.

Cross-examined.

By Hon. Holland G. Bryan:
Q. This was along in the Winter?
A. Yes sir.
Q. And this man was in his shirt sleeves?
A. Yes sir.
Q. At 11:00 o ’clock at night?
A. About that time.
Q. You was walking along the street?
A. Yes sir.
Q. By yourself?
A. Twice I was by myself.
Q. Was this same man in the habit of driving by you 

in his shirt sleeves?
[fol. 81] A. I don’t know whether it was the same man 
or not.

Q. What part of town was that?
A. I was over at Mrs. Gardner’s house on 9th street.
A. South or north?
A. South.
Q. How far up is that?
A. Between Ohio and Clark streets.

By the Court: You say that was in the Winter time?

A. It had just begun to get warm.

By the Court: I will exclude that from the jury. You 
will not consider that for any purpose.

Exception by Attorney for Defendant.



62

Be it remembered that upon the trial of this case the 
Defendant introduced and had sworn Bertie Mae Bradfort, 
who testified as follows:

Examined by Hon. C. B. Crossland:
Q. Where do you live?
A. At 710 Jackson street.
Q. Do you remember when this cutting took place on Au­

gust 18th, 1936?
A. No sir.
Q. You remember hearing of it?
A. Yes sir.
Q. A short time before that, state, whether or not some 

white man stopped you and tried to get you into his auto­
mobile ?

A. He did.
Q. Look at this second man over there and say whether 

or not he resembles him or was about his size? (Indicating 
Terrell Toon).

A. I don’t know how he looked, he had a nice looking 
black car.

Q. What did he say to you ?
A. He said, “ Come here”  and I kept on walking, he 

[fol. 82] stopped and I kept on walking. He was going slow 
behind me until I got to Mrs. Nailing’s and then he turned 
south at 11th street.

Q. What time of night was that?
A. Quarter to eleven o ’clock.

Cross-examined by Hon. Holland G. Bryan:

Q. You don’t know who that man was?
A. No sir.

By the Court: I will exclude that from the jury. You 
will not consider that for any purpose.

Exception by Attorney for Defendant.
Commonwealth and defendant close.

Reporter’s certificate to foregoing transcript omitted 
in printing.



63

[fol. 83] I n Court of A ppeals of K entucky

Joe H ale, Appellant, 
vs.

Commonwealth of K entucky, Appellee 

Appeal from the McCracken Circuit Court 

Judgment—May 21, 1937

The Court being sufficiently advised, it seems to them 
there is no error in the judgment herein.

It is therefore considered that said judgment be affirmed, 
and same shall be carried into execution as provided by law 
on the fifth Friday following the date of the issuaZ of this 
mandate; which is ordered to he certified to the Warden of 
the Kentucky Penitentiary at Eddyville, Kentucky. Whole 
Court sitting. Judges Clay, Rees and Stites dissenting.

It is further considered that the appellee recover of the 
appellant, its costs herein expended.

[fol. 84] I n Court of A ppeals of K entucky

[Title omitted]

Opinion of the Court by Commissioner Morris—Decided 
May 21, 1937, Modified October 8, 1937

The appellant, Joe Hale, a negro, upon separate trial 
under an indictment charging him and others of murdering 
W. R. Toon, was convicted, the jury by its verdict fixing 
his punishment at death. His motion for a new trial was 
overruled, and from that order and the judgment pro­
nounced and entered upon the verdict, he appeals, urging 
through his counsel a number of grounds as prejudicial 
errors, of sufficient materiality as is claimed to authorize a 
reversal of the judgment, each of which will be disposed 
of as the opinion proceeds. Perhaps the most substantial 
one, and which appears at the threshold of the case, is the 
[fol. 85] alleged error of the court in overruling appellant’s 
motion (which motion is not in the record), made before



64

u4 o | | u J A w i } '

T$Zp
ilSbjjj^>

the trial was begun, to quash the indictment against him, 
and in overruling a motion (which is in the record) to dis­
charge the qualified panel of petit jurors after they were 
selected to pass on the issue of his guilt or innocence, which 
was made immediately after such qualification, the latter 
being based upon the same ground urged for the quashing 
of the indictment. That ground is a right claimed bv ap­
pellant as one guaranteed to him bv the provisions of the 
Fourteenth Amendment to the Constitution of the United 
States as interpreted and applied by the Supreme Court 
of the United States in the case of Norris v. Ala., 294 U. S. 
587, 79 L. Ed. 1074, and others cited in that opinion, and 
followed in Patterson v. Ala., 294 U. S. 600, 79 L. Ed. 1082.

The constitutional guaranty invoked in those cases, and 
which appellant attempted to invoke here, is formulated by 
the Supreme Court of the United States in the case of 
Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839, 20 S. Ct. 687, 
thus:

“ Whenever by any action of a State, whether through 
its legislature, through its courts, or through its executive 
or administrative officers, all persons of the African race 
are excluded, solely because of their race or color, from 
serving as grand jurors in the criminal prosecution of a 
[fol. 86] person of the African race, the equal protection 
of the laws is denied to him contrary to tlnTFourteenth 
Amendment of the Constitution of the United States.’ ”

The inserted excerpt from that (Carter) case was quoted 
and approved by the Supreme Court in the opinion in the 
Norris case as being a correct statement of the constitu­
tional principle therein involved, being the same, as we 
have stated, invoked by appellant in this case. It will be 
noticed that before the federal constitutional provision and 
guaranty is violated so as to mature the right of one to 
rely upon it, the exclusion of negroes from serving on either 
grand or petit juries in the enforcement of the criminal 
laws of a state, must not only have been by a state, through 
its legislature or its courts, or its executive or administra­
tive officers, but must have been made solely because of their 
race or color; but when so done, “ the equal protection of 
the laws is denied to a member of that race who stands ac­
cused of violating the criminal laws. ’ ’ It therefore follows 
that before the principle may be successfully invoked, the



65

accused, seeking shelter thereunder, much charge as a fact 
that members of his race were so excluded in some of the 
ways pointed out, and in addition thereto that it was done 
solely “ because of their race or color” . W hen such a mo­
tion is made, setting forth the outlined ground, and the 
charge is proven, then an occasion is created for the ap- 
ifiication of the principle enunciated in the Norris and cited 
cases.
[fol. 87] It is stated in the Norris opinion, and others 
therein referred to and herein cited, in substance, that the 
charge or motion itself specifically set forth the elements 
necessary for the application of the principle, as we have 
pointed them out and as contained in the excerpt from the 
Carter opinion, supra, and that such charges or expressly 
stated grounds were proven and established by the evi­
dence heard on the trial of the motion. We construe those 
opinions to require not merely proof of the facts necessary 
to create the charge, but that such proof must be preceded 
by a like statement of the facts creating the right to invoke 
the principle, and which latter is analogous to the universal 
requirement of a pleading that it set forth the facts relied 
on, before evidence to prove the facts can become effective, 
although sufficient to establish the necessary ground if facts 
had been stated in the motion, or in some affidavit or other 
supporting document.

To begin with, it is not stated in this case either in the 
motion which appears in the record or in appellant’s affi­
davit in support thereof, or elsewhere in the entire appli- 
cation procedure that appellant was a member of the 
African race, although the court no doubt by observation 
knew that fact to be true. That omission, however, a tech­
nical one, upon which we would not be inclined to hinge ** 
our opinion even were we authorized to do so.//But a more 
serious defect m the application, noticeable in the two mo- 
[fol. 88] tions to obtain the relief by each of them sought, 
is the failure of appellant in the motion or charges ..filed, 
or in his affidavit filed in support thereof, to state or make 
the specific grounds the basis or foundation for his motion.
He set forth in his affidavit that he could prove by the pres­
ent sheriff, and a number of his predecessors, going back 
as far as 1906, that during the entire period no member 
of the African race had been summoned or served on a

5— 680



66

grand or a petit jury in McCracken County. He also stated 
therein that he could prove the same facts by all of the cir­
cuit clerks of the McCracken circuit court throughout the 
same period. He likewise named a number of witnesses, 
consisting of attorneys at the bar, court stenographers and 
others, whose professional duties called them into intimate 
relation with the proceedings of the McCracken circuit 
court, including the judge presiding at the trial, and stated 
that all of them would make similar statements.

It can, therefore, not be denied or questioned hut that 
Isuch proof, uncontradicted, would tend to establish all of 
the elements calling for the application of the invoked prin­
ciple, and which character of proof is expressly approved 
in the Norris opinion; for in that case almost identical proof 
in support of the motion of the accused was adduced.
[fob 89] After naming the witnesses by whom such facts 
could be established, appellant further stated that such tes­
timony, “ is true and will be true when proven” . But it 
will be perceived that the quoted statement is only a veri­
fication of the truth of the testimony by which appellant 
proposed to establish the grounds of his motion, provided 
it sufficiently charged those grounds to allow the receiption 
of that testimony. Further along in his affidavit appellant 
says that, “ the foregoing facts, when proved, shoiv a long- 
continued, unvarying and wholesale exclusion of negroes 
from jury service in this county on account of their race 
and color; that it has been systematic and arbitrary on 
the part of the officers and commissioners who select the 
names for jury service, for a period of fifty years or 
longer.”  That excerpt is clearly but an appraisement of 
the weight to be given testimony that appellant intended 
to introduce in support of his motions. In other words it 
was in effect a statement by him that “ when I shall have 
introduced that testimony it will be sufficient to show the 
facts” , which he should have but did not set forth in his 
motion. When we examine that motion we find that all that 
it contains is this: “ Came defendant, Joe Hale, by attor­
ney, and filed motion and moved the court to set aside the 
indictment in the above styled prosecution, and in support 
of said motion to set aside, filed his own affidavit and his 
supplemental affidavit.”  The order then recited that the 
parties filed their stipulation to the effect that the wit­
nesses named in appellant’s affidavits, would testify to the 
[fol. 90] matters and things which they stated in said affi-



67

davits. The court overruled the motion to quash the indict­
ment and later overruled the one to discharge the trial 
panel, based upon the same affidavit.

Looking to the affidavit as supplementing the motion as 
above inserted, it will be found that it nowhere states the 
necessary elements for the application of the invoked prin­
ciple, in that there is an entire failure to charge therein 
as grounds therefor, that such exclusion of members of the 
African race from service on juries was superinduced and 

joccurred ‘ ‘ solely because they were members’ ’ of that race.
We therefore have a case where the proof might be re- V 

garded as sufficient to sustain the ground upon which the 
motion was evidently made, but there is wanting in the 
record a sufficient statement of those grounds to permit the, 
introduction of that proof. The failure so pointed out is 
'analogous, as we conclude, to a case where there is proof 
without pleading, and the rule is that “ pleading without 
proof or proof without pleading”  are each unavailable. 
Suppose that were dealing with a motion for change of 
venue instead of one to quash the indictment or to dis­
charge the trial panel, the two latter accomplishments being 
the objectives sought in this case, the movant for such 
change must set forth in his motion the statutory grounds 
entitling him to that relief, and before he can obtain it he 
[fol. 91] must support those charges by sufficient proof. It 
certainly could not be held sufficient for him to embody in 
his motion something like this: “ The defendant moves for 
a change of venue of this prosecution to some other 
county” , and no more. He is required, before he is even 
permitted to introduce proof, to make a prior charge of 
facts entitling him to a change of venue. We think no one 
would dispute the correctness of our illustration with refer­
ence to a removal of the trial to another court, and we are 
unable to see any distinction between what is required in 
such a motion and what should be required in motions like 
these under consideration. Other persuasive and confirma­
tory illustrations might be made, but which we deem un­
necessary.

We could attach a long list of cases from both federal 
and state courts approving the declared principle as stated 
in the Carter opinion, supra, and reaffirmed in the Norris 
opinion by the same court, if it were necessary; but, since 
the principle as so declared is admitted and adhered to by



68

all courts, we deem it unnecessary to lengthen this opinion 
by an additional list of pertinent cases.

We therefore conclude, for the reasons stated, that the 
court properly overruled both the motion to quash the in­
dictment and the one to discharge the trial panel, and for 
[fol. 92] which reason this ground is disallowed, and which 
brings us to the consideration of the other grounds relied 
on relating to the merits of the case.

The homicide occurred in Paducah around 11:00 p. m., 
August 18, 1935. The deceased, an employe of a railroad 
company, was forty years of age. He had attended a picnic 
at 28th and Kentucky Avenue in Paducah on the night in 
question, and was seen at the grounds as late as ten o ’clock. 
About eleven o ’clock a car was observed to strike a tele­
phone pole at 10th and Kentucky streets. Persons making 
investigation (one of them a fellow-employe) found de­
ceased slumped under his steering wheel, semi-conscious 
and bleeding profusely. Police aid was promptly secured, 
and the injured man was hurriedly removed to a hospital. 
Examination by a physician developed that he had received 
three definite stab wounds, one in his left thigh, one in the 
chest, the third in the left arm, the latter almost severing 
an artery. A  physician says that the thrust in the arm, 
causing excessive hemorrhage, was the fatal wound. The 
injured man died within an hour and a half after the 
wounds had been inflicted.

On the night of the homicide appellant had been visiting 
a friend, Mae Hamilton, at the home of her sister Eugenia, 
at 727 Jackson Street. While there a white man was seen 
to pass the house. Later Eugenia came to the porch where 
appellant and her sister were sitting, and related that on 
[fol. 93] the way to a neighbor’s and on her return, a white 
man had spoken to her. She remarked “ I wonder who he 
is, he spoke to me twice. ’ ’ The man who had spoken to her 
went to the corner, stood a few minutes, got into a car and 
spoke to another colored woman. Appellant then re­
marked, “ That is the man who has been stopping colored 
women and asking them to get in his car; I know his car. ’ ’

The occupant of the car then came down Jackson to 8th 
and turned into that street, disappearing from view just 
long enough to drive around the block, came back again, 
parked at the corner for a few moments and again drove out 
of sight of the parties at Eugenia’s home. After the car



69

had disappeared the second time appellant got up and went 
up Jackson Street to 7th, and turned down that street. In a 
short time he came back to Eugenia’s home and said: “ That 
man went up on Ohio Street and parked in the dark and I 
gigged him a time or two and told him to quit stopping these 
colored women.”  Eugenia asked, “ Did you hurt him” , and 
he said, “ No, I just gigged him a little.”

Thorpe, a witness, relates that on the night in question 
he saw a car parked near 7th and Jackson, where it re­
mained a few moments and then went toward Adams Street. 
Appellant and James Martin came hurriedly up Jackson 
toward 7th. Witness followed, overtaking them at 7th and 
Ohio. Martin said: “ Is that the car that was down at 7th 
[fol. 94] and Jackson?”  and witness answered, “ yes” . 
Thorpe walked up to the car parked near the corner, asked 
the driver if he was looking for some one, and the driver 
replied, “ I am looking for Jim Powell” . He was told by 
witness that Powell lived at 7th and Jones Streets. Just 
at this time appellant went to the other side of the car and 
said, “ I seen you on the corner a while ago talking to a 
colored woman, and this man answered, ‘ Yes, I was asking 
for some information’, and then Joe Hale opened the car 
door and began cutting him.”  The driver of the car 
“ hollered”  and started his car toward 6th Street, finally 
driving to Kentucky Avenue, thence near to 10th, where his 
failure to observe a stop light and his continued driving to 
the left side of the street, attracted the attention of persons 
who saw the car run into a telephone pole. What then 
occurred has been related.

The appellant did not testify, nor was there any effective 
testimony introduced in his behalf; such as it was it neither 
undertook to, nor did it in any wise overcome the proof that 
appellant had stabbed and fatally wounded deceased.

On this appeal the grounds presented in support of appel- 
[fol. 95] lant’s contention that a reversal should be ordered, 
in addition to the one above discussed, are:

(1) The venue of the offense, though properly laid in the 
indictment was not fixed by proof, there being no evidence 
showing that the act of injury was committed in McCracken 
County.

(2) Material and competent evidence offered by appellant 
and rejected by the court’s erroneous ruling.



70

Taking up ground No. 1, we observe from the proof that 
it is not stated by any witness in so many words, that the 
stabbing occurred in McCracken County. There is an 
abundance of evidence establishing the fact that the act 
occurred in Paducah. Section 18 of the Criminal Code limits 
the jurisdiction of circuit courts of trials in criminal cases 
to offenses committed in the respective counties in which 
they are held. It is necessary to bring to the court and the 
jury such facts as will justify the court and the jury in con­
cluding that the offense was local. In this case the deceased 
was seen at a picnic in Paducah on the night of the injury 
a short time before he was fatally stabbed. Deceased had 
been working in the railroad shops, and lived “ all his life” , 
in Paducah. City policemen testified, as did others, as to 
points, places and occurrences of the night, all in Paducah. 
He was attended by a Paducah physician in a Paducah 
hospital, where he died.
[fol. 96] Counsel is of the impression that because the wit­
ness, who saw the stabbing, localized it at “ Seventh and 
Ohio” , there is failure of jurisdictional proof. We can not 
agree with this contention, in view of the fact that we have 
so frequently held that a failure to name the county is not 
necessarily a failure to prove the locus, if there be sufficient 
proof of facts and circumstances from which the jurisdic­
tion may be reasonably inferred. In this case the trial 
court could and no doubt did, take judicial knowledge that 
Paducah was and is the county seat of McCracken County. 
While the jury might not be presumed to know the location 
of “ Seventh and Ohio” , from the proof introduced, they, 
being reasonably intelligent, had no difficulty in concluding 
that the occurrence took place in Paducah, and with some 
attributable knowledge of local geography, knew that 
Paducah was in McCracken County.

Counsel relies on Wilkey v. Com., 104 Ky. 325, 47 S. W. 
219, where the sole jurisdictional proof was that the crime 
was committed in “ Rhea’s wheat field about 400 yards dis­
tant from the residence of Joe Tyree” . That case, and 
others, reversed for lack of proof on this particular point, 
are viewed and distinguished in the more recent case of 
Nelson v. Com., 232 Ky. 568, 24 S. W. (2) 276. A  casual 
reading of the Nelson case, which cites a number of others 
to like effect, clearly demonstrate that in the case at bar the



71

[fol. 97] proof was fully sufficient to take the case to the 
jury, and we might add as being conclusive, Stubblefield v. 
Com., 197 Ky. 218, 246 S. W. 444; Fletcher v. Com., 210 Ky. 
71, 275 S. W. 22; Slone v. Com., 246 Ky. 853, 55 S. W. (2) 
1113.

Appellant introduced two colored women who lived in the 
neighborhood of 718 Jackson Street, one of whom stated 
that a man whom she did not know, but who looked to be 
about the size of the brother of deceased, had accosted her 
on the street several times. The other witness said that 
some time prior to the homicide “ some man”  who had a 
nice looking car, called to her. The court properly excluded 
the foregoing offered testimony, manifestly because it did 
not in any wise identify deceased as being the man who had 
accosted them or either of them. It was not shown that ap­
pellant knew of these detailed circumstances, or either of 
them. The proof was neither competent nor relevant. The 
court did not err in its exclusion.

We are presented with a case where the accused was 
clearly proven guilty of the crime of murder, as charged 
in the indictment. The proof was clear and convincing. No 
excuse for the crime is shown. The appellant did not tes­
tify; he offered nothing in the way of proof which served 
to excuse his offense. The court was careful to give every 
instruction which should rightfully have been given. His 
rulings in every respect were fair. We have given the 
record the closest scrutiny, and finding no error prejudicial 
[fol. 98] to the substantial rights of the accused we conclude 
the judgment must be and it is affirmed.

The Avhole court sitting. Judges Clay, Rees and Stites 
dissenting.

[fol. 99] lx  Court of A ppeals of K entucky

Order E xtending T ime to  F ile Rehearing— June 22, 1937
Came appellant, by counsel, and filed notice and motion 

for ten (10) days extension of time to July 6th, 1937, to file 
petition for rehearing; which motion is sustained, and time 
granted.



[fol. 100] In Court of A ppeals of K entucky

[Title omitted]

Petition for Rehearing— Filed September 20, 1937 

M ay it Please the Court :

Through inadvertence, no doubt, the Court in its opinion 
says first:

“ To begin with, it is not stated in this case either in the 
motion or in Appellant’s affidavit in support thereof, or else­
where in the entire application procedure, that appellant 
was a member of the African race.”

[fol. 101] I respectfully call the Court’s attention to Ap­
pellant’s motion to set aside the indictment, as follows:

“ He states that he is a negro boy nineteen years of age. 
etc.”

I have always understood that a negro was a member of 
the African race. But, for fear of any doubt about the 
matter I investigated Webster’s International Dictionary, 
which gives the following definition:

“ Negro: A person belonging to the black race, especially 
to the typical African branch of that race. (Law:) A per­
son of African descent. (C) A person of any of the black 
or negroid races of Africa.”

Second, The Court says:
When we examine that motion we find that all it contains 

is this:
“ Came defendant Joe Hale by Attorney, and filed his 

motion and moved the Court to set aside the indictment in 
the above styled prosecution, and in support of said motion 
to set aside filed his own affidavit and his supplemental 
affidavit. ’ ’

I respectfully call the attention of the Court to the motion 
to set aside the indictment, as follows:

“ Comes the defendant, Joe Hale, by Attorney, and moves 
the Court to set aside the indictment against him herein be­
cause of substantial error in the summoning and formation

72



73

[fol. 102] of the grand jury that returned the indictment as 
follows: He states that he is a negro boy nineteen years of 
age, being indicted for murder by killing W. R. Toon, a 
white man, in Paducah, Kentucky, on August 18, 1936, and 
that the grand jury that indicted him was composed of white 
persons only, and that the jury commissioners excluded 
from the list from which members of the grand jury were 
drawn, all persons of African descent because of their race 
and color, thereby denying him the equal protection of the 
law, prejudicial to his substantial rights, and in violation 
of the constitution of the United States. Upon this motion 
he asks that proof be heard, and in support hereof files 
his affidavit as part hereof.”

In view of the foregoing I am constrained to wonder if 
the writer of the opinion in this case did not inadvert­
ently overlook this motion in reading the record.

If Appellant is to be held to the strict rules of pleadings 
that obtain in civil actions, we feel the above motion meets 
the requirement. To go farther would be but to plead the 
evidence, which has been condemned in civil proceedure. 
But, if required to plead the evidence, we direct the Court’s 
attention to the motion to discharge the panel as follows:

“ Now comes the defendant, Joe Hale, by Attorney, and 
[fol. 103] challenges the entire panel of the jury in this case 
for cause, and in support of said motion, he refers to and 
asks to be made a part hereof the affidavit this day filed 
on the motion herein to set aside the indictment.”

In other words, appellant makes the entire affidavit a 
part of his motion. I charge in the motion that the jury 
commissioners excluded from the list from which the grand 
jury were drawn all persons of African descent. Why? 
because of their race and color. That was the sole reason or 
cause charged for the exclusion by the appellant, and no 
other reason was suggested or offered by the common­
wealth. Having so charged it, and giving only that rea­
son, and the facts set forth in the affidavit having been ad­
mitted as true by the commonwealth, that this was so done, 
we feel that the requirements have been met and substanti­
ally observed.

The Supreme Court of the United States in its opinion 
in the Norris case, has established the law of the land, and



74

I do not believe—cannot believe, and do not want to be­
lieve—that this Honorable Court would desire to evade or 
subvert the broad principles therein laid down, by reason 
of a hair-splitting technicality, and especially when a human 
life is at stake.

We respectfully ask a rehearing and a reversal.
C. B. Crossland, Attorney for Appellant.

[fols. 104-121] I n Court of A ppeals of K entucky

[Title omitted]

Order Denying Rehearing— October 8, 1937
The Court being sufficiently advised, the opinion delivered 

herein is modified on its face, and it is considered that the 
petition of appellant for a rehearing, be and the same is 
hereby overruled.

[fols. 122-126] Clerk’s certificate to foregoing transcript 
paper omitted in printing.

[fol. 127] I n the Supreme Court of the U nited States, 
October T erm, 1937

No. 680

Stipulation and A ddition to Record— Filed January 11,
1938

It is hereby stipulated and agreed by and between counsel 
for the respective parties hereto that the Motion to Set 
Aside the Indictment, filed by petitioner in the trial court, 
was omitted from the record before the Court of Appeals of 
the Commonwealth of Kentucky through inadvertence and 
mistake, as appears from the affidavit of the Clerk of the 
McCracken Circuit Court of McCracken County, Kentucky, 
attached hereto, and that the certified copy of said Motion to 
Set Aside the Indictment, attached hereto and filed here­
with, may be read and considered by tfiis Court as a proper



75

part of the record before this Court on petitioner’s applica­
tion for a writ of certiorari.

January 6, 1938.
Charles H. Houston, Leon Ransom, Attorney for 

Petitioner. Hubert Meredith, Atty. Gen. of Kv., hv 
A. E. Funk, Asst. Atty. Gen. of Ky., Attorney for 
Respondent.

[fol. 128] I n Circuit Court of M cCracken County

[Title omitted]

M otion to Set A side I ndictment—Filed October 12, 1936

Comes the defendant, Joe Hale, by attorney, and moves 
the Court to set aside the indictment against him herein, be­
cause of substantial error in the summoning and formation 
of the Grand Jury that returned the indictment, as follows :

He states that he is a negro boy nineteen years of age, be­
ing indicted for murder by killing W. R. Toon, a white man 
in Paducah, Kentucky, on August 18, 1936, and that the 
Grand Jury that indicted him was composed of white per­
sons  only, and that the jury commissioners excluded from 
the list from which the members of the Grand Jury were 
drawn, all persons of African descent because of their race 
and color thereby denying him the equal protection of the 
law, prejudicial to his substantial rights, and in violation 
of the Constitution of the United States.

Upon this motion he asks that proof be heard, and in sup­
port hereof files his affidavit as part hereof.

Joe Hale, By Crossland & Crossland, Attorney.

[File endorsement omitted.]

[fol. 129] State of  K entucky,
County of McCracken, ss :

I, F. P. Feezor, Clerk of McCracken Circuit Court, hereby 
certify that the foregoing is a true and correct copy of the 
“ Motion to set aside indictment”  which was filed in the 
prosecution of Commonwealth of Kentucky Ys. Joe Hale,



76

Indictment No. 3432, on October 12th, 1936, as appears of 
record in Order Book No. 5, page 464.

Given under my hand and official seal of office, this the 
19th day of November, 1937.

F. P. Feezor, Clerk McCracken Circuit Court. (Seal 
McCracken Circuit Court, Kentucky.)

[ fo l . 130] M c C r a c k e n  C ir c u it  C o u r t

C o m m o n w e a l t h  o f  K e n t u c k y , Plaintiff,

vs.

J oe H a l e , Defendant 

Affidavit

The affiant, F. P. Feezor, Clerk of McCracken Circuit 
Court, McCracken County, Kentucky, states that on the 12th 
day of October, 1936, just prior to the beginning of the trial 
of the defendant, in the above styled prosecution, Attorney, 
C. B. Crossland, Sr., one of the Attorneys for said defend­
ant, filed in open court Motion to set aside the Indictment, in 
the above styled prosecution, and that on said date of Octo­
ber 12th, 1936, said Clerk placed of record in Order Book 5, 
page 464, an order filing said Motion to set aside the Indict­
ment, that said Clerk placed of record, immediately follow­
ing the filing order of said motion, an order overruling said 
motion to set aside, that this motion to set aside the indict­
ment is in the record of the above styled prosecution, and 
should be in the copy of the record which went to the Court 
of Appeals of Kentucky, and by mistake or oversight, a copy 
of said motion to set aside, was inadvertantly omitted from 
the copy of said record to said Court of Appeals.

F. P. Feezor, Clerk, McCracken Circuit Court.

Subscribed and sworn to before me by F. P. Feezor, 
this the 19th day of November, 1937. Henrietta 
Talmage, Notary Public, McCracken Co. Ky. My 
Commission expires June 28,1941. (Seal.)



77

[fol. 131] S u p r e m e  C o u r t  of  t h e  U n it e d  S t a t e s

O rder  A l l o w in g  C e r t io r a r i—Filed January 31, 1938

The petition herein for a writ of certiorari to the Court of 
Appeals of the Commonwealth of Kentucky is granted and 
the case is assigned for argument on Monday, February 28, 
next.

And it is further ordered that the duly certified copy of 
the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response to 
such writ.

Endorsed on cover: In forma pauperis. File No. 42,161. 
Kentucky Court of Appeals. Term No. 680. Joe Hale, peti­
tioner, vs. Commonwealth of Kentucky. Petition for a writ 
of certiorari and exhibit thereto. Filed January 8, 1938. 
Term No. 680, 0. T., 1937.

(3814)









SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1937

0

No. 680

JOE HALE,

VS.

Petitioner,

COMMONWEALTH OF KENTUCKY.

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF THE COMMONWEALTH 
OF K E N T U C K Y  AND B R I E F  IN SUPPORT 
THEREOF.

L e o n  A. R a n s o m ,

C h a r l e s  H .  H o u s t o n , 

Covmsel f  or Petitioner.

T h u r g o o d  M a r s h a l l ,

E d w a r d  P. L o v e t t ,

Of Counsel.





INDEX.

S u b j e c t  I n d e x .
Page

Petition for writ of certiorari......................................  1
Summary statement of matter involved.............  1

1. Present status of case............................... 1
2. Salient facts ..............................................  2

Eeasons relied on for the allowance of the writ.. 4
Prayer for w r i t ......................................................  5

Brief in support of petition..........................................  7
Opinion of the court below..................................... 7
Jurisdiction ............................................................  7
Statement of the case............................................. 9
Prior court proceedings......................................... 10
Errors below relied on here (summary of argu­

ment) ..................................................................  10
Argument ................................................................  11
Conclusion ..............................................................  16
Exhibit A—Notice to publishers modifying origi­

nal opinion ..........................................................  4,18
Exhibit B—Opinion ............................................... 4,18

T a b l e  of  C a s e s  C it e d .

Ancient Egyptian Order v. Michaux, 279 U. S. 737... 9
Boyd v. Weeks, 6 Hill (N. Y.) 71................................... 12
Brown v. Mississippi, 297 U. S. 278, 80 L. Ed. 682. . . .  16
Carter v. Texas, 177 U. S. 442....................................... 11
Creswill v. Knights of Pythias, 225 U. S. 246.............  9
Ellis v. Jones, 6 How. Pr. (N. Y.) 296.........................  12
Felt City Townsite Co. v. Felt City Inv. Co., 50 Utah

364 ................................................................................. 12
Fiske v. Kansas, 274 U. S. 380.......................................  9
Lee v. State, 163 Md. 56,161 Atl. 284...........................  15
Neal v. Delaware, 103 U. S. 370.....................................  9,11
Norris v. Alabama, 294 U. S. 587................................. 9,11
Rogers v. Alabama, 192 U. S. 226................................. 9

—3864



11 INDEX
Page

Strauder v. West Virginia, 100 U. S. 303.....................  9
Tarrance v. Florida, 188 U. S. 519................................  11
Virginia v. Rives, 100 U. S. 313....................................  11
Wilson v. Wetmore, 1 Hill (N. Y.) 216......................... 12

S t a t u t e s  C it e d .

Constitution of the United States, Fourteenth
Amendment .................................................. 4, 8,11,13,14

Judicial Code, Sec. 237(b), as amended by Act of
February 13, 1925, 43 Stat. 937................................. 7

Kentucky Statutes, Sections 2241, 2248, 2253, 2253a-l,
2253a-2 ........................................................................ 11



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1937

No. 680

JOE HALE,

vs.
Petitioner,

COMMONWEALTH OF KENTUCKY.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable the Supreme Court of the United States: 

Your petitioner, Joe Hale, respectfully shows:

A.

Summary Statement of Matter Involved.

1. Present Status of Case.

Petitioner is now confined in the State Penitentiary at 
Eddyville, Kentucky, under sentence of death for murder. 
Date of execution was set for November 12, 1937, by the 
Court of Appeals of the Commonwealth of Kentucky. On 
November 8, 1937, a stay of execution was issued and an 
appeal allowed to this Court in forma pauperis by the

lo



2

Court of Appeals of the Commonwealth of Kentucky as pro­
vided by law.*

2. Salient Facts.

Petitioner, an illiterate, destitute Negro was convicted 
of murder of a white man in the McCracken Circuit Court 
of McCracken County, Kentucky, and sentenced to death. 
He was indicted by an all-white grand jury, and tried and 
convicted by an all-white petit jury, from both of which all 
qualified Negroes were excluded solely on account of race 
or color. In all proceedings in the Kentucky State courts 
as hereinafter set forth petitioner was represented by coun­
sel obtained and paid by interested citizens of Paducah, 
Kentucky, as a matter of charity, who felt that a miscarriage 
of justice was about to be perpetrated against petitioner. 
Petitioner had no choice in the selection of said counsel, 
and no control over the conduct of his case.

Before trial petitioner through counsel made his motion, 
supported by affidavit and supplemental affidavit, to set aside 
the indictment returned against him for the reason it had 
been found and returned by an all-white grand jury from 
which all qualified members of the Negro race had been ex­
cluded because of their race or color (R. 3, 6-14). In the 
affidavits proffers of testimony proving said unconstitu­
tional racial exclusion were submitted, and the Common­
wealth Attorney stipulated that the witnesses named in the 
affidavits and proffer of proof would testify as stated (R. 
14-15). No controdictory testimony was produced on behalf 
of the Commonwealth. The motion to set aside the indict­
ment was overruled, to which petitioner by counsel duly 
excepted (R. 3).

Petitioner by counsel thereupon challenged the entire 
array which was white, on the ground that all qualified

* Clerk’ s Note.—The order allowing appeal was vacated prior to the 
filing of this petition.



3

Negro citizens had been excluded therefrom solely because 
of race or color, and in support of said challenge referred 
to and incorporated by reference the affidavit and proffer 
of proof above (R. 5, 15). The challenge was overruled, 
to which petitioner duly excepted (R. 5).

On appeal the conviction was affirmed by four-to-three 
vote May 21, 1937, by the Court of Appeals of the Common­
wealth of Kentucky, which by State law is the court of law 
resort in appeals in criminal cases. In its opinion filed the 
same day the Court of Appeals (three Justices dissenting) 
stated there was proof sufficient to establish the unconstitu­
tional exclusion of Negroes from jury service in this case, 
but the Court affirmed the sentence of the trial court for 
the reason that although the record on appeal showed a 
notation that motion to set aside the indictment had been 
duly made in the trial court, yet the motion itself did not 
appear, and the Court ruled that there was no assignment 
of grounds to which the aforesaid proof of exclusion 
could be addressed (R. 65-67). Petitioner admits that 
the motion itself did not appear in the record before the 
Court of Appeals, but the motion to set aside the indict­
ment and challenge to the array, with assignment of grounds, 
had been duly made and filed in the trial court as aforesaid. 
The Clerk of the trial court, however, through inadvertence, 
omitted to include said motion in the record which was for­
warded by him to the Court of Appeals, and upon which said 
court affirmed the sentence below. As evidence that the 
omission was due to the inadvertence of the Clerk, petitioner 
submits herewith and prays that they be read as a part 
hereof: (1) his Suggestion of Diminution of the Record and 
Motion for a Writ of Certiorari; (2) the Affidavit of the 
Clerk of the McCracken Circuit Court of McCracken County, 
Kentucky, dated November 19, 1937, setting forth that said 
motion had been made October 12, 1937, filed, but inad­
vertently omitted from the copy of the: record forwarded to



4

the Court of Appeals; (3) a Certified Copy of said Motion; 
and (4) a Stipulation by the Attorney General for the 
Commonwealth of Kentucky that such omitted motion may 
be made a part of the record and considered by this Court in 
the dispostion of this cause.

The challenge to the array (Motion to Discharge Panel) 
with supporting affidavit incorporated by reference was in 
the record before the Court of Appeals (R. 5, 6-14, 15), was 
considered by the court and found insufficient because it did 
not charge that all qualified Negroes were excluded from 
the jury panel solely because of their race or color (R. 64, 
67; see Affidavit R. 14).

Timely application was made for a rehearing, considered 
and denied October 8, 1937 (R. 71-74). On the same day 
the Court of Appeals modified its opinion filed May 21, 1937, 
by interpolation in two places:

(a) by inserting after the word “ motion”  (R. 63) the 
characters and words “  (which motion is not in the record) ” ;

(b) by inserting after the word “ motion”  (R. 64) the 
characters and words “  (which is in the ercord) ” ;

and refiled the opinion as modified (R. 63). A  copy of the 
Court of Appeals’ “ Note to Publishers”  modifying the 
original opinion is attached hereto as Exhibit “  A  ” . A  copy 
of the original opinion filed May 21,1937, is attached hereto 
as Exhibit “ B ” .

B.

Reasons Relied on for the Allowance of the Writ.
1. Petitioner was denied the equal protection of the laws 

guaranteed to him by the Fourteenth Amendment to the 
Constitution of the United States in that all qualified Negro 
citizens were excluded from the grand jury which returned 
the indictment against him and from the trial panel which



5

convicted him solely on account of race and color pursuant 
to established custom and practice in McCracken County, 
Kentucky, in which county petitioner was indicted and 
tried.

Both the Motion to Dismiss the Indictment and the Chal­
lenge to the Array, based on the above grounds, were made 
before trial and evidence was offered to establish such 
discrimination as a long continued practice on the part of 
State officials charged by statute with the duty of summon­
ing grand and petit jurors, and therefore on the part of 
the Commonwealth of Kentucky. The Commonwealth 
stipulated that this evidence might he considered as true 
and the Court of Appeals found it to he sufficient to prove 
the exclusion.

In support of the foregoing grounds of application your 
petitioner submits the accompanying brief setting forth in 
detail the precise facts and arguments applicable thereto. 
Petitioner further states that this application is not filed 
for purposes of delay.

W h e r e f o r e  your petitioner prays that this Court, pursu­
ant to United States Judicial Code, Section 237b, as amended 
by Act of February 13, 1925, 43 Stat. 973, issue a Writ of 
Certiorari to revise the judgment of the Court of Appeals 
of the Commonwealth of Kentucky affirming your peti­
tioner ’s conviction for murder, as aforesaid.

All of which is herewith respectfully submitted this — 
day of December, 1937.

J oe  H a l e ,

Petitioner,
By L e o n  A. R a n s o m  a n d  

C h a r l e s  H .  H o u s t o n .

T h u r g o o d  M a r s h a l l ,

E d w a r d  P. L o v e t t ,

Of Comisel.





SUPREM E COURT OF THE UNITED STATES
OCTOBER TERM, 1937

No. 680
JOE HALE,

vs. Petitioner,

COMMONWEALTH OF KENTUCKY.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF
CERTIORARI.

1 .

Opinion of the Court of Appeals.
The opinion has not been officially reported. It is found 

in 108 S. AY. (2d) 716, and in the Record, pages 63-71. In 
both instances only the opinion as modified is given. An 
application for rehearing was denied without opinion 
(R. 74).

II.
Jurisdiction.

1.

The statutory provision is United States Judicial Code, 
Section 237b, as amended by Act of February 13, 1925, 43 
Stat. 937.

2.

The date of the judgment is May 21, 1937, on which date 
the Court of Appeals of the Commonwealth of Kentucky 
by four-to-three vote affirmed (R. 63). A  petition for re­
hearing was duly filed on September 20, 1937 (R. 72), and 
denied on October 8, 1937 (R. 74).



8

3.

That the nature of the case and the rulings below bring 
the case within the jurisdictional provisions of Section 
237b supra, appears from the following:

A.
The claim of Federal constitutional rights is specifically- 

raised in the motion to set aside (dismiss) the indictment 
and supporting affidavits (R. 3, 6-14; see also the sugges­
tion of diminution of record and motion for writ of cer­
tiorari, affidavit, certified copy and consent to inclusion, at­
tached hereto and filed herewith) (R. 74-76). The claim of 
Federal right is also raised in the challenge to the entire ar­
ray (motion to discharge the entire panel), with' supporting 
affidavit incorporated (R. 5, 6-15). The Commonwealth At­
torney stipulated that the original and supplemental 
supporting affidavits should be considered as evidence and 
that the witnesses named therein would testify as set forth 
therein (R. 14-15). The trial court expressly considered 
and overruled the motion to set aside the indictment and 
the challenge to the array (R. 3, 5), to each of which rulings 
petitioner duly excepted (R. 3, 5). The Federal question 
was specifically passed upon by the Court of Appeals of 
the Commonwealth of Kentucky in its opinion, and the 
claim of Federal right denied (R. 63-68).

The claim so made and denied is that the exclusion of 
qualified Negro citizens from the list of grand jurors and 
from the trial panel (solely) on account of race, pursuant 
to established custom in McCracken County, Kentucky, in 
which County petitioner was indicted and tried, was in viola­
tion of the equal protection clause of the Fourteenth Amend­
ment to the Constitution of the United States.

4.

The following cases, among others, sustain the jurisdic­
tion:



9

Strauder v. West Virginia, 100 U. S. 303, 309 (1879); Neal 
v. Delaivare, 103 U. S. 370, 397 (1880); Rogers v. Alabama, 
192 U. S. 226, 231 (1904); and Norris v. Alabama, 294 U. S. 
587, 589 (1935) establish that the exclusion of Negroes from 
jury service solely on the ground of their race or color is in 
violation of the equal protection clause of the Fourteenth 
Amendment to the Constitution of the United States. Cres- 
will v. Knights of Pythias, 225 U. S. 246, 261 (1912); Fiske 
v. Kansas, 274 U. S. 380, 385-6 (1927); and Ancient Egyptian 
Order v. Michanx, 279 U. S. 737, 745 (1929), establish that 
it is the province of this Court to determine whether there 
has been a sufficient assertion and denial of a Federal right, 
and whether the Federal right has been denied in substance 
and effect by interposing a non-Federal ground of decision 
having no fair support.

III.

Statement of the Case.

Petitioner, an illiterate, destitute Negro, was indicted 
October 1, 1936, and charged with the wilful murder of a 
white man in McCracken County, Kentucky (R. 1). The 
record shows that deceased died on or about the night of 
August 18, 1936 (R. 31, 34, 52, 62), at a hospital as 
the result of knife wounds (R. 24); that he was first seen 
in a wounded condition at Tenth and Kentucky Streets 
about eleven o ’clock on the night prior to his death 
(R. 28-29). The only evidence adduced by the Common­
wealth incriminating to petitioner was an alleged statement 
by petitioner that he had “ gigged”  an unidentified white 
man at Seventh and Ohio Streets for accosting Negro 
women (R. 38, 39, 44, 47, 49, 54, 57), and a statement by a 
witness who had been indicted for the same offense but dis­
charged from the indictment to compel him to testify (R. 1, 
5, 50-52), that he had seen petitioner cut an unidentified 
man (R. 54).

2o



10

IV.
Prior Court Proceedings.

Petitioner’s case was called for trial October 12, 1936, in 
the McCracken Circuit Court of McCracken County, Ken­
tucky (R. 3, et seq.). He immediately filed a motion to set 
aside (dismiss) the indictment, with supporting affidavits 
(R. 3, 6-15); see also suggestion of diminution of record and 
motion for writ of certiorari, affidavit, certified copy of 
motion and consent to inclusion supra), which was overruled 
and exception duly taken (R. 3). Thereupon petitioner 
entered a plea of not guilty (R. 4). Thereafter he filed his 
challenge to the entire array (motion to discharge the en­
tire panel) with supporting affidavit incorporated (R. 5, 
6-15), which was overruled and exception duly taken (R. 5). 
He was found guilty of murder and the death penalty affixed 
by the verdict (R. 17). Sentence of death was pronounced 
upon him October 13, 1936 (R. 21). On the same day and 
date he filed a motion for a new trial which was denied, and 
exception duly taken (R, 22). He then moved for an ap­
peal to the Court of Appeals of the Commonwealth of Ken­
tucky, which was allowed in forma pauperis (R. 22).

The Court of Appeals affirmed the conviction on May 21, 
1937 (R. 63). Rehearing was denied October 8, 1937 (R. 
74), as above stated.

The facts concerning the exclusion of Negroes from the 
grand and petit juries, and the mistake or inadvertence of 
the Clerk of the trial court in omitting an essential part of 
the record on appeal are discussed in the argument infra.

V.
Errors Below Relied on Here.

Summary of Argument.
Petitioner relies on the following points :
1. The trial and conviction of a Negro by a jury of whites, 

upon an indictment found and returned by a grand jury of



11

white persons, from both of which said juries all qualified 
Negroes had been excluded solely on account of race or color, 
pursuant to established practice, is a denial of the equal 
protection of the law as guaranteed by the Fourteenth 
Amendment to the Constitution of the United States.

2. The court denied petitioner’s rights to equal protection 
of the laws under the Fourteenth Amendment to the Consti­
tution of the United States in overruling his motion to set 
aside (dismiss) the indictment and his challenge to the 
array (motion to discharge the entire panel) on the 
grounds that all qualified Negroes had been excluded from 
the jury panels (solely) on account of race or color.

ARGUMENT.
The trial and conviction of a Negro by a jury of whites, 

upon an indictment found and returned by a grand jury of 
white persons, from both of which said juries all qualified 
Negroes have been excluded solely on account of race or 
color, pursuant to established practice, is a denial of the 
equal protection of the law as guaranteed by the Fourteenth 
Amendment to the Constitution of the United States.

The general principle of law is so well established that only 
the citation of a few leading cases decided by this Court need 
appear:

Neal v. Delaivare, 103 U. S. 370, 397 (1880);
Carter v. Texas, 177 U. S. 442, 447 (1900);
Tarrance v. Florida, 188 U. S. 519, 520 (1903);
Norris v. Alabama, 294 U. S. 587, 589 (1936).

In Kentucky the statutes (Kentucky Statutes, Sections 
2241, 2248, 2253, 2253a-l, 2253a-2; Exhibit “ C ”  attached 
hereto) do not in terms provide for the exclusion of Negroes 
from grand and petit juries, but the evidence adduced 
disclosed an exclusion by administrative officials as uniform 
and effective as if provided for by State law.

Virginia v. Rives, 100 U. S. 313, 316 (1879);
Norris v. Alabama, supra, at 589.



12

The Court of Appeals did not attempt to deny this prin­
ciple; indeed, it was expressly affirmed (R. 67-68). But the 
court failed to apply the principle by making the word 
“ solely”  a word of art, and ruling that there was “ proof 
without pleading”  (R. 67), in that the record did not set 
forth the fact that petitioner based his motion on the ex­
clusion of all qualified Negroes from the grand and petit 
juries solely on account of race or color (R. 65, 67; and see 
Affidavit, R. 14).

Although there was no formal statement of the grounds in 
the motion to set aside (dismiss) the indictment, as said 
motion appeared in the record before the Court of Appeals 
(R. 3), nevertheless when said motion and supporting affi­
davits as they appeared on the face of the record (R. 3, 
6-15) are read together, they show that the only possible 
grounds for the motion were necessarily the exclusion of 
Negroes from the grand jury returning the indictment 
herein solely because of race or color. The requirement as 
to certainty in the motion is met if certainty is provided 
by either the motion or the supporting affidavits.

Wilson v. Wetmore, 1 Hill (N. Y.) 216 (1841);
Boyd v. Weeks, 6 Hill (N. Y.) 71 (1843);
Ellis v. Jones, 6 How. Pr. (N. Y.) 296 (1851) ;
Felt City Townsite Co. v. Felt City Inv. Co., 50 Utah 

364.

But any possible ambiguity in the pleadings was removed 
by the petition of the counsel for a rehearing filed September 
20, 1937 (R. 72-74). In said petition counsel recited the 
motion to set aside (dismiss) the indictment in full to the 
court (R. 72-73), and pointed out in detail the true grounds 
relied upon in said motion and specifically called the atten­
tion of the court to the fact that the motion incorporated 
by reference the supporting affidavit itself (R. 73). The



13

Court of Appeals modified its original opinion, then de­
nied rehearing without disposing of the points raised in 
the petition (R. 74).

For the purposes of this application the Attorney General 
of the Commonwealth of Kentucky has stipulated upon peti­
tioner’s suggestion of diminution of record and motion for 
writ of certiorari, that the certified copy of the original 
motion to set aside (dismiss) the indictment be considered 
a part of the record before this Court.

The Court of Appeals erroneously assumed in its opinion 
that the record before it was full and complete, and that 
the trial court had had nothing before it other than what 
appeared of record on appeal. The trial court assigned no 
reasons for its rulings.

Therefore, because the trial court in overruling petition­
er’s motion to set aside (dismiss) the indictment and chal­
lenge to the entire array (motion to discharge the entire 
panel) denied petitioner the equal protection of the laws 
guaranteed him by the Fourteenth Amendment to the Con­
stitution of the United States; and because the Court of 
Appeals by its affirmance of the sentence sanctioned said 
denial, and petitioner is without redress except at the hands 
of this Court, he asks that the writ of certiorari be granted, 
and the conviction and sentence be reversed and set aside, 
and the cause remanded for further proceedings not incon­
sistent with his constitutional rights.



14

2.

The Court denied petitioner’s rights to equal protection 
of the laws under the Fourteenth Amendment to the Con­
stitution of the United States in overruling his motion to 
set aside (dismiss) the indictment and his challenge to the 
array (motion to discharge the entire panel) on the grounds 
that all qualified Negroes had been excluded from the jury 
panels (solely) on account of race or color.

Proof of Exclusion.

The following facts appear of record:

1. The population of McCracken County is 48,000, ap­
proximately 16.7% (8,000) being Negroes (R. 6). About 
6,000 white persons and 700 Negroes at the times material 
herein were qualified for jury service (R. 6, 10-12).

2. That no Negro has been called or served upon a grand 
or petit jury in McCracken County for more than fifty years 
(R. 11-13), with this exception: It is alleged that in 1921 a 
special jury of talesmen, consisting entirely of Negroes, was 
summoned by a judge to try a Negro for a minor charge. 
The names of these Negro jurymen were not a part of the 
regular panel and were not drawn from the jury drum; 
they served in no other case (R. 14-15).

3. Neither the jury commissioners (R. 6, 7) nor any 
sheriff has ever selected or summoned a Negro for jury 
service, except possibly as noted above, within the memory 
of any of the proffered witnesses (R. 7-9), which witnesses 
included the jury commissioners and sheriffs who have 
served since 1909 (R. 7-9).

4. No Negroes have been excluded from any grand or 
petit juries in McCracken County for any of the statutory 
reasons disqualifying citizens for jury service (R. 6, 7).



15

5. Petitioner made affidavit that this long continued prac­
tice of exclusion of Negroes from the juries in McCracken 
County on the part of officers and commissioners of the 
County was on account of their race and color and offered 
proof thereof (R. 14).

6. The Commonwealth Attorney stipulated that the mat­
ters asserted above might be considered as evidence and 
that the witnesses would testify to that effect (R. 14-15).

7. No testimony to rebut this evidence was offered by the 
Commonwealth.

Standing alone, petitioner’s evidence presented a clear 
prima facie case of discrimination and denial of equal pro­
tection of the laws.

Neal v. Delaware, supra, at 397;
Lee v. State, 163 Md. 56, 161 A. 284 (1932);
Norris v. Alabama, supra, at 591, 596, 599.

While the trial court overruled the motion and challenge 
without comment on the evidence (R. 3, 5), the Court of 
Appeals in its opinion said:

“ It can therefore, not be denied or questioned hut 
that such proof, uncontradicted, would tend to establish 
all of the elements calling for the application of the in­
voked principle, and which character of proof is ex­
pressly approved in the Norris opinion, for in that case 
almost identical proof in support of the motion of the 
accused was adduced”  (108 S. W. (2d), at 718; R. 66).

The argument that the record on appeal did show enough 
grounds in the pleadings to which the proof might be ad­
dressed has already been made with respect to the motion 
to set aside (dismiss) the indictment when read with its 
supporting affidavits. (See Argument 1, supra.)



16

But it is respectfully submitted that the action of the 
Court of Appeals affirming' the trial court’s overruling- the 
challenge to the entire array (motion to discharge the entire 
panel) goes beyond mere error and shows a captious atti­
tude which cannot be defended. The challenge to the array 
incorporated the supporting affidavit (R. 5, 6-15) which set 
forth in detail the proof of exclusion of all qualified Negroes 
from jury service in McCracken County, Kentucky, and 
expressly stated that such exclusion was “ on account of 
their race and color.”  The only departure from the classic 
form of claiming unconstitutional exclusion was the omis­
sion of the word “ solely.”  Making the word “ solely”  a 
word of art in this respect and forfeiting the life of a citizen 
on such a flimsy technicality is to make a travesty of jus­
tice. The Court of Appeals having admitted that the proof 
established a denial of petitioner’s right to equal protection 
(R. 66 supra), if it had then been as diligent to maintain 
petitioner’s constitutional rights as it was to search for 
some technicality upon which it might at the same time peg 
an affirmance of the sentence below and evade the necessity 
of according petitioner real equality of law, this case would 
not now be before this Court for review.

‘ ‘ The duty of maintaining the constitutional rights of 
a person on trial for his life rises above mere rules of 
procedure, and whenever the court is clearly satisfied 
that such violations exist, it will refuse to sanction such 
violations and will apply the corrective.”

Brown v. Mississippi, 297 U. S. 278, 287, 80 L. Ed.
682 (1936).

Conclusion.

Standards of justice must be the same for all men, all 
races and all sections of the country. Constitutional guar­
anties must be respected for the most humble and defense­
less. The dignity and humanity of the law must never be



17

degraded by forfeiting the life of a citizen as if it were a 
mere pawn on a legal chessboard, sacrificed to preserve 
some alleged consistency of formal procedure.

It is respectfully submitted that the very ignorance and 
poverty of petitioner make this a case of grave public con­
cern, calling for the exercise by this Court of its supervisory 
powers to the end that rights guaranteed under the Consti­
tution of the United States shall be preserved.

L e o n  A. R a n s o m ,

C h a r l e s  H . H o u s t o n , 

Attorneys for Petitioner.
T h u r g o o d  M a r s h a l l ,

E d w a r d  P. L o v e t t ,

Of Counsel.



18

EXHIBIT “ A ” .
COURT OF APPEALS OF KENTUCKY.

Decided May 21,1937.
Modified October 8, 1937.

J oe Hale, Appellant,
v .

C o m m o n w e a l t h  of  K e n t u c k y , Appellee.
Appeal from McCracken Circuit Court,

Opinion of the Court by Commissioner Morris.
A f f i r m in g .

Note to Publisher:
On page 2, line three, after the word “ motion” , insert 

the following: “ (which motion is not in the record)”  and 
in line five on same page, after the word “ motion”  insert 
the following “ (which is in the record)”  and on page 5, 
line 2, after the word “ motion”  insert the following: 
“ which appears in the record” .

Attorneys for Appellant: Crossland & Crossland, Pa­
ducah, Kentucky.

Attorneys for Appellee: B. M. Vincent, Attorney Gen­
eral; J. J. Leary, Asst. Attorney General.

JC. __________
EXHIBIT “ B” .

COURT OF APPEALS OF KENTUCKY.
M a|y  21, 1937.

J oe Hale, Appellant, 
v.

C o m m o n w e a l t h  o f  K e n t u c k y , Appellee.
Appeal from McCracken Circuit Court.

Opinion of the Court by Commissioner Morris.
A f f i r m in g .

The appellant, Joe Hale,, a negro, upon separate trial 
under an indictment charging him and others of mur­



19

dering W. R. Toon, was convicted, the jury by its ver­
dict fixing his punishment at death. His motion for a new 
trial was overruled, and from that order and the judgment 
pronounced and entered upon the verdict, he appeals urg­
ing through his counsel a number of grounds as prejudicial 
errors, of sufficient materiality as is claimed to authorize 
a reversal of the judgment, each of which will be disposed 
of as the opinion proceeds. Perhaps the most substantial 
one, and which appears at the threshold of the case, is the 
alleged error of the court in overruling appellant’s motion, 
made before the trial was begun, to quash the indictment 
against him, and in overruling a similar motion to discharge 
the qualified panel of petit jurors after they were selected 
to pass on the issue of his guilt or innocence, which was 
made immediately after such qualification, the latter being 
based upon the same ground urged for the quashing of the 
indictment. That ground is a right claimed by appellant 
as one guaranteed to him by the provisions of the Four­
teenth Amendment to the Constitution of the United States 
as interpreted and applied by the Supreme Court of the 
United States in the case of Norris v. Ala., 294 U. S. 587, 79 
L. Ed. 1074, and others cited in that opinion, and followed in 
Patterson v. Ala., 294 U. S. 600, 79 L. Ed. 1082.

The constitutional guaranty invoked in those cases, and 
which appellant attempted to invoke here, is formulated 
by the Supreme Court of the United States in the case of 
Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839, 20 S. Ct. 687, 
thus:

“ Whenever by any action of a State, whether through 
its legislature, through its courts, or through its executive 
or administrative officers, all persons of the African race 
are excluded, solely because of their race or color, from 
serving as grand jurors in the criminal prosecution of a 
person of the African race, the equal protection of the laws 
is denied to him, contrary to the Fourteenth Amendment of 
the Constitution of the United States.”

The inserted excerpt from that (Carter) case was quoted 
and approved by the Supreme Court in the opinion in the 
Norris case as being a correct statement of the constitutional 
principle therein involved, being the same, as we have stated, 
invoked by appellant in this case. It will be noticed that



20

before the federal constitutional provision and guaranty is 
violated so as to mature the right of one to rely upon it, 
the exclusion of negroes from serving on either grand or 
petit juries in the enforcement of the criminal laws of a 
state, must not only have been by a state through its legis­
lature or its courts, or its executive or administrative offi­
cers, but must have been made solely because of their race 
or color; but when so done, “ the equal protection of the 
laws is denied to a member of that race who stands accused 
of violating the criminal laws” . It therefore follows that 
before the principal may be successfully invoked, the ac­
cused seeking shelter thereunder, must charge as a fact 
that members of his race were so excluded in some of the 
ways pointed out, a/nd in addition thereto that it was done 
solely “ because of their race or color” . When such a motion 
is made, setting forth the outline ground, and the charge is 
proven, then an occasion is created for the application of 
the principle enunciated in the Norris and cited cases.

It is stated in the Norris opinion, and others therein 
referred to and herein cited, in substance, that the charge 
or motion itself specifically set forth the elements necessary 
for the application of the principle as we have pointed them 
out and as contained in the excerpt from the Carter opinion, 
supra, and that such charges or expressly stated grounds, 
were proven and established by the evidence heard on the 
trial of the motion. We construe those opinions to require 
not merely proof of the facts necessary to create the charge, 
but that such proof must be preceded by a like statement 
of the facts creating the right to invoke the principle, and 
which latter is analogous to the universal requirement of 
a pleading that it set forth the facts relied on, before evi­
dence to prove the facts can become effective, although 
sufficient to establish the necessary ground if facts had 
been stated in the motion, or in some affidavit or other 
supporting document.

To begin with, it is not stated in this case either in the 
motion or in appellant’s affidavit in support thereof, or 
elsewhere in the entire application procedure that appel­
lant was a member of the African race, although the court 
no doubt by observation knew that fact to be true. That 
omission is, however, a technical one, upon which we would



21

not be inclined to hinge our opinion even were we authorized 
to do so. But a more serious defect in the application, 
noticeable in the two motions to obtain the relief by each 
of them sought, is the failure of appellant in the motion or 
charges filed, or in his affidavit filed in support thereof, to 
state or make the specific grounds the basis or foundation 
for his motion. He set forth in his affidavit that he could 
prove by the present sheriff, and a number of his predeces­
sors, going back as far as 1906, that during the entire period 
no member of the African race had been summoned or 
served on a grand or a petit jury in McCracken County. 
He also stated therein that he could prove the same facts 
by all of the circuit clerks of the McCracken circuit court 
throughout the same period. He likewise named a number 
of witnesses, consisting of attorneys at the bar, court 
stenographers and others, whose professional duties called 
them into intimate relation with the proceedings of the 
McCracken circuit court, including the judge presiding at 
the trial, and stated that all of them would make similar 
statements.

It can, therefore, not be denied or questioned but that 
such proof, uncontradicted, would tend to establish all of 
the elements calling for the application of the invoked prin­
ciple, and which character of proof is expressly approved 
in the Norris opinion; for in that case almost identical 
proof in support of the motion of the accused was adduced.

After naming the witnesses by whom such facts could 
be established, appellant further stated that such testimony, 
“ is true and will be true when proven” . But it will be per­
ceived that the quoted statement is only a verification of 
the truth of the testimony by which appellant proposed to 
establish the grounds of his motion, provided it sufficiently 
charged those grounds to allow the reception of that testi­
mony. Further along in his affidavit appellant says that, 
“ the foregoing facts, when proved, show a long continued 
unvarying and wholesale exclusion of negroes from jury 
service in this county on account of their race and color; 
that it has been systematic and arbitrary on the part of the 
officers and commissioners who select the names for jury 
service, for a period of fifty years or longer.”  That excerpt 
is clearly but an appraisement of the weight to be given



22

testimony that appellant intended to introduce in support 
of his motions. In other words it was in effect a statement 
by him that “ when I shall have introduced that testimony 
it will be sufficient to show the facts” , which he should 
have but did not set forth in his motion. When we examine 
that motion we find that all that it contains in this: ‘ ‘ Came 
defendant, Joe Iiale, by attorney, and filed motion and 
moved the court to set aside the indictment in the above 
styled prosecution, and in support of said motion to set 
aside, filed his own affidavit and his supplemental affidavit” . 
The order then recited that the parties filed their stipula­
tion to the effect that the witnesses named in appellant’s 
affidavits, would testify to the matters and things which 
they stated in said affidavits. The court overruled the mo­
tion to quash the indictment and later overruled the one 
to discharge the trial panel, based upon the same affidavit.

Looking to the affidavit as supplementing the motion as 
above inserted, it will be found that it nowhere states the 
necessary elements for the application of the invoked 
principle, in that there is an entire failure to charge therein 
as grounds therefor, that such exclusion of members of the 
African race from service on juries was superinduced and 
occurred “ solely because they were members”  of that race.

We therefore have a case where the proof might be re­
garded as sufficient to sustain the ground upon which the 
motion was evidently made, but there is wanting in the 
record a sufficient statement of those grounds to permit 
the introduction of that proof. The failure so pointed out 
is analogous, as we conclude, to a case where there is proof 
without pleading, and the rule is that “ pleading without 
proof or proof without pleading”  are each unavailable. 
Suppose that were dealing with a motion for change of 
venue instead of one to quash the indictment or to dis­
charge the trial panel, the two latter accomplishments be­
ing the objectives sought in this case, the movant for 
such change must set forth in his motion the statutory 
grounds entitling him to that relief, and before he can 
obtain it he must support those charges by sufficient proof. 
It certainly could not be held sufficient for him to embody 
in his motion something like this; ‘ ‘ The defendant moves



23

for a change of venue of this prosecution to some other 
county” , and no more. He is required, before he is even 
permitted to introduce proof, to make a prior charge of 
facts entitling him to a change of venue. We think no 
one would dispute the correctness of our illustration with 
reference to a removal of the trial to another court, and 
we are unable to see any distinction between what is re­
quired in such a motion and what should be required in 
motions like these under consideration. Other persuasive 
and confirmatory illustrations might be made, but which 
we deem unnecessary.

We could attach a long list of cases from both federal 
and state courts approving the declared principle as stated 
in the Carter opinion, supra, and reaffirmed in the Norris 
opinion by the same court, if it were necessary; but, since 
the principle as so declared is admitted and adhered to by 
all courts, we deem it unnecessary to lengthen this opinion 
by an additional list of pertinent cases.

We therefore conclude, for the reasons stated, that the 
court properly overruled both the motion to quash the in­
dictment and the one to discharge the trial panel, and for 
which reason this ground is disallowed, and which brings 
us to the consideration of the other grounds relied on re­
lating to the merits of the case.

The homicide occurred in Paducah around 11:00 p. m., 
August 18, 1935. The deceased, an employe of a railroad 
company, was forty years of age. He had attended a pic­
nic at 28th and Kentucky Avenue in Paducah on the night 
in question, and was seen at the grounds as late as ten 
o ’clock. About eleven o ’clock a car was observed to strike 
a telephone pole at 10th and Kentucky Streets. Persons 
making investigation (one of them a fellow-employe) found 
deceased slumped under his steering wheel, semi-conscious 
and bleeding profusely. Police aid was promptly secured, 
and the injured man was hurriedly removed to a hospital. 
Examination by a physician developed that he had received 
three definite stab wounds, one in his left thigh, one in the 
chest, the third in the left arm, the latter almost severing 
an artery. A physician says that the thrust in the arm, 
causing excessive hemorrhage, was the fatal wound. The



24

injured man died within an hour and a half after the 
wounds had been inflicted.

On the night of the homicide appellant had been visiting 
a friend, Mae Hamilton, at the home of her sister Eugenia, 
at 727 Jackson Street. While there a white man was seen 
to pass the house. Later Eugenia came to the porch where 
appellant and her sister were sitting, and related that on 
the way to a neighbor’s and on her return, a white man had 
spoken to her. She remarked, “ I wonder who he is, he 
spoke to me twice” . The man who had spoken to her went 
to the corner, stood a few minutes, got into a car and spoke 
to another colored woman. Appellant then remarked,
‘ ‘ That is the man who has been stopping colored women and 
asking them to get in his car; I know his car. ’ ’

The occupant of the car then came down Jackson to 
8th and turned into that street, disappearing from view 
just long enough to drive around the block, came back 
again, parked at the corner for a few moments and again 
drove out of sight of the parties at Eugenia’s home. After 
the car had disappeared the second time appellant got up 
and went up Jackson Street to 7th, and turned down that 
Street. In a short time he came back to Eugenia’s home 
and said: ‘ ‘ That man went up on Ohio Street and parked 
in the dark and I gigged him a time or two and told him 
to quit stopping these colored women” . Eugenia asked, 
“ Did you hurt him” , and he said, “ no, I just gigged him 
a little” .

Thorpe, a witness, relates that on the night in question 
he saw a car parked near 7th and Jackson, where it re­
mained a few moments and then went toward Adams Street. 
Appellant and James Martin came hurriedly up Jack- 
son toward 7th. Witness followed, overtaking them at 7th 
and Ohio. Martin said: “ Is that the car that was down at 
7th and Jackson?”  and witness answered, “ yes” . Thorpe 
walked up to the car parked near the corner, asked the 
driver if he was looking for someone, and the driver re­
plied, “ I am looking for Jim Powell” . He was told by 
witness that Powell lived at 7th and Jones Streets. Just 
at this time appellant went to the other side of the car 
and said, “ I seen you on the corner awhile ago talking to



25

a colored woman, and this man answered, ‘Yes, I was ask­
ing for some information’, and then Joe Hale opened the 
car door and began cutting him” . The driver of the car 
“ hollered”  and started his car toward 6th Street, finally- 
driving to Kentucky Avenue, thence near to 10th, where 
his failure to observe a stop light and his continued driv­
ing to the left side of the street, attracted the attention of 
persons who saw the car run into a telephone pole. What 
then occurred has been related.

The appellant did not testify, nor was there any effective 
testimony introduced in his behalf; such as it neither un­
dertook to, nor did it in any wise overcome the proof 
that appellant had stabbed and fatally wounded deceased.

On this appeal the grounds presented in support of ap­
pellant’s contention that a reversal should be ordered, in 
addition to the one above discussed, are:

(1) The venue of the offense, though properly laid in 
the indictment was not fixed by proof, there being no evi­
dence showing that the act of injury was committed in Mc­
Cracken County.

(2) Material and competent evidence offered by appel­
lant and rejected by the court’s erroneous ruling.

Taking up ground No. 1, we observe from the proof that 
it is not stated by any witness in so many words, that the 
stabbing occurred in McCracken County. There is an abund­
ance of evidence establishing the fact that the act occurred 
in Paducah. Section 18 of the Criminal Code limits the 
jurisdiction of circuit courts of trials in criminal cases to 
offenses committed in the respective counties in which they 
are held. It is necessary to bring to the court and the jury 
such facts as will justify the court and the jury in con­
cluding that the offense was local. In this case the de­
ceased was seen at a picnic in Paducah on the night of 
the injury a short time before he was fatally stabbed. De­
ceased had been working in the railroad shops, and lived 
“ all his life” , in Paducah. City policemen testified, as did 
others, as to points, places, and occurrences of the night, 
all in Paducah. He was attended by a Paducah physician 
in a Paducah hospital, where he died.



26

Counsel is of the impression that because the witness, 
who saw the stabbing, localized it at “ seventh and Ohio” , 
there is failure of jurisdictional proof. We can not agree 
with this contention, in view of the fact that we have so 
frequently held that a failure to name the county is not 
necessarily a failure to prove the locus, if there be suf­
ficient proof of facts and circumstances from which the 
jurisdiction may be reasonably inferred. In this case the 
trial court could and no doubt did, take judicial knowledge 
that Paducah was and is the county-seat of McCracken 
County. While the jury might not be presumed to know 
the location of “ Seventh and Ohio” , from the proof in­
troduced, they, being reasonably intelligent, had no dif­
ficulty in concluding that the occurence took place in Pa­
ducah, and with some attributable knowledge of local ge­
ography, knew that Paducah was in McCracken County.

Counsel relies on Wilkey v- Com., 104 Ky. 325, 4f S. W. 
219, where the sole jurisdictional proof was that the crime 
was committed in “ Rhea’s wheat field about 400 yards 
distant from the residence of Joe Tyree.”  That case, and 
others, reversed for lack of proof on this particular point, 
are reviewed and distinguished in the more recent case 
of Nelson v. Com., 232 Ky. 568, 24 S. W. (2) 276. A casual 
reading of the Nelson case, which cites a number of others 
to like effect, clearly demonstrates that in the case at 
bar the proof was fully sufficient to take the case to the 
jury, and we might add as being conclusive, Stubblefield v. 
Com., 197 Ky. 218, 246 S. W. 444; Fletcher v. Com., 210 
Ky. 71, 275 S. W. 22; Slone v. Com., 246 Ky. 853, 55 S. W. 
(2) 1113.

Appellant introduced two colored women who lived in 
the neighborhood of 718 Jackson Street, one of whom stated 
that a man whom she did not know but who looked to be 
about the size of the brother of deceased, had accosted 
her on the street several times. The other witness said that 
some time prior to the homicide “ some man”  who had a 
nice looking car, called to her. The court properly ex­
cluded the foregoing offered testimony, manifestly be­
cause it did not in any wise identify deceased as being the 
man who had accosted them or either of them. It was not



27

shown that appellant knew of these detailed circumstances, 
or either of them. The proof was neither competent nor 
relevant. The court did not err in its exclusion.

We are presented with a case where the accused was 
clearly proven guilty of the crime of murder, as charged 
in the indictment. The proof was clear and convincing. No 
excuse for the crime is shown. The appellant did not 
testify; he offered nothing in the way of proof which served 
to excuse his offense. The court was careful to give every 
instruction which should rightfully have been given. His 
rulings in every respect were fair. We have given the 
record the closest scrutiny, and finding no error prejudicial 
to the substantial rights of the accused we conclude the 
judgment must be and it is affirmed.

The whole court sitting. Judges Clay, Rees and Stites 
dissenting.

Attorneys for Appellant: Crossland & Crossland, Padu­
cah, Kentucky.

Attorneys for Appellee: B. M. Vincent, Attorney Gen­
eral ; J. J. Leary, Asst. Attorney General.

J. C.

EXHIBIT “ C” . 

Kentucky Statutes.

“ Chapter 74. Article I. Grand and Petit Jurors; How
Obtained.

“ Sec. 2241. Commissioner to select; manner of selection; 
number to be selected; qualification; Jefferson circuit 
court; duty of circuit clerk; penalty.—
“ The circuit judge of each county shall at the first 

regular term of circuit court therein, after this act takes 
effect, and annually thereafter, appoint three intelligent 
and discreet housekeepers of the county over twenty-one 
years of age, resident in different portions of the county, 
and having no action in court requiring the intervention



28

of a jury, as jury commissioners for one year, who shall 
be sworn in open court, to faithfully discharge their duty. 
They shall hold their meetings in some room designated 
by the judge;*  * *

“ They shall take the last returned assessor’s book for 
the county and from it shall carefully select from the in­
telligent, sober, discreet and impartial citizens, resident 
housekeepers in different portions of the county, over 
twenty-one years of age, the following number of names 
of such persons, to-wit: # * *

“ * * * in counties having a population exceeding 
twenty thousand and not exceeding fifty thousand, not less 
than five hundred, nor more than six hundred; * * *

‘ ‘ They shall write each name * * * in plain handwriting, 
on a small slip of paper, each slip being as near the same 
size and appearance as practicable; and each slip with 
the name, * * * shall be by them enclosed in a small case 
made of paper or other material and deposited, unsealed, 
in the revolving drum or wheel case hereinafter provided 
for; * * *. When said slips have been deposited in said 
drum or wheel case, it shall be locked and revolved, or so 
shaken as to thoroughly mix said slips; then it shall be 
unlocked and they shall draw therefrom a sufficient num­
ber of names to procure twenty-four persons, qualified as 
hereinafter provided to act as grand jurors; * * *. Said 
names shall be drawn one by one, and only the names of 
those qualified shall be recorded on paper until the twenty- 
four are secured; and said lists shall be certified, signed 
and enclosed by them in an envelope made of good paper, 
and it shall be sealed, and their names written across the 
seal thereof, and directed to the judge of the circuit court, 
* * * and endorsed, “ A  list of the grand jury for the * * * 
circuit court to be held in the month of * * * in the year 
* * * ” , * * *. After completing the list of grand jurors, 
they shall lock said drum or wheel case and revolve or shake 
it so as to thoroughly mix the slips remaining therein, and 
then unlock the same and draw therefrom, one by one, the 
names of not less than thirty nor more than thirty-six per­
sons, as the judge of the court may direct, and record the 
same upon paper as drawn, which, in like manner, shall



29

be certified, signed and inclosed by them in an envelope 
made of good paper, and it shall be sealed, and their names 
written across the seal thereof, and directed to the judge 
of the circuit court, * * * and endorsed: “ A list of the 
petit jury for the * # # year * * * * \ The slips of
paper upon which are written the names of persons placed 
by said commissioners upon the lists of grand and petit 
jurors shall be destroyed by the commissioners as soon as 
the names are recorded on said list. * *

“ Article II.

“ Grand Jurors; Qualifications and Pay of

“ Section 2248. Twelve persons constitute; qualifications;
indictments, when not invalid.—
“ A grand jury shall consist of twelve persons and no 

person shall be qualified to serve as a grand juryman un­
less he be a citizen and a housekeeper of the county in which 
he may be called to serve, and over the age of twenty-one 
years. No civil officer (except trustees of schools), no sur­
veyor of a highway, tavern-keeper, vender of ardent spirits 
by license, or person who is under indictment, or who has 
been convicted of a felony and not pardoned, shall be com­
petent to serve as a grand juror; but the fact that a person 
not qualified or competent served on a grand jury shall 
not be cause for setting aside indictments found by such 
grand jury.”

“ Article III. Petit Jurors; Qualification and Pay of

“ Section 2253. Qualifications; when verdict not invalid;
exception to juror.—

“ No person shall be a competent juryman for the trial 
of criminal, penal or civil cases in any court unless he 
be a citizen, at least twenty-one years of age, a housekeeper, 
sober, temperate, discreet and of good demeanor. No civil 
officer, except notaries public and trustees of schools; no 
transient person, physician, surgeon, practicing attorney 
or minister of any religious society, cashier or teller of a



30

bank, or those who may be supplying their places for the 
time, or attending at an asylum, or retail druggist, pharma­
ceutist, undertaker, depot agent of a railroad, or any per­
son more than sixty years of age shall be compelled to serve 
on a petit jury; * *

“ Section 2253a-l. Members boards of education exempt.—
‘ ‘ Members of boards of education now or hereafter estab­

lished in any city of this Commonwealth, and members of 
county boards of education shall be exempt from service 
on any grand-or petit jury.”

“ Section 2253a-2. Teachers, school officers and employes
exempt.—
“ That the executive officers, the superintendents, prin­

cipals, teachers and other employes of boards of education 
of the cities and counties of this Commonwealth shall be 
exempt from service on any grand or petit jury while the 
common schools are in session.”

(3864)















OCTOBER TERM, 1937

SUPREME COURT OF THE UNITED STATES

No. 680

JOE HALE,

vs.
Petitioner,

COMMONWEALTH OF KENTUCKY.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE  

COMMONWEALTH OF KEN TU CKY.

PETITIONER’S BRIEF ON ARGUMENT.

Leon A. Ransom, 
Charles H. Houston, 

Counsel for Petitioner.
Thurgood Marshall,
Edward P. Lovett,

Of Counsel.



'



INDEX.

S u b j e c t  I n d e x .
Page

Points .............................................................................. 1
Argument ........................................................................  2

T a b l e  o f  C a se s  C it e d .

Barnard Leas Mfg. Co. v. Washburn, 99 S. W. 664. .. 4
Bryant v. Hamblin, 183 Ky. 716, 210 S. W. 786...........  3
C. & 0. Ry. Co. v. Keley’s Adm’x, 160 Ky. 660, 171

S. W. 182...................................................   4
Carter v. Texas, 177 U. S. 442....................................... 2
Clevinger v. Nunnery, 140 Ky. 592,131 S. W. 519 . . .  3
Commonwealth v. Wright, 79 Ky. 22...........................  2
Grubbs v. Fish, 97 S. W. 358, 29 R. 129.........................  3
Harper v. Harper, 10 Bush 447..................................... 4
Hollins v. Oklahoma, 295 U. S. 394...............................  2
McAllister v. Conn. Mutual Life Ins. Co., 78 Ky

531 ............................................................................. 4
Neal v. Delaware, 103 U. S. 370..................................... 2
Norris v. Alabama, 294 U. S. 587.................................  2
Rutherford v. Commonwealth, 78 Ky. 639 .................  6
Strauder v. West Virginia, 100 U. S. 303.....................  2
White’s Adm’x, v. White et al., 148 Ky. 492 146 

S. W. 1 1 0 1 ................................................ ‘ ........  . . . .  3

S t a t u t e s  C it e d .

Carroll’s Kentucky Codes— Baldwin’s Revision, 1938 5
Civil Code, Section 737 ( l a ) ....................................... 7

Section 743 (2 ) ...................................  7
Criminal Code Practice, Section 340.............  5

C o u r t  R u l e s  C it e d .

Rules of the Kentucky Court of Appeals, Rule III,
(14) ............................................................................ ’ 3,8

—4675





OCTOBER TERM, 1937

SUPREME COURT OF THE UNITED STATES

No. 680

JOE HALE,

vs. Petitioner,

COMMONWEALTH OF KENTUCKY.

PETITIONER’S BRIEF ON ARGUMENT.

M a y  i t  p l e a s e  t h e  C o u r t  :

This brief addresses itself to two points:

I.

W h e n  it  is  e s t a b l i s h e d  t h a t  a l l  q u a l i f i e d  n e g r o e s  w e r e

EXCLUDED FROM THE GRAND JURY W H IC H  INDICTED A NEGRO FOR 

W ILFUL MURDER AND FROM THE PETIT JURY W H IC H  TRIED AND 

CONVICTED H IM  THEREOF, SOLELY ON ACCOUNT OF RACE, PREJU­

DICE IS PRESUMED AS A MATTER OF LAW .

II.
F a i l u r e  o f  t h e  c l e r k  o f  t h e  t r i a l  c o u r t  t o  f o r w a r d  t o  

t h e  K e n t u c k y  C o u r t  o f  A p p e a l s  t h e  c o m p l e t e  r e c o r d  i n  

t h e  i n s t a n t  c a s e  c a n n o t  b e  a s c r ib e d  t o  p e t i t i o n e r , n o r  

prejudice h i s  r i g h t s .



2

ARGUMENT.

I.

When it is established that all qualified Negroes were ex­
cluded from the grand jury which indicted a Negro for wil­
ful murder and from the petit jury which tried and con­
victed him thereof, solely on account of race, prejudice is 
presumed as a matter of law.

Where prejudice is claimed as to an individual juror, 
prejudice must be proved in fact; but where prejudice is 
claimed as to an entire class of eligible jurors, prejudice 
is presumed as a matter of law.

Strauder v. West Virginia, 100 U. S. 303 (1879);
Commonwealth v. Wright, 79 Ky. 22 (1880).

Furthermore, challenges to the entire grand jury and the 
petit jury panel must be made in limine not for disqualifi­
cations of individual jurors but for vice in the composition 
of the jury itself. No case before this Court raising the 
question of the unconstitutional exclusion of qualified Ne­
groes from juries solely on account of race has been found 
in which this Court has required the petitioner to prove 
not only such unconstitutional exclusion but also prejudice 
in fact.

E.g.,
Neal v. Delaware, 103 U. S. 370 (1880);
Carter v. Texas, 177 U. S. 442 (1900) ;
Norris v. Alabama, 294 U. S. 587 (1936);
Hollins v. Oklahoma, 295 U. S. 394 (1936).



3

Failure of the clerk of the trial court to forward to the 
Kentucky Court of Appeals the complete record in the in­
stant case cannot be ascribed to petitioner, nor prejudice his 
rights.

Under Kentucky law (Carroll’s Kentucky Codes—Bald­
win’s Revision, 1938, Civil Code, Section 737 ( l a ) ; see Ap­
pendix “ A ”  hereto) the clerk of the trial court is required 
to prepare the entire record, unless the parties call for a 
partial record by filing a schedule.

Grubbs v. Fisli, 97 S. W. 358, 29 R. 129 (Ky. 1906).

Counsel for appellant before the Kentucky Court of Ap­
peals (petitioner here) had a right to rely on the proper 
performance of this duty by the clerk.

If the record is incomplete, and a schedule has been filed, 
the Court of Appeals will conclusively presume the record 
at hand is complete for purposes of appeal.

Rules of the Court of Appeals of Kentucky, Rule III 
(14). (See Appendix “ B ”  hereto).

The uniform course of decision is that the above rule 
applies only to partial records designated by a schedule 
as provided in Section 737(la), supra.

Clevmger v. Nunnery, 140 Ky. 592, 131 S. W  519 
(1910);

White’s Adm’x v. White et al., 148 Ky. 492, 146 S W 
1101 (1912);

Bryant v. Hamblin, 183 Ky. 716, 210 S. W. 786 (1919).

Even in this situation the Court of Appeals has relaxed 
the rule to avoid a miscarriage of justice. In a civil action 
for damages, where the clerk of the trial court through 
error or oversight had failed to incorporate a supersedeas

II.



4

bond and a supersedeas into the record on appeal, the 
Court of Appeals stayed its mandate, after the cause had 
been argued and affirmed, to permit said additions to the 
record to be made. The Court said:

“ Now, should the appellee be defeated in her right 
to these damages by the oversight or mistake of the 
clerk in failing to incorporate in the record the bond? 
We think not. ’ ’

C. & 0. Ry. Co. v. Kelley’s Adm’x., 161 Ky. 660, 
665, 171 S. W. 182 (1914).

In the present case no schedule was filed. The clerk of 
the trial court was duty bound to prepare the entire record. 

Grubbs v. Fish, supra.

Through mistake or oversight the clerk omitted to in­
corporate into the record on appeal petitioner’s motion to 
set aside the indictment, filed, presented to and ruled on by 
the trial court (R. 76; 74-75; 3; 63-64). Petitioner had dis­
charged his obligation regarding the formation of the record 
when he filed his motion and grounds therefor, obtained a 
ruling from the trial court and saved his exception. It 
Avould have been improper for him to have included said mo­
tion and grounds in his bill of exceptions.

McAllister v. Connecticut Mutual Life Ins. Co., 78 Ky.
531, 536 (1879);

Harper v. Harper, 10 Bush. 447 (Ky., 1874).

“ It is not necessary, nor indeed proper, to embody in 
a bill of exceptions, pleadings, written motions, or or­
ders that appear from the record to have been filed or 
made in open court. ’ ’

Barnard Leas Mfg. Co. v. Washburn, 99 S. W. 
664, 665 (Ky., 1907).

It is respectfully submitted that the fact that the record 
before the Court of Appeals from the outset contained peti­



5

tioner’s “ Affidavit Support-Motion to Set Aside Indict­
ment”  (R. 6-15), to which the Court of Appeals specifically 
adverted in its original opinion (R. 65), put the Court on in­
quiry that the record was patently incomplete. In the in­
terest of justice the Court should have exercised its inherent 
power to inquire into the completeness of the record. The 
Kentucky statutes provide a simple, direct, speedy and in­
expensive method of completing the record by the Court of 
Appeals issuing a subpoena duces tecum to the clerk of the 
trial court to bring the original record before it.

Carroll’s Kentucky Codes—Baldwin’s Revision, 1938. 
Civil Code, Section 743(2). (See Appendix “ A ”  
hereto.)

When the petition for rehearing was filed and presented to 
the Court of Appeals, in which the motion to set aside the 
indictment was copied in extenso (R, 72-74), the Court was 
no longer merely on inquiry but was inescapably put on no­
tice that it had decided a capital case and affirmed the death 
sentence of an illiterate, destitute Negro on a record in­
complete in a most vital aspect (see Petition for Certiorari 
and Brief in Support thereof, Exhibit “  A  ” , p. 18). Yet the 
Court refused to complete the record.

The refusal of the Court to complete the record in the in­
stant cause furnishes a sad contrast with its zeal to complete 
the record in the civil case, C. & 0. Ry. Co. v. Kelley’s 
Adm’x., supra.

A Kentucky statute provides that a judgment of convic­
tion shall be reversed for error of law appearing on the rec­
ord when upon consideration of the whole case, the Court is 
satisfied that the substantial rights of the accused have been 
prejudiced thereby.

Carroll’s Kentucky Codes—Baldwin’s Revision, 1938. 
Criminal Code of Practice, Section 340. (See Ap­
pendix “ A ”  hereto.)



6

The interpretation placed on the statute by the Kentucky 
courts is that when there has been a departure from the 
fundamental rules of criminal procedure in a case, the 
Court of Appeals should reverse unless it affirmatively ap­
pear from the record that the error complained of was not 
prejudicial.

Rutherford v. Commonwealth, 78 Ky. 639 (1880).

It is respectfully submitted that the failure of the Court 
of Appeals to complete the record in a capital case such as 
this, and then decide the case on the record so completed, 
was not an exercise of discretion, but an arbitrary abuse 
of discretion and a miscarriage of justice which this Court 
will not endure.

Respectfully submitted,

L e o n  A. R a n s o m ,

C h a r l e s  H . H o u s t o n , 

Coumel for Petitioner.
T h u r g o o d  M a r s h a l l ,

E d w a r d  P. L o v e t t ,

Of Counsel.



7

APPENDIX “ A ” .

Kentucky Statutes Cited.

Carroll’s Kentucky Codes—Baldwin’s Revision, 1938.
Civil Code.

S e c t i o n  737(la ). “ The clerk of the court which renders a 
judgment shall copy the entire record, or parts thereof, ac­
cording to the directions of the judge of the court, or of 
the parties to the appeal; and the filing of a schedule, as 
hereinafter authorized, shall be deemed a direction to copy 
the parts of the record therein mentioned. ’ ’

S e c t i o n  743(2). “ The Court of Appeals, if satisfied that 
a view of any part of a record may be important to a cor­
rect decision of an appeal; or that the copying of any part 
of a record would cause great and unnecessary cost or de­
lay, may, by a writ of subpoena duces tecum directed to the 
clerk of such inferior court, cause him to transmit such part
of the record to the clerk of the Court of Appeals * * *.”

Carroll’s Kentucky Codes—Baldwin’s Revision, 1938.
Criminal Code of Practice.

S e c t i o n  340. “ A judgment of conviction shall be re­
versed for any error of law [appearing on the record, when, 
upon consideration of the whole case, the court is satisfied 
that the substantial rights of the defendant have been 
prejudiced thereby]. (Words in brackets added bv Act of 
1880, c. 360, p. 42.)’ ’



8

APPENDIX " B " .

Rules o f  Court Cited.

Rules and Docket of the Court of Appeals of Kentucky.
Winter Term, 1938. Rules of the Court of Appeals.
Adopted November 27, 1925.

Rule III. Records. * * * 14. Presumption as to com­
pleteness of record.— “ The Court will conclusively pre­
sume, after submission, that a record brought up to this 
Court on schedule filed in the clerk’s office of the inferior 
court, as prescribed by Section 737 of the Code of Practice, is 
the complete record, and that all parties interested have con­
sented to try the appeal on such record. Before submission 
the Court will, in its, discretion, allow a transcript of other 
parts of the record to be filed when deemed necessary in fur­
therance of justice. ’ ’

(4675)











Supreme Court of the United States
OCTOBER TER M , 1937

No. 680

JOE HALE, ................................................... Petitioner,

versus

C O M M O N W E A L T H  OF KENTU CKY, . Respondent.

BRIEF FOR THE RESPONDENT

For Respondent:

H U B E R T  M E R E D IT H ,
Attorney General of Kentucky,

and

A. E. FUNK ,
Assistant Attorney General of 

Kentucky,

Frankfort, Kentucky.





TABLE OF CONTENTS

Page
Preliminary Statement..............................................  1

Statement of Case ....................................................  1

Summary of Argument ............................................  2

Argument...................................................................... 3

P o in t  O n e

Discussion of errors assigned iby petitioner on
writ of certiorari..........................................  4

P o in t  T w o

Rule and principle of law should be modified 
so as to require a showing by the accused 
that the jury which indicted and tried the 
accused was partial and prejudiced.........  5

P o in t  T h r e e

The accused cannot complain if he still had an 
impartial jury to try the case. He can 
demand no m ore ..........................................  7

P o in t  F o u r

The due process of the law and equal protec­
tion of law under the Fourteenth Amend­
ment to the Constitution of the United 
States should not apply to the accused in 
the selection of the jury which indicted



or tried him any more than it should 
apply to the selection of other officers of 
the Court ......................................................

P o i n t  F iv e

The opinion of the Court of Appeals of Ken­
tucky ..............................................................

Conclusion ....................................................................

A l p h a b e t i c a l  T a b l e  o f  C a s e s  C it e d

Baldridge v. Commonwealth, 28 K. L. R. 33...........
Buckles v. Commonwealth, 133 Ky. 799 ...............
Cheek v. Commonwealth, 162 Ky. 5 6 .....................
Commonwealth v. Thompson, 122 Ky. 501............
Hayes v. Missouri, 120 U. S. Reports 7 1 .................
Northern Pacific Railroad v. Herbert, 116 U. S.

642 .........................................................................
Virginia v. Rives, 100 U. S. 313...............................

S t a t u t e s  C it e d

Kentucky Statutes, Sections 2241, 2248, 2253, 
2253a-l and 2253a-2, Carroll’s 1936 edition...

C o n s t i t u t i o n  o f  t h e  U n i t e d  S t a t e s  

Fifth Amendment to the Constitution of the United 
States ....................................................................

C a s e s  D i s t i n g u i s h e d

Carter v. Texas, 177 U. S. 442 ..............
Neale v. Delaware, 103 U. S. 370 ..........
Norris v. Alabama, 294 U. S. 587 ..........
Tarrence v. Florida, 188 U. S. 519........



Supreme Court of the United States
OCTOBER T E R M , 1937

No. 680

J o e  H a l e .......................................................Petitioner,

versus

C o m m o n w e a l t h  o f  K e n t u c k y  . . . .  Respondent.

BRIEF FOR RESPONDENT

May It Please the Court:

I.
PRELIM INARY STATEM EN T

Petitioner was indicted, charged with the murder of 
W. R. Toon in an indictment found by the grand jurors 
of McCracken County, State of Kentucky, which indict­
ment was copied in full in the printed record, page one, 
herein.

II.

STATEM EN T OF CASE

The petitioner was tried before the Hon. Joe L. 
Price, Judge of the McCracken Circuit Court, by a jury 
selected and properly sworn. The evidence offered by 
the Commonwealth was heard by the jury and at the



2

close of the Commonwealth’s evidence the defendant 
declined to testify and introduced three witnesses. 
At the close of the defendant’s testimony the Court 
instructed the jury and they returned a verdict finding 
the petitioner guilty as charged in the indictment and 
fixing his punishment at death. Petitioner filed his 
motion and grounds for a new trial which were overruled 
by the Court and an appeal granted to the Court of Ap­
peals of Kentucky. This appeal was prosecuted in the 
Court of Appeals of Kentucky which affirmed the judg­
ment of conviction in the McCracken Circuit Court. 
Petitioner filed petition for rehearing and the opinion of 
the Court of Appeals of Kentucky was modified and the 
petition for rehearing overruled, whereupon the peti­
tioner filed his petition for a writ of certiorari. All of 
the procedure is shown in the printed transcript of 
record in this Court.

III.

S U M M A R Y  OF A R G U M E N T

1.

Errors relied upon by petitioner.

2.

The rule and principle of law should be modified and 
extended so as to require a showing by accused that the 
jury which indicted and tried the accused was partial 
and prejudiced.

3.
The accused cannot complain if he still had a fair 

and impartial jury to try the cause. He can demand 
no more.



3

4.
The due process of law and the equal protection of 

the law under the Fourteenth Amendment to the Con­
stitution of the United States should not apply to the 
accused in the selection of the jury which indicted or 
tried the accused any more than it should apply to the 
selection of other officers of the Court.

5.

The opinion of the Court of Appeals of Kentucky.

IV.

A R G U M E N T  

Point 1

The petitioner in his petition for a writ of certiorari 
assigned as error the following points:

(1) The trial and conviction of a negro by a jury 
of whites, upon an indictment found and returned by a 
grand jury of white persons, from both of which said 
juries all qualified negroes had been excluded solely on 
account of race or color, pursuant to established prac­
tice, is a denial of the equal protection of the law as guar­
anteed by the Fourteenth Amendment to the Constitution 
of the United States.

(2) The Court denied petitioner’s rights to equal 
protection of the laws under the Fourteenth Amendment 
to the Constitution of the United States in overruling 
his motion to set aside (dismiss) the indictment and his 
challenge to the array (motion to discharge the entire 
panel) on the grounds that all qualified negroes had been 
excluded from the jury panels solely on account of race 
or color.



4

The petitioner has elected to stand upon the brief 
filed in support of his writ of certiorari and the writer of 
this brief has been informed by the Clerk of the Supreme 
Court that the petitioner will not file a brief upon the 
merits of the case. In the brief filed by petitioner in sup­
port of his petition for a write of certiorari he cites and 
relies upon the cases of

Neale v. Delaware,
103 U. S. 370.

Carter v. Texas,
177 U. S. 442.
Tarrance v. Florida,
188 U. S. 519.

Norris v. Alabama,
294 U. S. 587.

These cases hold in substance that the trial and con­
viction of a negro by a jury of whites upon an indictment 
found and returned by a grand jury of white persons, 
from both of which said juries all qualified negroes had 
been excluded solely on account of race or color, pursuant 
to established practice, is a denial of the equal protec­
tion of the law as guaranteed by the Fourteenth Amend­
ment to the Constitution of the United States.

We must admit the record shows that no negro or 
person of the African race had been summoned for jury 
service either on the grand or petit jury in McCracken 
County, Kentucky, for a period of at least fifty years. 
The laws of Kentucky do not exclude negroes or persons 
of the African race from jury service.

Kentucky Statutes, Sections 2241, 2248, 2253,
2253a-l and 2253a-2, Carroll’s 1936 Edition.



5

Point 2

The Rule and Principle of Law Should Be Modified so 
as to Require a Showing by the Accused that the 
Jury which Indicted and Tried the Accused was 
Partial and Prejudiced.

The petitioner in the case at bar was indicted by a 
jury composed wholly of white persons and the panel 
from which the grand jury was selected was summoned 
from the jury wheel which contained only the names of 
white persons who resided in McCracken County, Ken­
tucky. The petit jury selected to try the accused upon 
the charge found by the grand jury was composed wholly 
and entirely of white persons and the panel summoned 
from the jury wheel by the Sheriff of the county con­
tained only the names of white persons and the names of 
no negroes or persons of the African race were included 
in the list of names selected by the jury commissioners 
of qualified persons for jury service either on the grand 
or petit jury in McCracken County.

No names of negroes or persons of the African race 
had been selected for jury service for a period of fifty 
years or more.

It will be noted from the printed record that the 
accused did not take the stand to testify. He offered little 
or no evidence in his behalf which would establish or 
tend to establish his innocence of the charge contained in 
the indictment. There was no evidence offered in his 
behalf that would tend to mitigate the charge contained 
in the indictment. No showing is made by the accused 
that he was in danger of mob violence. There was no 
public sentiment aroused that influenced the jury in the 
verdict they returned in this case. So far as this record 
is concerned and the showing made by the petitioner, he 
had a fair and impartial trial „at the hands of an im­



6

partial jury (unless it can be said that the trial was 
unfair and the jury was partial because negroes had not 
been summoned or served upon either the grand or petit 
jury in McCracken County at the term in which he was 
indicted and tried and for several years prior thereto).

Due process of law and equal protection of the law 
as guaranteed under the Fourteenth Amendment of the 
Constitution of the United States do not guarantee to 
the accused the right of trial by a jury composed wholly 
or partly of persons of his own race or color.

In the case of Virginia v. Rives, 100 U. S. 313, at 
page 322, the Supreme Court used this language:

“ Nor did the refusal of the court and of the 
counsel for the prosecution to allow a modification 
of the venire, by which one-third of the jury, or any 
portion of it, should be composed of persons of the 
petitioner’s own race, amount to any denial of a right 
secured to them by any law providing for the equal 
civil rights of citizens of the United States. The 
privilege for which they moved, and which they also 
asked from the prosecution, was not a right given 
or secured to them, or to any person, by the law of 
the State, or by any Act of Congress, or by the Four­
teenth Amendment of the Constitution. It is a right 
to which every colored man is entitled, that, in the 
selection of jurors to pass upon his life, liberty or 
property, there shall be no exclusion of his race, 
and no discrimination against them because of their 
color. But this is a different thing from the right 
which it is asserted was denied to the petitioner by 
the State court, viz. a right to have the jury com­
posed in part of colored men. A  mixed jury in a 
particular case is not essential to the equal protec­
tion of the laws and the right to it is not given by any 
law of Virginia, or by any Federal statute. It is 
not, therefore, guaranteed by the Fourteenth Amend­
ment, or within the purview of Section 641. ’ ’



7

The petitioner in the case at bar was not entitled 
under the Fourteenth Amendment to have a jury com­
posed of members of his own race or even partly com­
posed of such members to pass upon the indictment and 
to try him upon the charge contained in the indictment. 
Again we insist that all the petitioner was entitled to was 
a fair and impartial jury to indict him and to try the 
charge in the indictment and when this is afforded him 
the provisions of the Fourteenth Amendment are not 
violated.

Point 3

The Accused Cannot Complain if He Still Had an Im­
partial Jury to Try the Cause. He can Demand No  
More.

In the motion and grounds for a new trial in the 
McCracken Circuit Court the petitioner filed and assigned 
eight reasons why he should be granted a new trial. None 
of these grounds allege that the petitioner was tried by 
a prejudiced or partial jury. Neither does it assign as 
a reason therefor that he did not receive a fair and im­
partial trial, unless it can be said that the first and 
second grounds set out in the motion and grounds for a 
new trial are broad enough to include these grounds. 
The first reason assigned in his motion and grounds for 
a new trial is as follows:

“ (1) Because the Court erred in overruling the 
defendant’s motion to set aside the indictment 
herein.

“ (2) Because the Court erred in overruling 
defendant’s motion to challenge the entire panel of 
the petit jury impaneled in this case.”



8

The error complained of in these two grounds, if it 
was error, was committed by the Court prior to the intro­
duction of testimony and we insist the grounds are not 
broad enough to include by implication the grounds that 
the jury which tried the accused was prejudiced and 
partial.

In the case of Hayes v. Missouri, 120 U. S. Reports, 
at page 71, the Court used this language:

“ In this country the power of the legislature of a 
state to prescribe the number of peremptory chal­
lenges is limited only by the necessity of having an 
impartial jury. In our large cities there is such a 
tendency of the criminal classes to resort to them, 
and such an unfortunate disposition on the part of 
business men to escape from jury duty, that it 
requires special care on the part of the government 
to secure there competent and impartial jurors. And 
to that end it may be a wise proceeding on the part 
of the legislature to enlarge the number of per­
emptory challenges in criminal cases tried in those 
cities. The accused cannot complain if he is still tried 
by an impartial jury. He can demand nothing more. 
Northern Pacific Railroad v. Herbert, 116 U. S. 642. 
The right to challenge is the right to reject, not to 
select a juror. If from those who remain, an im­
partial jury is obtained, the constitutional right of 
the accused is maintained. In this case it is not even 
suggested that the jury by which the accused was 
tried was not a competent and impartial one.”  
(Italics ours.)

In the case at bar, the accused does not charge or 
even suggest that the grand jury which indicted him was 
not an impartial one. Neither does he charge or even

(suggest that the petit jury which tried him was not an 
impartial one. If the accused had a fair and impartial 
trial (even though all the jurors were white) he cannot 
complain and we insist that his Constitutional rights as



9

f

guaranteed under the Fourteenth Amendment were not 
violated.

Since the accused did not expressly contend in his 
motion and grounds for a new trial that the jury which 
indicted him and the jury which tried him were partial 
and prejudiced, under the rules of practice in the Courts 
of the Commonwealth of Kentucky, he could not raise 
that question on an appeal to the Court of Appeals. • .

Baldridge v. Commonwealth,
28 Ky. L. B. 33.— S.+f./oJL

\ T\>j Cheek v. Commonwealth,
'162 Ky. 56. -  7 /

\J \£ >

\ajq

j&j-  ,  Buckles v. Commonwealth,
- 1 3 3 S.w, SoSi

. *■ t Commonwealth v\Thompson,j
122 K y- 501 • ? / 5 ^ 7 a /  ^

Point 4

The Due Process of Law and the Equal Protection of the 
Law under the Fourteenth Amendment to the Con­
stitution of the United States Should Not Apply to 
the Accused in the Selection of the Jury Which) 
Indicted or Tried Him A ny More than It Should 
Apply to the Selection of Other Officers of the Court.

It is a well settled and primary rule of law that 
jurors when selected and impaneled are officers of the 
Court. If the rule and principle of law as laid down in 
the cases of Neale v. Delaware, supra; Tarrance v. 
Florida, supra; Carter v. Texas, supra; and Norris v. 
Alabama, supra, is adhered to, as we see it, nothing would 
prevent the Court from extending the rule so as to include 
any other officer appointed or selected by the Court if 
he failed to select a person of the African or negro race.



10

Would it appear to this Court to apply to the Jury Com­
missioner appointed by the Court? Would it apply to 
the deputy sheriffs appointed by the sheriff, who some­
times summon jurors for petit jury service? Would it 
apply to a Court composed of more than one judge 
because none of its members was a negro or a person of 
the African race?

Due process of law as contained in the Fourteenth 
Amendment does not apply except to states but the Fifth 
Amendment to the Constitution of the United States con­
tains the following language:

“ * * * Nor shall be compelled in any criminal
case to be a witness against himself nor be deprived 
of life, liberty, or property, without due process of 
law * *

This amendment includes the United States as well 
as the individual states. Could it be said that the prin­
ciple of due process of law could or should extend so far 
as to disqualify the judge of a federal district court, or 
the judges of the circuit court of appeals, or even to the 
judges of the Supreme Court of the United States in 
every case where negroes were accused in their courts 
of a crime because the President of the United States had 
failed or refused to nominate, and the Senate of the 
United States to confirm the appointment of, negro 
judges for said Court, when for a period of considerable 
time there resided in the district or in the country quali­
fied negro lawyers who could have been nominated, con­
firmed and appointed judges for said courts?

We do not believe that this Court intended to extend 
the principle of law laid down in the cases relied upon 
by petitioner so as to invoke the provisions of the Four­
teenth Amendment or the Fifth Amendment, unless the 
accused or the petitioner could show and did show that



11

his substantial rights were prejudiced by the actions of 
the Court and its officers and that he did not receive a 
fair and impartial trial at the hands of an unprejudiced 
and impartial jury, and in this case we call the Court’s 
attention to the fact that no proof was introduced by the 
defendant that would have changed the verdict of the 
jury even though it had been composed of negroes who 
were honest, discreet, sober housekeepers and citizens 
of the county as required under Kentucky Statutes, 
supra.

Point 5

The Opinion of the Court of Appeals of Kentucky

The opinion of the Court of Appeals of Kentucky 
in affirming the judgment of conviction in the McCracken 
Circuit Court held that the principle of law as laid down 
in the cases of Carter v. Texas, Tarrance v. Florida, 
Norris v. Alabama, and Neale v. Delaware, supra, could 
not be applied to the case at bar because the proof in 
this case did not establish that negroes and persons of 
the African race were excluded from the jury panels 
solely because of their race and color. The Court reached 
this conclusion after considering the motion and affidavit 
filed by the petitioner in the McCracken Circuit Court 
and distinguished the case at bar from the cases relied 
upon by petitioner hereby pointing out the following 
distinctions:

First: That the statement and the affidavit made
by petitioner as to what each witness named in the said 
affidavit would state if called and interrogated as a wit­
ness in regard to the exclusion of negroes or persons of 
the African race from the jury panel, did not necessarily 
state or imply that the negroes or persons of African 
race were excluded solely because of their race and color.



12

Second: That to admit, which was done by the Com­
monwealth’s Attorney, that the witnesses would testify 
as set out in the affidavit, did not prove that the said 
negroes or persons of African race were excluded solely 
because of their race and color.

We insist that the Court of Appeals of Kentucky 
was correct in its opinion. The affidavit only stated what 
each witness would testify if called as a witness. The 
Commonwealth’s Attorney stipulated that the witnesses 
would so testify. We may consider the affidavit as the 
testimony of the witnesses named therein and giving this 
testimony its broadest application, it would only show 
that no negroes or persons of the African race had served 
upon juries, either grand or petit, in the McCracken Cir­
cuit Court for the past several years and perhaps for a 
period of more than fifty years. This testimony, how­
ever, does not establish as a fact that negroes or persons 
of the African race were excluded from the jury solely, 
because of their race or color. We insist that the Court 
of Appeals of Kentucky did not err in drawing the dis­
tinction between the facts in this case and the facts which 
were considered by the Supreme Court in the cases cited 
and relied upon by petitioner and the rule and principle 
of law laid down in the cases cited by the petitioner is 
not applicable to the case at bar.

CONCLUSION

In conclusion, we wish to state that the record in 
this case discloses without any doubt that the petitioner 
is guilty of the crime charged, without a showing that he 
was tried by a jury which was partial and prejudiced, 
but on the other hand he was tried and convicted by an 
impartial jury. No other verdict could have been ren­
dered under the evidence introduced by any jury if they 
applied the law to the facts introduced in the trial of



13

this action. The constitutional rights of the petitioner 
were not violated if he was tried and convicted by an 
impartial jury. There is nothing in the record to the 
contrary. We insist the judgment and conviction in the 
Courts of Kentucky should be affirmed.

Respectfully submitted,

H u b e r t  M e r e d it h ,
Attorney General of Kentucky;

A. E. F uhk,
Assistant Attorney General of Kentucky;

Attorneys for Respondent
Commonwealth of Kentucky.







TH E STATE J O U R N A L  C O M P A N Y  

Printers te t i t  Commonwealth  
F r an k fo r t ,  Kentucky



SUPREM E COURT OF THE UNITED STATES

OCTOBER TERM, 1938

No. 142

HUGH PIERRE,

vs.
Petitioner,

STATE OF LOUISIANA.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF LOUISIANA 
AND BRIEF IN SUPPORT THEREOF.

M a u r ic e  R. W o u l f e , 

Counsel for Petitioner.



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INDEX.

S u b j e c t  I n d e x .
Page

Petition for writ of certiorari.......................................  1
Summary statement of the matter involved........ 1
Reasons relied on for the allowance of the writ.. 2
Prayer for w rit...............................................  3
Affidavit of petitioner...................................... 4

Brief in support of petition......................................... 5
Statement of the case................................ 5
Specification of errors................................ 9
Argument ................................................................  40

T a b l e  o r  C a s e s  C it e d .

Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839............  9,10 11
Hale v. Kentucky, 303 U. S. 613.....................................’ ’ io
Norris v. Alabama, 294 U. S. 587, 79 L. Ed. 1074, 55

Sup. Ct. 579........................................................... 3,9,10,11
State v. Pierre, Yol. 180, So. Rep. No. 4, May 26,1938, 

p. 630 ........................................................... . n

S t a t u t e s  C it e d .

Constitution of the United States, 14th Amendment. . 2
Judicial Code, Section 237(b) as amended.........  3

—8131





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1938

No. 142

HUGH PIERRE,

vs.

STATE OF LOUISIANA.

Petitioner,

PETITION FOR WRIT OF CERTIORARI.

To the Supreme Court of the United States:

Your petitioner, Hugh Pierre, respectfully alleges:

A.

Summary Statement of the Matter Involved.
Petitioner, a member of the colored race, is now confined 

in the Parish Prison in the City of New Orleans, State of 
Louisiana, under sentence of death for the alleged crime of 
murder. He was convicted at a trial held in St. John the 
Baptist Parish, Louisiana, before the Honorable Robert L. 
Rivard and a jury. An appeal was taken from that convic­
tion and sentence to the Supreme Court of Louisiana, which 
is the highest Court of the State of Louisiana. The convic­
tion and sentence was affirmed by that Court on Monday, 
March 7, 1938. A timely application for a rehearing was



2

made on March 18,1938, which application was received and 
considered by the Court. The application for a rehearing 
was denied on April 4, 1938.

Before trial petitioner duly filed a motion to quash the 
indictment against him on the ground and for the reason 
that the Grand Jury which returned the indictment in St. 
John the Baptist Parish had been drawn from jury rolls 
and had been selected in such a manner, in that negroes had 
been excluded therefrom and discriminated against, because 
of their race and color. Petitioner also moved to quash the 
general venire and panel from which the grand jury, which 
returned the indictment against him, and from which the 
petit jury panel was drawn, on the ground and reason that 
negroes had been illegally and unlawfully excluded from the 
venire and grand jury and petit jury panels on account of 
their race and color, in violation of defendant’s constitu­
tional rights guaranteed him under the Constitution of the 
State of Louisiana and of the 14th Amendment of the Con­
stitution of the United States. The motion to quash was 
entertained, and the evidence introduced in support thereof 
established such discrimination; the Court, after hearing 
the evidence in support thereof, quashed the petit jury panel 
and venire, but refused to quash the indictment and grand 
jury venire and panel, although the petit jury panel and 
venire was a part of the grand jury general venire.

B.
Reasons Relied on for the Allowance of the Writ.

1. Petitioner was denied the equal protection of the laws 
guaranteed him by the 14th Amendment of the Constitution 
of the United States, in that negroes were excluded from the 
venire and panel and from jury service in St. John the 
Baptist Parish, Louisiana, in which parish was found the 
indictment against him, and that such exclusion was by rea­
son of their race and color.



3

2. A  motion to quash was made by your petitioner before 
trial to quash the indictment on these grounds. The motion 
was heard, and the evidence introduced in support thereof 
established such discrimination, the trial judge quashing 
half of the venire which made up the petit jury panel, hold­
ing that defendant was discriminated against, and that 
negroes were excluded from the general venire on account 
of their race and color, but refusing to quash the indictment 
and that part of the general venire which composed the 
grand jury, which returned the indictment against peti­
tioner, for the reason as given by the Court that an indict­
ment was simply a formal method of charging a person and, 
therefore, did no harm to the defendant. The claim of Fed­
eral right was considered both by the trial court and by the 
Supreme Court of the State.

3. Your petitioner was on numerous occasions, both with 
reference to the motion to quash the indictment, and with 
reference to motions to quash the venire, and in the refusing 
to maintain the motion in arrest of judgment, illegally dis­
criminated against, illegally indicted by an illegally consti­
tuted grand jury and was denied the equal protection of the 
laws, as guaranteed him under the 14tli Amendment of the 
Constitution of the United States, both by the trial court’s 
judgment, and the Supreme Court of Louisiana’s judgment 
in refusing to follow the decision of this Court, as laid out in 
the case of Norris v. State of Alabama, 294 U. S. 587, L. Ed. 
1074, 55 S. Ct. 579.

In support of the foregoing grounds of application, your 
petitioner submits the accompanying brief setting forth in 
detail the precise facts and arguments applicable thereto.

W h e r e f o r e  your petitioner prays that this Court, pursu­
ant to United States Judicial Code, Section 237 B, as 
amended by Act of February 13, 1925, 43 Statutes 937, and



4

also Act of March 8,1934, issue a writ of certiorari to review 
the judgment of the Supreme Court of Louisiana for the con­
viction for murder as aforesaid. All of which is herewith 
respectfully submitted this 15th day of June, 1938.

M a u b ic e  R . W o u l f e , 

Attorney for Petitioner.
U n it e d  S t a t e s  of  A m e r ic a ,

State of Louisiana,
Parish of Orleans:

Personally came and appeared, before me, the under­
signed authority, Hugh Pierre, who being duly sworn, de­
poses and says: That he is the petitioner named in the above 
and foregoing petition for writ of certiorari; that he has 
read same; and that all the facts and allegations herein con­
tained are true and correct.

H u g h  P ie r r e ,

Petitioner.

Sworn to and subscribed before me this 15th day of June, 
1938.

T h e o d o r e  H. M cG i e h a n ,

[ s e a l .]  Notary Public.



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1938

No. 142

HUGH PIERRE,

vs. Petitioner,

STATE OF LOUISIANA.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF
CERTIORARI.

Statement of the Case.
Petitioner and defendant, Hugh Pierre, was charged in 

bill of indictment for murder. Was tried and convicted be­
fore the Hon. Robert L. Rivarde, Judge of the 24th Judi­
cial District Court, Parish of St. John the Baptist, Louisi­
ana, and was sentenced to be “ hanged by the neck until 
dead” . From this conviction and sentence he appealed to 
the Supreme Court of Louisiana, which Court affirmed the 
verdict and sentence of the trial court, and from which final 
judgment and decree of the Supreme Court of Louisiana, 
petitioner now seeks relief through the writ of certiorari to 
this Honorable Court. Petitioner is a negro and was 
charged with murdering one Ignace Roussel, a white man. 
The indictment was returned into court on January 18, 
1937. Before trial, he filed a motion to quash the indict-



6

ment and the general venire and grand jury panel and petit 
jury panel, on the ground and for the reason that negroes 
and persons of color were deliberately and systematically 
excluded therefrom, on account of their race and color in 
violation of the 14th Amendment of the Constitution of the 
United States (R. 2-3).

After hearing evidence upon said motion to quash, the 
Court handed down its judgment on January 27,1937, main­
taining in part the motion to quash filed on behalf of peti­
tioner and defendant, ordering the petit jury venire and 
panel (which was part of the general venire) quashed and 
set aside, assigning his reasons for so doing, that the evi­
dence showed discrimination against negroes, in violation 
of the 14th Amendment of the Constitution of the United 
States, but refused to quash the indictment and the grand 
jury venire and panel, which returned said indictment, and 
which formed part of the venire (which the Court ordered 
quashed and set aside) giving as his reasons for his re­
fusal to quash the indictment and grand jury venire, that 
an indictment was simply a formal method of charging a 
person, and, therefore, no injury could be assigned by one, 
account of an illegal indictment (R. 4-5).

A bill of exception was properly reserved to the refusal 
of the trial court to grant the motion to quash the indict­
ment and the grand jury venire. A motion for change of 
venue was filed and overruled, as petitioner was unable to 
offer sufficient evidence upon said motion for change of 
venue, although the public feeling was such against him that 
he was unable to receive a fair trial in said parish, or to 
secure a fair and impartial jury therein, and it was neces­
sary for the authorities to confine him from the day of his 
arrest in custody of the criminal sheriff for the Parish of 
Orleans at the Parish Prison in New Orleans, for safekeep­
ing. He was tried on July 19, 1937, and convicted on July 
20,1937. On July 29, 1937, he filed his motion for new trial



7
(Certified transcript p. 25) which was overruled, and excep­
tion reserved. A motion in arrest of judgment was filed 
and overruled; then petitioner filed his appeal to the Su­
preme Court of Louisiana. On Monday, March 7, 1938, 
having passed upon the Federal question and Federal right 
raised on behalf of petitioner, the Supreme Court affirmed 
the judgment to the lower court, the Chief Justice of the 
Supreme Court of Louisiana dissenting and handing down 
a separate dissenting opinion (R. 67-75, inclusive). A peti­
tion for rehearing was duly filed and considered (R. 75-80, 
inclusive). The Court refused the petition for rehearing 
filed on behalf of petitioner and defendant on April 4, 1938. 
He immediately on that day applied to the Chief Justice 
of the Supreme Court of Louisiana for a stay of execution 
and delay to apply for writs of certiorari, review, or Appeal 
to the Supreme Court of the United States (R. 80-82, 
inclusive).

The facts of this case, as disclosed by this record attached 
to the motion for new trial, are these: Hugh Pierce, a crip­
pled negro, residing with his mother and family at Lucy, 
Louisiana, in the Parish of St. John the Baptist, Louisiana, 
was engaged in working on a truck in the rear yard of his 
farm on the afternoon of the 20th day of October, 1936, 
when a white man by the name of Leopold Ory came into 
Pierre’s yard and accused him of stealing a plow six years 
before that, which he claimed to have been left behind the 
levee of the Mississippi River. Upon Pierre’s denial of 
the accusation, Ory struck him and knocked him down, and 
during the argument, defendant struck Ory with a piece 
of stick he had in his hand, after which Ory, on leaving the 
yard, threatened Pierre that he would return later on and 
get him. Later on that night two of Ory’s sons, Michael 
Ory and Alfred Ory, together with another and the de­
ceased, Ignace Roussel, who was a constable, returned to 
Pierre’s home. The deceased, according to the testimony,



8

drawing a gun, threatened and struck petitioner with a 
night stick, while his companions surrounded the house, 
telling petitioner that he was going “ to take him with him” . 
Upon being asked if he had a warrant for his arrest, de­
ceased refused to show same, stating he did not need any 
warrant to arrest the accused, or words to that effect (Certi­
fied transcript p. 194). Petitioner, fearing for his life, and 
that great bodily harm was to come to him, tried to escape 
out the back way and found that his escape was blocked by 
the companions of the deceased, and fearing for his life 
when the deceased broke open the front door with his gun 
in hand, petitioner fired one shot in the direction of the front 
door, killing the deceased. After the shot, he escaped into 
St. Charles Parish, where he was arrested by parish officers, 
and immediately conveyed by them for safekeeping to the 
parish prison in the City of New Orleans, where he is still 
being held, pending this appeal. We believe that the entire 
evidence and circumstances of this case are that the arrest, 
if  arrest it can be called, was unlawful, and that petitioner 
and defendant simply defended his life and took the life of 
the deceased in self-defense; that this country jury in less 
than five minutes returned a verdict of ‘ ‘ Guilty, as Charged ’ ’ 
(Motion for New Trial, certified transcript p. 25). We re­
spectfully submit that had this been the case of a white man 
killing another white man under like circumstances as 
brought out in this case, this defendant would have been 
promptly acquitted, or probably never prosecuted. The evi­
dence showed that Pierre and his family were respected, 
law-abiding and industrious negroes who had resided all 
their lives in the Parish of St. John the Baptist, Louisiana, 
who worked for themselves and bore the respect of all in the 
community; that the defendant himself was a hopeless crip­
ple in arm and leg, and an inoffensive negro who had never 
been in any trouble before in his life. The evidence offered 
on the motion to quash is contained in (R. 22-56, inclusive),



9

together with the list of jurors on the venire which returned 
the indictment herein.

Specification of Errors.
(1) That the trial court erred in refusing the motion to 

quash the indictment and grand jury panel, from which the 
grand jury that found the indictment was drawn, as such 
ruling and judgment, that although negroes were excluded 
from the list of jurors drawn, on account of their race and 
color; an indictment was a mere presentment and formal 
method of charging an accused, and no injury could be sus­
tained by the return of an illegal indictment, such as in this 
case, was in direct conflict with the ruling of this Court in 
the case of Carter v. Texas, 177 U. S. 442, 447, 44 L. Ed. 
839, 841, and the case of Norris v. Alabama, 294 U. S. 587, 
79 L. Ed. 1074.

(2) That the Supreme Court of Louisiana in affirming the 
judgment of the trial court, erred in its judgment in requir­
ing petitioner to a rule and degree of proof, of discrimina­
tion and exclusion, contrary to that held in the decision of 
this Honorable Court handed down in the case of Norris v. 
Alabama, 294 U. S. 587. The degree of proof necessary 
under the ruling of this Honorable Court in the above case 
was that it was incumbent upon petitioner to make a prima 
facie showing of discrimination and exclusion, and not by a 
preponderance of the evidence, as stated in the Supreme 
Court of Louisiana’s decision. Further, the finding of fact 
by the Supreme Court of Louisiana was clearly erroneous 
and not sustained in fact by the proof offered on the motion 
to quash.

(3) That both the rulings of the trial court and the Su­
preme Court of Louisiana in sustaining the indictment and 
grand jury venire, were a direct denial of petitioner’s rights 
of the equal protection of the laws, as guaranteed him under



10

the 14th Amendment of the Constitution of the United 
States.

Argument.
The trial court, after hearing the evidence on the motion 

to quash (R. 22-56, inclusive), together with judicial knowl­
edge of the listed persons on the venire of the jury that re­
turned the indictment against petitioner, and its judicial 
knowledge of the fact that at no time during its incumbency 
upon the bench had a negro, a person of color, ever been 
selected for jury service in St. John the Baptist Parish; in 
addition to that, the Court’s knowledge of the tremendous 
handicap that petitioner labored under to draw out from 
the witnesses the proof and evidence of exclusion and dis­
crimination, and the Court’s actual determination of that 
question of fact, that there was discrimination, and that 
negroes were excluded on account of their race and color, 
we respectfully submit was conclusive on the Supreme Court 
of Louisiana. The trial court was in error in deciding that 
an indictment was a mere presentment, and not evidence of 
guilt, and that no harm could be assigned, or constitutional 
right violated by the return and finding of an illegal indict­
ment, This ruling of the trial court was in direct conflict 
with the decisions of this Court, in the cases of Carter v. 
Texas, 177 U. S. 442, 447, 44 L. Ed. 839, 841, and Norris v. 
Alabama, 294 U. S. 587, 79 L. Ed. 1074, and Hale v. Ken­
tucky, 303 U. S. 613, Supreme Court Advanced Opinions, 
Vol. 82 #14, Pg. 744. The Supreme Court of Louisiana’s 
decision was erroneous, although admitting the constitu­
tional rights involved, and although acknowledging the de­
cision of this Honorable Court in the case of Norris v. Ala­
bama, above referred to, the grounds upon which the Su­
preme Court of Louisiana ruled on, and were the same 
grounds upon which the Supreme Court of Alabama denied 
the constitutional rights of the defendant and was merely



11

an indirect method and way to circumvent the decisions of 
this Honorable Court, in the case of Norris v. Alabama, 294 
U. S. 587, 79 L. Ed. 1074, and the case of Carter v. Texas, 
177 U. S. 442 (see decision of this matter in State v. Pierre, 
Yol. 180, So. Rep. No. 4, May 26,1938, Pg. 630).

In the petition for rehearing before the Supreme Court of 
Louisiana (R. 75-80, inclusive) we clearly briefed the de­
cisions of the Supreme Court of Louisiana on the question 
of a negro’s right of representation on juries down to the 
last case decided by that court, and it is a significant fact 
that the Supreme Court of Louisiana has without exception 
avoided and nullified this Honorable Court’s decisions on 
this question herein involved, in every case coming before 
it. We respectfully submit that a strong prima facie case 
of discrimination and exclusion of negroes from juries in St. 
John the Baptist Parish, Louisiana, was met by the proof 
and evidence offered in conformity to the ruling of this Hon­
orable Court, in the case of Norris v. Alabama, 294 U. S. 587, 
79 L. Ed. 1074, and that the rulings of both the trial court 
and the Supreme Court of Louisiana are erroneous and in 
direct conflict with this Court’s rulings in the above cases 
cited, and should be set aside, and that the writ of certiorari 
should issue herein, as prayed for, and according to law, and 
for all other relief as may be necessary.

Respectfully submitted,
M a u r ic e  R. W o u l f e , 

Attorney for Petitioner.

(8131)





f









. Suprfl-y# Csurt, U S
* ' ' V XD

DcC i  1333

CHARLES ELMORE CROPLEY
SUPREME COURT OF THE U M T E ® ~ S ¥ A T g g i^ I _

OCTOBER TERM, 1938

No. 142

HUGH PIERRE,

VS.
Petitioner,

THE STATE OF LOUISIANA.

BRIEF ON BEHALF OF THE STATE OF LOUISIANA

G a s t o n  L. P o r t e r ie ,

Attorney General; 
J a m e s  O ’C o n n o r ,

Asst. Attorney General; 
J o h n  E .  F l e u r y ,

District Attorney; 
E r n e s t  M. C o n z e l m a n n ,

Asst. District Attorney, 
Counsel for the State of Louisiana.





INDEX.

S u b j e c t  I n d e x .
Page

Statement of the ease....................................................  1
The motion to quash ......................................................  2
Motion for a change of venue....................................... 4
Evidence on motion to quash......................................... 5
Argument and the la w ..................................................  9
Conclusion........................................................................ 17

T a b l e  of  C a se s  C it e d .

Carter v. Texas, 177 U. S. 442, 44 L. Ed. 8 3 9 . . .  9,11,16,18 
Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed.

981-985 ..........................................................................  11
Martin v. Texas, 200 U. S. 316, 50 L. Ed. 497. . .  ■ 9,11,18
Murray v. Louisiana, 163 U. S. 101-108, 41 L. Ed.

87-90 ..............................................................................  11
Norris v. State of Alabama, 294 U. S. 587, 79 L. Ed.

1074.............................................................................  9,14,18
Rogers v. Alabama, 192 U. S. 226, 48 L. Ed. 417.......... 11
Re Shibuya Jugiro, 140 U. S. 297-298, 35 L. Ed. 513... 11
State v. Gonsoulin, 38 La. Ann. 459...............................  11
State v. Casey, 44 La. Ann. 969, 11 So. 583.................  10
State v. Joseph, 45 La. Ann. 903,12 So. 934.................  10,11
State v. Murray, 47 La. Ann. 1424,17 So. 832.............  10,11
State v. Johnson, 47 La. Ann. 1092...............................  11
State v. Shaw, 47 La. Ann. 1094.....................................  11
State v. Baptiste, 105 La. 661, 30 So. 147.....................  10
State v. West, 116 La. 626, 40 So. 920...........................  10,11
State v. Lawrence, 124 La. 378, 50 So. 406...................  ' 10
State v. Turner, 133 La. 555, 63 So. 169...............  10
State v. Gill, 186 La. 339, 172 So. 412...........................  10
State v. Pierre, 189 La. 764,180 So. 630.......................  13,14

S t a t u t e s  C it e d .

Act 135 of 1898, p. 216....................................................  10
Article 172, Code of Criminal Procedure of Louisiana 13
Article 439, Code of Criminal Procedure of Louisiana 10

—8657



.



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1938

No. 142

HUGH PIERRE,

vs.
Petitioner,

THE STATE OF LOUISIANA.

BRIEF ON BEHALF OF THE STATE OF LOUISIANA

M a y  it  p l e a s e  t h e  C o u r t  :

Statement of the Case.
The facts as we glean them from the record made up 

in the court below are that one Leopold Ory made an 
affidavit against Hugh Pierre, the petitioner, on October 
20, 1936, before the Justice of the Peace of the First Ward 
of the Parish of St. John the Baptist, for assault with a 
dangerous weapon, with intent to kill.

Ignace Roussel was the duly elected and qualified con­
stable of that ward and he was given the warrant and com­
mitment for Pierre. Roussel was an officer of the law, dis­
interested in the controversy between Ory and Pierre.

11



2

Upon receipt of the warrant and commitment, Roussel 
went to the home of Pierre, the petitioner. The house was 
closed and he called the petitioner by name. Pierre’s 
mother came out and Roussel informed her he had come 
to get Pierre to put him in jail because a charge had been 
made against him, and she replied: “ No, you are not taking 
Hugh to jail tonight.”  They exchanged a few woi’ds, and 
suddenly the door opened, and Hugh Pierre, the petitioner, 
stepped out and fired two shots from a shotgun, killing 
Roussel instantly.

Roussel had no chance to say anything to Pierre, and 
Pierre then escaped through the rear of the house, fled to the 
adjoining Parish of St. Charles, where he was subsequently 
captured several days later and charged with the murder 
of Roussel.

The preponderance of the evidence does not bear out the 
statement contained in the brief of the petitioner that Rous­
sel drew a gun and threatened and struck Pierre with a 
night-stick while his companions surrounded the house, or 
that he refused to show the warrant for Pierre’s arrest, nor 
does it substantiate the statement that Pierre found his 
escape blocked, and fearing for his life, when Roussel 
broke open the front door with his gun in hand, he fired, 
killing Roussel. But the evidence in the court below showed 
that Roussel at no time spoke to Pierre, had never ex­
changed a word, and without any warning at all, was shot 
down and killed with two blasts from a double-barreled 
shotgun whilst he was in the act of talking to Pierre’s 
mother.

The Motion to Quash.
Hugh Pierre was indicted by the Grand Jury of the 

Parish of St. John the Baptist for the crime of murder, 
on January 18, 1937 (R. 1).

Before trial, he filed a motion to quash the indictment 
as well as the entire grand and petit jury venires on the



3

ground that he is a member of the negro race, and that 
the general venire box

“ did not contain the names of any negro at the time 
the panel for the Grand Jury was drawn, which re­
turned the Indictment herein against mover; that the 
officers of the law in charge of said matter not only 
failed to place in said venire box the names of any 
negroes qualified to serve as Grand or Petit Jurors, 
but deliberately excluded therefrom the names of any 
negroes qualified to serve as Grand or Petit Jurors, 
which action on the part of said officers is a denial of 
due process of law, and is a violation of mover’s con­
stitutional rights as granted him by law by the Con­
stitution of the State of Louisiana of 1921, and specially 
the 14th Amendment of the Constitution of the United 
States of America.”

He further averred,

“ that there has not been a negro on the Grand Jury or 
Petit Jury of said Parish for at least twenty years; 
that the officers of said Parish have systematically, 
unlawfully and unconstitutionally excluded negroes 
from the Grand or Petit Jury in said Parish during 
this period of time; that this exclusion of negroes as 
Jurors in this Parish is done sole- and only because of 
their race and color and results in a denial to mover 
of due process of law and the equal protection of the 
law guaranteed him under the Constitution of the State 
of Louisiana of 1921, and the Constitution of the United 
States of America”  (R. 2-3).

After hearing evidence, the Judge of the trial court re­
fused to quash the indictment and the grand jury venire, 
holding, among other things, that in its opinion:

“ * * * the Constitutional rights of the defendant
is not affected by reason of the fact that persons of the 
colored or African race are not placed on the Grand 
Jury * * * the mere presentment of an indictment



4

is not evidence of guilt. In other words, it simply in­
forms the court of the commission of a crime and bring- 
the accused before the court for prosecution”  (R. 4).

However, the trial judge did grant the motion to quash 
the petit jury venire, being of the opinion that the Jury 
Commissioners failed to place a sufficient number of names 
of colored persons in the jury box from which the jury was 
drawn, in proportion to the colored population of the parish 
(R. 4-5).

Motion for a Change of Venue.

Petitioner also filed a motion for a change of venue, which 
was overruled without the presentation of any evidence 
in his behalf, and while he states in his brief that he

“ was unable to offer sufficient evidence upon said mo­
tion for change of venue, although the public feeling 
was such against him that he was unable to receive a 
fair trial in said parish, or to secure a fair and im­
partial jury therein, and it was necessary for the au­
thorities to confine him, from the day of his arrest, in 
custody of the Criminal Sheriff for the Parish of Or­
leans, at the parish prison in New Orleans for safe­
keeping”  (His Brief, p. 6).

as a matter of fact, there is nothing in the original or 
printed record, nor was there any evidence adduced in the 
trial court below, to substantiate this contention, and the 
reason for his incarceration in the Parish Prison at New 
Orleans was not for safekeeping, but because of the fact 
that the local jail in the Parish of St. John the Baptist, 
had been condemned by the State Health authorities as 
unfit for further use as a parish prison.

He offered no evidence whatever on the trial of the 
motion for a change of venue, and he produced no witnesses 
to show that feeling was running high against him, or that



5

he was unable to receive a fair trial or to secure a fair and 
impartial jury.

The motion for a change of venue was taken up and the 
judgment of the lower court was to the effect that no evi­
dence was offered by the accused or his counsel; that coun­
sel for the accused informed the court he did not desire 
to press the motion, and submitted the same to the court 
without any evidence whatsoever, after which the motion 
for a change of venue was denied, and no bill of exception 
was reserved to the ruling of the court.

Evidence on Motion to Quash.
In support of the allegations of his motion to quash, the 

petitioner called to the stand twelve witnesses, both white 
and negro, including the Clerk of Court who is ex-officio 
Chairman of the Jury Commission, the Sheriff, the Super­
intendent of Education, a member of the bar, the editor of 
a local newspaper, a former clerk of the District Court, two 
white citizens, and four negro citizens. It is significant at 
this time to call this Court’s attention to the fact that he 
did not call as witnesses the five Jury Commissioners, en­
trusted with the duty and responsibility of getting up the 
list of three hundred names of citizens, possessing the neces­
sary qualifications to serve as jurors, from which the Grand 
and Petit jury venires are selected and drawn.

Their testimony is, in substance, as follows:

H. R. Martin (R. 23), Clerk of Court, and by law ex- 
officio jury commissioner, testified that the names on the 
general venire list were placed in the box by the jury com­
missioners in his presence; is under impression that there 
are two, three or possibly four names of negroes on the gen­
eral venire list, but he would have to go over it with some­
one who is more familiar with the names than he is, to be 
positive; does not know every man from each individual



6

ward. He is familiar with names on grand jury panel, that 
returned indictment, and they are all white. The petit jury 
panel that was drawn on December 29th (1936), contains 
the name of one negro whom he knows of, Ernest Martin, a 
resident of the Fifth Ward (R. 10, No. 30 for week of Janu­
ary 25,1937). Witness has no idea of population of Parish, 
or what percentage of negroes.

W illiam Duhe, sheriff since 1928 (R. 27), not familiar 
with all names on general venire list, but most of them; was 
handed the general venire list (R. 56) and picked out the 
name of No. 33, F. N. Dinvaut, from the First Ward, and 
No. 174, Arthur Voisin, from the Fifth Ward. Those are 
the only ones he sees now. The present grand jury panel 
does not contain the name of a negro; he does not know the 
population of the Parish of St. John the Baptist, and can­
not approximate the percentage of whites.

J. 0. Montegut, Superintendent of Schools (R. 30), thinks 
entire population of parish is about 14,000, of which 3,000 
are negroes—males and females; can’t approximate the 
number of males, but would guess one-half of the 3,000 to 
be males, and out of this number, about 25 or 50, over twenty- 
one years of age, would be eligible for jury service— all of 
which is merely a guess on his part.

Lucien Troxler, a member of the bar (R. 34), can’t esti­
mate the population of the parish, and doesn’t know what 
proportion there is of white and negroes.

O. J. Becnel, a citizen sixty years of age (R. 35), doesn’t 
know population of parish, nor the population of whites and 
blacks in the parish.

F. N. Dinvuat, a colored man (R. 35), has no idea how 
many colored people he knows in parish, but it seems that



7

population is half white and half black—is not positive—
‘ ‘ that is just my mind. ’ ’ He has not the least idea how many 
negroes above the age of 21 can read and write, and are 
residents of the parish—it would be more than ten—he 
thinks so—he believes there are more than three hundred 
and fifty.

On cross-examination, he testified that he is just guessing 
all around. He can read and write. He thinks he knows 
H. P. Williams at Garyville, a colored man, an undertaker; 
he also thinks he knows George Courou; knows Albert 
Washington, Augustus Reed, all colored over 21 years of 
age; knows Washington and Reed can read and write, but 
don’t know about the rest; he knows ten or twelve negroes 
around his store, above the age of 21, who can read and 
write their name, but can’t say how qualified they are.

Charles deRoncelet, a colored man, 67 years of age (R. 
40), can read and write a little; knows a few negroes above 
21 years of age, who can read and write— about 12 or 15— 
but he is simply guessing; he doesn’t know the population of 
St. John Parish, nor the percentage of colored people to 
white people, but believes it is less than half; he couldn’t 
be exactly sure “ I am simply guessing at these questions.”  
He served on jury in his young days, before 1896, but not 
since. He can’t name any of those who can read and write.

T. J. Nagel, a citizen 59 years of age (R. 43), can’t tell the 
negro population of the Parish, would not approximate the 
number of negroes in parish above 21 years, who can read 
and write.

Clarence Soraparu, 31 years, a colored man (R. 44). He 
can read and write, has never been called to serve on a 
ju ry ; knows a few colored men above twenty-one who can 
read and write, approximately, maybe a hundred and fifty; 
could not say what is percentage of negroes in the parish;



8

then he says probably 20 per cent—he doesn’t know about 
that—this is according to his opinion.

On cross-examination, he testified he knows probably a 
dozen who can read and write—he knows one in LaPlace, 
Professor Reed Augustus, but can’t tell his age. He knows 
his three brothers and four sisters can read and write, his 
brothers are above twenty-one years of age. He knows
P. N. Dinvaut and his son, Newton Dinvaut, can read and 
write; he named six negroes who could read and write.

A. L. Brou, formerly Clerk of Court, 46 years old (E. 47), 
testified population of St. John Parish about 12 or 15 thou­
sand, only guesswork; could not say what percentage ai'e 
negroes, but fixes it about 30 per cent, which includes men, 
women and children; about 2 per cent of the 30 per cent are 
qualified to serve as petit jurors. He doubts if it would go 
to 100, in numbers.

Ignace H illaire, colored man, 48 years (E. 49), can read 
and write a little bit, can read some portions of a newspaper; 
never been a juror in this parish. He knows about fifteen 
negroes above twenty-one years of age, who can read and 
write, in the parish. He named the following negroes as be­
ing able to read and write: Charley Hillaire, his brother, 
Eomero Hillaire, also a brother, Artrey Simon, James Gau­
tier, Sam Johnson, Eufert Dinvaut, a son of F. N. Dinvaut, 
and John Ory. He is unable to state how old these people 
are, but they are all over twenty-one years of age.

John D. B e y n a u d , age 50, editor of local newspaper (E. 
54), had two negro subscribers to his paper in the parish. 
Was a United States census enumerator, and that the popu­
lation of the parish, about thirteen or fourteen thousand, 
about three thousand negroes; about twelve hundred negro 
males above the age of twenty-one years—very few of these



9

can read and write—he wouldn’t put it at more than about 
seventy-five, hut intelligently, he would put it at fifty.

H. R. Maktin, clerk of court, recalled (R. 55), testified 
the jury commissioners, in selecting the three hundred 
names for the general venire, would take them “ off-hand” . 
The jury commissioners handed in the names, but he don’t 
know where they got the names from—he was present.

Argument and the Law.

Petitioner relies upon the decision of this Court rendered 
in the case of Norris v. State of Alabama, 294 U. S. 587, 55 
Sup. Ct. Rep. 579, 79 L. Ed. 1074, re-affirming its ruling in 
the earlier cases of Carter v. Texas, 177 U. S. 442, 20 Sup. 
Ct. Rep. 687, 44 L. Ed. 839, and Martin v. Texas, 200 IT. S. 
316, 26 Supt. Ct. Rep. 338, 50 L. Ed. 497, where it was said:

“ Whenever by any action of a State, whether through 
its legislature, through its courts, or through its execu­
tive or administrative officers, all persons of the A fri­
can race are excluded, solely because of their race or 
color, from serving as grand jurors in the criminal 
prosecution of a person of the African race, the equal 
protection of the laws is denied to him, contrary to the 
Fourteenth Amendment of the Constitution of the 
United States.”

In the Norris case, the court said:

“ And although the state statute defining the qualifi­
cations of jurors may be fair on its face, the constitu­
tional provision affords protection against action of the 
state through its administrative officers in effecting the 
prohibited discrimination.”

There is no controversy in this case as to the constitu­
tional principle involved, and the Supreme Court of the



1 0

State of Louisiana has always recognized that principle, as 
shown by the following cases:

State v. Casey, 44 La. Ann. 969, 11 So. 583;
State v. Joseph, 45 La. Ann. 903, 12 So. 934;
State v. Murray, 47 La. Ann. 1424, 17 So. 832;
State v. Baptiste, 105 La. 661, 30 So. 147;
State v. West, 116 La. 626, 40 So. 920;
State v. Lawrence, 124 La. 378, 50 So. 406;
State v. Turner, 133 La. 555, 63 So. 169;
State v. Gill, 186 La. 339, 172 So. 412.

As a matter of fact, Act 135 of 1898, p. 216 of the Act of 
the Louisiana Legislature, provides that in the drawing of 
grand and petit jurors to serve in civil and criminal cases 
“ there shall be no distinction made on account of race, color 
or previous condition.”

Since the petitioner has based his motion to quash the 
indictment on the ground that the general venire box did not 
contain the name of any negro at the time the panel for the 
grand jury was drawn which returned the indictment 
against him, and that the officers in charge of drawing the 
jury deliberately excluded the names of negroes qualified to 
serve as grand or petit jurors, the burden of proof was upon 
him to prove the facts alleged.

We unhesitatingly state that if members of the negro or 
African race possessing the necessary qualifications to 
serve as jurors have been systematically and deliberately 
excluded from such service, solely because of their race and 
color, both the indictment and the grand jury panel should 
have been quashed.

“ The burden of proof is upon him alleging the ex­
istence of a fact.”

Article 439, Criminal Code of Procedure of Louisiana.
It is a well-established principle of law in the State of



1 1

Louisiana that a motion to quash the indictment and the 
jury venire on the ground of discrimination, in order to 
avail the defendant, it must be established that all the names 
in the general venire box were of white people and that 
negroes were discriminated against on account of race or 
color.

State v. Joseph, 45 La. Ann. 903, 12 So. 934;
State v. Murray, 47 La. Ann. 1424,17 So. 832;
Murray v. Louisiana, 163 U. S. 101-108, 41 L. Ed. 87-90; 
State v. West, 116 La. 626, 40 So. 920.

“ Courts are to presume that the members of the Jury 
Commission, in the absence of testimony to the con­
trary, perform the duties imposed upon them by law, 
and he who asserts that the jury is not legally com­
posed, assumes the burden of proof.”

State v. Gonsoulin, 38 La. Ann. 459;
State v. Johnson, 47 La. Ann. 1092;
State v. Sliaw, 47 La. Ann. 1094.

And this Court, in passing upon a similar question, in the 
case of Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed. 
981-985, said:

“ In this class of cases, when the real objection is that 
a grand jury is so made up as to exclude persons of the 
race of the accused from serving in that capacity, it is 
essential to aver and prove such facts as establish the 
contention.”

Citing: Martin v. Texas, 200 U. S. 316, 50 L. Ed. 
497.

See also:
Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839;
Rogers v. Alabama, 192 U. S. 226, 48 L. Ed. 417;
Re Shibuya Jugiro, 140 U. S. 297-298, 35 L. Ed. 513.

The degree of proof required in this case, of the peti­
tioner, was no different than that required in the decided



1 2

cases above referred to, and the petitioner absolutely failed 
to even make a prima facie showing of discrimination and 
exclusion of negroes from jury service, by reason of their 
color and race, and the finding of fact by the Supreme Court 
of Louisiana was correct and is fully sustained by the proof 
offered on the motion to quash.

The evidence shows, and the Supreme Court of Louisiana 
found as a matter of fact, that:

“ Not only did he fail to prove that there was discrim­
ination against colored citizens of the parish because 
of their race or color at the time the grand jury which 
returned the indictment and the petit jury for that 
term of court were drawn, but he failed to prove that, 
as a matter of fact, the names of colored people were 
not included among the 300 names in the jury box. In 
fact, the testimony shows that, at the time the grand 
and petit juries were drawn, the names of at least four 
colored people were included in the list of 300 from 
which the grand jury was selected and the petit jury 
for that term of court was drawn. Mr. Martin, the 
clerk of court, said, on examining the general venire 
list, that there were two, three or four names of col­
ored people included, and the sheriff of the parish tes­
tified that he recognized the names of two or three 
negroes on the list and that there might be more. Both 
the clerk of court and the sheriff testified that they were 
not personally acquainted with all of the male citizens 
of the parish and especially the colored citizens, and 
that, with more time to check the list, they might find 
more names than those already pointed out. Mr. Mar­
tin, the clerk of court, testified that the name of at least 
one negro was drawn to serve on the petit jury drawn 
at the same time that the grand jury sought to be 
quashed was selected. He and the sheriff both said they 
did not remember whether negroes had served on juries 
in that parish in former years or not. A  colored man 
named Soraparu testified that he knew a few negroes 
who had served on juries in that parish. Another col­



13

ored man named Dinvaut testified that he himself had 
served on a jury in that parish in his ‘ young days’, 
something like 30 years ago”  (R. 70-71).

State v. Hugh Pierre, 189 La. 764, 180 So. 630.

Under the law of Louisiana, the qualifications for serv­
ice as grand or petit jurors are the following:

“ To be a citizen of this State, not less than twenty- 
one years of age, a bona fide resident of the parish in 
and for which the court is holden, for one year next 
preceding such service, able to read and write the 
English language, not under interdiction or charged 
with any offense, or convicted at any time of any felony, 
provided that there shall he no distinction made on ac­
count of race, color or previous condition of servitude; 
and provided further, that the District Judge shall 
have discretion to decide upon the competency of jurors 
in particular cases where from physical infirmity or 
from relationship, or other causes, the person may be, 
in the opinion of the judge, incompetent to sit upon 
the trial of any particular case.

“ In addition to the foregoing qualifications, jurors 
shall be persons of well-known good character and 
standing in the community.”

Article 172, Code of Criminal Procedure of Louisiana.

Furthermore, there is no set standard or rule which fixes 
the number of whites and blacks that must be on the general 
venire list, from which grand and petit jury venires are 
drawn, and as long as there is no deliberate or systematic 
exclusion of negroes from jury service, a negro charged 
with a crime, triable by a jury, cannot complain, and there 
is no denial of his constitutional rights, as long as a fair 
proportion of negroes, as compared to whites, are on the 
venire list from which the grand and petit juries are to be 
drawn, and the Supreme Court of Louisiana so held.

The Supreme Court of the State of Louisiana, having 
found as a fact, that there were four and possibly more



14

names of colored citizens on the jury roll of three hundred, 
from which the grand and petit juries were drawn, in dis­
cussing whether the number of names of negroes in the box 
was out of proportion to the number of whites, reached the 
following conclusion:

“ I f there are no more than 75 or 100 colored males 
between the ages of 21 and 65 in the parish who can 
read and write—and when wTe consider that some of 
these may have been disqualified from jury service on 
one or more of the grounds stipulated in the act of the 
legislature—the names of four negroes out of 300 names 
on the jury roll does not seem disproportionate to the 
number of whites, and does not, we think, indicate that 
there was discrimination against the colored race”  (R. 
67-74, at p. 72).

State v. Pierre, 189 La. 764,180 So. 630.

In the Scottsboro case (Norris v. Alabama, 294 U. S. 
598, 79 L. Ed. 1074), the evidence showed that for a gen­
eration or longer, no negro had been called for service 
on any jury in Jackson County, and that no names of ne­
groes were placed on the jury roll, and for that reason, 
this Court held that there was a denial of the constitutional 
rights of the accused, and that the indictment should have 
been quashed upon that ground.

But no such situation exists with respect to the case at 
bar, because the evidence does show that there were names 
of negroes on the general venire list, and that as a matter 
of fact, negroes were actually drawn for jury service on 
the petit jury panel; and there has not been proven in this 
case, any deliberate or systematic exclusion of negroes from 
jury service in the Parish of St. John the Baptist, and for 
this reason, the ruling in the Scottsboro case does not apply 
to the case at bar.

The evidence in this case further shows that the petitioner 
failed to prove that there was discrimination against col­



15

ored citizens of the parish because of their race or color at 
the time the grand jury which returned the indictment and 
the petit juries for that term were drawn, and he failed to 
prove, as a matter of fact that the names of colored people 
were not included among the 300 names in the jury box.

We call the court’s attention to the fact that the petitioner 
was actually tried by a jury of twelve, obtained from a 
regular petit jury panel of thirty names, of which twenty- 
eight responded for service, and a tales jury panel of fifty 
names, of which thirty-two responded—a total of sixty 
names among both panels. There were four negroes called 
for service—the first negro juror stated that he did not 
think he would understand the proceedings sufficiently well 
to pass intelligently upon the issues involved. The second 
negro was challenged by the State, and the two others who 
were called each were excused for cause, because both were 
opposed to capital punishment.

This is substantiated by the per curiam attached to the 
Bill of Exception No. 1, reserved to the refusal of the Court 
to quash the indictment and the grand jury venire (R. 6).

In the Norris case, in connection with the motion to quash 
the trial venire, the evidence showed that in Morgan County, 
no negro had ever served on a jury in that county, or been 
called for jury service, within the memory of witnesses who 
were long resident there. There was an abundance of evi­
dence to show that there were a large number of negroes in 
that county who were qualified for jury service.

The Sheriff of the county, called as a witness in that case, 
scanned the jury roll, and after looking over every single 
name from “  A ”  to “ Z ” , was unable to point out any single 
negro at all. This Court found that there was no justifica­
tion for this long-continued, unvarying and wholesale exclu­
sion of negroes from jury service, inconsistent with the con­
stitutional mandate, and accordingly, the judgment of con­
viction was reversed and the cause remanded for further



16

proceedings. But in the case at bar, no such condition 
exists.

The petitioner in his brief refers to the dissenting opinion 
of the Chief Justice of the Supreme Court of Louisiana, and 
lays considerable emphasis on the judgment of the trial 
court on the motion to quash. The trial judge maintained 
the motion in part and denied the motion in part. He 
quashed the petit jury venire, but refused to quash the in­
dictment or the grand jury venire.

The Chief Justice of the Supreme Court of Louisiana 
dissented from the majority opinion, in that the distinc­
tion which the trial judge drew between the petit jury panel 
and the grand jury panel was contrary to the ruling of this 
Court in Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. Rep. 687, 
44 L. Ed. 839, and the other decisions there cited, and noted 
the fact that the grand jury panel in this case was taken 
from the same general venire list and general venire box 
that the petit jury panel was taken from, and he reasoned 
that when the trial judge quashed the petit jury panel 
because of the invalidity in the selection of the names that 
were placed in the general venire box and on the general 
venire list, his ruling had the effect of annulling the grand 
jury panel which was drawn from the same list of names 
in the general venire box.

We agree with the Chief Justice, if the evidence sub­
stantiated this position, but our contention is that both the 
trial judge and the Chief Justice were in error. The judge 
of the trial court, in quashing the petit jury venire, did so 
when as a matter of fact and as the evidence showed, there 
were names of negroes in the jury box from which the grand 
jury and the petit jury panels were drawn, for the reason 
that he had before him the evidence of the Clerk of Court 
and ex-officio Chairman of the Jury Commission, to the ef­
fect that there were two, three or possibly four names of 
negroes on the general venire list, and the Sheriff, as a wit­



17

ness, in testifying for the petitioner, when handed the gen­
eral venire list, picked out the names of F. N. Dinvaut and 
Arthur Voisin, and it was from the list containing the names 
of Dinvaut, Voisin, and Martin that the grand jury was 
selected and the petit jury panels drawn for the Janu­
ary 1937 criminal term of court. (See Nos. 33, 173 and 174, 
R. 58, 61.)

It is clear from the testimony of both the Clerk and the 
Sheriff that when the Grand Jury, which indicted the peti­
tioner, was selected, the jury box, with its three hundred 
names, contained the names of negro citizens qualified to 
serve on grand and petit juries, which certainly showed, 
if anything that there was clearly no discrimination or sys­
tematic exclusion of negroes from jury service in the Parish 
of St. John the Baptist, on account of their race or color, 
and when the judge of the trial court quashed the petit jury 
panel, he committed an error, although the error did not 
work to the prejudice of the petitioner, because he was not 
tried until July, 1937, by an entirely different petit jury; 
and as the record shows, his error was committed in quash­
ing the petit jury panel, when there were actually negroes 
on the venire list, and the Chief Justice, in his dissenting 
opinion, committed the same error as did the trial judge.

Therefore, in the absence of any evidence to the contrary, 
we believe, in the face of the facts, that it can be correctly 
assumed that there were more names of negroes on the gen­
eral venire list from which the grand and petit jury venires 
were drawn, than the three whose names have been men­
tioned.

Conclusion.

It is, therefore, respectfully submitted that the record, 
and the evidence adduced on the trial of this case show that 
there was no discrimination and exclusion of negroes from 
service on the grand or petit juries in the Parish of St. John

21



18

the Baptist, solely because of their race or color, neither 
does it show that negroes were systematically and deliber­
ately excluded from service, and that the decision of the Su­
preme Court of Louisiana is not in conflict with the ruling 
of this Court in the case of Norris v. Alabama, 294 U. S. 
598, 79 L. Ed. 1074, re-affirming its ruling in the earlier cases 
of Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839, and Martin 
v. Texas, 200 U. S. 316, 50 L. Ed. 497, for the reason that 
these cases are not applicable to the case at bar.

We also respectfully submit that the petitioner has failed 
to prove that there was discrimination against negro citi­
zens of the Parish of St. John the Baptist because of their 
race or color at the time the grand jury which returned the 
indictment and the petit juries for that term of court were 
drawn; that the petitioner was not denied any of his consti­
tutional or statutory rights in the trial of his case, or due 
process of law, under the constitution of the United States 
and of the State of Louisiana; that the writ of certiorari 
heretofore granted should be recalled and set aside; and the 
conviction and sentence of petitioner, and the judgment of 
the trial court and the Supreme Court of the State of Louisi­
ana should be affirmed.

Respectfully Submitted:
Gaston L. Porterie,

Attorney General;
J ames O ’Connor,

Asst. Attorney General;
John E. F eeury,

District Attorney;
E rnest M. Conzeeman,

Asst. District Attorney, 
Counsel for The State of Louisiana.

(8657)



f





SUPREME COURT OF THE UNITED STATES.

M r. Justice B l a c k  delivered the opinion of the Court.

Indicted for murder, petitioner, a member of the negro race, 
was convicted and sentenced to death in a State court of the Parish 
of St. John the Baptist, Louisiana. The Louisiana Supreme Court 
affirmed.1 His petition for certiorari to review the Louisiana Su­
preme Court’s judgment rested upon the grave claim— earnestly, 
but unsuccessfully urged in both State courts— that because of his 
race he had not been accorded the equal protection of the laws guar­
anteed to all races in all the States by the Fourteenth Amendment 
to the Federal Constitution. For this reason, we granted certiorari.2

The indictment against petitioner was returned January 18, 1937. 
He made timely motion to quash the indictment and the general 
venire from which had been drawn both the Grand Jury that re­
turned the indictment and the Petit Jury for the week of his trial. 
His motion also prayed that the Grand Jury Panel and the Petit 
Jury Panel be quashed. This sworn motion alleged that petitioner 
was a negro and had been indicted for murder of a white man; 
that at least one-third of the population of the Parish from which 
the Grand and Petit Juries were drawn were members of the negro 
race, but the general venire had contained no names of negroes 
when the Grand Jury that indicted petitioner was drawn; that the 
State officers charged by law with the duty of providing names for 
the general venire had “ deliberately excluded therefrom the names 
of any negroes qualified to serve as Grand or Petit Jurors, . . . ”  
and had “ systematically, unlawfully and unconstitutionally ex­
cluded negroes from the Grand or Petit Jury in said Parish”  for at

1 189 La. 764.
2—  IT. S. — .

No. 142.— O ctober T erm , 1938.

Hugh Pierre, Petitioner,
v s .

State of Louisiana.

[February 27, 1939.]



2
least twenty years “ solely and only because of their race and 
color” ; and that petitioner had thus been denied the equal pro­
tection of the laws guaranteed him by the Constitution of Louisiana 
and the Fourteenth Amendment to the Constitution of the United 
States.

No pleadings denying these allegations appear in the record, and 
the State offered no witnesses on the motion. Petitioner offered 
twelve witnesses who were questioned by his counsel, the State’s As­
sistant District Attorney, and the court. On the basis of this 
evidence, the trial judge sustained the motion to quash the 
Petit Jury Panel and venire and subsequently ordered the box 
containing the general venire (from which both Grand and Petit 
Juries had been drawn) emptied, purged and refilled. This was 
done; a new Petit Jury Panel composed of both whites and negroes 
was subsequently drawn from the refilled Jury box and from this 
Panel a Petit Jury was selected which tried and convicted pe­
titioner. Although the Grand Jury that indicted petitioner and the 
quashed Petit Jury Panel had been selected from the same original 
general venire3 the trial judge overruled that part of petitioner’s 
motion seeking to quash the Grand Jury Panel and the indictment.

F ir s t . The reason assigned by the trial judge for refusing to 
quash the Grand Jury Panel and indictment was that “ the Consti­
tutional rights of the defendant [are] . . not affected by reason 
of the fact that persons of the Colored or African race are not placed 
on the Grand Jury, because . . . the mere presentment of an
indictment is not evidence of guilt . . .  it simply informs the 
Court of a commission of a crime and brings the accused before the 
court for prosecution. ’ ’ But the bill of rights of the Louisiana 
Constitution (Dart, 1932, Art. 1, § 9) provides that “ no person 
shall be held to answer for capital crime unless on a presentment or 
indictment by a grand jury, . . . . ”  And the State concedes

3 Under Louisiana practice the District Judge orders the Jury Commission 
to select three hundred qualified jurors in a given Parish, who compose the 
general venire list, to be kept complete and supplemented from time to time. 
These names are placed in the “ General Venire Box.”  Prom the general 
venire list, the Commission selects twenty persons qualified as grand jurors, 
to serve six months, who compose the ‘ ‘ List of Grand Jurors. ’ The Judge 
selects a foreman from the ‘ ‘ List of Grand Jurors * ’ and_ the sheriff craws 
eleven more who, with the foreman, constitute the Grand Jury Panel. After 
selection of the “ List of Grand Jurors”  the Commission draws thirty names 
from the “ General Venire Box”  to serve as Petit Jurors, who are designated a 
“ List of Jurors”  and this “ List of Jurors”  is kept in the “ Jury Box. 
Louisiana Code of Criminal Procedure (Dart, 1932) Title X V III, c. 2.

Pierre vs. State of Louisiana.



3

here, as the Supreme Court of Louisiana pointed out in its opinion 
in this ease, that “  . . . it is specially provided in the [Louisiana] 
law prescribing the method of drawing grand and petit jurors to 
serve in both civil and criminal cases that ‘ there shall be no distinc­
tion made on account of race, color, or previous condition of servi­
tude’ ’ ’ and “ If . . . [qualified] members of the Negro . . . race 
. . . have been systematically excluded from . . . service in
the Parish of St. John, . . . solely because of their race or 
color, the indictment should have been quashed . . . . ”  Ex­
clusion from Grand or Petit Jury service on account of race is 
forbidden by the Fourteenth Amendment.4 5 In addition to the 
safeguards of the Fourteenth Amendment, Congress has provided 
that “ No citizen possessing all other qualifications . . . shall
be disqualified for service as grand or petit juror in any court of 
the United States, or of any State on account of race, color or 
previous condition of servitude; . . . . ” 3 Petitioner does not
here contend that Louisiana laws required an unconstitutional ex­
clusion of negroes from the Grand Jury which indicted him. His 
evidence was offered to show that Louisiana— acting through its ad­
ministrative officers— had deliberately and systematically excluded 
negroes from jury service because of race, in violation of the laws 
and Constitutions of Louisiana and the United States.6

If petitioner’s evidence of such systematic exclusion of negroes 
from the general venire was sufficient to support the trial court’s 
action in quashing the Petit Jury drawn from that general venire, 
it necessarily follows that the indictment returned by a Grand 
Jury, selected from the same general venire, should also have been 
quashed.

S econ d . But the State insists, and the Louisiana Supreme Court 
held (the Chief Justice dissenting), that this evidence failed to 
establish that members of the negro race were excluded from the 
Grand Jury venire on account of race, and that the trial court’s 
finding of discrimination was erroneous. Our decision and judg­
ment must therefore turn upon these disputed questions of fact. 
In our consideration of the facts the conclusions reached by the 
Supreme Court of Louisiana are entitled to great respect. Yet,

4 Strauder v . West Va., 100 U. 8. 303, 308, 309; Carter v. Texas, 177 U. S. 
442, 447; Martin v. Texas, 200 U. S. 316, 319.

5 U. S. C. Title 8, § 44.
6 Of., Norris v. Alabama, 294 1J. S. 587, 589; Neal v . Delaware, 103 IT. S. 

370, 397; Carter v. Texas, supra, at 447; Hale v. K y . ,  303 IT. S. 613, 616.

Pierre vs. State of Louisiana.



4

when a claim is properly asserted— as in this ease— that a citizen 
whose life is at stake has been denied the equal protection of his 
country’s laws on account of his race, it becomes our solemn duty 
to make independent inquiry and determination of the disputed 
facts7— for equal protection to all is the basic principle upon which 
justice under law rests. Indictment by Grand Jury and trial by 
jury cease to harmonize with our traditional concepts of justice 
at the very moment particular groups, classes or races— otherwise 
qualified to serve as jurors in a community— are excluded as such 
from jury service.8 The Fourteenth Amendment intrusts those 
who because of race are denied equal protection of the laws in a 
State first “ to the revisory power of the higher courts of the State, 
and ultimately to the review of this court. ’ ’9

Petitioner’s witnesses on the motion were the Clerk of the court-— 
ex-officio a member of the Jury Commision; the Sheriff of the Par­
ish; the Superintendent of Schools who had served the Parish for 
eleven years; and other residents of the Parish, both white and 
colored. The testimony of petitioner’s witnesses (the State offered 
no witnesses) showed that from 1896 to 1936 no negro had served 
on the Grand or Petit Juries in the Parish; that a venire of 
three hundred in December, 1936, contained the names of three 
negroes, one of whom was then dead, one of whom (D. N. Dinbaut) 
was listed on the venire as F. N. Dinfant; the third— called for 
Petit Jury service in January, 1937— was the only negro who had 
ever been called for jury service within the memory of the Clerk 
of the court, the Sheriff, or any other witnesses who testified; and 
that there were many negro citizens of the Parish qualified under 
the laws of Louisiana to serve as Grand or Petit Jurors. Ac­
cording to the testimony, negroes constituted 25 to 50 per cent 
of a total Parish population of twelve to fifteen thousand. The 
report of the United States Department of Commerce, Bureau of 
the Census, for 1930, shows that the total Parish population was 
fourteen thousand and seventy-eight, 49.7 per cent native white, 
and 49.3 per cent negro. In a total negro population (ten years 
old and over) of five thousand two hundred and ninety, 29.9 per 
cent were classified by the census as illiterate.

The Louisiana Supreme Court found— contrary to the trial 
judge— that negroes had not been excluded from jury service on ac­

7 Norris v. Alabama, 294 U. S. 587, 590.
8 Cf. Strauder v. West Va., supra, 308, 309.
9 Virginia v. Bives, 100 U. S. 313, 319.

Pierre vs. State of Louisiana.



5
count of race, but that their exclusion was the result of a bona  fid.e 
compliance by the Jury Commission with State laws prescribing 
jury qualifiieations. With this conclusion we cannot agree. Louisi­
ana law requires the Commissioners to select names for the general 
venire from persons qualified to serve without distinction as to race 
or color. In order to be qualified a person must be:
(a) A  citizen of the State, over twenty-one years of age with two

years’ residence in the Parish,
(b) Able to read and write the English language,
(c) Not charged with any offense or convicted of a felony,
(d) Of well known good character and standing in the com­

munity.10
The fact that approximately one-half of the Parish’s population 

were negroes demonstrates that there could have been no lack of 
colored residents over twenty-one years of age.

It appears from the 1930 census that 70 per cent of the negro 
population of the Parish was literate, and the County Superin­
tendent of Schools testified that fully two thousand five hundred 
(83 per cent), of the Parish’s negro population estimated by him 
at only three thousand, were able to read and write. Petitioner’s 
evidence established beyond question that the majority of the negro 
population could read and write, and, in this respect, were eligible 
under the statute for selection as jurymen.

There is no evidence on which even an inference can be based 
that any appreciable number of the otherwise qualified negroes in 
the Parish were disqualified for selection because of bad character 
or criminal records.

We conclude that the exclusion of negroes from jury service was 
not due to their failure to possess the statutory qualifications.

The general venire box for the Parish in which petitioner was 
tried was required11— under Louisiana law— to contain a list of 
three hundred names selected by Jury Commissioners appointed by 
the District Judge, and this list had to be supplemented from time 
to time so as to maintain the required three hundred names. Al­
though Petit Jurors are drawn from the general venire box after 
the names have been well mixed,12 the law provides13 that ‘ ‘ the com-

10 Louisiana Code of Criminal Procedure, supra, Title XV III, c. 1.
n  See note 3, supra.
12 Louisiana Code of Criminal Procedure, supra, Title XV III, e. 2, Art. 181.
13 Id ., Art. 180.

Pierre vs. State o f Louisiana.



6

mission shall select . . . [from the general venire list] the
names of twenty citizens, possessing the qualifications of grand 
jurors, . . (Italics supplied.) The twenty names out of which 
the challenged Grand Jury of twelve was drawn, actually were the 
first twenty names on a new list of fifty names supplied— on the day 
the Grand Jury List was selected— by the Jury Commission as a 
“ supplement”  to the general venire of three hundred. Thus, if 
colored citizens had been named on the general venire, they ap­
parently were not considered, because the Commission went no 
further than the first twenty names on the supplemental list which 
itself contained no names of negroes. Furthermore, the uncontra­
dicted evidence on the motion to quash showed that no negro had 
ever been selected  for Grand Jury service in the Parish within the 
memory of any of the witnesses who testified on that point.

The testimony introduced by petitioner on his motion to quash 
created a strong p rim a  fa cie  showing that negroes had been sys­
tematically excluded— because of race— from the Grand Jury and 
the venire from which it was selected. Such an exclusion is a denial 
of equal protection of the laws, contrary to the Federal Constitution 
— the supreme law of the land.14 * ‘ 1 The fact that the testimony 
. . . was not challenged by evidence appropriately direct,
cannot be brushed aside. ’ ’l0 Had there been evidence obtainable to 
contradict and disprove the testimony offered by petitioner, it 
cannot be assumed that the State would have refrained from intro­
ducing it. The Jury Commissioners, appointed by the District 
Judge, were not produced as witnesses by the State. The trial 
judge, who had appointed the Commission, listening to the evidence 
and aided by a familiarity with conditions in the Parish of many 
years’ standing, as judge, prosecutor and practicing attorney, con­
cluded that negroes had been excluded from Jury service because of 
their race, and ordered the venire quashed and the box purged and 
refilled. Our examination of the evidence convinces us that the 
bill of exceptions which he signed correctly stated that petitioner 
“ did prove at the trial of said motion to Quash that negroes as 
persons of color had been purposely excluded from the Grand Jury 
Venire and Panel which returned said indictment against . . .
[petitioner] on account of their color and race, . .

14 Neal v. Delaware, supra, 397; Norris v . Alabama, supra, 591; Hale v. 
Ky., supra, 616.

ib Norris v. Alabama, supra, 594, 595.

Pierre vs. State of Louisiana.



7

Principles which forbid discrimination in the selection of Petit 
Juries also govern the selection of Grand Juries. “ It is a right 
to which every colored man is entitled, that, in the selection of 
Jurors to pass upon his life, liberty, or property, there shall be no 
exclusion of his race, and no discrimination against them because of 
their color.” 16 This record requires the holding that the court 
below was in error both in affirming the conviction of petitioner and 
in failing to hold that the indictment against him should have been 
quashed. The cause is reversed and remanded to the Supreme 
Court of Louisiana.

R ev ersed .

Pierre vs. State of Louisiana.

A true copy.

Test:

Clerk, Supreme Court, U. S.

16  Virginia v . Rives, supra, 322-3.





1Dftei OowV U .1  1

r  t  t .  i c 'd  

N O V  1 7  1 9 3 4

0UU*

§>upmttr Okmrt nf tli? Uniteb Stairs
OCTOBER TERM, 1934.

No .S 3 V

CLARENCE NORRIS,
Petitioner,

against
«•

STATE OF ALABAMA.

PETITION AND BRIEF IN SUPPORT OF 
APPLICATION FOR CERTIORARI.

W ALTER H. POLLAK, 
OSMOND K. FRAENKEL, 

Attorneys for Petitioner.

QALLO & ACKERMAN, lac., 142 Liberty Street, Telephones— Rector 2-5356-7





S U B J E C T  I N D E X .

PETITION.

PAGE
Summary statement of the matter involved------------— 1
Reasons relied on for the allowance of the w r it -------- 2

BRIEF.

Opinion of the Court below ........ .....................
Jurisdiction......... ...... .......... ...........-.................
Statement of the case .................... — ......—

The motion to quash the indictment __
The motion to quash the venire...... .........

Errors below relied upon here. Summary of argument... 
Point I. The indictment of members of the negro race 

and their conviction by juries from which negroes 
are systematically excluded is a denial of the
equal protection of the la w ......... ...................... ......

Point II. The Court denied petitioner’s constitutional 
rights in refusing to quash the indictment by the 
grand jury in Jackson County where negroes had
for years been excluded from jury service .... .....

Point III. The Court denied petitioner’s constitutional 
rights in refusing to quash the venire of the petit 
jury in Morgan County where negroes had for
years been excluded from jury service..... .............

Point IV. The Court denied petitioner’s constitutional 
rights in refusing to permit the petitioner full op­
portunity to prove the systematic exclusion of
negroes __________ :.....................................................

Conclusion ................................. ..................................

4
4
6
7
7
8

9

10

21

25
28

Appendix:
Alabama Code Sections ________________________  29
Index to Record ...... ................................. .................  31



11

TABLE OF CASES.

PAGES

Ancient Egyptian Order v. Micliaux
Beidler v. Tax Commission ........ ~...
Bonaparte v. State..............................
Bush v. Kentucky .......................... ...
Carter v. Texas ........................ -.......
Creswill v. Knights of Pythias ..........
Estes v. Commonwealth ...................
Fiske v. Kansas —............ —............. -
Lee v. Maryland_______________ __-
Martin v. Texas........ .....................-...
Neal v. Delaware ... ............ ...............
Patterson v. State ....................... ......
Powell, et ah, v. State---------- ---------
Powell, et ah, v. Alabama.................
Roberson v. State .............................
Rogers v. Alabama............................
Strauder v. West V irginia...............
Thomas v. Texas...................... -.........
Weems, et ah, v. State.....................
Whitney v. State.. .............................

________  6
________  6
____ 23, 25, 28
.........   9
...........6, 9, 28
............... 6
...............  23
________  6
.............. 23
............... 9
.5, 9,11,12, 28
.............. 6
________  6
.................  6
................ lOn
..........5, 9, l ln
.........._..5, 9, 28
.............   24
................  6

CONSTITUTIONAL PROVISIONS AND STATUTES.

Alabama Code,

Sec. 3258 .......................... ................. ............
“  6433 .............. -........................................
“  6434 ........ -..............................................
“  6670 ........................................................

...............  29
_______ ... 29
............ . 29
...............  30

“  8603 ................................................................. 9,11, 30
“  8606 ....................................................... ........12,18, 30
“  9459 ....................................................... ............ ...... 31

United States Constitution, 14th Amendment 
United States Judicial Code, Section 237-b.....

...............  2
... ............  4



fbuyttm (Enurt nf tifp Inttph
OCTOBER TERM, 1934.

Clarence Norris,

vs.
Petitioner,

State of Alabama.

PETITION FOR WRIT OF CERTIORARI.

To the Supreme Court of the United States:

Your petitioner, Clarence Norris, respectfully alleges:

A.

Summary statement of the matter involved.

Petitioner is now confined in Kilby Prison in the City 
of Montgomery, State of Alabama, under sentence of death 
for the alleged crime of rape. His execution is set for 
February 8, 1935. He was convicted at a trial held in 
Morgan County, Alabama, before Judge Callahan and a 
jury. An appeal was taken from that conviction to the 
Supreme Court of Alabama, which is the highest court 
of the State of Alabama. The conviction was affirmed by 
that Court on June 28, 1934. A timely application was 
made on July 9, 1934 for a rehearing, which application 
was received and considered by the Court. The application 
for a rehearing was denied on October 4, 1934.



2

At the outset of the case petitioner moved to quash the 
indictment on the ground that the grand jury which 
brought in the indictment in Jackson County had been 
drawn from jury rolls from which negroes had been ex­
cluded because of race or color. Petitioner also moved 
to quash the venire of the petit jury in Morgan County 
where the action had been brought on for trial on the 
ground that negroes had been excluded because of race 
or color from jury service in that county. The Court, 
refused to permit petitioner to introduce evidence which 
petitioner deemed necessary to support the claim of ex­
clusion.

B.

Reasons relied on for the allowance of the writ.

1. Petitioner was denied the equal protection of the 
laws guaranteed to him by the Fourteenth Amendment of 
the Constitution of the United States in that negroes were 
excluded from jury service in Jackson County, Alabama, 
in which county was found the indictment against him, 
and that such exclusion was by reason of their color.

A motion was made by your petitioner before the com­
mencement of the trial to quash the indictment on these 
grounds. The motion was entertained and evidence intro­
duced in support thereof which established such discrimi­
nation. The claim of federal right was considered both 
by the trial court and by the Supreme Court of the state.

2. Petitioner was denied the equal protection of the 
laws guaranteed to him by the Fourteenth Amendment of 
the Constitution of the United States in that negroes were 
excluded from jury service in Morgan County, Alabama, 
the county in which the case was tried, and that such 
exclusion was by reason of their color.



3

A motion was made by your petitioner before the com­
mencement of the trial to quash the venire on these 
grounds. The motion was entertained and evidence intro­
duced in support thereof which established such discrim­
ination. The claim of federal right was considered both 
by the trial court and by the Supreme Court of the state.

3. Your petitioner was on numerous occasions, both 
with reference to the motion to quash the indictment and 
with reference to motions to quash the venire, deprived 
of an opportunity of offering material proof in support of 
his contention that discrimination had been practiced.

In support of the foregoing grounds of application your 
petitioner submits the accompanying brief setting forth 
in detail the precise facts and arguments applicable thereto.

WHEREFORE your petitioner prays that this Court, 
pursuant to United States Judicial Code, Section 237 b, as 
amended by Act of February 13,1925, 43 Statutes 973, issue 
a writ of certiorari to review the judgment of the Supreme 
Court of the State of Alabama affirming your petitioner’s 
conviction for rape, as aforesaid.

All of which is herewith respectfully submitted this 
17th day of November, 1934.

CLARENCE NORRIS, Petitioner, 
By W a l t e r  H. P o l l a k ,

O s m o n d  K. F r a e n k e l ,

Attorneys.



4

SUPREME COURT OF THE UNITED STATES, 

OCTOBER TERM, 1934.

C l a r e n c e  N o rris , 

against

S t a t e  op A l a b a m a .

Petitioner,

BRIEF IN SUPPORT OF PETITION FOR 
WRIT OF CERTIORARI.

I .

Opinion of the Court below.

The opinion has not yet been reported officially. It 
appears in 156 So. 556 and at pages 676-695 of the record.* 
An application for rehearing was denied without opinion 
(705-706).

I I .

Jurisdiction.

1.

The statutory provision is Judicial Code, § 237b as 
amended by Act of February 13, 1925, 43 Stat. 937.

♦All references are to the Norris record except where we specifically refer 
to the companion record in the Patterson case. Because o f the somewhat 
confused condition o f the record, an index to it is printed in the Appendix 
to this brief.



5

2.

The date of the judgment is June 28, 1934 on which 
date the Alabama Supreme Court affirmed (699). A peti­
tion for rehearing was filed on July 9, 1934 (702). The 
application was denied on October 4, 1934 (704-705).

3.

That the nature of the case and the rulings below bring 
the case within the jurisdictional provisions of § 237b, 
supra, appears from the following:

The claim of federal constitutional rights is specifically 
made in the motion to quash the indictment (49) and the 
motion to quash the venire (424). The questions were ex­
pressly considered and the rights ruled against by the trial 
court (163, 495). Exceptions were noted to each ruling 
(167, 497). The questions were specifically passed upon 
by the Alabama Supreme Court in its opinion (676-684, 
685, 689).

The claims so made and denied are that the systematic 
exclusion of negroes because of race or color for service 
on grand and petit juries in Jackson County where the 
grand jury was drawn (48-49) and in Morgan County where 
the petit jury was drawn (423-424) was in violation of the 
Constitution and laws of the United States. Incidental to 
these claims is the further contention that the Court erred 
in excluding further evidence offered by petitioner to prove 
discrimination and exclusion (see infra, pp. 25-28).

4.

The following cases among others sustain the jurisdic­
tion:

Strauder v. West Virginia, 100 U. S. 303, 309; Neal v. 
Delaware, 103 U. S. 370, 397 and Rogers v. Alabama, 192
U. S. 226, 231, establish that the exclusion of negroes from 
grand and petit juries solely on the ground of their race



6

or color is in violation of the Constitution. Carter v. Texas, 
177 U. S. 442, 448, 449, holds that the refusal to give the 
defendant a full opportunity to prove his claim of discrim­
ination is a denial of the federal constitutional rights. 
Beidler v. Tax Commission, 282 U. S. 1, 8; Fiske v. Kansas, 
274 U. S. 380, 385-6; Creswill v. Knights of Pythias, 225 
U. S. 246, 261 and Ancient Egyptian Order v. Michaux, 279 
U. S. 737, 745, decide that where a federal right has been 
asserted and denied, it is the province of this Court to 
ascertain whether the conclusion of the state court has 
adequate support in the evidence.

III.

Statement of the case.

Petitioner is one of nine negro boys charged with raping 
two white girls, Victoria Price and Ruby Bates, on a freight 
train proceeding through Alabama.

As to one of the boys, a mistrial was declared. The 
other eight were found guilty and sentenced to death after 
a trial at Scottsboro during April, 1931.

The Supreme Court of Alabama reversed the conviction 
as to one of the boys and affirmed as to seven, including 
this defendant (Weems, et al., v. State, 224 Ala. 524) and 
the defendant Patterson (Patterson v. State, 224 Ala. 531; 
see also Powell, et al., v. State, 224 Ala. 540). These 
judgments were subsequently reversed by this Court 
(Powell, et al., v. Alabama, 287 U. S. 45). Thereafter by 
order filed March 20, 1933, the venue was changed from 
Jackson to Morgan County (6).

Patterson, one of the seven, was subsequently brought 
to trial before Judge Horton in Morgan County and was 
convicted. The verdict of conviction was set aside. The 
opinion of Judge Horton is printed in the Appendix to the 
brief on the Patterson application for certiorari.



7
The motion to quash the indictment*

When the Patterson case came up for trial for the third 
time— this time before Judge Callahan—the motion was 
made on behalf of the seven defendants (50) to quash the 
indictment because of exclusion of negroes from juries in 
Jackson County. The motion had theretofore been made 
before Judge Horton, but since he set aside the conviction, 
his rulings never became subject to review. Part of the 
evidence before Judge Horton was read into the record 
before Judge Callahan (89’-148) and this, in addition to 
new testimony before Judge Callahan (57-88, 149-61), con­
stitutes the record on the motion to quash. Judge Callahan 
denied the motion with an opinion (163-167). Exception 
was taken to the denial of the motion (167).

The motion to quash the venire.*

On November 21, 1933 Patterson moved to quash the trial 
venire (418-425) on the ground of exclusion of negroes from 
the juries in Morgan County. That motion was likewise 
denied by Judge Callahan with an opinion (495-498). 
Again the record includes evidence taken before Judge 
Horton (429-491) and new matter introduced before Judge 
Callahan (491-494). Exception was taken to the denial of 
the motion to quash the venire (497).

Patterson was brought to trial for the third time and 
was found guilty on December 1, 1933 (Patterson, 19). 
Norris was tried for the second time and found guilty on 
December 6, 1933 (22). Both defendants were on Decem­
ber 6th sentenced to death. (A continuance has been 
granted to the other five negroes and they have not yet 
been tried. The cases of the two juveniles have been sent 
to the Probate Court for consideration.)

♦By stipulation the proceedings in the Patterson case on the motion to 
quash the indictment and to quash the venire are made applicable to the 
defendant Norris (42a), and accordingly the motions, testimony and rulings 
are set forth in full in the present record (43-167, 418-498).



8

Appeals were taken to the Supreme Court of Alabama 
(Patterson R., 786, Norris R., 674).* After affirmance by 
the Court an application for a rehearing was made (702) 
and denied (705) as stated above.

The facts concerning the exclusion of negroes from jury 
service are discussed infra (pp. 10-24).

IV.

Errors below relied upon here. Summary of argument.

The points we urge are in summary form as follows:

1. The indictment of a member of the negro race and his 
conviction by juries from which negroes are systematically 
excluded is a denial of the equal protection of the law.

2. The Court denied petitioner’s constitutional rights in 
refusing to quash the indictment by the grand jury in 
Jackson County where negroes had for years been excluded 
from jury service.

3. The Court denied petitioner’s constitutional rights 
in refusing to quash the venire of the petit jury in Morgan 
County where negroes had for years been excluded from 
jury service.

4. The Court denied petitioner’s constitutional rights in 
refusing to permit the petitioner full opportunity to prove 
that negroes were systematically excluded.

♦Before the appeal to the Supreme Court motions for  a new trial were 
made in each case (Patterson R., 24, Norris R., 23). Upon application by 
the State each motion was stricken on the ground that it was made after 
the term. Applications for  a rehearing were made pointing out that the trial 
court with the knowledge o f the Attorney General o f Alabama had extended 
the time o f the defendants to make their motions beyond the term, and that 
the defendants relied on the court’s statement that their time to make the 
motion extended to dates which were subsequently decided to have been beyond 
the date o f  the expiration o f the term (33-35). The matter has no relevancy 
to the petitioner Norris’s application for certiorari except as bearing upon the 
attitude in this case o f the court and o f the officers charged with the admin­
istration o f justice in Alabama. Because o f its possible relevance, however, 
to the Patterson application it is discussed in the Patterson brief.



9

POINT I.

The indictment of members of the negro race and their 
conviction by juries from which negroes are systematically 
excluded is a denial of the equal protection of the law.

The principle applies whether the action is by virtue of 
a statute (Strauder v. W. Va., 100 U. S. 303, 309; Bush v. 
Kentucky, 107 U. S. 110, 122) or by the action of the admin­
istrative officers (Neal v. Delaware, 103 U. S. 370, 397; 
Carter v. Texas, 177 U. S. 442; Rogers v. Alabama, 192 
U. S. 226, 229; Martin v. Texas, 200 U. S. 316, 319), and 
whether the exclusion is from service on petit juries (Strau­
der v. W. Va., supra, at pp. 304-309; Neal v. Delaware, supra, 
at p. 396), or grand juries (Carter v. Texas, supra, at p. 
444; Rogers v. Alabama, supra, at p. 229).

In Alabama, the statute (Code, §8603, Appendix, p. 30) 
does not in terms provide for the exclusion, but the evi­
dence discloses an exclusion or discrimination by adminis­
trative officials as uniform as if provided for by statute.

The Alabama Supreme Court, while recognizing the prin­
ciples referred to (678, 679), failed, as we shall show, to 
apply them to the facts of this case, and by reason of such 
failure it denied petitioner his constitutional rights.



1 0

POINT n.
The court denied petitioner’s constitutional rights in re­

fusing to quash the indictment by the grand jury in Jack- 
son County where negroes had for years been excluded 
from jury service.

Proof of Exclusion.

A. The population of Jackson County in 1930 was 
36,881 (89). The male population over 21 was 8,801, of 
which 666 were negroes (92).

B. That there was actual exclusion, that white men 
served on juries in Jackson County, and that negroes did 
not and had not for upwards of fifty years, is established 
and uncontradicted. No negro was called on this grand 
jury (61). No negro had served on any grand or petit 
jury in Jackson County in the memory of any man, and 
men white and colored testified,—men who had lived in 
Jackson County all their lives, many of them over fifty 
years of age (119, 127, 137, 140, 144, 145, 146). No 
negro was ever called for jury duty in the memory of 
men who had lived forty to fifty years in the county (135, 
119). The testimony of the negroes was confirmed by the 
following white officials:

Two jury commissioners (58, 78); the clerk of the Cir­
cuit Court (60); the clerk of the jury commission (69); the 
court reporter for the Ninth Judicial Circuit (76).

A 76-year old negro testified:

“ It is a matter of custom in Jackson County that 
no negro can sit on a jury, that has been a custom for 
sixty years”  (147).*

^Compare the statement in the charge o f the trial court referred to in 
Roberson v. State, 18 Ala. App. 634, in the case o f  a white man indicted for 
the killing of a negro:

( Footnote continued on next page.)



11
Further, except for six names shown, infra, by irrefuta­

ble evidence to have been forgeries, no negro’s name ap­
peared on any jury roll from which grand and petit juries 
alike (61) were drawn.

C. This evidence, uncontradicted and undisputed, pre­
sents, without more, a prima facie case of denial of equal 
protection (Neal v. Delaware, supra, 103 U. S., at p. 397). 
But the evidence does not rest here.

D. That there were qualified negroes in the county 
is beyond debate. The qualifications for jurors are 
stated in the Alabama Code, § 8603 (Appendix, p. 30). 
Witnesses testified by name to at least 37 negroes who 
they said had these qualifications. Included in these 
names were negroes who were members of school boards 
of colored schools appointed by the white Superintendent 
of Education (126-127); trustees of colored schools who had 
been elected by the negroes who were qualified voters (127- 
128-129-133); property owners and householders (128, 
129). Negroes from the county had sat on the Federal jury 
(119, 120). The trial court assumed that negroes in the 
county were qualified for jury duty (164). Indeed Judge 
Callahan rested his refusal to quash the indictment solely 
on the ground— mistaken as we shall show—that names of 
negroes appeared on the jury roll.

E. The Supreme Court, while it did not hold that there 
were no negroes in the county fit for jury duty, expressed

( Footnote continued from previous page.)

“ Now, gentlemen, there has been an effort to inject into this case 
race prejudice. The colored man is in this country, and he has been 
deprived in a large measure o f the right to vote, he has been de­
prived entirely of the right to sit on the juries of this country, and 
the enforcement o f  the laws o f this country is in the hands o f the 
white people, and it should be enforced with equal justice and equal 
right to the white man and the colored man alike”  (pp. 635-6).

It should be stated that this case did not come up from Jackson County. 
Compare also Rogers v. Alabama, 192 U. S. 226.



1 2

some doubt upon this point (683), especially referring to 
the testimony of Benson, the editor of the local newspaper. 
Benson had said that while he knew “ some good negroes, 
with good reputations”  he “ would not be willing to say 
that there were any that possessed the necessary qualifi­
cations for jury service;”  that “ those he knew lacked that 
sound judgment that should characterize a juror”  (683).

Fifty years ago, this Court dismissed a like general con­
clusion of negroes’ unfitness for jury service—uttered not 
by a witness but by the Chief Justice of the court of last 
resort of the state— as a “ violent assumption”  (Neal v. 
Delaware, supra, 103 U. S., at p. 397).*

And an examination of Benson’s testimony confirms that 
his conclusions are based solely upon his prejudice against 
negroes and his attitude of superiority.

Apart from this, however, the evidence showed that 
many negroes were qualified, and although Benson pur­
ported to testify that some were not qualified, neither he 
nor anyone else testified that every one of the negroes 
named was unqualified. The testimony that there were 
negroes qualified for jury duty in Jackson County, there­
fore, remains undisputed and under the law every one of 
these should have been selected (Code, §8606, Appendix, 
p. 30).

Attempts to explain or justify the exclusion.

We have already called attention to the inconsistent posi­
tions taken by the Trial and the Supreme Court. Judge 
Callahan, as we have seen, held that there were qualified 
negroes in Jackson County—that negroes appeared on the

♦What the Delaware Chief Justice had said w as:

“ ‘that none but white men were selected is in nowise remarkable in 
view o f the fact—too notorious to be ignored—-that the great body o f 
black men residing in this State are utterly unqualified by want of 
intelligence, experience or moral integrity to sit on juries’ ”  (103 U. S., 
at pp. 393-4).



13

jury rolls. The Supreme Court, on the other hand, ex­
pressed doubts whether there were any qualified negroes 
and refused to pass on the question whether the names 
of negroes appeared on the rolls. We examine separately 
the explanations accepted by each court.

The explanation accepted by the Trial Court.

Judge Callahan rested his denial upon the ground that 
the names of negroes appeared upon the jury roll. A brief 
recital of the facts concerning the make-up of the jury roll 
will facilitate an understanding of the evidence.

The commissioners who prepared the rolls from which 
the grand jury was drawn consisted of Stewart, who tes­
tified, Winn, who did not testify, and Jenkins, who was 
present in court but did not testify (69). Kelly Morgan, 
the clerk of this commission, also testified (69). The Stew­
art Commission went out of office in March, 1931 when the 
new jury commission was appointed (57). The new com­
mission made up a new list which is only incidentally here 
involved. The making up of the jury roll is in three stages: 
(1) Names were obtained by the clerk—the voting list, a list 
from the tax hooks and “ probably”  a telephone directory 
(75). (2) From these a temporary list was made up.
The clerk testified that this temporary list contained male 
citizens of the county without regard to race or color (75). 
He testified (75) that it contained all male citizens, but on 
the same page said he did not know whether this was the 
case. (3) From the temporary list prepared by the clerk, 
the commission directed what names were to go on the 
roll. The clerk thereupon posted these names on the roll* 
and on the cards that went into the jury box (70). From 
the box are drawn both grand and petit jurors (61).

The important point in this process is the method by 
which the names on the list get on the jury roll. The list

*The original books constituting the jury rolls in question will be handed 
up to the Court in connection with this application.



14

contains the names of persons both “ qualified and unquali­
fied”  (110). The commission then calls in men from the 
different precincts of the county and they check the names 
of men in their precinct “ where they are supposed to know 
all of these parties”  (110). As the commissioner put it: 
“ We take those people’s word for it, the men who come 
in, the law gives us that right”  (109).

There is no testimony what principles these men who 
were called in applied; there is no testimony that they 
were sworn or performed any official duty; there is noth­
ing to show that they did anything more than continue the 
age long process of exclusion.

Judge Callahan rested his decision that negro names 
appeared upon the rolls on two grounds: (a) that there 
had been “ emphatic” , “ positive”  testimony before Judge 
Horton that there had been negroes on the roll (164); (b) 
that the defendants themselves had pointed out by their 
witnesses that there were several negro names on the jury 
roll. On these two bases his decision rests,—each without 
foundation:

(a) Not only was there no emphatic or positive testi­
mony to this effect before Judge Horton, there was nothing 
from which the defense might have drawn the inference 
that the state would ever claim that negroes appeared on 
the jury. The only possible testimony to which Judge 
Callahan might have referred was that of Commissioner 
Stewart. If his testimony is carefully read it becomes 
apparent that when he was talking about negroes being on 
lists he was talking not of the permanent jury roll but 
of the preliminary lists from which it was drawn (109-111). 
He was unable to give the name of any negro whose name 
might be on the jury roll (111). Finally, when asked before 
Judge Callahan “ whether or not names of colored persons 
were on the jury roll” , he answered, “ No, sir, I don’t know 
whether there is or not”  (84).

(b) We have disposed of the “ positive”  testimony, the 
“ emphatic”  testimony relied upon by Judge Callahan. We



15

now turn to the six names which he contends witnesses 
called by the defense showed were on the jury rolls.

The State in the hearing before Judge Horton made no 
attempt to show that the names of any negroes appeared 
on the rolls. Indeed, the State threw obstacles in the way 
of obtaining the rolls, the Attorney General objecting be­
fore Judge Horton to their production (668, 669).

When the rolls were finally produced before Judge 
Callahan, the defense asked several white officials to ex­
amine them and point out the names of colored people. 
The rolls were gone through, page by page, and six names 
were found. They are as follows:

Precinct No. 1 Mark Taylor (64)
“  “  3 Cam Rudder (65)
“  “  10 K. D. Snodgrass (60)
“  “  14 Pleas Larkin (67)
“  “  21 Travis Moseley (67)
“  “  21 Hugh Sanford’ (62)

If it be assumed that these six entries in a list of many 
thousands were genuine, they would not be sufficient to 
rebut the evidence of a half century of exclusion.

But the inescapable fact is that these names were not 
on the old jury rolls while they were current, but were 
written in after those rolls had become obsolete and a 
new jury commission had been drawn. This is the in­
evitable conclusion from the following undisputed facts:

1. The rolls from which the Grand Jury were selected 
that brought the indictment in this case were those pre­
pared by the Stewart Commission (57, 58, 78). The Stew­
art Commission went out and the new commissioners came 
in in March, 1931 (57). The new commissioners were 
required to empty the jury box and to make up a new 
list (65).



16

2. As a preliminary the new commissioner Moody di­
rected the new clerk J. D. Snodgrass, Jr., to draw lines 
after the old names (63). The lines were drawn by the 
new clerk.* Except for the lines drawn in blue ink under 
letter A and letter B names in precinct 1, the lines 
drawn were all red lines (63). Whatever the new clerk 
wrote in the book was below these red lines (63). The old 
jury names were above the red lines— “ It is the names 
above the red lines that constituted the jury roll from 
which this Grand Jury was drawn”  (57). The red lines, 
it is undisputed, were drawn by the clerk of the new com­
mission in the presence of Mr. Moody (63), although 
Moody did not see him draw all of the red lines through­
out the book (66).

3. The clerk of the old commission (Morgan) testified 
that he had not put in the red lines; that when he finished 
with those books there were no red lines that he knew 
of (74).

4. The only names on the jury roll that were testified 
to as being the names of negroes—the six above referred 
to— appeared in each instance immediately above the red 
lines. And no negro’s name appears in any other position.

5. An expert examiner of questioned documents of dis­
tinguished reputation (149) testified that the ink used in 
writing each one of these names (152-161) is superimposed 
upon the red lines and therefore must have been written 
after the red lines were drawn. The expert was not cross 
examined. His testimony is uncontradicted.

*M oody testified that it was customary when drawing these lines to leave 
a line blank after the names which had been written by the old board (64- 
65). The books show that except in a few instances this was generally 
done. Opportunity, therefore, existed for the insertion o f names above the 
red lines so that it might appear that they had formed a part o f  the old 
jury roll.



17

The conclusion is inescapable that the books were 
tampered with and that the six names all appearing in 
the same position were written in after the new jury com­
mission came in and after the red lines drawn there to 
distinguish the old jury list from the new had been placed 
in the book.* Judge Callahan admitted that the matter 
was suspicious and that he would have been in grave doubt 
(165) had it not been for the following reasons, which, how­
ever, cannot in any sense support his conclusion.

a) Judge Callahan refers (164) to the fact that the wit­
ness “ right at the beginning of his testimony’ ’ mentioned 
a date, presumably 3/20/31 (154), as written under the 
red line, but dates written under the red lines are of no 
significance and especially irrelevant is it whether the new 
clerk may have written the date on which the new jury 
commission took office before drawing the red line or after 
drawing the red line. The relevant fact is that every 
negro name supposed to have been on the old jury rolls 
was superimposed upon the red lines and that the red 
lines were drawn after the new commissioners came in.

b) Judge Callahan refers also (166) to an entry dated 
in March, 1929, which he said appeared to be under the 
red lines. The record shows no such entry. But in any 
event the significance of the argument is difficult to grasp. 
A forgery is shown only when an entry purporting to be 
part of the old jury roll is written over lines that were 
drawn after the new jury commission came into office.

c) Finally, Judge Callahan thought that he would not 
be authorized to presume that someone committed a crime

*This Court can see this fact for itself from  an examination o f the 
original books. The expert also called attention to the difference between 
the kind of ink used in writing these six names and that used in writing 
the other names (153-159).



18

or to cast a reflection on the officers whose duty it was to 
keep the books (166-167). But whatever may be the impli­
cations the fact is that the evidence is uncontradicted and 
unexplained that names were written into an old jury roll 
after new commissioners came in.

The Supreme Court expressly declined to pass on the 
question whether the names were “ fraudulently placed 
there”  (683). They said: “ This charge in no manner in­
volves any member of this jury board”  (683). The Supreme 
Court having rested their decision upon other grounds held 
that a consideration of this matter is “ wholly immaterial, 
and we pass it by without any expression of opinion 
thereon”  (684).

The explanations accepted by the Alabama Supreme Court.

The grounds upon which the Supreme Court based their 
denial of the motion to quash likewise find no real support 
in the evidence:

(1) They say that more white male citizens of proper 
age qualification were excluded than negroes (681). But 
this is no answer to the contention that no negro was ever 
called to serve and that no negro name appeared on the 
jury rolls. Especially is this the case in a community where 
under the statute all qualified males were required to be 
placed on the jury rolls (Code, § 8606, Appendix, p. 30).

(2) They indicate doubts whether there were any quali­
fied negroes (683). But they do not state this as a finding 
or suggest that the evidence would warrant any such find­
ing. And as we have seen, supra, such a finding would 
not be supported by the evidence.

(3) They rest their judgment on the testimony of the 
commissioner which they state was to the effect that the



19

matter of race or color “ never entered into their discussion 
or consideration in selecting those to go upon the jury 
roll, and they did not know, and, therefore, could not say 
whether any of the negro race was on the roll or not”  
(681) and further, that the jury commission did not “ auto­
matically or systematically exclude anybody”  and that the 
question of race or color was not mentioned and no one 
excluded on account thereof (681).

There are to be sure, general statements in the record 
to that effect. Commissioner Stewart testified that they 
never discussed race or color (84, 111, 112, 113, 115), that 
“ we didn’t automatically or systematically exclude any­
body”  (85). But the detailed testimony gives no facts to 
support the conclusion that there was no discrimination. 
The commissioners presented temporary lists to various 
unidentified persons in the different precincts and had 
them check off from those lists the names deemed by 
them to be qualified. The commissioners took the selec­
tion of these unknown persons.* Consequently the selec­
tion was made by those persons. There is nothing to in­
dicate that they did not intentionally exclude negroes. The 
presumption of discrimination from the continued exclu­
sion of negroes has, therefore, in no way been overcome 
since the actual selectors did not testify. The bare pro­
testations of Stewart are without meaning in these cir­
cumstances.

The general statement that race or color was not dis­
cussed must be considered in connection with testimony 
overlooked by the Supreme Court that on the lists, before 
the rolls were finally made up, there appeared after the

♦The Supreme Court in discussing this phase o f the case misread the 
record. They refer to the commission as “ calling in people from different 
precincts”  and “ questioning them” (681). The evidence is that the un­
named persons made the actual selection, “ they checked off the names o f 
the qualified jurors”  (109). The commission took “ their word for it” (109). 
There is not the slightest evidence that they were in any way questioned 
by the commission.



2 0

names of colored people the word “ col.”  (109).* It was 
not necessary for any one to discuss race or color. Exclu­
sion, under these circumstances, could be perfect without 
a single word being spoken.

* * * * *

Finally, the matter of discrimination is put beyond ques­
tion by the testimony of the commissioner himself. The 
lists contained the names of negroes. The rolls, on the 
other hand except for the spurious six, contained the names 
of none. Negroes were, therefore, rejected either because 
they were not qualified or arbitrarily. We have seen that 
there is a total absence of evidence of any witness who 
testified, except in general terms, to the exclusion of ne­
groes because they lacked qualifications. What was not 
commented on by either the lower or higher Alabama Court 
was that the commissioner himself, in a series of questions, 
specifically denied that he had ever excluded any negro 
because of his age, because he was not a person esteemed 
in the community, because he was lacking in judgment or 
had a disease affecting his mentality, or had been con­
victed of a crime involving moral turpitude, or because, 
not being able to read he was not a freeholder or house­
holder (112); that he had never had occasion to exclude any 
negro by reason of any of the disqualifying provisions 
(113).

Clearly, there can be no basis for the assumption that 
the exclusion of negroes in Jackson County rested on any 
principle other than race.

♦The commissioner himself testified not that he did not know whether he 
was passing on negroes or whites, but that “ he didn’t know them all”  (113- 
114).



2 1

POINT III.

The court denied petitioner’s constitutional rights in 
refusing to quash the venire of the petit jury in Morgan 
County where negroes had for years been excluded from 
jury service.

1) Nearly twenty per cent, of the population of Morgan 
County in 1930 was colored (478)*,— 37,865 whites, 8,311 
colored..

2) Intelligent witnesses (431, 437, 439, 447, 452, 456, 
459, 461, 467, 468) named nearly 200 negroes who they said 
complied with the qualifications necessary for jury duty. 
The names included college graduates (431, 437, 456, 459, 
465), physicians (468), dentists (431, 465), preachers (451, 
453), business men (453), real estate owners (465, 470), a 
notary public designated by the governor as of good moral 
character (454), teachers (449, 453), a school principal 
licensed by the State of Alabama after an investigation as 
to mentality, academic qualifications and moral standing 
and “ certified as the type of person to teach the citizens 
of Alabama”  (456), Masons (458, 467) and members of 
other lodges (467, 469), war veterans (445, 461), a first 
lieutenant in the World War (467). Many were voters 
(431, 437, 439, 452, 465).* Some had been summoned for 
duty on federal juries (455, 437).

Dr. N. M. Sykes, a colored physician of standing (468, 
469) with the commission of a lieutenant in the medical 
corps of the United States Army (470) testified that there 
were many others that could be added to the lists of negroes

♦The U. S. census figures show that the percentage o f colored to 
white persons in this county was even higher from 1890 to 1920, running 
to nearly 25%.

♦♦The defense was not permitted to show that before a colored man was 
allowed to vote, he was examined as to his qualifications and required not 
only to recite sections o f  the Constitution but to interpret them (432, 438, 
439-441, 465).



2 2

qualified for jury service (453). The defense counsel stated 
that he was prepared to furnish proof from about 400 com­
petent, reputable witnesses to substantiate the allegations 
of the petition pertaining to the qualifications of negroes 
in Morgan County (472), but the Court limited him to two 
additional witnesses (464) holding that the evidence was 
cumulative (473).

The Trial Court implied (495-496) that there was no 
doubt of the existence of qualified negro jurors in Morgan 
County. It had indeed excluded further evidence to show 
the existence of qualified negroes as “ cumulative”  (473). 
The Supreme Court, on the other hand, said there was a 
conflict of evidence (685).

The only testimony that even squints in this direction 
is the testimony of the Jury Commissioner Tidwell, but 
he did not testify that there were no negroes in Morgan 
County who were qualified for jury service, merely that 
he knew of no negroes so qualified (484). He did not pre­
tend to know all the negroes in Morgan County and the 
record names many of those testified to as qualified whom 
he admitted he did not know (483, 487).

3) We have, then, a colored community consisting of 
one-fifth of the population of the county, among whom 
are many individuals concededly qualified for jury duty. 
No negro in the memory of men fifty years of age and 
over had ever served on a jury (434, 441, 442, 448, 452, 
453, 457, 459, 463, 464, 466, 469, 470) or ever been called 
for jury duty (434, 437, 441, 442, 448, 452, 457, 459, 
462,466,469). The testimony is uncontradicted. Even the 
white clerk Green, who had called about 2,500 jurors, stated 
that not one of them was of the colored race (429). A  
resident of Morgan County for about thirty years, he 
did not remember ever seeing a single colored person 
serve on the jury (430).

There is no showing that negroes were unwilling to 
serve. On the contrary, such evidence as there is, is that 
they were willing (452, 470).



23

4) The State made no attempt to show that there were 
any negro names on the jury roll.

The witnesses for the state questioned by the defense on 
cross examination were unable to point out any negro 
names (475, 477). The Court refused to permit the defense 
to inquire into prior jury rolls (476).*

To overcome evidence so potent there must be a con­
vincing factual showing that the exclusion was not based 
upon race or color,— a factual demonstration that there was 
a conscientious attempt to weigh the qualifications of 
negroes for jury duty. Generalities—conclusions by the 
officials that there was no exclusion—are of no avail against 
the stark fact of exclusion continued for half a century 
(Lee v. Maryland, 163 Md. 56, 66; Bonaparte v. State, 65 
Fla. 287, 291**; compare Estes v. Commonwealth, 229 Ky. 
617, 619, 620).

The attempts to explain or justify the exclusion.

Both courts (496, 686) relied upon the presumption that 
the officials performed their duty and upon the unsup­
ported statements by the officials themselves that they 
never distinguished between white and colored,—that they 
never discriminated (497, 686).

*And yet the Trial Court pointed out that if the exclusion ran over a 
long period o f years, it might be sufficient to show an illegal discrimination 
(496).

**In the Bonaparte case the Court said:

“ It would be beyond the ken o f the judicial or any other mind to 
appreciate how a deputy sheriff in a county containing more negroes 
than whites could through a series o f eight years in selecting jurors 
for all the courts o f  the county abstain from selecting a single negro 
for jury service during all those years, and then come up afterwards 
and truthfully testify that he had not discriminated against the negro 
race in the selection o f a panel o f jurors all o f whom still belonged 
to the white race” (p. 291).

In both the Lee and the Bonaparte cases the court of last resort o f the state 
reversed convictions on the precise ground o f the exclusion o f negroes.



24

The Supreme Court of Alabama referred to Thomas v. 
Texas (212 U. S. 278) to justify its conclusion that the facts 
of the case at bar showed no discrimination by the com­
missioners, but rather an honest exercise of judgment. How­
ever, the court disregarded the fact that in Thomas v. Texas 
this court sustained the action of the state officials because 
a negro was on the grand jury which brought the indict­
ment and negroes were on the venire from which the trial 
jury was drawn (212 U. S., at p. 283).*

The opinions stress that the jury commissioners talked 
with various persons. But what information they got is not 
disclosed. Whether they talked with colored persons is 
uncertain. The one commissioner who testified** leaves it 
in doubt (475, 482, 483). He said that “ to the best of 
my recollection”  (481) the Commission had passed upon 
the names of the negroes testified to as being qualified. The 
names on one of the lists “ looks familiar”  (481). He was 
not certain and he could not have been certain because he 
did not know many of the negroes on the lists (483, 484) 
and the names, as he finally said, “ don’t amount to noth­
ing to me”  (490).

But if it be taken for granted that the commission did 
consult unnamed people, did receive unspecified information 
and then passed upon the names of all the negroes in the 
community, these things would be no answer to fifty years 
of exclusion. Lip service is not sufficient nor compliance 
with forms, when the substance is withheld.

^Indeed, the opinion o f the state court, approved by this Court, showed 
that the officials had regularly drawn a member o f the colored race for 
service on the grand jury and had drawn from one to three negroes each 
week for service on the petit jury (96 S. W . 1069, 1073).

**Affidavits in general terms and identical language were furnished by the 
other two commissioners (492, 493). They recited that inquiry was made 
“ wherever practical” as to the qualification o f those persons whose names 
appeared on the list submitted to them by the jury clerk.



25

POINT IV.

The Court denied petitioner’s constitutional rights in re­
fusing to permit the petitioner full opportunity to prove the 
systematic exclusion of negroes.

The following rulings, all excepted to, hampered the de­
fense in its attempt to show discrimination.

1) Stewart, the Jackson County Commissioner who tes­
tified that race or color was never discussed, was not per­
mitted to be cross-examined to show why it was never dis­
cussed, why it never had to be discussed (86-87, 114).

The Supreme Court recognized the inquiry as material,— 
for in its opinion it stressed the fact that race or color 
never entered into the discussion or consideration of the 
jury commissioners (681).

2) Petitioner was not permitted to show that no negro 
name appeared on the jury roll of the Moody commission 
(102, 106-107),—the juiy roll subsequent to the one in con­
troversy.

The rulings were clearly erroneous both because the pro­
posed evidence bore on the existence of a deliberate custom 
and because the fact that there were no negroes on the 
subsequent lists would have been strong corroboration of 
the fact that the six negroes’ names were forgeries (com­
pare Bonaparte v. State, 65 Fla. 287, 290).

A  similar error appears in the refusal to permit inquiry 
into the prior jury rolls of Morgan County (476).

The materiality of the error is emphasized by the state­
ment of Judge Callahan (496):

“ I think if it ran over a long period it might be 
[sufficient] because I think one would be warranted in 
saying there must have been something that does not 
appear from the evidence” .



26

3) Judge Callahan assumed—wrongly, as we have seen 
(supra, p. 17)—that there was testimony that there were 
names of negroes on the jury roll. Especially in view of 
this assumption it was error to exclude evidence offered 
by the defense to show that there was no negro name on 
the jury roll (161).

The reasons given by Judge Callahan cannot stand 
analysis. He said that counsel should have been prepared 
with the proof because from the testimony before Judge 
Horton the previous spring it had appeared that there were 
negroes on the jury roll (162). But the Court was in error, 
even in believing there was any such evidence.*

4) Commissioner Tidwell was asked about the qualifi­
cations of J. J. Sykes, a colored man who had served on 
the federal jury (455), whose testimony (451, 452) showed 
him to be an honorable citizen with a clear understanding 
of the duties of jurors and of their qualifications.

Tidwell, on the hearing before Judge Horton, knew noth­
ing against the integrity of Sykes (484). Counsel there­
upon attempted (486) to inquire into the reasons why 
Sykes had not been included on the rolls. The Attorney 
General objected that the discretion of the jury commission 
could not be impeached by cross examination as to the 
qualifications of a particular person (485). The objection 
was sustained (486). Judge Callahan later ruled that one 
of the questions so excluded should have been admitted 
(491).

Tidwell thereupon answered that Sykes had been barred 
because he was badly crippled (491) and because “ we had 
other information which we thought might affect his char­
acter”  (491).

This answer was inconsistent with Tidwell’s earlier tes­
timony that he knew nothing against Syke’s character

♦Counsel had in vain tried to have the jury rolls produced (116, 132, 
668, 669). The Attorney General had explicitly objected to the production 
of the rolls (669).



27

(484). Counsel accordingly sought to delve further. The 
Court refused this saying “ That’s all you asked fo r”  (491).

5) Since both courts (496, 685) expressly referred to 
the testimony of Commissioner Tidwell, that the jury com­
mission had in their deliberations considered the names 
of the colored persons testified to as qualified for jury duty, 
it was material error to prevent cross examination by the 
defense (489, 490, 491) to probe whether he could truth­
fully swear that they had considered each of the names 
and further, if they did consider the names, just what tests 
they had applied in considering them.

6) The Alabama Supreme Court assumed—improperly 
as we have shown, supra, page 22—that there was some 
conflict of evidence whether there were negroes qualified 
for jury service in Morgan County (685).

Especially upon that assumption it was manifest error 
to reject the offer of the defense to call numerous wit­
nesses to show that there were any number of negroes 
eligible for jury service (472, 473).

7) Where discrimination is the issue, it is of the utmost 
importance that inquiry be unhampered. But when Benson, 
the newspaper editor, testified that he didn’t think negroes 
had the sound judgment required by the statute (94) be­
cause they hadn’t made any study of jury duty (94, 96), 
the defense was not permitted to inquire to what extent 
white men met these qualifications (96, 98).*

The witness whose cross examination was thus curtailed 
is a witness to whose testimony on direct examination the 
Alabama Supreme Court made specific allusion (683).

*In order to show just how qualified Benson was to express the opinion 
o f  the incapacity o f negroes for jury service, announced over the defense’s 
objection (93, 94), the defense asked him the meaning o f “ esteemed” (99). 
The Court ruled out the inquiry (99) but the Attorney General was 
allowed to ask several o f the negroes their understanding o f the meaning 
o f this word (123, 130, 139, 141, 144, 146) over the objection o f counsel 
that the Court had excluded the very question when he put it to the editor 
(123).



28

•  *  *

The inherent difficulty of establishing race discrimina­
tion is only too obvious. Error in excluding evidence con­
cerning the fact that is the predicate of the Federal con­
stitutional right is a denial of that right. The point is 
established by decision of this Court in this very field 
(Carter v. Texas, 177 U. S. 442, 448). By the same deci­
sion of this Court it is established— as by decisions of 
state courts too it is established (Bonaparte v. State, 65 
Fla. 287, 291; Whitney v. State, 42 Tex. Crim. 283, 285)— 
that error there was in the rulings we have listed,— 
material, repeated, gravely damaging.

#  *  #

CONCLUSION.

Neal v. Delaware and Strauder v. West Virginia become 
meaningless if communities that have raised themselves to 
the level of the communities here are not to receive the 
protection of the constitutional provision enacted for their 
benefit. Jurisdiction must be taken of this application lest 
a great principle be nullified.

It is therefore respectfully submitted that this case is one 
calling for the exercise by this court of its supervisory powers 
to the end that rights under the Constitution of the United 
States should be preserved, and accordingly a writ of certiorari 
should be granted and the Court should review and reverse the 
decision of the Supreme Court of Alabama.

W ALTER H. POLLAK, 
OSMOND K. FRAENKEL, 

Attorneys for Petitioner.
W a l t e r  H. P o l i a k ,

O s m o n d  K. F r a e n k e l ,

C a r l  S .  S t e r n ,

of Counsel.



29

ALABAMA CODE.

S e c t i o n  3258. (6264) (4333) (4509) (4990) Assignment
or joinder of error unnecessary; duty of court.—In cases 
taken to the supreme court or court of appeals under the 
provisions of this chapter, no assignment of errors or 
joinder in errors is necessary; but the court must consider 
all questions apparent on the record or reserved by bill 
of exceptions, and must render such judgment as the law 
demands. But the judgment of conviction must not be 
reversed because of error in the record, when the court is 
satisfied that no injury resulted therefrom to the defendant.

S e c t i o n  6433. (3019) (616-620) (2761) (3113) (2760)
(2358) When bill signed.— Bills of exceptions may be pre­
sented to the judge or clerk at any time within ninety days 
from the day on which the judgment is entered, and not 
afterwards; and all general, local, or special laws or rules 
of court in conflict with this section are repealed, abrogated 
and annulled. The judge or clerk must indorse thereon 
and as a part of the bill the true date of presenting, and 
the bill of exceptions must, if correct, be signed by the 
judge within sixty days thereafter. When the bill of excep­
tions is presented to the clerk, it shall be his duty forthwith 
to deliver or forward it to the judge. Presentation of the 
bill of exceptions within ninety days after the granting or 
refusing of a motion for a new trial shall be sufficient to 
preserve for review the rulings of the trial court on the 
trial of the original cause, as well as the ruling of the 
court on the motion for a new trial.

S e c t i o n  6434. (3020) Striking bills of exceptions, and
declining to consider them because not signed within time 
required.— The appellate court may strike a bill of excep­
tions from the record or file because not presented or 
signed within the time required by law, but shall not do 
so ex mero motu, but only on motion of a party to the



30

record of his attorney; the object and effect of this statute 
being to allow parties to waive or consent for the time of 
signing bills of exceptions.

S e c t i o n  6670. Executions on judgments; new trial must 
be asked in thirty days.—After the lapse of ten days from 
the rendition of a judgment or decree, the plaintiff may 
have execution issued thereon, and after the lapse of thirty 
days from the date on which a judgment or decree was 
rendered, the court shall lose all power over it, as com­
pletely as if the end of the term had been on that day, 
unless a motion to set aside the judgment or decree, or 
grant a new trial has been filed and called to the attention 
of the court, and an order entered, continuing it for hearing 
to a future day. (1915, p. 707, Sec. 3.)

S e c t i o n  8603. (7247) Qualifications of persons placed on
jury roll and in jury box.— The jury commission shall place 
on the jury roll and in the jury box the names of all male 
citizens of the county who are generally reputed to be 
honest and intelligent men, and are esteemed in the com­
munity for their integrity, good character and sound judg­
ment, but no person must be selected who is under twenty- 
one or over sixty-five years of age, or, who is an habitual 
drunkard, or who, being afflicted with a permanent disease 
or physical weakness is unfit to discharge the duties of a 
juror, or who cannot read English, or who has ever been 
convicted of any offense involving moral turpitude. If a 
person cannot read English, and has all the other qualifi­
cations prescribed herein and is a freeholder or house­
holder, his name may be placed on the jury roll and in the 
jury box. (1909, p. 305, Sec. 11.)

S e c t i o n  8606. Jury commission must place name of 
every qualified person on jury roll: Use of initials alone 
not allowed.— The jury commission shall see that the name 
of every person possessing the qualifications prescribed by



31

this chapter to serve as a juror shall be placed on the jury 
roll and in the jury box, and they may summon and cause 
to attend before them any person residing within the county 
and examine him on oath, touching the name, residence, 
occupation and qualification of any person residing in the 
county. The commission must not allow initials only to 
be used for a juror’s name, but one full Christian name 
or given name, shall in every case be used, and in case 
there are two or more persons of the same or similar name, 
the name by which he is commonly distinguished from the 
other persons of the same or similar name, shall also be 
entered as well as his true name. (1909, p. 305, Sec. 14.)

S e c t i o n  9459. Motions made in writing, on appeal, be­
come part of record.—All motions which are made in writ­
ing in any circuit court, or any court of like jurisdiction 
in any cause or proceeding at law, shall, upon an appeal 
become a part of the record, and the ruling of the court 
thereon shall also be made a part of the record, and it 
shall not be necessary for an exception to be reserved to 
any ruling of the court upon any such motion; and it 
shall constitute a part of the record proper on appeal. 
(1915, p. 598, Sec. 1.)

Norris v. Alabama.

INDEX TO RECORD.

D o c k e t  E n t r i e s  i n  C i r c u i t  C o u r t :

Organization of Court .—............................. ..............  1
Order Fixing Date for Special Session Grand Jury

(Jackson County) .............. ...................... —....... 1
Clerk’s Order to Sheriff to Summons Grand Jury

(Jackson County) .................................................. 2
Order Fixing Date for Special Session of Circuit

Court (Jackson County) .............. .................... . 4



32

Order for Removal --------- ------- -------- -------------------
Indictment ----------------------------------------------------------
Writ of Arrest __________________________________
Order for Special Session Circuit C ourt_________
Organization of C ourt--------------- --------------------------
Drawing of Jurors for Special Session___________
Arraignment ------------- ----------------- ----- -----------------
Motion for Change of Venue..... .... ... ............... .........
Judgment on Motion for Change of Venue________
Motion to Quash Venire of Petit Jurors... ...............
Judgment on Motion to Quash Venire of Petit

Jurors __ _____________________ _____________
Motion to Quash Indictment........................ _..........
Judgment on Motion to Quash Indictment________
Organization of Court, November 27, 1933 .............
Talesmen ________-....... ..... .............. ..................... .....
Court’s Oral Charge ...... ......... .......... .......................
Judgment and Sentence ...... ............................ ...........
Motion for New Trial ..................................................
Motion to Strike Motion for New T ria l.....................
Judgment on Motion .... ................................................
Application for Rehearing of Motions for New Trial 
Judgment on Application for Rehearing on Motions 

for New Trial .................... ................ ............... .

5
6 
8 
9 
9

10
10
12
12
13

13
14
14
15 
19 
21 
21
23
24
25
26

43

H e a r i n g  o n  M o t i o n  t o  Q u a s h  I n d i c t m e n t :

Motion to Quash Indictment _____________________

Testimony Before Judge Horton:

Benson, J. S___________
Cole, L. C. ________ _____
Finley, C. S........ .......... ...
Larkin, P leas.............—
Moody, J. E ....................
Morgan, K e lly _________

44

91
137
127
140
100
116



33

Moseley, Travis........................................
Owen, Marie B. (Affidavit) ...... ............
Sanford, John ..................................... ....
Stapler, Joh n__ ________ ____ ______ __
Stapler, L. C...............................................
Stewart, J. H........................ ....................
Taylor, Mark .......... ......... ................... .......
Watkins, Will ...... -.................... ........—

135
89

119
142
146
109
133
144

Testimony Before Judge Callahan:

Caldwell, Hamlin
Haring, J. V ........
Moody, J. E ........
Morgan, K e lly ....
Stewart, J. H......
Wann, C. A ..........

76 
149 

.57, 62, 76 
69 
78

.60, 68, 75

Opinion 163

Hearing on Motion for Change of Venue:

Motion for Change of Venue......................................  168
Statement of Judge Horton Annexed to M otion___ 199
Affidavits in Support of M otion................................ _ 202
Editorials in Support of M otion......... ....................... 268
Pamphlet: A  Reply to Southern Slanders____ ___„ 273

Testimony Before Judge Callahan:

Blackwell, A. S..........
Brodsky, Joseph R. . 
Cagle, Mrs. Grady ....
Davidson, W. V ........
Kitchens, H. C..........
Leonard, Mrs. Mary 
Roberts, T. F ............

384
332
412
399
402
404
401



34

Schriftman, David ....
Sewell, J. Q-------------
Stone, J. H. -----------
Willoughby, W. T....

...333, 382 
400 
402 
382

Affidavits Submitted by State................... — ............336, 409
Opinion ........................................................... ............. 413

H e a r in g  o n  M o t io n  to  Q u a s h  V e n i r e :

Motion to Quash Venire 418

Testimony Before Judge Horton:

Banks, H. J .................. - ...... -............ .......... ......... 439
Bridgeforth, R obert..............................................  461
Burleson, Capt. J o e ......... -................................. .. 475
Cashin, Dr. N. E ......................................................  437
Davis, Bud ................................................... -....... - 477
Green, J. H..... .........................................................  429
Owen, Mary J. (Affidavit) ..................................  478
Pickett, J. E ........................— ......... -....... -........ . 459
Reynolds, George H............................................... 462
Sykes, Dr. Frank ............ -.................................... 430
Sykes, J. J ...........................   451
Sykes, Dr. N. M................. - ........-.........................  468
Tidwell. J. A .......................... ................................473. 480
Womack, L. R.................. -................... ..................  447
Wilson, W. .T..............................   456
Wood, Dr. W. J.................................... -.... ............  465

Testimony Before Judge Callahan:

Tidwell, J. A. 491

Affidavits Submitted by State 
Opinion .....................................

.492, 493 
495



35

P r o c e e d in g s  a x  t h e  T r i a l :

Examination of Jurors __ .'.__________ ___________ 498

Testimony:

Adams, Lee _____________________
Bates, Ruby (Deposition) _______
Brannum, W. E ................................
Bridges, Dr. R. R .......... ........ ..........
Carter, Lester --------------------- ------
Dobbins, Tom ___________________
Gilley, Orville ..................................
Hill, W. H.........................................
Mitchell, Sam ......... .............— ........
Morris, Luther..................................
Price, V ictoria .............. ...................
Ricks, P ercy ......................................
Rousseau, Tom Taylor ...................
Schwartzbart, Elias M...................
Simmons, C. F ...................................
Sullivan, W. A ...................................
Turner, R. S......................................
Woodall, J. Arthur..........................

547 
585 

,548, 623 
563 
607
558 

.568, 612
538
559 
617 
513 
541 
545 
623 
555 
620
560 
552

The Court’s Charge ........... ................ ......... ..............
Motion for New Trial ..................................................
Motion to Strike...... ................. ........................ ..........
Certification of Bill of Exceptions ................ — .....
Certificate of A ppeal........................................ ...........
Certificate of Transcript....................... ...... ...............

P r o c e e d in g s  i n  S u p r e m e  C o u r t  of  A l a b a m a  :

625
643
672
673
674
675

Opinion of Court...... .......................—..... ...................  676
Order Sending up Jury Rolls ..................................  695
Petition with Respect to Jury R olls ..........................  696



36

Judgment of Affirmance ............................   699
Petition for Stay of Execution---------- -------------------- 700
Application for Rehearing...............................   702
Decision on Application for Rehearing---------------- 704
Application for Praecipe -------------------------------------  705
Certificate of Clerk of Supreme Court------------ ---— 706











Suprem e C o u rt o f the U n ited  S tates
OCTOBER TERM, 1934

No. 534

CLARENCE NORRIS 
against

STATE OF ALABAM A.

B r ie f  in  O p p o s it io n  to  P e t it io n  for W rit  
of  C ertiorari

THOMAS E. KNIGHT, Jr. 
Attorney General of the 
State of Alabama,

THOS. SEAY LAWSON, 
Assistant Attorney General 
of the State of Alabama, 
Counsel for Respondent.





SUBJECT INDEX

B r ie f  in  O p p o s it io n  to  P e t it io n  for W rit  of

Certiorari

page
Opinion below ..........................................................  1
Statement of the Case............................................. 1
Questions presented: .............................................  3
Review by the Supreme Court of the United 

States ................................................................. 4
Point I. Motion to Quash Indictment.......  8
Point II. Motion to Quash Trial Venire. .. 14

Conclusion ................................................................  18
Appendix ................................................................... 19
Alabama Statutes .................................................  19



TABLE OF CASES

PAGE
Carter v. T ex a s ........................................................ 6
Franklin v. So. Carolina ......................................  5
Green v. State ........................................................... 17
Martin v. Texas .......................................................6, 9
Neal v. Delaware...................................................... 6
Northern Pacific R. R. v. North Dakota............  8
Patterson v. S ta te .................................................... 2
Powell, et al v. State ......  ......................................  2
Smiley v. Kansas .................................................... 7
Strauder v. West Virginia ............... -----.....-......  6
Tarrance v. Florida .............................................10, H
Thomas v. Texas .................................................... 6, 7
Weems, et al v. S ta te .............................................  2



upreme C o u rt o f the U n ited  States
OCTOBER TERM, 1934

CLARENCE NORRIS, 
Petitioner,

against
STATE OF ALABAMA,

BRIEF IN OPPOSITION TO PETITION FOR 
WRITS OF CERTIORARI

I
OPINION OF THE COURT BELOW

The opinion has not yet been officially reported. 
It appears in the Southern Reporter advance sheets 
of October 25, 1934, 156 Southern 556 and at pages 
676-695 of the record. An application for rehear­
ing was denied without opinion (705-706).

II

STATEMENT OF THE CASE

Petitioner is one of nine Negro boys who is charged 
with having raped two white girls Victoria Price 
and Ruby Bates. The crime is alleged to have been 
committed while the parties were riding on a freight 
train through Jackson County, Alabama on March 
25, 1931.

The nine defendants were tried in Jackson Coun­
ty, Alabama in the Spring of 1931 and all of them



2

were found guilty of the crime of rape and their 
punishment fixed at death with the exception of 
one, Roy Wright, in whose case the jury were unable 
to agree and a mistrial was ordered by the court. 
Appeals were taken to the Supreme Court of Ala­
bama which Court affirmed the decision of the lower 
court as to all of the defendants except one, Eugene 
Williams, (Patterson vs. State, 224 Ala. 531, 141 
So. 1955; Powell et al vs. State, 224 Ala. 540, 141 So. 
201; Weems et al vs. State, 224 Ala. 524, 141 So. 215) 
Thereafter the defendants appealed to the Supreme 
Court of the United States which Court reversed the 
decision of the Supreme Court of Alabama on the 
theory of inadequate representation by counsel 
(Powell et al vs. State of Alabama, 287 U. S. 45). 
The petitioner in the instant case was originally tried 
jointly with one, Charlie Weems. The circumstances 
of that case are reported in the Weems case, supra.

After the cases had been remanded to the Circuit 
Court of Jackson County for retrial, a motion for 
change of venue was filed on behalf of the defendants 
which motion was granted and the cases transferred 
to the Circuit Court of Morgan County, Alabama.

Heywood Patterson, one of the nine defendants, 
was put to trial in Morgan County, Alabama in the 
spring of 1933 and was convicted. Judgment of 
conviction was subsequently set aside by the trial 
judge.

There was a motion filed on behalf of all of the 
defendants to quash the indictment as well as the 
trial venire when the cases were called for trial be­
fore Judge Callahan in the Circuit Court of Mor-



3

gan County, Alabama in November of 1933. (50)
(418) The State denied each and every allegation of 
the motion to quash the indictment as well as the mo­
tion to quash the venire. (57) (429) The ground 
on which the defendants based their claim that the 
indictment and the trial venire should be quashed 
was that Negroes had been arbitrarily and systema­
tically excluded from the juries in Jackson County 
wherein the indictments were found and in Morgan 
County wherein the cases were tried. Many wit­
nesses were called and much testimony placed before 
the trial judge who denied both motions. (163-167) 
(491-494).

The defendant was found guilty on December 6, 
1933 and was sentenced to death on the same date. 
He appealed to the Supreme Court of Alabama which 
Court affirmed the decision of the lower court.

ill
QUESTIONS PRESENTED

On page 8 of the brief filed in this Court by coun­
sel for petitioner are set out the rulings of the court 
below which petitioner urges are erroneous. They 
are three in number and are as follows: (1 ) That
the Court denied petitioner’s constitutional rights in 
refusing to quash the indictment by the grand jury 
in Jackson County; (2 ) The Court denied petition­
er’s constitutional rights in refusing to quash the 
venire of the petit jury in Morgan County; (3 ) The 
Court denied petitioner’s constitutional rights in re­
fusing to permit petitioner full opportunity to prove 
that Negroes were systematically excluded.



4

The State of Alabama recognizes the principle 
as stated by counsel for petitioner in their 
brief wherein they state that the indictment of a 
member of he Negro Race and his conviction by a 
jury from which Negroes are systematically exclud­
ed is a denial of equal protection of the law. How­
ever, the evidence presented to the trial judge in this 
case and afterwards reviewed by the Suprme Court 
of Alabama does not disclose that Negroes were sys­
tematically and arbitrarily excluded from the juries 
of Jackson County because of their race or color in 
controvention of the Fourteenth Amendment to the 
Constitution of the United Staes.

IV

REVIEW  BY THE SUPREME COURT OF 
THE UNITED STATES

Whether or not discrimination against Negroes 
because of their race or color was practiced by the 
Jury Commissioners in the selection of grand or petit 
jurors is a question of fact, the decision of ivhich by 
the State Court is conclusive on the Federal Supreme 
Court unless so grossly wrong as to amount to an 
infraction of the Federal Constitution.

The petitioner’s sole hope for relief before this 
Honorable Court is based on his contention that the 
petitioner was denied those constitutional rights 
guaranteed him by the equal protection clause of the 
Fourteenth Amendment to the Constitution of the 
United States.

Petitioner admits in his brief, filed in support of 
his petition, that Section 14 of Act No. 47, H. B. 70,



approved February 20, 1931 (General Acts 1931, 
page 55) which prescribes the qualifications of 
jurors and the method by which their names are 
placed in the jury boxes of the State of Alabama is 
constitutional. Said section is practically identical 
with Section 8603, Code of Alabama, 1923.

This Honorable Court, in the case of Franklin vs. 
South Carolina, 218 U. S. 161, 54 L. Ed. 980, held 
that a state law fixing the qualifications of jurors 
which qualifications were practically the same as the 
Alabama statutes now under consideration, was con­
stitutional. Petitioner contends, however, that al­
though the statute of Alabama providing for the 
selection of those persons to sit on the juries is con­
stitutional that the Jury Commissioners have not 
complied with the law and have arbitrarily excluded 
Negroes because of their race or color.

The State of Alabama in the trial of this case did 
not file demurrers to the motions to quash nor did it 
in any way admit the truthfulness of the allegations 
contained in petitioner’s motions nor did the State in 
any way prevent or attempt to prevent the petitioner 
from legally proving the truthfulness of the allega­
tions contained in said motion.

The State denied the allegations of the motion 
thus putting the burden of proof on the petitioner to 
prove the truthfulness of his allegations and we 
respectfully submit that the proof offered in support 
of the motion wholly failed to establish the fact that 
the members of the Jury Commission or Jury 
Board of the counties of Jackson and Morgan sys­
tematically and arbitrarily excluded from the jury



6

rolls of their respective counties the names of mem­
bers of the African race purely because of race or 
color.

We fully recognize the principle as laid down in 
Strauder vs. West Virginia, 100 U. S. 303; Neal vs. 
Delaware, 103 U. S. 370; Carter vs. Texas, 177 U. S. 
442; Martin vs. Texas, 200 U. S. 316, but we respect­
fully submit that those cases do not in any way 
decide the question presented in this case.

The cases above cited not only state the general 
principle that statutes which prohibit members of 
the African race from serving as jurors because of 
their race or color are unconstitutional but also pro­
vide that where a member of a person of the African 
race is indicted or tried by a jury from which the 
members of his race have been arbitrarily and syste­
matically excluded, that he is denied equal protection 
of the law as guaranteed him by the Constitution of 
the United States.

The instant case differs from most of the other 
cases which have been before this Court on the ques­
tion of exclusion of Negroes from serving as jurors 
because of their race or color in that the State of Ala­
bama has merely denied the allegations of the peti­
tioner’s motions to quash, thus placing upon him the 
burden of sustaining the allegations. The only case 
which the writers of this brief have been able to find 
which deals in any way with the questions presented 
in this case is Thomas vs. Texas, 212 U. S. 295 Sup. 
Ct. 393, 53 L. Ed. 512, which case we will later dis­
cuss.



7

In other words, the question presented at this time 
and at this stage of the proceedings is whether or not 
the Supreme Court of the United States will review a 
finding of fact made not only by a nisi prius court 
of the State of Alabama but by the Supreme Court 
of that State.

The Supreme Court of Alabama, in its opinion in 
this case, fully discusses the question as to whether 
or not the evidence presented in support of petition­
er’s motion was such as to render the judgment or 
decision made by he trial court erroneous.

This Court, in the case of Thomas vs. Texas, 212 
U. S. 278, held as follows:

Where neither the constitutionality of a state 
statute nor the interpretation of the state court 
is assailed, but the contention is that Negroes 
were excluded from the juries because of their 
race or color, the question is one of fact and the 
decision of the state court is not reviewable by 
this court under Section 709, Rev. Stat. in the 
absence of such gross abuse as to amount to 
denial of due process of law.

The rule is settled that the decision of a state court 
upon a question of fact ordinarily cannot be made 
the subject of inquiry in the Supreme Court of the 
United States. (Smiley vs. Kansas, 196 U. S. 447).

To this general rule there are two equally settled 
exceptions: (1 ) Where a Federal right has been
denied as the resuit of a finding shown by the 
record to be without evidence to support it; (2) 
Where a conclusion of law as to a Federal right and



8

findings of fact are so entangled as to make it neces­
sary in order to pass upon the Federal question to 
analyze the facts.

Northern Pacific R. R. vs. North Dakota, 35 
Sup. Ct. 429, 236 U. S. 585.

We respectfully insist that the evidence presented 
to the trial court in support of petitioner’s motions 
to quash was totally insufficient to sustain the allega- 
ions of petitioner’s motions and that the judgment 
or decision of the trial court, as well as that of the 
Supreme Court of Alabama, is completely justified 
by the evidence or lack of evidence presented and 
that the evidence is not such as to bring this case 
within the exceptions to the rule that the decision of 
a state court upon a question of fact cannot be made 
a subject of inquiry in the Supreme Court of the 
United States.

POINT I

MOTION TO QUASH INDICTMENT

The Jury Commissioners of Jackson County, Ala­
bama were charged with the duty of placing on the 
jury rolls of Jackson County the names of all male 
citizens of the county who were generally reputed 
to be honest and dependable men and who were es­
teemed in their community for their integrity, good 
character and sound judgment provided that no per­
son could be selected who was under the age of 
twenty-one or over the age of sixty-five years or who 
was an habitual drunkard or who was afflicted with 
a permanent disease or physicial weakness if such 
would render him unable to discharge the duties of



9

a juror or one who could not read English or who 
had ever been convicted of any offense involving 
moral turpitude. However, if a person could not 
read English and had all the other qualifications and 
was a freeholder or householder, his name could be 
placed on the jury roll and in the jury box.

A casual reading of that provision of the law 
which provides the method by which the jury 
commissioners are to fill the jury boxes of 
their respective counties immediately discloses 
that there is vested in those men an irrevisible 
discretion. They are charged with the duty of plac­
ing on the jury rolls of their counties men who in 
their opinion possess the qualifications prescribed 
by statute. They could not put in the jury boxes or 
on the jury rolls of Jackson County, Alabama the 
name of a member of the African Race if they did 
not truthfully and honestly believe that that man 
possessed the qualifications prescribed by the stat­
utes even though it might be expedient for the pur­
pose of saving and preventing such litigation as this

The State having denied the allegations in the mo­
tions to quash filed by petitioner, we respectfully 
submit that the burden to establish the truthfulness 
of the allegations was upon the petitioner. This 
court held in Martin vs. Texas, 200 U. S. 316, as 
follows :

While an accused person of African descent 
on trial in a state court is entitled under the 
Constitution of the United States to demand 
that in organizing the grand jury and empanel­
ing a petit jury there shall be no exclusion of 
his race on account of race or color, such dis­



10

crimination cannot be established by _ merely 
proving that no one of his race was on either of 
the juries and motions to quash based on alleged 
discriminations of that nature must be sup­
ported by evidence introduced or by an actual 
offer of proof in regard thereto.

and in Tam^ance vs. Florida, 188 U. S. 519.
An actual discrimination by the officers 
charged with the administration of statutes 
unobjectionable in themselves against the race 
of a Negro on trial for a crime by purposely 
excluding Negroes from the grand and petit 
juries of the county will not be pressumed but 
must be proved.

The motion to quash the indictment appears on 
pages 44-50 of the printed record. Petitioner and 
his codefendants made oath that the facts as alleged 
in the petition were true to the best of their knowl­
edge and belief. Attached to the petition were Ex­
hibits A, B, and C (51) (54) (56 ). These exhibits 
are in the form or nature of affidavits to the effect 
that the affiant is familiar with certain members of 
the Negro Race resident in Jackson County, Ala­
bama and that said Negroes are, in the opinion of the 
affiant, possessed of all the qualifications prescribed 
by the laws of Alabama for serving on juries in the 
State of Alabama. It is passing strange that all of 
these exhibits or affidavits were made by parties or 
persons resident in Chattanooga, Tennessee. It is 
also strange that two of the affidavits were made 
before G. M. Chamblee, Jr., a Notary Public of Ham­
ilton County, Tennessee, who is a son of one of the 
attorneys who represented the petitioner in the trial 
court.



11

It is definitely settled that the burden of proving 
that there was an actual discrimination against Ne­
groes because they are Negroes, is upon the petit­
ioner.

Tarrance vs. Florida, supra.

The fact that no one remembered seeing a Negro 
serve on the juries of Jackson County for a period 
of years is not conclusive proof that names of Ne­
groes were not on the jury rolls and in the jury box 
from which were drawn the names of those individ­
uals who  ̂comprised the grand jury which indicted 
the petitioner. Petitioner had several of his wit­
nesses examine the jury rolls of Jackson County and 
it appeared that the names of several Negroes were 
on that roll. Although the Supreme Court of Ala­
bama did not base its decision on that point, we re­
spectfully insist that the evidence affirmatively 
shows the names of Negroes to be on the jury rolls. 
The evidence most certainly does not show that the 
names of Negroes were not on the rolls.

Admitting for the purpose of argument, however, 
that there were no names of Negroes on the Jack- 
son County jury roll at the time the indictment 
against petitioner was found, we still insist that 
the pi’oof utterly fails to show that they were not 
there because the Jury Commissioners systematically 
m d arbitrarily exclude them therefrom solely be­
cause of the fact that their skin was black or because 
they were members of the African Race.

The Jury Commissioners will have to be branded 
as liars and presumptions will have to take prece­
dence over positive statements of fact in order to



12

reach the conclusion that Negroes were excluded 
from the jury rolls of Jackson County because of 
race or color. Mr. Stewart, one of the Jury Commis­
sioners, made the positive statement that the Jury 
Commission did not automatically or systematically 
exclude anybody. (85) Mr. Stewart also testified 
that the Jury Commission considered every man 
whose name was on the list presented to them by 
their clerk, Mr. Morgan. (85) (86) Mr. Morgan 
testified that he was clerk of the Jury Commission 
and that he compiled a list of the male citizens of 
Jackson County between the ages of twenty-one and 
sixty-five years without regard to their status or 
qualifications, and that the list contained the names 
of all the male citizens of the county. (74) (75).

The Circuit Court of Morgan County, Alabama 
saw the witnesses and heard their testimony. He 
heard the Jury Commissioner make the positive 
statement that the Jury Commission had not dis­
criminated against any man because of race or color. 
The court heard the testimony given by the several 
colored witnesses in support of the motions to quash. 
He was in a position to pass on their ability to judge 
the qualifications of jurors. There was not presented 
to the trial judge one iota of testimony that defi­
nitely determined that there were no Negroes’ names 
on the jury rolls. There was testimony to the effect 
that the names of several of them were on there. He 
•saw and heard all the witnesses and was in a posi­
tion to determine the interest of each in the case. 
The Supreme Court of Alabama saw no reason to 
upset his decision on the finding of fact.



13

We respectfully submit that the trial judge did not 
arbitrarily and unjustifiably deny petitioner’s mo­
tion to quash but that on the other hand the over­
whelming weight of the evidence is in support of 
his ruling.

This Honorable Court will not under the evidence 
in this case attempt to go into a county in the State 
of Alabama and say to the officials of that county 
who are charged with the duty of passing upon the 
qualifications of those persons who are to serve as 
jurors that there are Negroes whose names should 
be on the jury roll. Especially is this true where a 
trial court and the Supreme Court of a Sovereign 
State have positively stated that the evidence does 
not disclose that the petitioner was denied any con- 
situtional right.

The evidence shows that the male population of 
Jackson County over the age of twenty-one and 
under the age of sixty-five was 8,801, and that of 
this number only 666 were Negroes. In other words, 
93 per cent o f the male population between the ages 
of twenty-one and sixty-five were members of the 
white race (92 ). It is also strange that of these 
666 Negroes the colored witnesses used by the petit­
ioner in support of his motion named only 37 who 
in their opinion possessed the qualifications neces­
sary to service as a juror, which number is less than 
one-half of one per cent of the male population of 
the county between the ages of twenty-one and sixty- 
five and less than six per cent of the Negro popu­
lation between the ages o f twenty-one and sixty-five.



14

We respectfully submit that this Honorable Court 
will not disturb the decision of the lower court for 
the following reasons:

(1 ) That the petitioner’s own witnesses tes­
tify that the names of Negroes were on the jury 
roll;

(2 ) That the petitioner has failed to prove 
that there has been an actual discrimination of 
members of his race because of race and color;

(3 ) That the decision of this case is based 
not on a question of law but on a question of 
fact and that this Honorable Court will not re­
view a finding of fact by a State Court in the 
absence of a showing of such gross abuse as to 
amount to a denial of due process of law.

POINT II

MOTION TO QUASH VENIRE

The same procedure was followed in connection 
with the motion to quash the venire as transpired 
on the motion to quash the indictment. The state 
denied the allegations of the motion. The petitioner 
then introduced the evidence taken on this phase of 
the case in a former trial before Judge Horton held 
in the Spring of 1933.

The petitioner called a number of colored men 
who testified that in their opinion there were a large 
number of men of the colored race between the ages 
of twenty-one and sixty-five who possessed the 
qualifications required by law of those persons who 
are to serve as jurors. Several of the witnesses pro­
duced long lists of colored men whom they claimed 
possessed the requisite qualifications. (431-473)



15
The petitioner also produced several witnesses who 
testified that they had never seen a Negro serve on 
a grand jury or on a petit jury in Morgan County, 
Alabama.

There is no positive testimony to the effect that 
the jury rolls of Morgan County do not contain the 
names of members of the colored race. The burden 
is not on the state to prove that they are there but 
on the contrary it is on the movant to show not only 
that they are not on the jury rolls but their absence 
is due to the fact that the Jury Board arbitrarily 
and systematically excluded members of his race 
because of their race and color.

If the members of the Jury Commission are to be 
believed, no such discrimination was shown. On the 
contrary, it is imphatically disproved. These o ffi­
cers are clearly without personal interest in this case, 
and we submit that there is nothing in the record to 
justify the conclusion that they have deliberately 
testified falsely. The petitioner’s contention cannot 
avail except that the conclusion be reached that the 
members of the Jury Board of Morgan County com­
mitted perjury.

Mr. J. A. Tidwell, a member of the Jury Board of 
Morgan County, testified that the Board selected 
the jury roll from a list of all the male citizens of the 
County between twenty-one and sixty-five years of 
age, irrespective of race or color. That inquire was 
made among various citizens, including some of the 
colored race, and that neither race nor color was 
considered by the Board in making up this roll. The



16

witness was shown the lists of names offered by de­
fendant’s witnesses as possessing proper qualifica­
tions, and stated that to the best of his recollection 
the Board considered the names of persons on those 
lists, sitting officially in their deliberations. (474, 
480-491).

On page 491 of the record appears a statement of 
Mr. Tidwell’s which positively discloses that mem­
bers of the Negro Race were considered by the Jury 
Board. In answer to a question as to why the name 
of J. J. Sykes does not appear on the jury roll of 
Morgan County Mr. Tidwell said, “ He is very badly 
crippled and when we were discussing his case, his 
fitness for jury service, we thought that his condi­
tion was such that he wasn’t physically able for jury 
duty and we had other information which we 
thought might affect his character so as to bar him 
from the jury.”

The remaining members of the Jury Board of 
Morgan County made affidavits containing the fol­
lowing statements, (492) (494).

“ That the clerk of the jury board, in pursu­
ance to law, submitted to the jury board of 
which affiant is a member, a list containing the 
name of every male citizen of Morgan County, 
Alabama, between the ages of twenty-one and 
sixty-five years of age, which list, so far as 
affiant knows or can ascertain, was complete 
and correct. That from this list, the jury board 
selected those persons who, in their opinion, 
possessed the qualifications prescribed by law. 
That in the selection of those persons whose 
names appear on the jury roll and in the jury



17
box, the members of the jury board did not ex­
clude any person because of race or color, but 
considered every man whose name was placed 
on the list submitted to them by the clerk of the 
jury board, and only excluded those persons 
who, in their judgment, did not possess the 
qualifications prescribed by statute and further 
states that their judgment was not arbitrarily 
arrived at, an inquiry being made whenever 
practical as to the qualifications of those per­
sons whose names appeared on the list submit­
ted to them by the jury clerk. A ffiant further 
states that he cannot definitely state whether 
or not the names of colored men appear on the 
jury roll or in the jury box o f Morgan County, 
inasmuch as it is impossible for him to know 
each person personally.”

Sworn officers of the law, men possessing qualifi­
cations sufficient to cause them to be selected by the 
Governor of Alabama as the three men out of the en­
tire population of Morgan County to serve in one of 
the most important capacities in the county have 
made two positive statements: (1 ) That they did not 
exclude Negroes from the jury rolls of Morgan 
County because of their race or color; (2 ) That they 
did consider members of the Negro Race when they 
were engaged in preparing said jury rolls. There is 
not one scintilla of evidence in the record in contra­
diction of these statements.

We especially call to the attention of this Court 
the case of Green vs. State, 73 Ala. 26, not that it 
could have any binding effect on this Court’s decis­
ion but because it contains a most vivid and lucid dis­
cussion of the question at hand.



18

In view of the fact that the undisputed evidence in 
this case is to the effect that the Jury Board of Mor­
gan County considered members of the Negro Race 
for jury duty and that none of that race was excluded 
because of race or color, we respectfully submit that 
the trial court could have come to no other conclusion 
than that reached.

CONCLUSION

The Supreme Court of Alabama has upheld the 
finding of fact made by a trial court of the State of 
Alabama. This Honorable Court will not review 
that finding in view of the fact that there was ample 
evidence upon which the ruling of the lower court 
was founded.

We respectfully submit that this Honorable Court 
will not upset the decision of a state court such as 
in this case where the evidence actually fails to show 
that petitioner has been denied any of his constitu­
tional rights.

THOMAS E. KNIGHT, Jr.,
Attorney General of Alabama.

THOS. SEAY LAWSON,
Assistant Attorney General 
of Alabama.
Attorney for the State of Alabama.



19

: APPENDIX

A l a b a m a  S t a t u t e s

Act No. 47, H. B. 70, General Acts 1931, page 55 
(Section 11).

Section 11. The clerk of the Jury Board shall, 
under the direction of the Jury Board, obtain the 
name of every male citizen of the county over 
twenty-one and under sixty-five years of age and 
their occupation, place of residence and place of 
business, and shall perform all such other duties 
required of him by law under the direction of the 
Jury Board.

Act No. 47, H. B. 70, General Acts 1931, page 55 
(Section 14) which is identical with Section 8603, 
Code of Alabama, 1923.

Section 14. The jury commission shall place on 
the jury roll and in the jury box the names of all 
male citizens of the county who are generally reputed 
to be honest and intelligent men, and are esteemed in 
the community for their integrity, good character 
and sound judgment, but no person must be selected 
who is under twenty-one or over sixty-five years of 
age, or, wTho is an habitual drunkard, or who, being 
afflicted with a permanent disease or physical weak­
ness is unfit to discharge the duties of a juror, or 
who cannot read English, or who has ever been con­
victed of any offense involving moral turpitude. If 
a person cannot read English and has all the other 
qualifications prescribed herein and is a freeholder 
or householder, his name may be placed on the jury 
roll and in the jury box.













Supreme Court of The United
States

October Term, 1934 

No. 554

HAYWOOD PATTERSON,
Petitioner,

against

STATE OF ALABAM A,
Respondent.

BRIEF IN OPPOSITION TO PETITION FOR 

W RIT OF CERTIORARI

THOMAS E. KNIGHT, JR., 
Attorney General of the 
State of Alabama,

THOS. SEAY LAWSON, 
Assistant Attorney General 
o f the State of Alabama. 
Counsel for Respondent.

W etumpka Printing Co., W etumpka, Ala.





SUBJECT INDEX

BRIEF

Page

Opinion Below............................................................... 1
Statement of the Case.................................................  1
Basis of Lower Court’s Decision................................  4
Jurisdiction ....................................................................n

Conclusion ......................................................................18
Appendix ........................................................................19



TABLE OF CASES
Page

Baker vs. Central of Georgia Ry. Co........................ 10
Box vs. Southern Ry. Co.............................................. 10
Chappell Chemical, etc. Co. vs. Virginia Sulphur

Mines Co.................................................................... 17
Chesapeake & Ohio Ry. Co. vs. McDonald, Adm. 14-15 
Cleveland and Pittsburgh R. R. Co. vs. City of

Cleveland, Ohio ..................................................... ...14
Crowell vs. Randall...................................................... 12
Ex parte Boxeman.................... .................... ....... ......  8
Ex parte Brickell........................ -................................  8
Ex parte H. A. & B. R. Co............................................ 7
Ex parte Hill.................................................. ..............10
Ex parte Margaret............................. ....... ....... ........ . 7
Ex parte Schoel............................................................  7
French vs. Hopkins.................  .......... ....................... 14
Gibson vs. Mississippi...............................................  15
Harding vs. Illinois.................. .................................. 16
Kyser vs. American Surety Company....................... 7
Lewis vs. Martin........................................................ 7-10
Lewis vs. State...............................................................10
Loeber vs. Schroeder....................................................15
McCord vs. Rumsey...................................................... 8
McNulty vs. California................................................15
Mathison vs. The Branch Bank of the State of

A labam a......................................................................15
Monroe County Growers Ex. vs. Harper.................  8
Morris vs. Corona Coal and Iron Co........................  6
Mt. Vernon Woobury Mills vs. Judge........................   7
Newman vs. Gates............................................   16
Northern Pacific R. R. Co. vs. Patterson...................15
O’Neil vs. Vermont..................................................... .14



Patterson vs. State........................................................ 2
Powell vs. State............................................................  2
Russell vs. State............................................................ 10
Sayward vs. Denny...................................................... 14
Shipp vs. Shelton.......................................................... 7
Southern Ry. Co. vs. Griffith......................................  7
Stover vs. State...............................................................10
Thorington vs. Montgomery.......................................15
Tripp vs. Santa Rosa St. R. Co................................... 14
Weems vs. State............................................................  2
Western Union Telegraph Co. vs. Wilson.................14
Williams vs. Oliver........................................................ 14
Wood vs. Brady.............................................................18



STATUTES AND RULES OF COURT
Page

Alabama Code of 1923:
Section 6433.............................................:................19
Section 6434...............................................................19
Section 6667...............................................................19
Section 6670..............................     ..20

Circuit Court Rule 22................................................... 20
United States Supreme Court Rule 7,

Paragraph 3...............................................................20



Supreme Court of The United
States

October Term, 1934

HAYWOOD PATTERSON,
Petitioner,

against

STATE OF ALABAM A,
Respondent.

BRIEF IN OPPOSITION TO PETITION 
FOR W RIT OF CERTIORARI

I

O p in io n  of t h e  Co u rt  B e l o w

The opinion has not yet been officially reports 
ed. It appears in the Southern Reporter advance 
sheet of October 25, 1934, 156 Southern 567 and 
at pages 788-794 of the record. An application for 
rehearing was denied without opinion (806).

II

S t a t e m e n t  of  t h e  Ca se

Petitioner is one of nine Negro boys who is 
charged with having raped two white girls, Victo­
ria Price and Ruby Bates. The crime is alleged to



2

have been committed while the parties were riding 
on a freight train through Jackson County, Ala­
bama, on March 25, 1931.

The nine defendants were tried in Jackson 
County, Alabama, in the Spring of 1931 and all of 
them were found guilty of the crime of rape and 
their punishment fixed at death with the exception 
of one, Roy Wright, in whose case the jury was un­
able to agree and a mistrial was ordered by the 
court. Appeals were taken to the Supreme Court 
of Alabama which court affirmed the decision of 
the lower court as to all of the defendants except 
one, Eugene Williams (Patterson vs. State, 224 Ala. 
531,141 So. 201; Weems et al vs. State, 224 Ala. 524, 
141 So. 215). Thereafter the defendants appealed to 
the Supreme Court of the United States which Court 
reversed the decision of the Supreme Court of Ala­
bama on the theory of inadequate representation by 
counsel (Powell et al vs. State of Alabama, 287 U. 
S. 45).

After the cases had been remanded to the Cir­
cuit Court of Jackson County for retrial, a motion 
for change o f venue was filed on behalf of the de­
fendants which motion was granted a'nd the cases 
transferred to the Circuit Court of Morgan Coun­
ty, Alabama.

The petitioner was tried in Morgan County in 
the spring o f 1933 and was convicted and sentenced 
to death. Judgment of conviction was subsequent­
ly set aside by the trial judge.



3

There was a motion filed on behalf o f all of the 
defendants to quash the indictment as well as the 
trial venire when the cases were called for trial be­
fore Judge Callahan in the Circuit Court of Mor­
gan County, Alabama, in November of 1933. The 
State denied each and every allegation of the motion 
to quash the indictment as well as the motion to 
quash the venire. The ground on which the defend­
ants based their claim that the indictment and the 
trial venire should be quashed was that Negroes had 
been arbitrarily and systematically excluded from 
the juries in Jackson County wherein the indict­
ments were found and in Morgan County wherein 
the cases were tried. Many witnesses were called 
and much testimony placed before the trial judge 
who denied both motions.

The petitioner was found guilty on December 1,
1933 and on December 6, 1933 was sentenced to 
death. On December 29, 1933 petitioner filed in the 
office of the Clerk of the Circuit Court of Morgan 
County motions for a new trial (23, 26). On Jan­
uary 1, 1934 the Court without waiver or prejudice 
to the parties, continued the motions to January 26,
1934 (25 ). A  similar order was entered by the 
Court on January 26, 1934 continuing the hearing 
on the motions until February 24, 1934 (25). On 
February 24, 1934 the State filed in open court a 
motion to strike the petitioner’s motions for a new 
trial (24). On the same date the State’s motion to 
strike the motions of petitioner for a new trial was 
granted (25). On March 5, 1934 the petitioner pre­
sented to the trial court the proposed bill of excep-



4
tions which was signed by the Court on May 2, 1934 
(785). The cases were argued before the Supreme 
Court of Alabama on May 25, 1934 at which time 
the State filed a motion in that Court to strike the 
bill o f exceptions or that which purported to be a 
bill of exceptions.

The Supreme Court of Alabama on the 28th 
day of June, 1934, rendered its decision in this case 
granting the State’s motion to strike the bill of ex­
ceptions, this being the only point decided by the 
Supreme Court of Alabama.

I ll

B a sis  op L o w e r  Co u r t ’ s D e c isio n

The decision of the Supreme Court of Alabama 
is based entirely on a question of State appellate 
procedure. No Federal question is involved. The 
decision of the lower Court follows rules that have 
been laid down by that Court for many years. In 
order that we might more effectively present our 
contention in regard to the decision of said Court, 
it is best that we deal with the State’s motion to 
strike the petitioner’s motions for a new trial which 
motion was filed in the Circuit Court of Morgan 
County on February 24, 1934 and which was grant­
ed by that court on the same date.

On page 19 o f the Record, it affirmatively ap­
pears that the petitioner was adjudged guilty of the 
crime of rape, on December 1, 1933. Section 6667, 
Code of Alabama, 1923 specifies the terms of the Cir-



5

cuit Courts of the several counties of Alabama. The 
terms of Court in Alabama run from first Monday in 
January to and including the last Saturday of June 
of every year and from the first Monday after July 
4th to and including the last Saturday before Christ­
mas day of every year. Under the above provision of 
law this Court judicially knows that the 1933 Fall 
term of the Circuit Court of Morgan County, Ala­
bama expired on December 23, 1933. The petitioner’s 
motions for a new trial were filed in the office of 
the Clerk of the Circuit Court on December 29, 1933 
(21 ,23 ).

Section 6670, Code of Alabama, 1923 deals 
with the time in which a motion for a new trial must 
be filed and provides as follow s:

6670. After the lapse of ten days from the 
rendition of a judgment or decree, the plaintiff 
may have execution issue thereon, and after the 
lapse of thirty days from the date on which a 
judgment or decree was rendered, the court 
shall lose all power over it, as completely as if 
the end of the term had been on that day, un­
less a motion to set aside the judgment or de­
cree, or grant a new trial has been filed and 
called to the attention of the court, and an or­
der entered continuing it for hearing to a future 
day.

On February 24, 1934, the date on which the 
petitioner’s motions for a new trial were to be heard, 
the attorneys representing the State of Alabama 
filed the aforementioned motion to strike petition­
er’s motions for  a new trial on the ground that the



6

motions came too late in that the Circuit Court of 
Morgan County had lost jurisdiction over the case 
because of the fact that the term of court during 
which the judgment was rendered had expired.

The State’s position was based on Sections 6667 
and 6670, supra, and on decisions of the Supreme 
Court of Alabama construing those sections in 
cases practically identical with the one at hand.

We hereafter set out a quotation from the case 
of Morris vs. Corona Coal & Iron Co. 215 Ala. 47,109 
So. 278 which case we respectfully insist is direct 
authority for the position that in Alabama a motion 
for a new trial, even if  filed within thirty days from  
the date of the judgment, is filed too late if  the term 
of Court during which the judgment is rendered has 
expired by operation of law.

The verdict and judgment was of date, Dec­
ember 19, 1924, the acceptance of service of mo­
tion for new trial was of date December 27, 
1924, and the motion was called to the atten­
tion of the Court on that date and duly passed 
to January 5, 1925, for  hearing. On that date: 
‘The case was called for hearing on the motion 
when defendant appeared and objected to any 
action being taken by the court on the motion, 
on the ground, among others, that the same was 
not filed until after the expiration of the term 
in which the cause was tried and verdict re­
turned and judgment rendered. The case was 
then taken under advisement by the court and 
passed to January 12, 1925. And now on this 
day after consideration, the court is of the opin­
ion that the objection interposed by defendant



7
to action on the motion is well taken and that 
this court is without jurisdiction to hear and 
pass upon plaintiff’s motion for a new trial. 
Accordingly, it is the order and judgment of 
the Court that said motion for a new trial is 
null and void, and that the same be and it is 
hereby stricken from the files in this cause. 
This January 12, 1925.’

“ We judicially know that the term of the 
court at which the case was tried expired by 
operation of law on the last Saturday before 
Christmas of the year 1924 and that the next 
term began on the first Monday in January, 
1925. Code 1923, Sec. 6667; Lewis v. Martin, 
210 Ala. 401, 98 So. 635; Kyser vs. American 
Surety Company, 213 Ala. 614, 105 So. 689. 
The motion was made and called to the atten­
tion o f the court during the recess thereof or 
after expiration of the term at which the judg­
ment was rendered. Had the motion been filed 
before or on the date of the general order of 
continuance by the court of pending causes, it 
would not have kept alive the motion for new 
trial or rehearing. It follows from the statute 
or the circuit court rule, and constructions 
thereof, that the action of the trial court was 
without error. Circuit Court Rule 22, Code 
1923, Vol. 4, Page 901; Lewis v. Martin 210 
Ala. 401, 98 So. 635; Mt. Vernon Woodbury 
Mills v. Judge, 200 Ala. 168, 75 So. 916; Shipp 
v. Shelton, 193 Ala. 658, 69 So. 102; Ex parte 
Schoel, 205, Ala. 248, 87 So. 801; Ex parte Mar­
garet, 207 Ala. 604, 93 So. 505 ^Southern Ry Co. 
v. Griffith, 177 Ala. 364, 58 So. 425; Ex parte 
H. A. & B. R. Co., 105 Ala. 221, 17 So. 182. The 
statute provides that after the lapse of thirty 
days from  the date on which the judgment or



8

decree was rendered the court shall lose all pow­
er over it as completely as if the end of the term 
had been on that day; and, we add, unless the 
motion therefor was filed, called to the atten­
tion of and passed by, the court before the ad­
journment of the term, and before the finality 
of the judgement or decree as provided by the 
statute after a lapse of thirty days from the 
date of its rendition. The provision o f the stat­
ute for the lapse of thirty days as to such motion 
did not extend the term of the court as fixed by 
law, though the thirty days from rendition of a 
valid judgment or decree had not expired. See 
Ex parte Bozeman, 213 Ala. 223, 104 So. 402; 
Ex parte Brickell, Judge, 204 Ala. 441, 86 So. 1; 
McCord vs. Rumsey, 19 Ala. App. 62, 95 So. 168. 
Monroe County Growers Ex. v. Harper, 20 Ala. 
App. 532, 103 So. 600.”

Section 6433, Code of Alabama, 1923 provides 
that bills of exceptions may be presented to the judge 
or the clerk at any time within ninety days from the 
day on which the judgment is entered and not after­
wards; .... presentation o f bill of exceptions within
ninety days after granting or refusing of the motion 
for a new trial shall be sufficient to preserve for re­
view the rulings of the trial court on the trial of the 
original cause as well as the ruling of the court on 
the motion for a new trial.

Inasmuch as the motions for a new trial had 
been filed too late, they did not invoke the jurisdic­
tion of the court and consequently the last part of 
Section 6433, above referred to, could have no appli­
cation to this case. This is, of course, based on the 
assumption that the trial court’s action in striking



9
the motions for a new trial was correct. Therefore, 
the date on which the statutory period of ninety 
days began to run was the date on which the judg­
ment was rendered which date was December 1,
1933 (19 ). This Court judicially knows that ninety 
days from December 1, 1933, was March 1, 1934, 
which day was the last day on which the petitioner 
could present to the trial judge or to the clerk of the 
Circuit Court of Morgan County his bill of excep­
tions.

Section 6434, Code of Alabama, 1923 provides 
that an appellate court may strike a bill of exceptions 
because not presented or signed within the time re­
quired by law but that the court cannot do so ex 
mero motu but only on motion of the party to the 
record or his attorney.

On page 785 of the printed record, it affirm a­
tively appears that the bill of exceptions or that 
whicn purports to be a bill o f exceptions was presen­
ted by the petitioner to the trial judge on March 5,
1934 which was the ninety-fourth day since the date 
the judgment in this case was entered. The State 
of Alabama, under authority of Section 6434, supra, 
on the day the case was set for argument before the 
Supreme Court of Alabama and prior to the sub­
mission of the case moved that the bill o f exceptions 
be stricken from the record in view of the fact that 
it had not been presented to the trial court within 
the time required by law (797-798).

It is on this motion that the opinion or decision 
of the lower court is based entirely. This was not 
a case of first impression as the decision o f the Ala-



10

bama court contains a citation of numerous authori­
ties in support of its ruling.

In construing Section 6433, supra,, it was held 
in the case of Lewis vs. State, 194 Ala. 1, 69 So. 913, 
that the time within which a bill of exceptions must 
be presented to the trial judge runs from the date 
when the judgment was rendered and entered and 
not from  the date of sentence. Likewise, it has been 
held that the date on which the verdict is brought 
into court is not necessarily the day on which the 
ninety day statute begins to run but the day on which 
the judgment is entered.— Lewis vs. Martin, 210 Ala. 
401, 98 So. 635; Russell vs. State, 202 Ala. 21, 79 
So. 359.

The Supreme Court of Alabama, under a long 
line of decisions, is vested with no discretion in con­
nection with the refusal or granting of a motion to 
strike a bill of exceptions where the motion is prop­
erly made and where it seasonably invokes the juris­
diction o f the court.— Baker vs. Central of Ga. Ry. 
Co., 165 Ala. 466, 51 So. 796; Box vs. Southern Ry. 
Co. 184 Ala. 598, 64 So. 69; Ex parte Hill, 205 Ala. 
631, 89 So. 58.

Petitioner refers to the case of Stover vs. State, 
204 Ala. 311 wherein is discussed Section 9459, Code 
o f Alabama, 1923. This case is cited by him in con­
nection with the statement that the Supreme Court 
of Alabama should have considered the evidence of­
fered in connection with the motions to quash the 
venire and the indictment even though the bill o f ex­
ceptions was stricken. We quote from  that case:



. . . But we did not there hold, and do not 
now hold, that the exceptions to the ruling upon 
motion in writing, or the rulings thereupon, 
must be shown by the bill of exceptions though 
we may now say it would perhaps be necessary 
to set out the evidence in support of same by a 
bill of exceptions.”

The decision of the Court of Appeals of Mary­
land in the case of Lee vs. State, 163 Md. 56 is cited by 
petitioner as authority for the position that the Ala­
bama Court erred in not passing on the federal ques­
tion even though the bill of exceptions was stricken 
because of the fact that the bill of exceptions is not-'* 
the evidence in the case in the nisi prius court. With 
the decision o f the learned Chief Justice of the Mary­
land Court, we have no complaint; we do submit, how­
ever, that the decision of a court o f a sister state 
dealing with questions o f state practice and proce­
dure and construing statutory regulations can have 
no binding effect on a Supreme Court of another 
state who is also dealing with matters o f state prac­
tice and procedure and statutory enactments.

IV

J u r isd ic t io n

Jurisdiction to review the decisions of the high­
est Courts of a State is conferred on the Supreme 
Court of the United States by Section 237 (B ) as 
amended by Act of February 13, 1925, 43 Stat. 937. 
The decisions of this Court are uniform in holding 
that said section of the Judicial Code does not confer

11

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12

upon it jurisdiction to review the decision of the high­
est court of a State where the decision is based on a 
non-federal question, 'particularly on a question of 
appellate procedure.

If we understand paragraph 3 of rule 7 of this 
Court, a respondent can no longer move to dismiss a 
petition for a writ of certiorari because of want of 
jurisdiction, but the question of jurisdiction of this 
Court must be dealt with in the brief in opposition to 
the granting of the writ. We, therefore, in this brief 
insist that this Honoranble Court is without jurisdic­
tion to review the decision of the Supreme Court of 
Alabama in this case because of the fact that the de­
cision is based upon a question of State practice 
and procedure and there is no federal question in­
volved.

The present statute dealing with the jurisdic­
tion of this Court over the decisions of the Courts of 
the several states is practically the same as the origi­
nal or first statutory enactment on the subject the 
twenty-fifth section of the Judiciary Act of 1789.

In the case of Crowell vs. Randell, 10 Peters 398, 
Mr. Justice Story reviewed all of the cases which this 
Court had previously decided in which the above sec­
tion was construed and said:

“ that to bring a case within the twenty-fifth 
section of the judiciary act, it must appear upon 
the face o f the record: 1st. That some one of 
the questions stated in that section did arise in 
the State Court. 2nd. That the question was 
decided by the State Court, is required in the



13

same section. 3rd. That it is not necessary that 
the question should appear on the record to have 
been raised, and the decision made in direct and 
positive terms, ipsissimis verbis; but that it is 
sufficient if  it appears by clear and necessary 
intendment that the qu estion must have been 
raised, and must have been decided in order to 
have induced the judgment. 4th. That it is not 
sufficient to show that a question might have 
arisen or been applicable to the case; unless it 
is further shown, on the record, that it did arise, 
and was applied by the State Court to the case.”

We most respectfully submit that this Honor­
able Court after examining the decision of the 
Supreme Court of Alabama will come to the same 
conclusion as was reached in the Crowell case, supra, 
and will say as Justice Story said:

“If with these principles in view we examine 
the record before us, it is very clear that this 
Court has no appellate jurisdiction. No ques­
tion appears to be raised or discussion made by 
the State Court within the purview of the twen­
ty-fifth section.”

This Honorable Court in numerous cases has 
laid down the principle that to give the Supreme 
Court of the United States jurisdiction over a de­
cision of the highest Court of a State, it must appear 
affirmatively not only that the federal question was 
presented for decision but that its decision was neces­
sary to a determination of the cause, and that it was 
actually decided, or that the judgment could not have 
been given without deciding it.



14

Cleveland and Pittsburgh R. R. Co. vs. City of 
Cleveland, Ohio, 235 U. S. 50.

Chesapeake and Ohio Ry. Co. vs. McDonald Ad­
ministrator, 214 U. S. 191.

Western Union Telegraph Co. vs. Wilson, 213 
U. S. 52.

Sayward vs. Denny, 158 U. S. 180.

In Williams vs. Oliver, 53 U. S. (12 How) 111, 
it is said:

“ In order to give this Court jurisdiction on 
writ of error to the highest Court of a State in 
which a decision could be had, it must appear 
affirmatively not only that a Federal question 
was presented for decision by the highest Court 
of the State having jurisdiction but that its de­
cision was necessar yto the determination of the 
cause, that it was actually decided or that the 
judgment so rendered could not have been given 
without deciding it, and where the decision com­
plained of rests on independent grounds not in­
volving a federal question and broad enough to 
maintain the judgment, the writ of error will be 
dismissed by this Court without considering any 
federal question that may also have been pre­
sented.”

Likewise a number of cases definitely settle the 
proposition that a decision o f a State Court resting 
on grounds of State procedure does not present a 
Federal question.

French vs. Hopkins, 124 U. S. 524.
O’Neil vs. Vermont, 144 U. S. 323.
Tripp vs. Santa Rosa St. R. Co. 144 U. S. 126.



15

Thorington vs. Montgomery, 147 U. S. 490. 
Loeber vs. Schroeder, 149 U. S. 580.
McNulty vs. California, 149 U. S. 645.
Wood vs. Brady, 150 U. S. 18.
Northern Pacific R. R. Co. vs. Patterson, 154 

U. S. 130.
Gibson vs. Mississippi, 162 U. S. 565.

The case of Maria Mathison et als vs. The 
Branch Bank of the State of Alabama, 7 Howard 
260, we most respectfully submit is direct authority 
for the contention of the State of Alabama that this 
Honorable Court will not review the decision of the 
Supreme Court of Alabama in this case. Mr. Justice 
Taney delivering the opinion of the Court in the 
Mathison case, supra, wherein it appeared that the 
Supreme Court of Alabama had dismissed the appeal 
on the grounds that the transcript of the record in 
the Circuit Court had not been filed in the Supreme 
Court, said:

“ This cause came on to be heard on the tran­
script of the record from the Supreme Court of 
th the State of Alabama, and was argued by 
counsel. On consideration whereof and it ap­
pearing to the Court upon an inspection of the 
said transcript that there is nothing in the 
record which this Court is authorized to review, 
it is thereupon now here ordered and adjudged 
by this Court, that this cause be and the same is 
hereby dismissed, for want o f jurisdiction.”

In the case of Chesapeake and Ohio Ry. Co. vs. 
McDonald, Administrator, 214 U. S. 191, this Court 
held:



16

“ Where the State statute provides that an 
appeal from an order refusing to remove a cause 

to f  the Federal Court must be taken within two 
years, and no appeal is taken, and the highest 
Court of the State decides that an appeal from 
the judgment in the case taken more than two 
years after entry of the order refusing to re­
move does not bring up that order for review, 
the Federal question has not been properly pre­
served and this Court has no jurisdiction.”

We would also like to call to the Court’s atten­
tion tb the case of Harding vs. Illinois, 196 U. S. 78, 
wherein it is held:

“ This Court has no general power to review 
or correct the decisions of the highest State 
Court and in cases of this kind exercises a statu­
tory jurisdiction to protect alleged violations, 
in State decisions, of certain rights arising 
under Federal authority; and if the question is 
not properly reserved in the State Court the 
deficiency cannot be supplied in either petition 
for rehearing after judgment or the assign­
ment of error in this Court, or by the certifica­
tion of the briefs which are not a part of the 
record by the clerk of the State Supreme Court.

“ This Court will not reverse the judgment of 
a State Court holding an alleged Federal con­
stitutional objection waived when the record 
discloses that no authority was cited or argu­
ment advanced in its support and it is clear that 
the decision was based upon other than Federal 
grounds and the constitutional question was not 
decided.”

In the case of Jacob Newman et al vs. Harry B. 
Gates, 204 U. S. 89, the following principle is stated:



17

“ There has been no decision of the Federal 
question in the highest Court of the State in 
which a decision in the suit could be had, which 
is essential to sustain a writ of error from the 
Supreme Court of the United States, where the 
highest State Court dismissed an appeal in the 
suit because of a defect in the parties to such 
appeal.”

In Chappell Chemical, etc. Co. Virginia Sulphur 
Mines Co., 172 U. S. 472, it was held that no Federal 
question was disposed of by a decision of the Court 
of Appeals of Maryland, the language of that Court 
being as follow s:

“ The appeal in this case having been prema­
turely taken, the motion to dismiss it must pre­
vail. The defendant, long after the time fixed 
by the rule of the Court, demanded a jury trial, 
and without waiting for the action of the Court 
upon his motion, and indeed before there was 
any trial of the case upon its merits and before 
any judgment final or otherwise, was rendered, 
this appeal was taken from what the order of 
appeal calls the order of Court of the 6th of 
February, 1896, denying the defendant the 
right of a jury trial; but no such order appears 
to have been passed. On the day mentioned in 
the order of appeal there was an order passed 
by the Court below fixing the case for trial, but 
there was no action taken in pursuance of such 
order until subsequent to this appeal. There is 
another appeal pending here from the orders 
which were ultimately passed. Appeal dis­
missed.”

We have carefully examined the cases cited by 
petitioner in his brief heretofore filed in this Court



18

and we respectfully submit that none of those cases 
is authority for the proposition that this Court will 
review a decision of the Supreme Court of a State in 
a case where the decision is based purely on a non- 
federal ground and particularly in a case where the 
Supreme Court of the State, under the statutes and 
former decisions of the Court, had no discretion in 
the matter on which the ruling was based.

CONCLUSION

It is, therefore, submitted that this Court is 
without jurisdiction to review the decision of the 
Supreme Court of Alabama in this case. Decisions 
of this Court are uniform in holding that the 
Supreme Court of the United States will not review 
a decision of a State Court based on a question of 
State practice and procedure.

Respectfully submitted,

THOMAS E. KNIGHT, JR.,
Attorney General of Alabama.

THOS. SEAY LAWSON,
Assistant Attorney General of 

Alabama,
Attorneys for Respondent.



19

APPEN DIX

6433. Bills of exceptions may be presented to 
the judge or clerk at any time within ninety days 
from the day on which the judgment is entered, and 
not afterwards; and all general, local, or special laws 
or rules of Court in conflict with this section are re­
pealed, abrogated and annulled. The judge or clerk 
must indorse thereon and as a part of the bill the true 
date of presenting, and the bill of exceptions must, if 
correct, be signed by the judge wtihin sixty days 
thereafter. When the bill of exceptions is presented 
to the clerk, it shall be his duty forthwith to deliver 
or forward it to the judge. Presentation of the bill 
of exceptions within ninety days after the granting 
or refusing of a motion for a new trial shall be suf­
ficient to preserve for review the rulings of the trial 
Court on the trial of the original cause, as well as the 
ruling of the Court on the motion for a new trial.

6434. The appellate Court may strike a bill of 
exceptions from the record or file because not pre­
sented or signed within the time required by law, but 
shall not do so ex mero motu, but only on motion of 
a party to the record or his attorney; the object and 
effect of this statute being to allow parties to waive 
or consent for the time of signing bills of exceptions.

6667. The Circuit Courts of the several coun­
ties of the State shall be open for the transaction of 
any and all business, or judicial proceedings of every 
kind, from the first Monday in January to and in­
cluding the last Saturday of June of every year; and 
from the first Monday after the fourth of July too,



20

and including, the last Saturday before Christmas 
day of every year.

6670. A fter the lapse of ten days from the 
rendition of a judgment or decree, the plaintiff may 
have execution issued thereon, and after the lapse of 
thirty days from the date on which a judgment or 
decree was rendered, the Court shall lose all power 
over it, as completely as if  the end of the term had 
been on that day, unless a motion to set aside the 
judgment or decree, or grant a new trial has been 
filed and called to the attention of the Court, and an 
order entered continuing it for hearing to a future 
day.

Rule 22. Reasons in arrest of judgment, and 
reasons for new trial, and the affidavits in support 
thereof if any are relied on, shall be filed with the 
clerk, and notice thereof be given to the adverse 
party, one day before the argument. If the cause is 
tried on the last day of the term, the notice shall be 
given when the motion is entered. The party mak­
ing such motion is entitled to the opening and con­
clusion of the argument. All such motions not acted 
on, or continued by order of the Court, are to be con­
sidered as discharged of course on the last day of 
the term.

Rule 7— (Par. 3) No motion by respondent 
to dismiss a petition for writ of certiorari will be re­
received. Objections to the jurisdiction of the Court 
to grant writs of certiorari may be included in briefs 
in opposition to petitions therefor.



IN THE

^ u p r e m ?  (Enurt o f  A p p e a ls  o f  H irgtttta

R e c o r d  N o. 2442

ODELL WALLER

v.

COMMONWEALTH OF VIRGINIA

REPLY BRIEF FOR PLAINTIFF IN ERROR





SUBJECT INDEX

PAGE
T he F acts----------------------------------------------------------------------  1

A rgument on the F acts:

I__ _______________________________________  2
II. Trial Court’s refusal to quash indictment

of venire facias----------------------------------------  3
III. The action of the Trial Judge in refusing

to disqualify himself or to discharge the 
jury panel because of remarks made to re­
porter and to counsel....................................  7

IV. Change of venue--------------------------------------- 8
V. The overruling of defendant’s challenge to 

various jurors on account of their occupa­
tions ____________________       11

VI. Defendant’s challenge to the juror Farson... 12
VII. The alleged dying declaration of the de­

ceased ------------------------------------------------------ 12
VIII. On the refusal of the Court to eliminate all

the instructions on homicide............................. 13
Conclusion ............................................      14



TABLE OF CASES

PAGE

Booth’s case, 16 Grat. (57 Va.) 519-------------------------- 4
Craft case (65 Va. 602)-------------- ------- ------------------4, 5, 6
Livingston case, 14 Grat. 55 Va. (592)....................... 13

Smith v. Texas, 61 Sup. Ct. 164....................................  11

TABLE OF STATUTES

Code of 1887:
Chapter 152, Section 3139.................... ......... ... —  6
Chapter 195, Section 3976......................................  6
Section 5984----------------------------------------------------  7

Code of Virginia, Section 2........................................  4
Constitution of Virginia (o ld ):

Article 3, Section 1................................................  4
Section 3 ................................ -.................................. 5

Constitution of Virginia (new) :
Section 18.................-...............................................  5

Munford’s Code of 1873 :
Title 3, Chapter 7, Section 1............................ —  5



IN THE

S u p r e m e  OInurt o f  A p p e a ls  o f  H irgittta

Record No. 2442

ODELL WALLER
v.

COMMONWEALTH OF VIRGINIA

REPLY BRIEF FOR PLAINTIFF IN ERROR

The Facts

There is no important difference in the state of facts 
as respectively presented by the plaintiff in error and 
the Commonwealth. However, for the sake of strict ac­
curacy, the Court’s attention should be called to some
details. On page ----  of the Commonwealth’s brief the
statement is made that the deceased’s pocket was actu­
ally empty. This is in error. Not only did the accused 
testify that there was a bulge in his pocket but Mrs. 
Oscar Davis likewise testified that the deceased had a 
wallet in his pocket, and that she thought it was in his 
right pocket (R. 9S-99).

It should also be noted that there is no testimony at 
all, but that of Henry Davis, in the record to the effect 
that the deceased was first shot in the back. As a matter 
of fact, the physician introduced by the Commonwealth 
testified (R. 95), “ from where the point of entrance of 
the wounds I couldn’t tell exactly where they had lodged” .



9

ARGUMENT

I

It is true the medical testimony shows that there were 
two wounds in the back. It also shows that he had one 
wound on the right side of the head and one in the arm. 
Taking the Commonwealth’s evidence, including the al­
leged dying declaration, at its very best, and admitting 
for the sake of argument that the remaining testimony 
is credible, it still remains that the only reasonable de­
duction from all the testimony and the physical facts is 
that Waller first shot Davis while Davis was facing him, 
hitting him in the right side of the head and in the arm; 
that either the shock of these bullets whirled Davis 
around, or Davis turned in attempting to escape, and 
was then shot twice in the back. The only testimony 
that Waller first fired at Oscar Davis when Davis’ back 
was turned is the testimony of the only eyewitness, an 
eighteen-year-old colored boy, Henry Davis, then em­
ployed by Oscar Davis and still employed by his family, 
who, prior to the trial, refused to talk to the defense at 
all (R. 87). Plaintiff in error reiterates that the testi­
mony of this witness is absolutely incredible and gives 
every appearance of being coached.

It is not the contention of the accused, as suggested 
by the Commonwealth, that inhuman crimes are never 
committed. It is distinctly the contention of the plain­
tiff in error that to believe the story of Henry Davis is 
to believe that Odell Waller was absolutely insane. This 
point has been referred to in plaintiff in error’s opening 
argument (R. 19), and does not need repetition.



3

Trial Court’ s refusal to quash indictment of 
venire facias.

We should first of all like to call attention to the fact 
that the Commonwealth has overlooked the offer of evi­
dence on the part of Odell Waller by his counsel as to 
his own non-payment of poll taxes. This is contained 
in the following colloquy between the Court and one of 
the attorneys for the accused (R. 60):

“ The Court: Mr. Stone, what is the basis of your 
motion in this case? What has the qualification or 
otherwise to do with this defendant?

Mr. Stone: Persons who are unable to pay their 
poll tax are excluded and the accused is in the same 
general social and economic category.

The Court: I selected the jury myself and don’t 
know whether they are qualified or not. I am always 
glad to see a person pay his poll tax. I think people 
ought to qualify and take an interest in their gov­
ernment, but I don’t know whether they are quali­
fied. Motion overruled.”

This is pointed out purely for the sake of accuracy, 
since the Commonwealth itself argues mainly on the 
basis that there has been no such discrimination against 
non-poll tax payers. In this argument, let it be pointed 
out at the outset that it specifically is the contention of 
the plaintiff in error that if non-poll tax payers are 
barred from the jury as a matter of law, that is all that 
is necessary for the plaintiff in error to establish. As 
the Commonwealth seems to recognize, if non-poll tax 
payers are barred by law, but nevertheless in fact served, 
the jury was still illegal. So, plaintiff in error and the 
Commonwealth are plainly at issue on the question of 
whether non-poll tax payers were barred as a matter of 
law.

I I



4

The reference to Booth’s case, 1G Grat. (57 Va.) 519, 
in the Commonwealth’s brief is not at all in point. In 
the first place it has nothing to do with the instant ques­
tion with regard to the interpretation of the phrase “ in 
other respects a qualified voter” . Secondly, as a reading 
of the case will show, it deals with the Code of 18-49, and 
naturally is not applicable to either the Constitution and 
Code in effect in 1873 or the Constitution and legislative 
session of 1902, which are in point in this case. Thirdly, 
if one desired to be technical, the case itself as quoted 
by the Commonwealth, is entirely against their conten­
tion. I f aliens, minors, or villeins cannot be jurors, and 
if a strict interpretation of Section 2 of the Code of 
Virginia, making the common law of England the law 
of Virginia, be adopted, then by analogy non-poll tax 
payers and share croppers, corresponding socially to the 
villeins of the middle ages, would be excluded.

This is merely a reductio ad absurdum of the conten­
tion of the Commonwealth. But the historical approach 
adopted already by the plaintiff in error in his opening 
brief, and attempted to be pursued by the Common­
wealth, undoubtedly provides the solution for this 
problem.

It should be remembered that the Craft case (65 Va. 
602) was considered by this Court on the basis of the 
Constitution and Code in existence in 1873. The Com­
monwealth has failed to notice that the requirement of 
registration about which there was argument in the Craft 
case was, at that time, based solely upon statute, and not 
upon the Constitution. In the then existing Constitution, 
Article 3, Section 1, reads as follows:

“ Every male citizen of the U. S. 21 years old, who 
shall have been a resident of this state 12 months, 
and of the county, city, or town in which he shall 
offer to vote three months next preceding any elec­
tion, shall be entitled to vote upon all questions sub­
mitted to the people at such election.”



It will be noticed that there is no reference to registra­
tion as a prerequisite to voting in this constitutional 
section.

Section 3 reads:
“All persons entitled to vote and hold office, and 

none others, shall be eligible to sit as jurors.”

There is no constitutional provision at all for registra­
tion and such provision only appears in the Code itself, 
at page 146 of Munford’s Code of 1873, Title 3, Chapter 
7, Section 1, as follows:

“ Every male citizen of the United States, twenty- 
one years old, who shall have been a resident of 
this state for twelve months, and of the county, city, 
or town in which he shall offer to vote, three months 
next preceding any election, and who is a regis­
tered voter in, and a resident of, the election dis­
trict in which he offers to vote, shall be entitled to 
vote upon all questions submitted to the people at 
such election; * *

It will thus be seen that the Court decided this phase 
of the Craft case upon an interpretation of the Consti­
tution, but ignored the statutory qualifications of regis­
tration. The pertinence of this becomes apparent, so 
far as the instant case is concerned, when we turn to the 
present Constitution of Virginia, adopted in 1902. Sec­
tion 18 of our Constitution makes registration a constitu­
tional prerequisite for voting. There can be no doubt, 
by all the canons of construction, that the constitutional 
convention had the Craft case in mind when it adopted 
this section of the Constitution and to the extent that 
the present Constitution makes registration a part of 
this section, to that extent it abrogates the distinction 
in the Craft case.

Now, what is the significance of this with regard to 
the instant question? It will be seen, as shown above 
that according to the Constitution of 1873 only persons 
entitled to vote were eligible to sit as jurors. In the



6

Code of 1887 on page 750, Chapter 152, Section 3139, we 
find the following:

“ W ho l ia b l e  to  se r v e  a s  j u r o r s—all male citizens, 
twenty-one years of age and not over sixty, Avho are 
entitled to vote and hold office under the constitu­
tion and laws of this state, shall be liable to serve as 
jurors except as hereinafter provided.”

On page 932, Chapter 195, Section 397G, reads as fol­
lows :

“ The judge of the said courts (county, corpora­
tion and Hustings Court, T. H. S.) shall annually, 
in the month of August, select from the qualified 
voters, etc.”  (Italics supplied.)

So far we traced the question of jurors right up to the 
constitutional convention of 1902, and we find that there 
was no question about the fact that a juror had to pos­
sess all the qualifications of a voter.

Following the historical method we come to inquire, 
why was the constitutional convention of 1902 called? 
The reason lias already been quoted (R. 8 and 9) in the 
words of the Delegate Carter Glass. The circumstances 
must be remembered. It certainly was the intention of 
the constitutional convention to disfranchise the Negroes, 
and since that could not be done by a frontal attack, the 
method of the poll tax was resorted to. It would cer­
tainly appear that an intention to deprive non-poll tax 
payers of the vote for the reasons enunciated by Delegate 
Glass, would also apply, and with still greater force, to 
excluding them from juries. But we do not have to be 
left in doubt on this. When we take into account that 
registration, the subject of dispute in the Craft case, was 
elevated from a statutory to a constitutional provision, 
and when we further take into account the fact as already 
stated that the Legislature in the sessions of 1902, 1903 
and 1901 was meeting immediately after the constitu­
tional convention, it becomes obvious what the phrases 
in dispute here mean. The phrase, “ competent in other



(

respects” , obviously lias no reference to the exceptions 
which follow. Such an interpretation would not only 
he tautological, but even meaningless, and when we come 
to the second phrase “shall remain and be liable to serve 
as jurors” (italics supplied), the conclusion is inescapable 
that the competency referred to is that which had been 
in existence ever since 1873 and that the “ remaining” 
was a reference to the same condition. Obviously there 
cannot be anything remaining from a non-existent condi­
tion. This construction of Section 5984 is reinforced 
when we take into account that after the words “ compe­
tent in other respects” , there follows the phrase, “ except 
as hereinafter provided” . To adopt the construction of 
the Commonwealth would mean not only a tautology and 
meaninglessness, but a triple tautology and meaningless­
ness. This is not only contrary to all known canons of 
construction but is contrary to elementary common sense. 
There can be no doubt that the constitutional convention 
of 1902 and the legislative session following it meant to 
and did impose the same restrictions on jury service as 
they did on voters, and that this was done in as open a 
manner as was possible under the then existing historical 
and constitutional circumstances.

So particularly statewide a question as is here pre­
sented calls for an authoritative determination by this 
Court, the one Court which speaks for the whole State.

I l l

The action o f the Trial Judge in refusing to dis­
qualify himself or to discharge the jury panel be­
cause of remarks made to reporter and to counsel.

In order to properly argue on this point we deem 
it necessary to call this Honorable Court’s attention to 
the exact language used:

“ The Court, to the Attorneys: I am telling you 
this: A  man charged with a criminal offense has



8

no right to await the action of the Grand Jury. He 
should anticipate that he may be indicted. I.must 
state that since I have been on the bench, this is the 
first case in which there has been any question on 
this point. Judge Saunders, one of the ablest Judges 
who ever presided over this Court, laid down this 
rule, following Sec. 4893 of the Code of Virginia, 
and this Court has always followed it.

Mr. Hopkins: I would like to make this state­
ment, that for the accused to anticipate the de­
fendant will be indicted is a denial of equal pro­
tection in that it presumes the defendant may be 
guilty rather than the fact of there being a pre­
sumption of innocence” (R. 58).

As already stated in the opening brief, the vice of 
this is that it was made in the presence of the jury 
panel. This Court has recognized on numerous occa­
sions that jurors are anxious to seize upon any indica­
tion of opinion by the Presiding Judge. A remark which 
would be harmless if made by a Judge trying a case 
without a jury has grave potentialities of danger when 
the contrary is the case. The criterion of error in such 
cases is not what a lawyer would think of them, but 
what the average juror would think, and in a case in­
volving the life and death of a person, certainly no 
chances can be taken. The right to an absolutely fair 
trial for an accused is more important than the con­
venience of either the Court or a specific jury panel.

I V

Change of venue.

The plaintiff in error would first of all call the atten­
tion of this Court to the fact that there has not been 
a complete statement of the law by the Commonwealth 
in its reference to this question. Motions for change 
of venue are addressed to the sound discretion of the 
Trial Judge, not his arbitrary discretion. We feel



9

quite sure there will be no disagreement by the Com­
monwealth on this point, but we also feel that it is in­
cumbent upon us not to agree with their original state­
ment.

With reference to the testimony of the Commonwealth, 
and at the risk of repetition, plaintiff in error would 
again respectfully call the attention of the Court to 
the fact that the testimony of the Commonwealth’s wit­
nesses, except the Sheriff (E. 67, 68, 69, 72), was opinion 
evidence, lacking foundation, and not shown to be based 
upon anything except the witnesses’ unfounded opinion. 
The questions of the Commonwealth attorney to all his 
witnesses show this. In each case they were practically 
the same. We shall give a characteristic example in 
the case of Mr. Henry Lee Cooper (R. 69):

“By Mr. Whitehead.
Q. This is Mr. Henry Lee Cooper? A. Yes.
Q. You have heard the remarks made by Mr. 

Campion about Odell Waller getting a fair trial? 
A. Yes.

Q. Do you know of any reason why Odell Wal­
ler should not get a fair and impartial trial? A. 
No.

Q. Have you heard any remarks by anyone in this 
county that Odell Waller could not get a fair and 
impartial trial? A. No.”

Surely such testimony could not refute the uncontra­
dicted testimony of Mr. Edmund Campion (R. 64-66) 
to the effect that almost up to the very hour of the trial 
there had been threats in the immediate vicinity to lynch 
the accused and his attorneys.

Taken by itself, and uncontroverted as it was, the 
testimony of Mr. Campion would have been sufficient 
to require a change of venue. But this becomes im­
measurably strengthened when we turn to the testi­
mony of Sheriff A. H. Overby (R. 71-72):

“ The Court: I want to ask you this: Have 
you at any time heard threats of an intention of 
lynching?



10

The Witness: Yes.
The Court: AVhen?
The Witness: A  few days after we came hack 

from Ohio some citizens told me somebody was 
coming here after Odell Waller, that crowds were 
coming here to get him out of jail to lynch him. 
The same day I heard a crowd of Negroes were 
coming to free him.

The Court: Did anything like that ever ma­
terialize either way?

The Witness: No, sir.
The Court: Was there any violence?
The Witness: None whatever. Very little in­

terest or curiosity was shown in the case. I have 
seen no signs of feeling about it.

The Court: Have you ever heard any expres­
sion or have any information coming from citizens 
of the county that he couldn’t get a fair trial?

The Witness: No, sir, I have not.
By Mr. Stone.

Q. Mr. Overby, for the sake of the record, what 
was the date Odell Waller was brought back—ap­
proximately? A. He was brought back here, I 
think—we got in Chatham the 7th day of August 
about 1 A. M.

Q. So it would be some time between that and the 
14th—I am not trying to pin you down to an exact 
date—that you received word of these threats? A. 
Yes, sir.

Q. From whom did you receive these words? A. 
Mr. State Policeman Webb received a telephone 
message from Halifax County—it was very remote 
and said he did not want to tell the person’s name, 
but that crowds were coming armed in automobiles.

The Court: You say that was State Officer
Webb?

The Witness: Yes, sir.
By Mr. Stone.

Q. Upon receiving that message you took the nec­
essary precautions both for the safety of the county 
and Odell Waller? A. Yes, sir.



1 1

Q. Then you did consider the message of sufficient 
importance to take these precautions? A. I didn’t 
think there was anything to it, hut didn’t want to 
take any chances either with a mob that wanted to 
free him or a mob trying to get him to lynch him.”

V

The overruling of defendant’ s challenge to various 
jurors on account of their occupations.

In the first place, the Commonwealth is radically in 
error on its law. In Smith v. Texas, Cl Sup. Ct. 164, 
Mr. Justice Black, speaking for the whole Court, said:

“ That a conviction based upon an indictment by 
a jury so selected is a denial of equal protection is 
well settled. * * * It is part of the established 
tradition in the use of juries as instruments of pub­
lic justice that a jury be a body truly representative 
of a community—the Fourteenth Amendment re­
quires that equal protection must be given to all, 
not merely promised.”

In its argument the Commonwealth maintains two 
monstrous legal theses. First, that it constitutes a fair 
trial to exclude from the jury the whole section of the 
community to which the accused belongs and then to 
place upon the jury an overwhelming majority of the 
group to which the deceased belonged. To use a current 
analogy, it would he the contention of the Commonwealth 
that in the trial of a Jewish person, firstly, all Jews 
should be excluded from the jury, and then there should 
he placed on the jury panel an overwhelming majority 
of Nazis. This contention refutes itself.

The second contention, to the effect that laws can only 
be established by the legislature, is so clearly contrary 
to our traditional mode of judicial interpretation of law 
that it needs no further attention.



1 2

V I

Defendant’ s challenge to the juror Farson.

We shall be very brief in this. The Commonwealth 
in its brief has given the whole statement of the juror 
on his voir dire. Even a cursory examination of this 
would disclose that a fair interpretation of the juror’s 
answer is that he had a mental reservation or doubt in 
his own mind. It is so elementary that such a person 
should not be allowed on a jury panel that we do not 
deem it necessary to discuss this further.

V I I

The alleged dying declaration of the deceased.

Again the Commonwealth has failed to clearly grasp 
the point of distinction. The point is not whether the 
deceased believed himself to be in articulo mortis, or 
whether Dr. Risher’s favorable view as to his physical 
situation were communicated to him. The whole point 
of plaintiff in error’s contention is that the deceased was 
not in articido mortis at the time of the alleged dying 
declaration. Two things must be distinguished. It is 
conceded, of course, that if the Commonwealth had shown 
the admissibility of this evidence, it would have been a 
purely jury question as to weight. But the first burden 
was upon the Commonwealth to show its admissibility. 
This burden was not sustained when the medical expert 
of the Commonwealth, put on the stand by it and vouched 
for by it, negatived the conclusion that deceased was in 
extremis at the time.



13

On the refusal of the Court to eliminate all the 
instructions on homicide.

In its argument on the Livingston case, 14 Grat. 55 
Ya. (592), the Commonwealth, by quoting the paragraph 
it did, has refuted its own case. It will be noticed that 
this Court said in that case that “ if a man receives a 
wound not mortal, and through neglect or failure to use 
the proper application it ( the wound—T. II. S.) turns 
to a gangrene or fever which causes the death, then the 
wound, being the cause of the gangrene or fever, is re­
garded as the causa causati, and the party inflicting the 
wound may be held responsible for the death” . This is 
a correct expression of the law, but has no application 
to the facts in the present ease. There is no testimony 
that the wound turned to anything. The wound had 
cleared up. It was not the cause of the pulmonary col­
lapse. It is significant that the Commonwealth made no 
attempt by a single question to prove, by Dr. Risher, 
any causal connection between the wound and the death. 
Such connection, as stated in the case already cited, must 
not be remote or speculative, but must be direct. The 
burden rests upon the Commonwealth to bring forward 
some proof of this, and in this it has utterly failed. We 
think it proper argument to state that this assignment 
of error, which the Commonwealth calls plainly ground­
less, gave a great deal of concern to the eminent and 
learned judge of the Trial Court.

V I I I



1 4

CONCLUSION

The whole record shows that the plaintiff in error did 
not have a fair trial from his indictment to his sentence, 
and this is true whether the assignments of error be 
considered individually or, as they must and should be 
in a case of this kind, cumulatively. We submit that 
the judgment of the Trial Court should be reversed and 
remanded.

Respectfully submitted,

T homas H. Stone,
H oward H. Davis,
John F. F inerty, 

and
M orris Shapiro, on the brief.









-'SSi*-139



S u p r e m e  GJmirt o f  tht S t a t e s
October Term 1941

No. 1097

Odell W aller, 

against
Petitioner,

Rice M. Y ouell, Superintendent op the State 
Penitentiary, Richmond, V irginia,

Respondent.

PETITION FOR REHEARING OF THE DENIAL 
OF CERTIORARI TO THE SUPREME COURT 

OF APPEALS OF VIRGINIA

J o h n  F .  F in e r t y , 
M o rris  S h a p ir o ,

Cov/nsel for Petitioner.

Thomas H. Stone, 
Martin A. Martin, 
Ernest F leischman,

Of Counsel.





INDEX

Exceptional reason for granting rehearing.................. 1-3

Specific grounds for granting rehearing, and there­
upon, either issuing certiorari or recognizing 
petitioner’s right to a writ of habeas corpus from 
this Court or from a lower Federal co u r t ............ 3-5

Discussion of specific grounds:
I It would seem that consistently with Waley v. 

Jolmston, supra, and Bowen v. Johnston, supra, 
this Court should grant certiorari herein and 
thereupon require the Supreme Court of Ap­
peals of Virginia to issue its writ of habeas 
corpus or, consistently with Moore v. Dempsey, 
supra and Hale v. Crawford, supra, this Court 
should expressly recognize the right of peti­
tioner either to obtain a writ of habeas corpus 
from the United States District Court for the 
Eastern District of Virginia or to obtain from 
this Court its own original writ of habeas corpus.

Wood v. Brush and Andrews v. Swartz, supra, 
distinguished ..........................................................  7

II Under Moore v. Dempsey, 261 U. S. 86, even 
should this Court finally deny certiorari here, 
this would not constitute a bar to petitioner’s 
right to a writ of habeas corpus from the United 
States District Court for the Eastern District 
of Virginia, even though the petition for such 
writ of habeas corpus were to be based on 
exactly the same grounds here presented to this 
Court by the petition for certiorari .................  14

III Assuming that petitioner might have waived his 
constitutional right to indictment and trial by 
juries from which his economic peers have not 
been systematically excluded, this court should 
hold that, consistently with the principles of 
Patton v. United States, 281 U. S. 276 and

PAGE



11 TABLE OF CASES CITED

■Johnson v. Zerhst, 304 U. S. 458, such waiver 
could only be by petitioner’s “ express and in­
telligent consent,”  and that no mere error of 
petitioner’s counsel could constitute such waiver 17

IV It would appear that this Court could not have 
denied certiorari on the ground that the equal 
protection clause of the 14th Amendment is lim­
ited to denials solely because of race or color, 
in view of its decisions, not heretofore cited, in 
which this Court has held that clause to extend 
to inanimate corporations, of no race and no 
c o lo r ..........................................................................  19

V The denial of certiorari without opinion leaves 
the future administration of criminal law in the 
State of Virginia in hopeless and unnecessary 
confusion, and, unless this court at least states 
the grounds of such denial, this court will un­
doubtedly be burdened with appeals for review, 
in future cases, which must prove either futile

PAGE

or unnecessary ....................................................... 21
Conclusion...........................................................................  22
Certificate............................................................................  24

Table of Cases Cited

American Sugar Refining Co. v. Louisiana, 179 U. S.
89 ..................................................................................  20

Andrews v. Swartz, 156 U. S. 272 ....................... 4, 7,11,12

Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232........5,19
Bowen v. Johnston, 306 U. S. 1 9 ..................3, 4, 7, 9,10,13

Carruthers v. Reed, 102 Fed. 933 ....................................  17

Covington & L. Turnp. Road Co. v. Sanford, 164 U. S.
579 .................................................................................5,19

Ex Parte Lange, 18 Wallace 1 6 3 .....................................  8



TABLE OF CASES CITED 111

Ex Parte Neilson, 131 U. S. 176 ...................................  8
Glasser v. U. S., 86 Law Ed. 405 ...................................  18
Hale v. Crawford, 65 Fed. (2d) 739 ............4,6,7,9,11,13

Johnson v. Zerbst, 304 U. S. 458 ........................... 5,17,18

Kentucky Finance Corp. v. Paramount Auto Exchange 
Corp., 262 U. S. 544 .................................................. 5,20

Minneapolis & St. L. E. Co. v. Beckwith, 129 U. S.
26 ..................................................................................5,19

Mooney v. Holohan, 294 U. S. 1 0 3 .................................  16
Moore v. Dempsey, 261 LT. S. 8 6 ................. 4, 6, 7,13,14,15
Patton v. U. S., 281 U. S. 276 ..................................5,17,18

Pierre v. Louisiana, 306 U. S. 354 .................................  22
Power Mfg. Co. v. Saunders, 274 U. S. 490 ................5,20
Smith v. Texas, 311 U. S. 1 2 8 ......................................... 22
Waley v. Johnston, 86 L. Ed. 932 ........................... 3, 4, 7, 9

Wood v. Brush, 140 U. S. 278 ............................... 4, 7,11,12

Table of Statutes Cited

U. S. C. A., Title 28, Sec. 345 .......................................  16
U. S. C. A., Title 28, Sec. 347 .......................................  16
U. S. C. A., Title 28, Sec. 466 .......................................  16

PAGE



.

.



Supreme (four! of tit? States
October Term 1941

Odell W aller, 

against
Petitioner,

Rice M. Yotjell, Superintendent of the State 
Penitentiary, Richmond, Virginia,

Respondent.
----------------------------------- +.-----------------------------------

PETITIO N FO R  R E H E A R IN G  OF T H E  D EN IAL  
OF C E R TIO R A R I T O  T H E  SUPREM E C O U R T  

OF A P P E A LS OF V IR G IN IA

To the Honorable the Supreme Court of the United States:

Exceptional reasons, it is respectfully submitted, exist 
for the granting of rehearing herein.

The Governor of Virginia, following denial by this Court 
on May 4, 19f/2 of certiorari herein without opinion, has 
postponed petitioner’s execution from May 19 to June 19, 
1942, expressly for the purpose of permitting a petition 
for rehearing of such denial to be filed.

The present Governor and his predecessors have con­
sidered the constitutional questions presented by peti­
tioner of sufficient importance that, with courageous and 
humane disregard of any political considerations, they 
thus have gone to the unusual length of granting peti­
tioner four stays of execution in order that he might' 
obtain answers to those questions from this Court.

The denial of certiorari without opinion affords no an­
swer to those questions.



2

j  In determining whether those questions are entitled to 
specific answer, it is respectfully submitted that this Court 
may also properly consider the fact that it has only been 
possible to bring those questions before this Court as a 
“ test case”  by reason of the aid of public spirited citi­
zens and of volunteer counsel, whose sole interest has 
been to determine whether protection exists against the 
violation of the apparent constitutional rights of an entire 
economic class of citizens who, because of their economic 
and political disabilities, are themselves powerless to pro­
tect those rights.

The constitutional and procedural questions left unan­
swered by the mere denial of certiorari without opinion 
are the following:

Was certiorari denied because:
1. The equal protection clause of the Fourteenth 

Amendment is limited to systematic exclusion from grand 
and petit juries solely because of race or color?

2. Even if not so limited, and even though that clause 
would extend to systematic exclusion because of religion, 
politics or nativity, it nevertheless does not extend to 
such exclusion, because of its economic disabilities, of 
petitioner’s entire class?

3. Even though the equal protection clause would other­
wise extend to such systematic exclusion of petitioner’s 
entire economic class from grand and petit juries, no 
remedy is available by habeas corpus or otherwise, and 
petitioner must die, solely because of the error of his trial 
counsel as to the procedure necessary to establish the 
undenied and undeniable facts of such exclusion?

Counsel most respectfully submit that petitioner, being 
under sentence of death, is peculiarly entitled to an an­
swer to these questions, and to have them answered only 
after the fullest presentation and consideration; that 
neither full presentation or consideration is possible



under the limitations prescribed by the rules of this Court 
both upon briefs in support of petitions for certiorari and 
upon petitions for rehearing; that unless this Court does 
answer these constitutional and procedural questions, the 
future administration of criminal law in the State of Vir­
ginia will be left in hopeless and unnecessary confusion, 
and this Court will be burdened with further appeals for 
review which must prove either unnecessary or futile.

Finally, counsel most respectfully submit that if rehear­
ing is granted, it is their profound conviction that, on the 
following grounds, this Court, on further and mature con­
sideration of the questions here involved, must conclude 
that petitioner’s constitutional rights have clearly been 
violated; that habeas corpus affords a clear and proper 
remedy for such violation; and therefore either that cer­
tiorari should issue to review the judgment of the Su­
preme Court of Appeals of Virginia denying habeas cor­
pus, or that this Court should issue to petitioner its own 
original writ of habeas corpus or expressly recognize the 
right of a lower Federal court to issue that writ.

The following are specific grounds on which it is sub­
mitted rehearing should be granted, and that thereupon 
either certiorari should issue, or this Court should ex­
pressly recognize petitioner’s right to a writ of habeas 
corpus, either from this Court or from a lower Federal 
court.

1. The denial of certiorari here would seem in necessary 
conflict with the recent decisions of this Court in Waley v.
Johnston, ------  U. S. ------ , 86 L. Ed. 932, and Bowen v.
Johnston, 306 U. S. 19,* holding that a judgment of con­
viction, even though not void for want of jurisdiction of 
the trial court, is properly revieivable on habeas corpus,

* Counsel regret that they failed in their brief in support of the 
petition for certiorari to call the attention of this Court to the rele­
vance of certain decisions now cited for the first time in this petition.



4

(a) If, as here, such conviction was in disregard of peti­
tioner’s constitutional rights;

(h) If, as here, the facts relied on to shoiv such viola­
tion are dehors the record and their effect on the 
judgment of conviction ivas not open to considera­
tion and review on appeal, and

(c) If, as here, the writ of habeas corpus is the onl$ 
effective means of preserving petitioner’s constitu­
tional rights.

2. The decisions in Waley v. Johnston, supra, and 
Bowen v. Johnston, supra, though directed to judgments 
of conviction in Federal courts, would seem no less ap­
plicable to petitioner’s conviction in a State court where, 
as here, all state remedies have been exhausted, Hale v. 
Crawford, 65 Fed. (2d) 739, 747 (certiorari denied 290 
U. S. 674).

3. Even should this Court finally deny certiorari here, 
this would not, under Moore v. Dempsey, 261 U. S. 86, 
constitute a bar to petitioner’s right to a writ of habeas 
corpus from the United States District Court for the East­
ern District of Virginia, even though the petition for such 
writ of habeas corpus were to be based on exactly the 
same. grounds here presented to this Court by the petition 
for certiorari.

4. The decisions in Wood v. Brush, 140 U. S. 278 and 
Andrews v. Swartz, 156 U. S. 272, cited in respondent’s 
brief in opposition, are clearly inapplicable to petitioner s 
case. In those cases, habeas corpus was held not to afford 
a proper remedy to review the judgments of conviction in 
the state courts there involved, (a) because, before apply­
ing to a Federal court for habeas corpus, the accused had 
not resorted to direct review by this Court, available 
there, but not here, as a matter, of right; (b) because 
there, upon direct review, the question of violation of con­



5

stitutional rights could have been determined, since there., 
unlike here, the facts constituting such violation appeared 
of record in the trial court.

5. Assuming that petitioner might have waived his con­
stitutional right to indictment and trial by juries from 
which his economic peers had not been systematically ex­
cluded, it would seem that, consistently with Patton v. 
U. S., 281 U. S. 276, and Johnson v. Zerbst, 304 U. S. 458, 
there could be no such waiver except by petitioner’s “ ex­
press and intelligent consent” , and that no mere error of 
petitioner’s counsel as to the procedure necessary to es­
tablish violation of such constitutional rights could con­
stitute such waiver.

6. It would appear that this Court could not hold that 
the equal protection clause of the Fourteenth Amend­
ment is limited to denial because of race or color, in view 
of its decisions, not heretofore cited, in which this Court 
has expressly held that clause to extend to inanimate cor­
porations, of no race, and no color.

Minneapolis & St. L. B. Co. v. Beckwith, 129 
U. S. 26;

Bell’s Gap E. Co. v. Pennsylvania, 134 U. S. 232;
Covington & L. Turnp. Eoad Co. v. Sanford, 

164 IT. S. 579;
Kentucky Finance Corp. v. Paramount Auto Ex­

change Corp., 262 U. S. 544;
Power Mfg. Co. v. Saunders, 274 U. S. 490.

7. Exclusion of non-payers of poll taxes from jury ser­
vice is in reality a means of indirect exclusion because 
of race and color, since, as alleged in the petition for cer­
tiorari, p. 9, negroes constitute a large proportion of the 
persons so barred. Moreover it has the advantage of 
avoiding the recognized illegality of direct exclusion on 
account of race and color, with the added advantage of also 
excluding poor whites as well as negroes.



G

8. Finally, the denial here of certiorari, without opinion,
(a) Leaves the future administration of criminal law 

in the State of Virginia in hopeless and unnecessary 
confusion;

(b) May well burden this Court with appeals for review 
in future cases, which must prove either futile or 
unnecessary ;

(c) Constitutes a practical bar to a remedy otherwise 
clearly available under the decisions in Moore v. 
Dempsey, supra, and Hale v. Crawford, supra, that 
is, a petition for habeas corpus to the United States 
District Court for the Eastern District of Virginia.

(d) Most important to petitioner, it leaves petitioner’s 
counsel tcithout any basis for forming an intelligent 
judgment as to whether petitioner has the Constitu­
tional rights here claimed; whether those rights have 
been violated; whether remedy exists for their viola­
tion under Moore v. Dempsey, supra, and Hale v. 
Crawford, supra; and, if so, what is the proper pro­
cedure to obtain such remedy.

Counsel trust that in view of the importance of the 
questions presented by the foregoing grounds, this Court 
will not consider a further brief exposition of certain of 
those grounds to exceed the limits placed by its rules on 
petitions for rehearing.



<

It would seem that consistently with Waley v. 
Johnston, supra, and Bowen v. Johnston, supra, this 
Court should grant certiorari herein and thereupon 
require the Supreme Court of Appeals of Virginia to 
issue its writ of habeas corpus or, consistently with 
Moore v. Dempsey, supra and Hale v. Crawford, 
supra, this Court should expressly recognize the right 
of petitioner either to obtain a writ of habeas corpus 
from the United States District Court for the Eastern 
District of Virginia or to obtain from this Court its 
own original writ of habeas corpus.

Wood v. Brush and Andrews v. Swartz, supra, dis­
tinguished.

It has long been contended, and the respondent so con­
tends in his brief in opposition, that a conviction cannot be 
reviewed by habeas corpus unless the judgment of convic­
tion be void for want of jurisdiction of the trial court to 
render it. Prior language of this court, taken out of its 
context, has lent color to such contentions. The recent deci­
sions of this court, however, in Waley v. Johnston, supra, 
and Bowen v. Johnston, supra, make such contentions no 
longer tenable.

Those decisions make it clear that while want of jurisdic­
tion of the trial court to render a judgment of conviction 
affords one ground for habeas corpus, it is not the solei 
ground.

On the contrary, it is clear from those cases that viola­
tion of constitutional rights in the conviction of an ac­
cused, in itself affords proper ground for habeas corpus, 
even though the judgment of conviction is not void for 
want of jurisdiction:*

* Indeed, this is no new doctrine. The limitations imposed by the 
rules of this Court, on petitions for rehearing, do not permit of an 
adequate discussion of former decisions of this Court to substan­
tially this same effect. Attention, however, is directed to the lan­
guage of this Court in this respect in two of its early decisions.

(Footnote continued on next page)

I



8

(a) if the facts relied on to show such violation are 
dehors the record;

(b) if the effect of those facts on the judgment of 
conviction was not open to consideration and re­
view on appeal; and

(c) if the writ of habeas corpus is the only effective 
means of preserving such constitutional rights.

In E x  P arte L an ge, 18 Wall. 163, this Court, in discharging the 
petitioner there, upon this Court’-s original writ of habeas corpus, 
said, pages 175-176:

“But it has been said that, conceding all this, the judgment 
under which the prisoner is now held is erroneous, but not 
void; and as this court cannot review that judgment for error, 
it can discharge the prisoner only when it is void.

But we do not concede the major premise in this argument. 
A judgment may be erroneous and not void and it may be er­
roneous because it is void. The distinctions between void and 
merely voidable judgments are very nice and they may fall 
under the one class or the other as they are regarded for differ­
ent purposes.”

In E x  P arte N eilson , 131 U. S. 176, this Court, in reversing de­
nial of habeas corpus by a district court, said, page 182:

"The objection to the remedy of habeas corpus, of course, 
would be that there was in force a regular judgment of con­
viction, which could not be questioned collaterally, as it would 
have to be on habeas corpus. But there are exceptions to this 
rule which have more than once been acted upon by this court. 
It is firmly established that if the court which renders a judg­
ment has not jurisdiction to render it, either because the pro­
ceedings or the law under which they are taken are unconsti­
tutional, or for any other reason, the judgment is void and may 
be questioned collaterally, and a defendant who is imprisoned 
under and by virtue of it may be discharged from custody on 
habeas corpus. This was so decided in the cases of E x  Parte  
Lange, 85 U. S. 18 Wall. 163 and E x  P arte S ie  old, 100 U. S. 
371 and in several other cases referred to therein.”

At pages 183-184, this Court further said:
“It is difficult to see why a conviction and punishment under 

an unconstitutional law is more violative of a person's consti­
tutional rights, than an unconstitutional conviction and punish­
ment under a valid law. In the first case, it is true, the court 
has no authority to take cognizance of the case; but, in the 
other, it has no authority to render judgment against the de­
fendant.”



9

Furthermore, Mr. Chief Justice Hughes, in Bowen v. 
Johnston, made it clear that while this court ordinarily will 
not review by habeas corpus a judgment of conviction even 
of a Federal court, where the right to direct review by this 
court exists, and has not been exhausted, this has not been 
because of any question of power to make such review by 
habeas corpus, but a question of the appropriate exercise 
of such power.

Finally, it is pointed out in Hale v. Crawford, supra, that 
the ordinary rule that habeas corpus may not be used to 
review a judgment of conviction in a State court, even 
though such judgment violates constitutional rights, unless 
not only State remedies but any right to direct review by 
this court of their denial have been exhausted, was a rule 
of procedure which grew up prior to the amendment of the 
Judiciary Act of 1925, when direct review by this court 
under a writ of error was a matter of right; that since 
that amendment changed review by this court to a matter 
of discretion under certiorari, a Federal court now can re­
view such judgment by habeas corpus, even after this 
court has denied review by certiorari. (See in this latter 
respect subsequent discussion under Point II of Moore v. 
Dempsey, 261 U. S. 86.)

For the convenience of this Court, brief quotation will 
accordingly be made from the foregoing cases.

In Waley v. Johnston, supra, this Court said, page 934:
“ The issue here was appropriately raised by the 

habeas corpus petition. The facts relied on are dehors 
the record and their effect on the judgment was not 
open to consideration and review on appeal. In such 
circumstances the use of the writ in the federal courts 
to test the constitutional validity of a conviction for 
crime is not restricted to those cases where the judg­
ment of conviction is void for want of jurisdiction of 
the trial court to render it. It extends also to those 
exceptional cases inhere the conviction has been in 
disregard of the constitutional rights of the accused,



10

and where the writ is the only effective means of pre­
serving his rights. Moore v. Dempsey, 261 U. S. 86; 
Mooney v. Holohan, 294 U. S. 103, Bowen v. Johnston, 
306 U. S. 19.”

In Bowen v. Johnston, supra, Chief Justice Hughes said, 
pages 23-24:

“ The scope of review on habeas corpus is limited 
to the examination of the jurisdiction of the court 
whose judgment of conviction is challenged. (Citing 
decisions.) But if it be found that the court had no 
jurisdiction to try the petitioner, or that in its pro­
ceedings his constitutional rights have been denied, 
the remedy of habeas corpus is available. Ex Parte 
Lange, 18 Wall. 163; Ex parte Crow Dog, 109 U. S. 
556; Re Snow, 120 U. S. 274; Re Coy, 127 U. S. 751; 
Re Nielsen, 131 U. S. 176; Re Bonner, 151 U. S. 242; 
Moore v. Dempsey, 271 IT. S. 86; Johnson v. Zerbst, 
304 U. S. 458.”

The Chief Justice further said, pages 26-27:
“ It must never he forgotten that the writ of habeas 

corpus is the precious safeguard of personal liberty 
and there is no higher duty than to maintain it unim­
paired. Ex parte Lange, 18 Wall. 163, supra. The 
ride requiring resort to appellate procedure when the 
trial court has determined its own jurisdiction of an 
offense is not a rule denying the power to issue a writ 
of habeas corpus when it appears that nevertheless 
the trial court was without jurisdiction. The ride is 
not one defining power but one which relates to the 
appropriate exercise of power. It has special applica­
tion where there are essential questions of fact de­
terminable by the trial court. Rodman v. Pothier, 264 
U. S. 399, supra. It is applicable also to the de­
termination in ordinary cases of disputed matters of 
law whether they relate to the sufficiency of the in­
dictment or to the validity of the statute on which 
the charge is based. Ibid; Glasgow v. Moyer, 225 
IT. S. 420, supra; Henry v. Henkel, 235 U. S. 219, 
supra. But it is equally true that the rule is not so



11

inflexible that it may not yield to exceptional circum­
stances where the need for the remedy afforded by 
the writ of habeas corpus is apparent.”

In Hale v. Crawford, supra, the Circuit Court of Ap­
peals for the First Circuit said, page 747 of its decision, 
in referring, among other cases, to Andrews v. Swartz, 
and Wood v. Brush, supra:

“ Counsel for Crawford contend that these cases 
are not applicable for, if he were remitted to Vir­
ginia and seasonably and properly raised the question 
here under consideration and the question was de­
cided against him, at the present time and under the 
Judiciary Act of 1925, he could not, as of right, 
prosecute a writ of error from the Supreme Court of 
the United States to the highest court of the state 
of Virginia to which the case could be taken. It is 
true that his right of review by writ of error from 
the Supreme Court of the United States on the facts 
of this case ivas taken away by the act of 1925, for 
under the law as it now stands no writ of error lies 
from the Supreme Court in this case, as the grand 
jury was not drawn under a statute of the state of 
Virginia which violated the Constitution of the United 
States. 43 Stat. 936, 937, e. 229, § 237 (28 USCA 
§ 344). He is, however, permitted by that act to apply 
to that court for certiorari, a discretionary writ. 
South Carolina v. Bailey, supra. If revieiv on such 
application is not granted he undoubtedly, at that 
stage of the proceeding, could have the matter re­
viewed on habeas corpus in the proper federal court, 
being without review in the Supreme Court on writ of 
error as of right. In re Royall, 117 U. S. 241, 252, 
253, 6 S. Ct. 734, 29 L. Ed. 868; In re Wood, supra, 
140 U. S. at pages 289, 290, 11 S. Ct. 738, 35 L. Ed. 
505. It would not then be an endeavor by habeas 
corpus to intervene before trial or to review what 
ordinarily can be reexamined only on writ of error; 
and the federal court applied to coidd not, under such 
circumstances, properly refuse review on habeas 
corpus.”



12

Petitioner’s case, it is submitted, meets every condition 
which, under the principles of the foregoing decisions, 
would make habeas corpus a proper remedy to review 
petitioner’s conviction. Moreover, it is submitted, peti­
tioner’s ease is clearly distinguishable from Andrews v. 
Swartz, supra, and Wood v. Brush, supra, where, on the 
record in those cases, resort to habeas corpus was held 
improper.

In Andrews v. Swartz, supra, and Wood v. Brush, 
resort to habeas corpus w7as held improper on two 
grounds: First, because although state remedies had been 
exhausted, the accused, before applying to a Federal court 
for habeas corpus, had not resorted to the direct review 
of the judgment of the State court there available from 
this Court as a matter of right by writ of error. Second, 
because there, upon direct review, the question of violation 
of constitutional rights could have been determined, since 
the facts constituting such violation appeared of record in 
the trial court.

Here, on the contrary, while State remedies have un­
questionably been exhausted, no right of direct review 
by this Court of the judgment of the State court was ever 
available as a matter of right by writ of error, but only 
as a matter of discretion by certiorari.

Here, moreover, the facts relied on to show violation of 
petitioner’s constitutional rights are dehors the record, 
and, therefore, those facts and their effect on the judg­
ment of conviction would not have been open to considera­
tion and review by this Court on direct review by cer­
tiorari of the judgment of conviction.

Here, therefore, the Avrit of habeas corpus is and at all 
times has been the only effective means on this record of 
preserving petitioner’s constitutional rights.



13

It would seem, therefore, that, under the eases cited, 
and in particular under Bowen v. Johnston, supra, taken 
in connection with Hale v. Crawford, supra, the petitioner 
is entitled to obtain by some means a writ of habeas 
corpus to review his judgment of conviction.

In this connection, the decision of this Court in Moore 
v. Dempsey, supra, makes it clear that, even if this Court 
should finally deny certiorari here, this would constitute 
no legal bar to an application to the United States Dis­
trict Court for the Eastern District of Virginia for a 
writ of habeas corpus, even though such application were 
based on the same grounds presented to this Court by the 
petition for certiorari. In all probability, however, should 
this Court persist in its refusal to state its grounds for 
denial of certiorari, the District Court would deny the 
writ, on the assumption that such denial means either 
that petitioner’s constitutional rights have not been vio­
lated, or that, if they have, petitioner is without rem­
edy because of the error of his trial counsel in failing to 
prove in the trial court the facts of such violation. How­
ever, in such event, it would seem that, under Moore v. 
Dempsey, this Court should nevertheless require the Dis­
trict Court to issue habeas corpus.

Since Moore v. Dempsey would seem thus to be of com­
pelling significance here, that decision will be briefly dis­
cussed.



u

I I

Under M o o r e  v. D e m p s e y , 261 U. S. 86, even should 
this Court finally deny certiorari here, this would not 
constitute a bar to petitioner’s right to a writ of 
habeas corpus from the United States District Court 
for the Eastern District of Virginia, even though the 
petition for such writ of habeas corpus were to be 
based on exactly the same grounds here presented to 
this Court by the petition for certiorari.

In Moore v. Dempsey, supra, this Court, although it had 
previously denied certiorari to review on constitutional 
grounds the judgment of conviction in the state court, 
and had also denied a writ of error to review a later 
denial of habeas corpus by the state court, held habeas 
corpus nevertheless available from the appropriate Fed­
eral district court, even though the grounds alleged for 
habeas corpus were identical with the grounds presented 
by the petitions for certiorari and for writ of error, pre­
viously denied by this Court.

In Moore v. Dempsey, this Court, on appeal, reversed 
an order of the District Court for the Eastern District 
of Arkansas, dismissing a writ of habeas corpus, and 
thereupon required the District Court to issue the writ. 
Moreover, this Court, speaking through Mr. Justice 
Holmes, required the issuance of habeas corpus by the 
District Court, in spite of the following facts pointed out 
in the dissenting opinion of Mr. Justice McReyonlds, 
joined in by Mr. Justice Sutherland.

It there appears, page 98:
“ A petition for certiorari, filed in this court May 

24, 1920, with the record of proceedings in the state 
courts, set forth in detail the very grounds of com­
plaint now before us. It was presented October 5th, 
denied October 11th, 1920.



1 5

April 29, 1921, the governor directed execution of 
the defendants on June 10th. June 8th the chancery 
court of Pulaski county granted them a writ of habeas 
corpus; on June 20th the state supreme court held 
that the chancery court lacked jurisdiction and pro­
hibited further proceedings. State v. Martineau, 149 
Ark- 237, 232 S. D. 609. August 4th a justice of this 
court denied writ of error. Thereupon, the governor 
fixed September 23rd, for execution. On September 
21st the present habeas corpus proceeding began, and 
since then the matter has been in the courts.”

It is also significant to note that it appears from the 
same page of the opinion that one of the grounds alleged, 
not only for habeas corpus, but previously for certiorari 
and for writ of error, was the systematic exclusion of 
negroes from grand and petit juries in the State of 
Arkansas.

It would seem not unreasonable to assume from this 
statement of the record in Moore v. Dempsey that one of 
the grounds for the dismissal of the writ of habeas corpus 
by the District Court may well have been the fact that this 
Court, had denied, without opinion, both the prior peti­
tion for certiorari and the prior application for writ of 
error. Nor, as has already been suggested, is it unreason­
able to assume that were petitioner here to make applica­
tion for habeas corpus to the District Court for the East­
ern District of Virginia, that Court, in the face of a denial 
of certiorari by this Court without opinion, would likewise 
deny habeas corpus.

In such event, petitioner, due to the amendments of 
1925 to the Judiciary Act, could not have, as had the peti­
tioners in Moore v. Dempsey, review by this Court of such 
denial as a matter of right, or even review as of right by 
the Circuit Court of Appeals. On the contrary, petitioner 
could not even have appeal to the Circuit Court of Appeals 
except on a certificate of probable cause either by that



1G

Court or by the District Court, (Title 28, Sec. 466, U. S. 
C. A.). Furthermore, should both the District Court and 
the Circuit Court of Appeals refuse such certificate, no 
appeal would lie to this Court (Title 28, Sec. 345, U. S. 
C. A.), and this Court would be without jurisdiction even 
to grant certiorari (Title 28, Sec. 347, U. S. C. A.). There­
fore, should the right to appeal to the Circuit Court of 
Appeals be denied, petitioner’s only recourse would be an 
application to this Court for an original writ of habeas 
corpus.

This, indeed, was the very situation which arose in 
Mooney v. Holohan, 294 U. S. 103. In that case, prior to 
the application to this Court for an original writ of habeas 
corpus, a certificate of probable cause for appeal to the 
Circuit Court of Appeals from the denial of the writ by 
the District Court, had been refused both by the District 
Court and by the Circuit Court of Appeals. On represen­
tation of these facts to this Court in the petition to it in 
the Mooney case for an original writ of habeas corpus, this 
Court thereupon recognized the right to apply to this 
Court for such original writ. Presumably, petitioner, 
under similar circumstances, here would have a similar 
right.

The question remains whether this Court, therefore, 
should put petitioner, who is under sentence of death and 
in indigent circumstances, to the circuity of action which 
would be involved in a petition to the United States Dis­
trict Court for the Eastern District of Virginia for habeas 
corpus, should this Court here finally deny certiorari.

Counsel most respectfully submit that the more appro­
priate and orderly procedure would be for this Court to 
grant rehearing herein, and thereupon to require the Su­
preme Court of Appeals of Virginia to accord petitioner 
its writ of habeas corpus. Should this Court fail to do 
this, petitioner’s only practical remedy would seem to be 
an application direct to this Court for its own original 
writ of habeas corpus.



17

I I I

Assuming that petitioner might have waived his 
constitutional right to indictment and trial by juries 
from which his economic peers have not been sys­
tematically excluded, this court should hold that, con­
sistently with the principles of P a tton  v. U n ited  S ta tes , 
281 U. S. 276 and J oh n son  v. Z e r b s t , 304 U . S. 458, 
such waiver could only be by petitioners “ express and 
intelligent consent,” and that no mere error of peti­
tioner’s counsel could constitute such waiver.

In Carruthers v. Reed, 102 Fed. 933, the Court said, in 
connection with the systematic exclusion of negroes from 
grand and petit juries, page 939:

“ The right to challenge the panel (for systematic 
exclusion of negroes) is a right that may be waived 
and is waived if not seasonably presented.”

There the Court noted, page 938, however, that the rec­
ord expressly showed that counsel for accused had de­
liberately waived the right to make such challenge, con­
cluding after mature consideration, first, that to raise the 
question might prejudice his client’s interests, and, second, 
that the jury panel was a favorable one or, as he ex­
pressed it, “ a very good jury” .

The record here shows no such waiver before the trial 
court, even by petitioner’s counsel. On the contrary, it 
shows that petitioner’s counsel specifically moved to quash 
both the grand and petit juries, as violating petitioner’s 
right to equal protection of the laws by reason of the sys­
tematic exclusion therefrom of non-payers of poll taxes, 
constituting petitioner’s entire economic class (R. 18-19, 
Ex. 1, pp. 31-32). Moreover, it shows that petitioner’s 
trial counsel did not offer evidence of the facts of such 
exclusion, first, because of their erroneous belief that the 
Constitution and laws of Virginia required such exclusion 
as a matter of law (R. 18-19, Ex. 1, pp. 59-60) and second,



IS

because of their failure to take the precaution of proving 
the facts of such exclusion, lest the Supreme Court of 
Appeals of Virginia should, as it subsequently did, speci­
fically hold that such exclusion vas not required by law. 
Moreover, the record shows that, on the writ of error to 
the Supreme Court of Appeals to review petitioner’s con­
viction (R. 18-19, Ex. 1, pp. 5-10), petitioner’s counsel 
again specifically alleged unconstitutional exclusion, still, 
however, on the assumption that it was required by the 
Constitution and laws of Virginia, a point not theretofore 
specifically decided by that Court.

It would seem clear that neither the error of petitioner’s 
counsel, in assuming that the Constitution and laws of 
Virginia required such exclusion, nor their error as to the 
necessity of proof of the facts of such exclusion, could 
constitute a waiver of petitioner’s constitutional rights 
against such exclusion.

On the contrary, it Avould seem that this Court should 
hold that, consistently with the principles declared by this 
Court in Patton v. United States, supra, and Johnson v. 
Zerbst, supra, as to the safeguards against the waiving 
of constitutional rights, petitioner’s constitutional rights 
could not here have been waived except by petitioner’s 
own “ express and intelligent consent” .

It is true that in Patton v. United States, supra, waiver 
of the constitutional right there involved was the right to 
trial by jury at all, while, in Johnson v. Zerbst, supra, it 
was the right to protection of counsel.

It would seem that no reason can be advanced, how­
ever, why like safeguards should not attend any waiver 
of petitioner’s right to indictment and trial by a constitu­
tional jury. On the contrary, this Court has recently said
in the case of Glasser v. United States, ------  U. S. ------ ,
86 Law Ed. 405, 412:



1 9

“ To preserve the protection of the Bill of Rights 
for hard pressed defendants, we indulge every rea­
sonable presumption against the waiver of funda­
mental rights.”

On this record, it is clear that there was no “ express 
and intelligent consent”  by petitioner to any waiver of 
his constitutional rights to trial by a jury from which 
his economic peers had not been systematically excluded. 
On the contrary, it must be assumed that petitioner in­
tended to insist on those rights and relied, as he had a 
right to do, upon his counsel for their adequate protec­
tion. The error of his counsel as to what procedure was 
necessary adequately to protect those rights certainly 
should not be held the equivalent of “ express and intelli­
gent consent”  to the waiver of them by petitioner.

I V

It would appear that this Court could not have de­
nied certiorari on the ground that the equal protection 
clause of the 14th Amendment is limited to denials 
solely because of race or color, in view of its deci­
sions, not heretofore cited, in which this Court has 
held that clause to extend to inanimate corporations, 
of no race and no color.

Counsel in their brief in support of the petition for 
certiorari failed to call the attention of this Court to the 
following decisions in which it has directly held that the 
equal protection clause of the' 14th Amendment extends to 
corporations:

Minneapolis & St. L. R. Co. v. Beckwith, 129 
U. S. 26;

Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232;
Covington & L. Tump. Road Co. v. Sandford, 164 

U. S. 579;



20

Kentucky Finance Cory. v. Paramount Auto Ex­
change Cory., 262 U. S. 544;

Power Mfg. Co. v. Saunders, 274 U. S. 490.

Moreover, counsel failed to make clear the real sig­
nificance of the decision of this Court in American Sugar 
Refining Comyany v. Louisiana, 179 U. S. 89, referred to 
at page 9 of that brief. While, in that case, this Court 
held that the State license tax there in question did not 
arbitrarily discriminate against the corporation there af­
fected, this Court implicitly recognized that, had such tax 
done so, the provisions of the equal protection clause of 
the 14th Amendment would have applied to the corpora­
tion.

Furthermore the language quoted, from that case, and 
from other cases at pages 4 to 14 of the brief in support 
of the petition for certiorari, would seem to make clear 
that, since the equal protection clause of the 14th Amend­
ment is not limited to denials because of race or color, it 
must extend not only to denials because of politics, reli­
gion and nativity, but to denials because of economic 
disabilities of a particular class, or to any other arbitrary 
class discrimination.

Finally, on this point, as shown at p. 9 of the petition 
for certiorari, and at pp. 14-22 of the brief in support of 
that petition, poll taxes in Virginia are, in reality, a 
means of indirect exclusion because of race or color, since 
negroes constitute a large proportion of those unable to 
pay poll taxes on account of their economic disabilities; 
that, as such, poll taxes avoid the patent illegality of 
direct exclusion on account of race or color, and have the 
added advantage of killing two birds with one stone, in 
that they exclude poor whites as well as negroes.



■21

V

The denial of certiorari without opinion leaves the 
future administration of criminal law in the State of 
Virginia in hopeless and unnecessary confusion, and, 
unless this court at least states the grounds of such 
denial, this court will undoubtedly be burdened with 
appeals for review, in future cases, which must prove 
either futile or unnecessary.

It is respectfully submitted that this Court should keep 
in mind that the sworn facts presented by the petition for 
habeas corpus to the Supreme Court of Appeals of Vir­
ginia, showing the systematic exclusion of non-payers of 
poll taxes from grand and petit jury service, stand un­
denied on this record. Moreover, counsel submit, those 
facts cannot be denied.

It must be clear, therefore, that, until this Court ex­
pressly states' whether certiorari was here denied because 
the 14th Amendment does not extend to such systematic 
exclusion of petitioner’s entire economic class, or was de­
nied because of the error of petitioner’s trial counsel in 
failing to prove the facts of such exclusion on the record 
before the trial court, the State of Virginia may well con­
tinue to practice such exclusion, and its courts may and 
undoubtedly will reject or disregard proof of such exclu­
sion, if such proof be made or offered.

On the other hand, counsel for defendants in future 
cases cannot know whether grand or petit juries are open 
to challenge because of such systematic exclusion, and 
whether, therefore, it will be futile to offer proof of such 
exclusion or, should such proof be made and the courts 
of Virginia reject or disregard it, whether appeal to this 
Court for review will be warranted or will be wholly 
futile.



90

Most important to petitioner, however, is the fact that 
denial of certiorari without opinion leaves petitioner’s 
counsel without any basis for forming an intelligent judg­
ment as to whether petitioner has the constitutional rights 
here claimed; whether those rights have been violated; 
whether remedy exists for their violation under Moore v. 
Dempsey and Hale v. Crawford, supra, and, if so, what is 
the proper procedure to obtain such remedy.

Conclusion

In Pierre v. Louisiana, 306 U. S. 354, this Court said, 
page 358:

“ Indictment by a Grand Jury and trial by a jury 
cease to harmonize with our traditional concepts of 
justice at the very moment particular groups, classes 
or races— otherwise qualified to serve as juries in a 
community—are excluded from such jury service.”

In Smith v. Texas, 311 U. S. 128, this Court said, page 
130:

“ It is part of the established tradition in the use of 
juries as instruments of public justice that the jury 
be a body truly representative of the community. For 
racial discrimination to result in the exclusion from 
jury service of otherwise qualified groups not only vio­
lates our Constitution and the laws under it but is at 
war with our basic concepts of a democratic society 
and a representative government.”

Though both those cases specifically involved only the 
exclusion of negroes from jury service, it would seem im­
probable that this Court would now hold that the princi­
ples there announced were intended to be confined solely 
to exclusion solely because of race or color. The express 
language, particularly in Pierre v. Louisiana, would seem 
to preclude any such limitation.



23

Furthermore, it seems incredible that this Court could 
hold that the fundamental rights recognized by those 
principles can be protected only if the facts of their viola­
tion can be presented to this Court on certiorari to review 
a judgment of conviction obtained in violation of those 
rights, and that such rights cannot be protected where, as 
here, the undenied facts of violation can only be presented 
on habeas corpus, because of absence of proof of them in 
the record before the trial court. So to hold would make 
the protection of constitutional rights depend, not upon 
the undenied facts of their violation, but upon the pro­
cedure by which those facts are shown to this Court.

Finally, counsel here feel a heavy responsibility to this 
Court and to the petitioner in having failed in their brief 
in support of the petition for certiorari to present to this 
Court certain of the foregoing matters which now, for the 
first time, are called to its attention by this petition for 
rehearing.

Counsel most earnestly submit, however, that neither 
such failure on the part of counsel here, nor any error of 
trial counsel as to the procedure necessary to bring before 
this Court the undenied and undeniable facts of violation 
of petitioner’s constitutional rights, should now prevent 
further and more mature consideration of the questions 
here presented, and certainly could not justify permitting 
the execution of petitioner in violation of his constitutional 
rights.

It is therefore respectfully submitted that this Court 
should grant rehearing herein and that, upon such re­
hearing, this Court should either

(a) Issue its writ of certiorari to the Supreme Court 
of Appeals of Virginia requiring that Court to issue a 
writ of habeas corpus; or



2 4

(b) Expressly recognize petitioner’s right to obtain a 
writ of habeas corpus either from the United States Dis­
trict Court for the Eastern District of Virginia or from 
this Court itself.

For the reasons already given the first procedure would 
seem the more appropriate and orderly.

Respectfully submitted,

J o h n  F .  F in e r t y , 
M orris S h a p ir o , 

Counsel for Petitioner.

T h o m a s  H . S t o n e , 
M a r t in  A. M a r t in , 
E r n e s t  F l e i s c h m a n , 

of Counsel.

Certificate

I hereby certify that the foregoing petition for rehear­
ing is presented in good faith and not for delay.

J o h n  F .  F in e r t y , 
Counsel for Petitioner.







S u p re m e  (H our! o f  tlrr H nitefr S ta te s
O c to ber  T e e m , 1941

No. 1097

ODELL WALLER, 

against

RICE M. YOUELL, Superintendent of 
Penitentiary, Richmond, Va.,

Petitioner,

the State 

Respondent.

M O T I O N  F O R  L E A V E  T O  F I L E  B R I E F  A S  A M I C I  C U R I A E ,  
I N  S U P P O R T  O F  P E T I T I O N  F O R  R E H E A R I N G .

B R I E F  O F  A M I C I  C U R I A E  IN  S U P P O R T  O F  T H E  
P E T I T I O N  F O R  R E H E A R I N G .

Joseph A. Padway 
Lee Pressman 

O f Counsel

N ational A ssociation for the A dvancement of 
Colored People 

N ational Urban League 
A merican Civil Liberties U nion 
U nion for Democratic A ction 
W orkers Defense League 
Brotherhood of Sleeping Car Porters 
N egro L abor Committee
U nited T ransport Service E mployees of A merica 
Southern T enant Farmers U nion

Citizens Committee:
Bruce Bltven 
V a n  W yck Brooks 
H enry Sloane Coffin 
John Dewey 
H arry E merson Fosdick 
Frank  P. Graham  
John H aynes H olmes 
Freda K irch wey 
Francis J. M cConnell 
O swald Garrison V illard

By: A rthur Garfield H ays, 
T hurgood M arshall,

Counsel





(fnurt of the Ilnitfb States
O c to ber  T e r m , 1941

No. 1097

------------------------ >------------------------

ODELL WALLER,
Petitioner,

against

RICE M. YOUELL, Superintendent of the State 
Penitentiary, Richmond, Va.,

Respondent.
-------------------------+-------------------------

M O T I O N  F O R  L E A V E  T O  F I L E  B R I E F  A S  A M I C I  C U R I A E ,  
IN  S U P P O R T  O F  P E T I T I O N  F O R  R E H E A R I N G .

Motion is hereby respectfully made, on behalf of all the 
organization and individuals signing the subjoined brief, 
for leave to file such brief, as amici curiae, in support of 
the petition for rehearing herein.

A r t h u r  G a r f ie l d  H a y s , 
T h u r g o o d  M a r s h a l l ,

Counsel.

J o se p h  A .  P a d w a y , 
L ee P r e s s m a n ,

Of Counsel.



SUPREME COURT OF THE UNITED STATES 
Octobeb Term, 1941

No. 1097

—--------------------- ♦-----------------------

ODELL WALLER,
Petitioner,

against

RICE M. YOUELL, Superintendent of the State 
Penitentiary, Richmond, Va.,

Respondent.

----------------------- f-----------------------

B R I E F  O F  A M I C I  C U R I A E  IN  S U P P O R T  O F  T H E  
P E T I T I O N  F O R  R E H E A R I N G .

We, the amici curiae, who submit this brief in support 
of the petition for a rehearing, do so because we consider 
the issues of this case, to be of the greatest significance 
since

“ the proper functioning of the jury system, and in­
deed our democracy itself, requires that the jury be a 
‘ body truly representative of the community’, and not 
the organ of any special group or class.”  Glasser v. 
U. S., decided January 19, 1942, 86 L. Ed. 405, 420.

From our examination of all the facts as set forth in the 
record, we cannot but conclude that the petitioner was con­
victed of murder in the first degree and condemned to 
death by a jury from which all persons, who were in the 
same economic class as the petitioner, were systematically

2



3

excluded, and that petitioner’s rights, guaranteed by the 
Fourteenth Amendment of the Constitution of the United 
States, were thereby violated. It would seem that the jury 
which convicted petitioner, and from which all non-payers 
of poll taxes had been systematically excluded, could not 
have been unbiased. Such a jury by its very composition 
must have had ingrained biases and prejudices.

“ It is well known that prejudices often exist against 
particular classes in the community, which sway the 
judgment of jurors, and which, therefore operate in 
some cases to deny to persons of those classes the full 
enjoyment of that protection which others enjoy.”  
Strauder v. West Virginia, 100 U. S. 303, 309: 25 L. 
Ed. 664, 666.

We, who have followed this case, know the long, tedious 
and expensive procedure, the petitioner and his friends 
were put to, in order to assert those rights guaranteed by 
the Constitution, and when all State remedies were ex­
hausted and the petition for a writ of certiorari was pre­
sented to this Court, we hoped for the granting of the 
same. The Court, by its order of May 5, 1942, neverthe­
less denied the petition without opinion.

The Court’s denial of the petition without opinion leaves 
important constitutional questions unanswered.

Two possible reasons may be advanced for the denial 
of the petition for certiorari. One, that it is constitutional 
to exclude systematically from a jury, persons of the same 
economic class as the petitioner; and the other, that even 
if this be unconstitutional, the procedural error made by 
the attorneys for the petitioner can never be corrected and 
the petitioner must die solely for his attorneys’ error.

If the Court will expressly indicate that the Fourteenth 
Amendment cannot be used by the petitioner to prevent 
the exclusion of 80 per cent of the otherwise eligible fellow 
citizens of his community to sit in judgment at his trial,



4

because they did not and could not pay a poll tax, then 
Odell Waller, his counsel and the State of Virginia will 
at least have certainty of the law. If, on the other hand 
the Court will expressly indicate that systematic exclusion 
of non-poll tax-payers is a violation of the Fourteenth 
Amendment, but that the failure of petitioner’s attorney, 
to offer proof before trial of the specific facts of such sys­
tematic exclusion, was a fatal, uncorrectible error, again 
certainty of the law should at least tend to protect others 
against such uncorrectible errors, and relieve this Court 
of the burden of futile appeals for their correction.

It can be readily seen that the denial of the petition has 
placed a tremendous burden not only on the petitioner, 
and those public minded persons who have interested them­
selves in this case, but has also affected the State of Vir­
ginia and all future defendants in criminal trials who shall 
ask for a jury composed of a cross section of the commu­
nity and from which the economic depressed will not be 
excluded. To have denied the petition without opinion was 
to aggravate the situation by leaving wholly undecided the 
questions whether such constitutional rights even exist, 
and if so, what is the appropriate remedy for their viola­
tion.

In conclusion, we are joining in this petition for a re­
hearing, because

1. We cannot believe that this Court is impotent not 
only to safeguard the petitioner’s constitutional rights, 
but also to indicate how this right of trial by an impartial 
jury may be concretely sought for in the State and Fed­
eral courts. We believe that to secure the rights given 
Odell Waller under the Fourteenth Amendment, the funda­
mental fairness essential to the very concept of justice 
demands that where constitutional issues of importance 
are raised and recognized by trial and appellate courts, 
mere technical errors of procedure by counsel, should be 
disregarded.



5

2. We believe that the rights which were denied Odell 
Waller are intrinsically bound up with our democracy, and 
that as this Court stated in the case of Glasser v. U. S., 
supra, at page 420,

“ But even as jury trial, which was a privilege at com­
mon law has become a right -with us, so also, whatever 
limitations were inherent in the historic common law 
concept of the jury as a body of one’s peers do not 
prevail in this country. Our notions of what a proper 
jury is, have developed in harmony with our basic 
concepts of democratic society and a representative 
government. For ‘ it is part of the established tradi­
tion in the use of juries as instruments of public jus­
tice, that the jury be a body truly representative of 
the community. ’ 1 ’ Smith v. Texas, 311 U. S. 128, 130; 
61 S. Ct. 164, 165.

It is respectfully submitted, therefore, that the petition 
for rehearing prayed for be granted.

Joseph A. P adyvay 
Lee Pressman 

O f Counsel

N ational A ssociation for the A dvancement of 
Colored People 

National Urban L eague 
A merican Civil L iberties U nion 
U nion for Democratic A ction 
W orkers Defense League 
Brotherhood of Sleeping Car Porters 
Negro L abor Committee
U nited T ransport Service E mployees of A merica 
Southern T enant Farmers U nion

Citizens Committee:
Bruce Bliven 
V an  W yck Brooks 
H enry Sloane Coffin 
John Dewey 
H arry E merson Fosdick 
Frank P. Graham  
John H aynes H olmes 
Freda K irch wey 
Francis J. McConnell 
O swald Garrison V illard

B y: A rthur Garfield H ays, 
T hurgood M arshall,

Counsel













SUPREME COURT OF THE UNITED STATES
October Term, 1941

No. 1097

ODELL WALLER,
Petitioner,

against

RICE M. YOVELL, Superintendent of the 
State Penitentiary, Richmond,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE  
SUPREME COURT OF VIRGINIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
A M I C U S  C U R I A E

Thurgood Marshall,
Counsel for American Civil Liberties Union.

APPSAXi PRINTING C O ., IN C ., 130 CEDAR B T ., NEW YORK, WO 2-3242





SUPREME COURT OF THE UNITED STATES
October Term, 1941

No. 1097

Odell W aller,
Petitioner,

against

Rice M. Y ovell, Superintendent of the 
State Penitentiary, Richmond,

Respondent.

---------- ■■  i ■  -----------

PETITION FOR WRIT OF CERTIORARI TO THE  

SUPREME COURT OF VIRGINIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
A M I C U S  C U R I A E

Tlie American Civil Liberties Union is submitting 
a brief herein as amicus curiae because of its interest in 
the question of class discrimination raised in this case. 
The American Civil Liberties Union is an organization 
devoted to the furtherance and protection of the civil 
rights guaranteed by the Constitution of the United States. 
It has for niany years supported individuals and groups 
whose basic rights were threatened. It believes that it is 
essential to the preservation of democracy in this country 
that no state shall be permitted to discriminate against 
any of its residents because of their economic status and 
that the Fourteenth Amendment to the United States



2

Constitution must be so interpreted. Believing that this 
case presents an issue of importance in this field, we beg 
leave to submit the following discussion:

In this case, petitioner, a Negro sharecropper, con­
tends that he has been denied due process and equal pro­
tection of the laws because the Constitution and laws 
of Virginia are so designed and administered as to operate 
to exclude systematically from grand and petit jury ser­
vice, and specifically from the grand and petit juries by 
which petitioner was indicted and convicted, a numerous 
and widespread class of citizens (to which class petitioner 
belongs) otherwise qualified who, because of the economic 
disabilities common to the members of their class, have 
been unable to and have not paid poll taxes as required 
by such Constitution and laws.

It is submitted that although the present Constitution 
and laws of Virginia do not specifically and in terms 
prescribe the payment of poll taxes as a qualification for 
grand and petit jury service, said Constitution and laws 
have not only been administered so as to make payment 
of poll taxes a qualification in fact for grand and petit 
jurors, but such Constitution and laws have been designed 
to permit them to be so administered.

This Court, in Strauder v. West Virginia, 100 IT. S. 
303, said, at pages 308-309:

“ The right to a trial by jury is guaranteed to 
every citizen of West Virginia by the Constitution 
of that State, and the constitution of juries is a 
very essential part of the protection such a mode 
of trial is intended to secure. The very idea of a 
jury is a tody of men composed of the peers or 
equals of the person whose rights it is selected or 
summoned to determine; that is, of his neighbors, 
fellows, associates, persons having the same legal 
status in society as that which he holds. Black-



3

stone, in his Commentaries, says: ‘ The right of
trial by jury, or the country, is a trial by the peers 
of every Englishman, and is the grand bulwark of 
his liberties, and is secured to him by the Great 
Charter.’ It is also guarded by statutory enact­
ments intended to make impossible, what Mr. 
Bentham called ‘ packing juries’. ”

In Smith v. Texas, 311 U. S. 128, t %  Court said, 
page 130:

‘ ‘ It is part of the established tradition in the 
use of juries as instruments of public justice that 
the jury be a body truly representative of the com­
munity. For racial discrimination to result in the 
exclusion from jury service of otherwise qualified 
groups not only violates our Constitution and the 
laws enacted under it but is at war with our basic 
concepts of a democratic society and a representa­
tive government.”

In Pierre v. Louisiana, 306 U. S. 354, this Court said, 
page 358:

“ Indictment by Grand Jury and trial by jury 
cease to harmonise with our traditional concepts of 
justice at the very moment particular groups, classes 
or races— otherwise qualified to serve as jurors in 
a community—are excluded as such from jury 
service.”

Thus, the extensions of the prohibitions of the Four­
teenth Amendment against denial of equal protection of 
the laws, paiticularly in cases involving the exclusion 
of groups or classes from jury service, are not limited to 
denials because of race or color, but extend as well to 
denials based on politics, nativity, religion, economic 
status, or any other class discrimination.



4

In the instant ease, the petitioner offered evidence 
that in Pittsylvania County, Virginia, wherein he was 
indicted and tried, the population of persons over twenty 
years of age was approximately 30,000 in 1940, and of this 
number only about 6,000 had paid poll taxes. Under these 
circumstances, “ chance and accident”  alone could hardly 
have brought about the listing for grand and petit jury 
service of no non-payers of poll taxes. See Smith v. 
Texas, 311 U. S. 128, infra. Nor can it be said that a jury 
from which so numerous and widespread a class of citi­
zens is excluded can be “ truly representative”  of the 
community.

Petitioner is a Negro, and as such, a member of that 
economically, politically and otherwise disadvantaged 
group which the provisions of the Constitution and codes 
of Virginia for the payment of poll taxes, and making such 
payment a qualification for voting, were not only avowedly 
adopted for the purpose of disfranchising but for the un­
avowed purpose of barring the vast majority of the class 
from grand and petit jury service.

That it was the avowed purpose of the Constitutional 
Convention in Virginia which adopted the Constitution 
of 1902, to amend the suffrage clause of the then existing 
Constitution so as to deprive, inter alia, Negroes of the 
right to vote, is obvious from the following statement 
made in such Convention by Delegate Carter Glass:

“ The chief purpose of this Convention is to 
amend the suffrage clause of the existing Consti­
tution. It does not require much prescience to fore­
tell that the alterations which we shall make will 
not apply to ‘ all persons and classes without dis­
tinction’. We were sent here to make distinctions. 
We expect to make distinctions. We will make 
distinctions.”  (Proe. Const. Conv. p. 14)



“ I declared then (referring to the beginning of 
the convention and the debate on the oath) that no 
body of Virginia gentlemen could frame a consti­
tution so obnoxious to my sense of right and 
morality that I would be willing to submit its fate 
to 146,000 ignorant negro voters (great applause) 
whose capacity for self-government wTe have been 
challenging for thirty years past.”  (idem. p. 3257)

That it was the unavowed purpose in adopting the 
provisions of the Constitution and codes of Virginia in 
prescribing the payment of poll taxes, to bar the vast 
majority of the class to which petitioner belongs from 
grand and petit jury service, or at least the present prac­
tical application of these provisions effects this end, is 
obvious from the allegations of fact, made by petitioner 
herein, to wit:

That, of the seven persons serving on the special grand 
jury by which petitioner was indicted, all had paid poll 
taxes, and all except one had paid such taxes for the years 
1938 to 1940, both inclusive. Such one, though apparently 
in default for those years, had paid poll taxes for the year 
1937 (Tr. 7, 8).

In Smith v. Texas, 311 U. S. 128, the Court said:

“ The fact that the written words of a state’s 
laws hold out a promise that no such discrimination 
will be practiced is not enough. The Fourteenth 
Amendment requires that equal protection to all 
must be given—not merely promised.

“ Here, the Texas statutory scheme is not in 
itself unfair; it is capable of being carried out with 
no raeial discrimination whatsoever. But by reason 
of the wide discretion permissible in the various 
steps of the plan, it is equally capable of being 
applied' in such a manner, as practically to pro­
scribe any group thought by the law’s adminis­
trators to be undesirable. And from the record



6

before us the conclusion is inescapable that it is 
the latter application that has prevailed in Harris 
County. Chance and accident alone could hardly 
have brought about the listing for grand jury ser­
vice of so few Negroes from among the thousands 
shown by the undisputed evidence to possess the 
legal qualifications for jury service

This Court has recognized the fact that:

“ It is well known that prejudices often exist 
against particular classes in the community, which 
sway the judgment of jurors, and which, therefore, 
operate in some cases to deny to persons of those 
classes the full enjoyment of that protection which 
others enjoy.”  Strauder v. West Virginia, supra, 
p. 308. See also Rawlins v. Georgia, 207 U. S. 638, 
640.

and that the nature of the community from which this 
case arises is such as to give reasonable basis for the 
assumption that prejudice against the class to which peti­
tioner belongs and which because of its inability to pay 
poll taxes is, in fact, excluded from service on grand and 
petit juries, would exist in the minds of the members of 
the more fortunate economic class.

We maintain, therefore, that the prohibitions of the 
Fourteenth Amendment extend to the practice revealed 
herein whereby members of the economic class to which 
petitioner belongs are excluded from grand and petit jury 
service in Pittsylvania County, Virginia.

It is respectfully submitted, therefore, that the 
writ of certiorari prayed for be granted.

Respectfully submitted,
Thurgood Marshall,

Attorney for American Civil Liberties Union, 
Amicus Curiae.





Al’PEAE l’KIM'ING CO., INC., 130 CEDAR ST., NEW YORK, WO 3 -3 2 4 2  ' T ^ g § ^ > 1 7

(4580)







Supreme Court of thr ftnttrft î tatro
October Term 1941

Odell W aller,
Petitioner,

against

Rice M. Y ouell, Superintendent of the State 
Penitentiary, Richmond, V irginia,

Respondent.

NOTICE OF MOTION FOR LEAVE TO FILE 
ORIGINAL PETITION FOR WRIT OF 

HABEAS CORPUS
PETITION FOR WRIT OF HABEAS CORPUS

John F. F inerty, 
M orris Shapiro, 
Counsel for Petitioner.

Martin A. Martin, 
Thomas H. Stone,

Of Counsel.





INDEX

PAGE

Motion for Leave to File Petition for an Original 
Writ of Habeas Corpus ...........................................  1

Petition for Writ of Habeas C orpu s............................  3

Exhibit 1 ...........................................................................  15

Exhibit 2 ...........................................................................  15

Exhibit 3 ...........................................................................  16

Exhibit 4 ...........................................................................  19

Exhibit 5 ...........................................................................  22

Exhibit 6 ...........................................................................  24

Exhibit 7 .............................................   27

I





Batpmtte (Court of tltr llutfrii States
October Term 1941

---------- -♦-----------

Odell W aller,

against
Petitioner,

E ice M. Y ouell, Superintendent of the State 
Penitentiary, E ichmond, V irginia,

Respondent.
------------------------->-------------------------

Motion for Leave to File Petition for an Original 
Writ of Habeas Corpus

To the H onorable Supreme Court of the U nited States:

Your petitioner, Odell W aller, under sentence to die 
June 19, 1942, respectfully moves this Court that leave be 
granted him to file the attached petition for an original 
writ of habeas corpus.

Your petitioner further respectfully moves this Court 
that the petition for rehearing heretofore filed in Waller 
v. Youell, No. 1097 of this term, stand as a brief in sup­
port of the attached petition for an original writ of habeas 
corpus.

For the convenience of this Court in passing upon this 
motion, its attention is respectfully called to the fact that 
the attached petition for habeas corpus is substantially 
identical with the petition for habeas corpus heretofore 
filed with and dismissed by the Supreme Court of Appeals 
of Virginia, certiorari to review such dismissal having 
been denied by this Court on May 4th, 1942 by its order 
in No. 1097. The only changes have been in the folloiving 
respects:



1. There has been deleted from the petition all allega­
tions with reference to the intent and pattern of the Con­
stitution and laws of Virginia, and only those allegations 
have been retained which involve the administration in 
fact of such laws.

2. There has been added:

(a) An allegation, supported by affidavit of petitioner, 
that he Avas not asked either by his trial counsel or by the 
trial court to Avaive his constitutional rights, and neither 
intended to, nor did expressly and intelligently consent to 
Avaive such rights, but relied on his counsel for adequate 
protection thereof.

(b) Affidavits of petitioner’s trial counsel that they 
neither intended to Avaive, nor A\rere they authorized to 
Avaive, petitioner’s constitutional rights or any jurisdic­
tional questions thereby involved, and at all times intended 
and endeavored to protect such rights and questions.

(c) Affidavit of Eleanor Bontecou, based on a survey of 
the poll tax states conducted under the auspices of the 
William C. Whitney Fund, and the Neiv School for Social 
Research to determine the effect of poll taxes upon the 
exercise of the rights of franchise and jury service, with 
particular reference to the economic disabilities prevent­
ing payment of poll taxes by sharecroppers and Negroes.

Odell W aller,
Petitioner.

By John F. F inerty, 
Morris Shapiro,
Counsel for Petitioner.

Martin A. Martin,
T homas H. Stone,

Of Counsel.



SUPREME COURT OF THE UNITED STATES 
October Term 1941

Odell W aller, 

against
Petitioner,

Rice M. Y ouell, Superintendent of the State 
Penitentiary, Richmond, V irginia,

Respondent.

Petition for Writ of Habeas Corpus
To the Honorable the Supreme Court of the United States:

The petition of Odell W aller respectfully shows:
1. Petitioner is a citizen of the United States and of the 

State of Virginia, and, prior to his detention, was a resi­
dent of Pittsylvania County, Virginia.

2. Petitioner is now unjustly and unlawfully imprisoned 
and restrained of his liberty and detained under sentence 
of death in the custody of Rice M. Youell, Superintendent 
of the State Penitentiary, Richmond, Virginia.

3. The sole color of authority by which said Rice M. 
Youell, Superintendent of said penitentiary, so restrains 
and detains petitioner is a commitment of the Circuit 
Court of Pittsylvania County, Virginia.

4. Petitioner alleges that said commitment and the pro­
ceedings upon which it is based are wholly null and void 
and without authority in law, and are violative of the



4

Constitution of the United States, in the following re­
spects and by reason of the following facts:

I.

Said commitment is based upon:

1. An indictment by a special grand jury of said Pitt­
sylvania County, charging petitioner with the murder in 
the first degree in said county on July 15, 1940 of one 
Oscar Davis.

2. Petitioner’s plea of not guilty to such indictment.

3. A  trial before the Circuit Court of said county and a 
petit jury thereof.

4. A  verdict against petitioner by said jury of murder 
in the first degree and fixing petitioner’s punishment at 
death.

5. Sentence by said Court on such verdict that peti­
tioner be, on December 27, 1940, electrocuted until dead, 
and commitment of petitioner to the State Penitentiary 
at Richmond, Virginia, pending his execution.

6. On March 4, 1941, the Supreme Court of Appeals of 
Virginia granted a writ of error and supersedeas to re­
view said judgment and sentence of the Circuit Court of 
Pittsylvania County.

7. On October 13, 1941, the Supreme Court of Appeals 
of Virginia affirmed the judgment and sentence of said 
Circuit Court.

A copy of the record before said Court on writ of error 
is attached to petition for certiorari heretofore filed in



this Honorable Court at the October 1941 term No. 1097 
made part of this petition, marked Exhibit 1.* Said rec­
ord contains a copy of said indictment (R. 31-32), a state­
ment of petitioner’s plea of not guilty (R. 23), a tran­
script of the evidence upon trial of petitioner before said 
Circuit Court (R. 85-127), the verdict of the jury and 
judgment of the Court, and commitment (R. 23-24).

8. On November 3, 1941, said Court resentenced peti­
tioner to be electrocuted until dead on December 12, 1941. 
A copy of the order of said Court so resentencing peti­
tioner is attached hereto and made part hereof marked 
Exhibit 2. That the Governor of the State of Virginia 
granted a stay of execution from December 9, 1941 to 
March 20, 1942 in order to permit the petitioner to apply 
to the Supreme Court of Appeals of Virginia for a writ 
of habeas corpus.

9. A petition for writ of habeas corpus was heretofore 
submitted to the Supreme Court of Appeals of the State 
of Virginia, which said Court, on January 22, 1942, issued 
its order dismissing the said petition. That the Governor 
of the State of Virginia granted a further stay of execu­
tion to May 19, 1942 in order to permit the petitioner to 
apply to this Court for certiorari.

10. A petition to this Court for certiorari to review the 
dismissal of the petition for writ of habeas corpus by the 
Supreme Court of Appeals of the State of Virginia was 
denied by order entered on May 4, 1942. That the Gov­
ernor of the State of Virginia granted a further stay of 
execution to June 19, 1942 in order to permit the peti­
tioner to file in this Court a petition for rehearing, and 
this petition for an original writ of habeas corpus.

* The record o f petitioner’s trial before the Circuit Court o f  Pittsylvania 
County is not reprinted here for the reason that such cost is beyond peti­
tioner’s means, and the funds available for these proceedings contributed by 
interested citizens, are inadequate to meet such additional costs.



G

11. A  petition for rehearing of the order denying cer­
tiorari is being filed in this Court on May 25, 1942, and 
this petition is contingent upon action to be taken by the 
Court thereon.

II.

The record before the Supreme Court of Appeals of 
Virginia on petitioner’s writ of error shows the following:

1. That upon petitioner’s case being called for trial in 
the Circuit Court of Pittsylvania County, petitioner, by 
his attorneys, moved the Court to quash the indictment

“ on the ground that said indictment had been re­
turned by a grand jury selected from the poll Tax­
payers of Pittsylvania County and that such mode 
of selection deprived the accused of his right to a 
trial by a jury of his peers and denied him due 
process of law and equal protection of the laws in 
contravention of the 8th Section of the Virginia Bill 
of Rights and the 14th Amendment to the Constitu­
tion of the United States”  (R. 31).*

The record then shows that no evidence was offered to 
support such motion, that the motion was overruled by 
the Court, and that petitioner’s counsel duly excepted 
(R. 31).

2. That thereupon, petitioner, by his counsel

“ moved the Court to quash the venire facias on the 
ground that said venire facias had been selected from 
a list of poll taxpayers of the County of Pittsylvania 
and that such manner of selection denied him his 
right to a trial by jury of his peers and deprived 
him of due process of law and equal protection of the 
laws, in contravention of the 8th Section of the 
Virginia Bill of Right(s) and the 14th Amendment to 
the Constitution of the United States”  (R. 32).

* Record references in this petition are as previously stated to Record be­
fore this Court on certiorari in No. 1097, October 10, 1941.



The record further shows that no evidence was offered in 
support of this motion, that the motion was overruled by 
the Court, and that petitioner’s counsel duly excepted (R. 
32).

3. That although said motions to quash the indictment 
and the venire facias were made upon the ground that the 
grand jury indicting petitioner and the venire facias from 
which was drawn the petit jury trying him were selected 
from poll tax payers of Pittsylvania County, nevertheless, 
the Supreme Court of Appeals of Virginia, upon writ of 
error from the judgment of conviction, specifically con- 
sti'ued such motions as based on the systematic exclusion 
of non-poll tax payers. Waller v. Commonwealth, 178 Va. 
294.

4. Thus, upon the calling of his cause for trial in the 
Circuit Court of Pittsylvania County, and before such 
trial was entered upon, petitioner’s counsel seasonably 
moved to quash the indictment and to quash the venire 
facias upon the ground that persons unable to pay their 
poll taxes were systematically excluded from grand and 
petit juries in such County, and had been so excluded from 
the grand jury indicting petitioner, and from the venire 
facias from which was drawn the jury before whom peti­
tioner was subsequently tried.

5. That, at the time the foregoing motions were made, 
petitioner’s counsel specifically stated that petitioner was 
of the same general social and economic category as those 
persons so barred from grand and petit jury service be­
cause unable to pay their poll taxes but no evidence was 
offered in support of this statement (R. 18-19, Exhibit 1, 
p. 60).

6. That petitioner’s counsel in support of such motions, 
did not offer evidence of such systematic exclusion, being



8

then of the opinion as shown by their statements of rec­
ord before the said Circuit Court of Pittsylvania County, 
and by their affidavits hereto annexed as Exhibits 3 and 
4 that the Constitution and statutes of Virginia made the 
payment of poll taxes a prerequisite to both grand and 
petit jury service, and while the question had never been 
expressly decided by the Supreme Court of Appeals of 
Virginia, counsel believed, as likewise shown by their 
statements of record to the said Court that their con­
struction of the law was sustained by the decision in Craft 
v. Commonwealth, 65 Va. 602.

7. That in failing to offer evidence of such actual ex­
clusion, counsel did not intend to waive the constitutional 
and jurisdictional questions thereby presented, and were 
neither asked nor authorized by petitioner to make such 
waiver; on the contrary, as shown by the petition for writ 
of error to the Supreme Court of Appeals of Virginia, 
counsel continued to be of the foregoing opinion as to the 
law of the State of Virginia, and urged it upon the said 
Court until, in affirming petitioner’s conviction, that Court 
for the first time expressly held to the contrary.

8. That petitioner’s counsel failed to mak,e such proof 
of exclusion before the Circuit Court of Pittsylvania 
County due to a bona fide misapprehension as to the law 
of the State of Virginia and a bona fide mistake there­
fore as to the procedure necessary to establish the juris­
dictional and constitutional questions there raised on be­
half of your petitioner.

III.

1. Petitioner alleges that, on the record before the Su­
preme Court of Appeals of Virginia upon petitioner’s 
writ of error, no question therefore was presented to said 
Court as to whether non-payers of poll tax were in fact



o

systematically barred from grand and petit jury service 
in Pittsylvania County, or were in fact so barred from 
the grand jury indicting petitioner, or from the petit jury 
trying petitioner, or from the venire facias or petit jury 
list from which such petit jury was drawn.

2. Petitioner further alleges that the opinion of said 
Court on the writ of error affirming petitioner’s convic­
tion, consequently did not pass on the question whether 
non-payers of poll tax were barred in fact from jury 
service in the respects alleged in the preceding paragraph, 
but held merely that, under the Constitution and laws of 
Virginia, non-payers of poll tax were not barred in law 
from either grand or petit jury service. Waller v. Com­
monwealth, supra.

3. Said opinion further shows that said Court held that, 
on the record before it upon such writ of error, there was 
no evidence that petitioner had or had not paid a poll tax, 
and that, therefore, petitioner was in no position to com­
plain of any discrimination, had any discrimination 
existed. Waller v. Commonwealth, supra.

IV.

That petitioner has exhausted all remedies available to 
him in the courts of the State of Virginia, first, by ap­
plication to the Supreme Court of Appeals of that State 
for a writ of error to review petitioner’s judgment of 
conviction and second, by application to that Court for a 
writ of habeas corpus following affirmance of petitioner’s 
conviction upon such writ of error. That application to 
this Court for certiorari to review the affirmance of peti­
tioner’s conviction upon writ of error to the Supreme 
Court of Virginia would have been useless, since the facts 
of exclusion, constituting denial of petitioner’s constitu­
tional rights, did not ajopear of record upon such writ of



10

error to the Supreme Court of Appeals of Virginia and, 
therefore, would not have appeared of record upon peti­
tion for certiorari to this Court.

V.

Petitioner alleges that he is a negro and that at the 
time of his trial he was twenty-three years of age, and 
had been for several years preceding, a sharecropper; 
that, as such, his economic circumstances prevented him 
from paying a poll tax, and that he had not in fact at any 
time paid a poll tax and at all times was unable to do so. 
Petitioner’s affidavit in this respect is attached to and 
made part of this petition, marked Exhibit 5.

VI.

1. Petitioner alleges that persons otherwise eligible for 
grand and petit jury service under the laws of Virginia, 
who have not paid poll taxes, are, in fact, systematically 
barred in Pittsylvania County, Virginia, from serving 
either as grand or petit jurors, and were, in fact, so 
barred from the grand jury indicting petitioner and 
from the petit jury before which petitioner was tried.

2. Petitioner alleges that, of the seven persons serving 
on the special grand jury by which petitioner was in­
dicted, all had paid poll taxes, and all except one had 
paid poll taxes for the years 1938, 1939 and 1940, which 
such one, though apparently in default in his poll taxes 
for said years, had paid poll taxes for the year 1937.

3. Petitioner alleges that all persons on the petit jury 
before whom defendant was tried and all persons upon 
the venire facias from which said petit jury was drawn, 
had paid their poll taxes in full for the years 1938, 1939 
and 1940.



1 1

4. Petitioner further alleges that the persons sum­
moned by said venire facias were taken from a jury list 
compiled by the jury commissioners of Pittsylvania 
County in purported compliance with Section 4895 of the 
Code of Virginia; that said jury list contained the name 
of no person who had not paid a poll tax; that all names 
appearing on said jury list were names of persons ap­
pearing on the poll tax list of Pittsylvania County and 
no others; that said poll tax list contained the names of 
all persons who had paid poll tax for the year 1940 and 
within a period of two years preceding 1940, and of no 
other persons; that such poll tax lists were the exclusive 
source from which said jury commissioners drew the 
names appearing on said jury list; and that jury lists in 
Pittsylvania County are habitually so compiled, and there­
by non-payers of poll taxes are habitually and sys­
tematically excluded from juries in said County.

Petitioner further alleges that, for the purpose of ob­
taining like information as to the jury list of Pittsylvania 
County for 1939, counsel for petitioner attempted to ex­
amine the list compiled by the jury commissioners of 
Pittsylvania County for said year, which, petitioner is in­
formed and believes, is in the custody of the Clerk of the 
Circuit Court of Pittsylvania County; that said Clerk re­
fused counsel access to such jury list, stating that he so 
refused by direction of the judge of said Circuit Court, 
the Honorable J. T. Clement.

5. The affidavit of Martin A. Martin, setting forth the 
facts alleged in this section of the petition, is attached to 
and made a part hereof marked Exhibit 6.

VII.

1. Petitioner alleges that the Constitution and laws of 
Virginia, although construed by the Supreme Court of 
Appeals of that State not in law to require such exclusion,



1 2

have been administered in fact to exclude systematically 
from service as grand and petit jurors, a numerous and 
wide-spread class of citizens otherwise qualified, who, be­
cause of the disabilities common to the economic status 
of their class, have been unable to and have not paid poll 
taxes as required by such Constitution and laws.

2. Petitioner alleges that, while negroes and share­
croppers are not, as such, so barred from service as grand 
and petit jurors, they, because of their similar economic 
status, constitute a large proportion of the class of per­
sons so barred as grand and petit jurors, and that peti­
tioner himself is of such economic class so barred.

3. Petitioner alleges that such economic class who are 
unable and do not pay poll taxes and who are thereby 
barred from serving as grand and petit jurors, is so 
numerous and widespread that, in Pittsylvania County, 
Virginia, with a population for the year 1940 of approx­
imately 30,000 persons over 20 years of age, only ap­
proximately 0,000 were able to pay and did pay their poll 
taxes, and were thereby eligible in law to vote, and in fact 
to serve and grand and petit jurors. That of the remain­
ing 24,000 persons, non-payment of poll taxes Avas due 
principally and primarily to the economic status of such 
persons.

4. See affidavit of Martin A. Martin, setting forth the 
facts alleged in this section of the petition, attached to 
and made part hereof marked Exhibit 6. (See also affi- 
davit of Eleanor Bontecou, attached to and made part of 
this petition marked Exhibit 7.)

VIII.

Petitioner alleges that, by reason of all the foregoing 
facts and circumstances, petitioner’s commitment and the 
proceedings upon which it is based are Avholly null and



13

void and without authority in law, and are violative of 
the Constitution of the United States in the following 
respects:

1. In violation of the Fourteenth Amendment of the 
Constitution of the United States in that petitioner has 
been deprived of his liberty, and would be deprived of 
his life, without due process of law and without equal pro­
tection of the laws in the following respects:

(a) By reason of the fact that there were unlawfully 
and systematically excluded from the grand jury indict­
ing petitioner a numerous and widespread class of citizens 
of Virginia and residents of Pittsylvania County, other­
wise qualified, solely because of their non-payment of poll 
taxes, such non-payment arising out of the disabilities 
common to the economic status of their class, of which 
class petitioner is one.

(b) By reason of the fact that there were unlawfully 
and systematically excluded from the petit jury trying 
petitioner a numerous and widespread class of citizens of 
Virginia and residents of Pittsylvania County, otherwise 
qualified, solely because of their non-payment of poll 
taxes, such non-payment arising out of the disabilities 
common to the economic status of their class, of which 
class petitioner is one.

W h e r e f o r e , by reason of the foregoing allegations, your 
petitioner prays that a writ of habeas corpus issue from 
this Honorable Court, to be directed to Rice M. Youell, 
Superintendent of the State Penitentiary, Richmond, Vir­
ginia, aforesaid, and whomever may hold your petitioner 
in custody, commanding him and them to have the body 
of your petitioner before this Honorable Court on a date 
to be fixed by said Court, for the purpose of inquiring 
into the cause of the commitment and detention of your



14

petitioner, and to do and abide such order as this Court 
may make in the premises.

Your petitioner further prays this Court that there­
upon your petitioner should be granted a discharge from 
such custody.

O d e l l  W a l l e r ,
Petitioner.

By J o h n  F .  F in e r t y , 
M orris S h a p ir o , 

Counsel for Petitioner.

M a r t in  A. M a r t in , 

T h o m a s  H .  S t o n e ,

Of Counsel.



15

(Refer to footnote on page 5.)

Exhibit 1.

Exhibit 2.

V i r g i n i a :

I n  the Supreme Court o f  A ppeals held at the Court 
L ibrary Building in the City of  Richmond on 
T hursday the 22nd day of  January, 1942.

This day cama Odell Waller, by counsel, and presented 
to the court his petition that a writ of habeas corpus issue 
directed to Rice M. Youell, Superintendent of the State 
Penitentiary, and whomever may hold said petitioner in 
custody, commanding him and them to have the body of 
petitioner before this court for the purpose of inquiring 
into the cause of the commitment and detention of said 
petitioner, with which petition were filed certain exhibits, 
to-wit: the record of the trial and conviction of petitioner 
in the Circuit Court of Pittsylvania county, the judgment 
in which was affirmed by this court on the 13th day of 
October, 1941; copy of order of the Circuit Court of Pitt­
sylvania county, dated the lltli day of November, 1941, 
resentencing the petitioner; affidavit of petitioner dated 
the 3rd day of December, 1941; and affidavit of Martin A. 
Martin, dated the 3rd day of December, 1941; and the 
court having maturely considered the said petition and 
exhibits therewith, is of opinion that the said writ of 
habeas corpus should not issue as prayed. It is therefore 
considered that the said petition be dismissed.

A copy, Teste:

(Signed) M. B. Watts Clerk



16

----------------------- 1-----------------------

O d e l l  W a l l e r ,
Petitioner,

against

R ic e  M. Y o u e l l , S u p e r in t e n d e n t  o r  t h e  S t a t e  
P e n it e n t ia r y , R ic h m o n d , V ir g in ia ,

Respondent.
----------------------- 1-----------------------

Exhibit 3.

SU P R E M E  COURT O F T H E  U N IT E D  S T A T E S

October T erm 1941

S t a t e  of  V ir g in ia  1 .
C it y  of R ic h m o n d  J

T h o m a s  H. S t o n e , being duly sworn, deposes and says:
That your deponent is an attorney-at-law, duly licensed 

to practice in the State of Virginia and that he maintains 
an office and resides at Richmond, Virginia.

That your deponent has read the annexed petition and 
affidavit of Odell Waller and verily believes the same to be 
true and correct in all respects.

That your deponent, together with J. Byron Hopkins, 
Esq., also an attorney duly admitted to practice in the 
State of Virginia, acted as counsel for said Odell Waller 
at the time of his indictment and trial in the Circuit Court 
of Pittsylvania County, State of Virginia.

That, upon calling of the cause for trial and before such 
trial was entered upon, such counsel seasonably moved to 
quash the indictment and to quash the venire facias upon



17

the grounds that persons unable to pay their poll taxes 
were systematically excluded from grand and petit juries 
in such county, and had been so excluded from the grand 
jury indicting petitioner, and from the venire facias from 
which was drawn the jury before whom the petitioner 
was subsequently tried; that petitioner himself was of the 
same general social and economic category as those ex­
cluded and similarly unable to pay his poll taxes; that 
thereby petitioner would be denied equal protection of the 
law and due process of law, in violation of the 14th 
Amendment to the Constitution of the United States.

That counsel, however, in support of such motions, did 
not offer evidence of such systematic exclusion, being 
then of the opinion, as shown by their statements of rec­
ord before said Court, that the Constitution and statutes 
of Virginia made the payment of poll taxes a prerequisite 
to both grand and petit jury service; that, while the ques­
tion had never been expressly decided by the Supreme 
Court of Appeals of Virginia, counsel believed, as likewise 
shown by their statements of record to said Court, that 
their construction of the law was sustained by the deci­
sion in Craft v. Commonwealth, 65 Va. 602.

That, neither in failing to offer evidence of such actual 
exclusion nor otherwise, did counsel intend to waive the 
constitutional and jurisdictional questions thereby pre­
sented, and were neither asked nor were authorized by 
said Waller to make such waiver.

That, on the contrary, as shown by the petition for writ 
of error to the Supreme Court of Appeals of Virginia, 
counsel continued to be of the foregoing opinion as to the 
law of Virginia, and urged it upon said Court, until, in 
affirming petitioner’s conviction, that Court expressly and, 
for the first time, held to the contrary.

Exhibit 3.



1 8

Exhibit 3.

That, therefore, counsel failed to make such proof of 
exclusion before the Circuit Court of Pittsylvania County, 
due to a bona fide mistake as to the law of Virginia and to 
a bona fide mistake as to the procedure necessary to estab­
lish the constitutional and jurisdictional questions there 
raised on behalf of petitioner.

Sworn to before me this 
22nd day of May, 1942.

V. M. Steeling, Notary Public. 
My Commission expires 
January 21, 1945

Thomas H. Stone

(Seal)



19

Exhibit 4.

SU P R E M E  COURT OF T H E  U N IT E D  S T A T E S

October T erm  1941

-----------1-----------

Odell Waller,

against
Petitioner,

Rice M. Youell, Superintendent of the State 
Penitentiary, Richmond, Virginia,

Respondent.

- f -

State of Virginia 
County of Henrico

J. Byron Hopkins, being duly sworn, deposes and says:
That your deponent is an attorney-at-law, duly licensed 

to practice in the State of Virginia and that he maintains 
an office and resides at Richmond, Virginia.

That your deponent has read the annexed petition and 
affidavit of Odell Waller and verily believes the same to 
be true and correct in all respects.

That your deponent, together with Thomas H. Stone, 
Esq., also an attorney duly admitted to practice in the 
State of Virginia, acted as counsel for said Odell Waller 
at the time of his indictment and trial in the Circuit Court 
of Pittsylvania County, State of Virginia.

That, upon calling of the cause for trial and before such 
trial was entered upon, such counsel seasonably moved to 
quash the indictment and to quash the venire facias upon



20

the grounds that persons unable to pay their poll taxes 
were systematically excluded from grand and petit juries 
in such county, and had been so excluded from the grand 
jury indicting petitioner, and from the venire facias from 
which was drawn the jury before whom the petitioner 
was subsequently tried; that petitioner himself was of the 
same general social and economic category as those ex­
cluded and similarly unable to pay his poll taxes; that 
thereby Waller would be denied equal protection of the 
law and due process of law, in violation of the 14th 
Amendment to the Constitution of the United States.

That counsel, however, in support of such motions, did 
not offer evidence of such systematic exclusion, being then 
of the opinion, as shown by their statements of record 
before said Court, that the Constitution and Statutes of 
Virginia made the payment of poll taxes a prerequisite to 
both grand and petit jury service; that, while the question 
had never been expressly decided by the Supreme Court 
of Appeals of Virginia, counsel believed, as likewise shown 
by their statement of record to said Court, that their con­
struction of the law was sustained by the decision in 
Craft v. Commonwealth, 65 Va. 602.

That, neither in failing to offer evidence of such actual 
exclusion or otherwise, did counsel intend to waive the 
constitutional and jurisdictional questions thereby pre­
sented and were neither asked nor were authorized by said 
Waller to make such waiver.

That, on the contrary, as shown by the petition for writ 
of error to the Supreme Court of Appeals of Virginia, 
counsel continued to be of the foregoing opinion as to the 
law of Virginia, and urged it upon said Court, until, in 
affirming petitioner’s conviction, that Court expressly and, 
for the first time, held to the contrary.

Exhibit If.



2 1

That, therefore, counsel failed to make such proof of 
exclusion before the Circuit Court of Pittsylvania County, 
due to a bona fide mistake as to the law of Virginia and to 
a bona fide mistake as to the procedure necessary to estab­
lish the constitutional and jurisdictional questions there 
raised on behalf of petitioner.

Exhibit

J. Byron Hopkins

Sworn to before me this 
22nd day of May, 1942.

B. A. Cepnas, Notary Public.
My Commission expires August 7, 1943

(Seal)



Exhibit 5.

SU P R E M E  COURT OF T H E  U N IT E D  S T A T E S

October T erm 1941

------------------ 4-------------------

Odell Waller, 

against

Petitioner,

Rice M. Youell, Superintendent of the State 
Penitentiary, Richmond, Virginia,

Respondent.

State of Virginia 1
County of Henrico j

Odell Waller, being duly sworn, deposes and says as 
follows:

That lie is a citizen of the United States and of the 
State of Virginia, and prior to his detention, was a resi­
dent of Pittsylvania County, State of Virginia. That your 
deponent is now imprisoned and detained under sentence 
of death, in the custody of R ice M. Youell, Superintend­
ent of the State Penitentiary, Richmond, Virginia. That 
your deponent is a Negro. That prior to his detention, his 
occupation was that of a sharecropper. That at the time 
of his indictment and trial, your deponent was upwards 
of twenty-three years of age. That your deponent has not 
now or at any time heretofore, paid his poll taxes, and has 
been unable so to do by reason of his economic status.



23

That, at the time petitioner’s counsel moved before the 
Circuit Court of Pittsylvania County to quash petitioner’s 
indictment and to quash the venire facias from which was 
drawn the jury before whom deponent was subsequently 
tried, deponent was not asked either by his counsel or by 
the Court to waive the constitutional and jurisdictional 
questions presented by such motions, nor did he authorize 
such waiver, nor intend that any such waiver should be 
made, but, at all times, desired and intended that all of his 
constitutional rights should be fully protected, including 
any jurisdictional questions thereby involved.

Odell Waller

Exhibit 5.

Sworn to before me this 
22nd day of May, 1942.

W illiam J. Bryan 
Notary Public,

City of Richmond, Va.
My Commission expires Oct. 25, 1942.

(Seal)



24

Exhibit 6.

In t h e

SUPREME COURT OF APPEALS OF VIRGINIA

---------- >--------—

Odell W a l l e k ,

against

Petitioner,

Rice M. Youell, Superintendent of the State 
Penitentiary, Richmond, Virginia,

Respondent.

-f-

State of V irginia i
SS. ICounty of Henrico

Martin A. Martin, being duly sworn, deposes and says 
as follows:

That your deponent is an attorney at law, duly licensed 
to practice in the State of Virginia, and maintains an office 
and resides at Danville, Virginia. That your deponent has 
read the annexed petition of Odell Waller, and verily 
believes the same to be true and correct in all respects.

That your deponent examined the records in the office 
of the Clerk of the Circuit Court of Pittsylvania County, 
with respect to the payment of poll taxes by the grand 
and petit jurors who indicted and tried the petitioner 
herein. That such examination disclosed that of the seven 
persons serving on the special grand jury by which peti­
tioner was indicted, all had paid poll taxes, and all except 
one had paid poll taxes for the years 1938, 1939 and 1940, 
while such one, though apparently in default for his poll



Exhibit 6.

taxes for said years, had paid his poll tax for the year 
1937. That such examination further disclosed that all 
persons on the petit jury before whom the defendant was 
tried, and all persons upon the venire facias from which 
the said petit jury was drawn, had paid their poll taxes 
in full for the years 1938, 1939 and 1940. That the per­
sons summoned upon the said venire facias were taken 
from a jury list compiled by the Jury Commissioners of 
Pittsylvania County; that said jury list contained the name 
of no person who had not paid a poll tax; that all names 
appearing on said jury list were names of persons appear­
ing on the poll tax list of Pittsylvania County, and no 
others; that the said poll tax list contained the names of 
all persons who had paid poll tax for the year 1940, and 
within a period of two years preceding, and no other per­
sons; and upon information and belief that such poll tax 
list was the exclusive source from which the said Jury 
Commissioners drew the names appearing on said jury 
list, and such jury lists in Pittsylvania County are habitu­
ally and regularly so compiled.

That for the purpose of obtaining like information as 
to the jury list of Pittsylvania County for the year 1939, 
your deponent attempted to examine the list compiled by 
the Jury Commissioners of the said County, which depo­
nent is informed and verily believes is in the custody of 
the Clerk of the Circuit Court of Pittsylvania County; 
that said Clerk refused your deponent access to such jury 
list, stating that he so refused by direction of the Judge 
of said Circuit Court, the Honorable J. T. Clement.

That your deponent further examined the records in the 
office of the Treasurer of Virginia and in the branch office 
of the United States Bureau of Census at Richmond, Vir­
ginia, and ascertained therefrom that in Pittsylvania



26

Exhibit 6.

County, with a population for the year 1940 of 28,989 per­
sons over twenty years of age, only 5,929 persons were 
able to and did pay their poll taxes and were thereby 
eligible in law to vote.

Martin A. Martin

Sworn to before me this 
22nd day of May, 1942.

B. A. Cepnas, Notary Public.
My Commission expires August 7, 1943

(Seal)



27

Exhibit 7.

City of Washington -|
District of Columbia SS"

Eleanor Bontecou, being duly sworn, deposes and says:

That for the past two years she has been engaged in a 
study of the operation of the suffrage laws in the South­
ern states. This research was financed by the William C. 
Whitney Fund and conducted under the auspices of the 
Few School for Social Research of New York City. The 
field work in this study was planned and carried on in co­
operation with the Carnegie Foundation which was con­
ducting a study of the Negro in America.

Particular attention was paid to the operation of the 
poll tax laws in the eight states where the tax is made a 
prerequisite to the right to vote. Statistics show that in 
poll tax states only about 20 per cent of the adult popula­
tion vote, as against about 70 per cent in adjoining non­
poll tax states. In this connection all available written 
data was consulted relating to wages and income of 
share-croppers and agricultural laborers in those states 
in order to determine the extent to which the poll tax 
operates as an economic as well as a political bur­
den upon these groups. The field worker for the study, 
who travelled for six months in the poll tax states was 
also requested to collect all possible data as to current 
rates of wages and income levels in the counties visited. 
To this end he interrogated county officials and local rep­
resentatives of the Federal Department of Agriculture and 
of the Works Progress Administration, and also ques­
tioned members of the groups, selected at random.

Deponent further states that in the present affidavit she 
relies principally upon the following for the statistical 
data presented: The United States Census of Population 
of 1930, the United States Census of Agriculture for 1935, 
the reports of the National Resources Committee of the



28

Federal Government on Consumer Incomes in the United 
States, and Consumer Expenditures in the United States, 
and the testimony submitted by the United States Depart­
ment of Agriculture to the Senate Committee on Educa­
tion and Labor at Washington, in May 1940. No other 
statistical reports have been found which contradict or 
radically differ from the above.

Deponent further states the following, upon information 
and belief:

All statistical studies reveal that income in the poll tax 
states, whether measured by per capita or family receipts, 
is far below the average for the United States. Further 
analysis of the more general studies indicates that these 
low income averages are due in large part to the extreme 
poverty of certain groups who constitute a large part of 
the population in these states; that is, the share-croppers 
and agricultural laborers.

In the South white families with less than $750 annual 
income and Negro families with less than $500 annually 
have usually had to spend more than their incomes upon 
the necessities of living. 47.5% of all farm families in the 
South and 53.1% of all Negro families in Southern rural 
communities have received less annual income than the 
amount found to be required for solvency.

The range of income of share-croppers and agricultural 
wage laborers is as follows:

Share-croppers received in the years 1932 to 1937 inclu­
sive from $193 income annually to $608. This high figure 
was received in only one area, the South Carolina coastal 
Plain. Cash income for this group varied in the same 
period from $119 annually for each family to $367.

Wage laborers in the same areas in those years received 
family income of from $193 to $405 annually. Cash in­
come for this group was from $126 to $292 a family.

Exhibit 7.



29

In 1935 there were at least 1,035,921 share-croppers and 
agricultural wage laborers in the poll tax states. In many 
of the counties where the plantation system still prevails 
these groups constitute a large majority of the popula­
tion. The large majority of negroes are unable to pay 
poll taxes, and a large proportion of non-poll tax payers 
are negroes.

The reports of the field worker referred to above cor­
roborated and supplemented the generalities of statistical 
data. In many of the counties visited agricultural wages 
were found to be from 50 to 75 cents a day for a ten hour 
day. Work was not available at all times of the year. In 
a number of the counties the number of families receiving 
an income of less than $400 a year was reported to be 
from 1000 to 3000. Examination of voters lists and other 
county records showed that very few share-croppers or 
wage laborers had in fact paid the poll tax, and interviews 
with individuals confirmed the statistical data which in­
dicated that in many cases such payment was a financial 
impossibility or could be made only by the sacrifice of 
some need of decent living. Where the poll tax was cumu­
lative many of the members of these groups found them­
selves permanently barred not only from voting but from 
participation in local government, including the right to 
serve on juries, since either by statute or administrative 
practice poll tax payment is made the prerequisite to par­
ticipation in these activities.

Eleanor Bontecou

Subscribed and sworn to before me at
Washington, D. C., on May 21st, 1942.

Geo. B. Earnshaw 
Notary Public, D. C.

My Commission Expires Sept. 17, 1943.
(Seal)

Exhibit 7 .









IN THE

^m tE K  Court of Arkansas
ROME BONE and MOSE B O N E ,......Appellants

vs. No. 4123
TH E STATE OF A R K A N S A S ,.............. Appellee

APPEAL FROM PULASKI CIRCUIT COURT 
— FIRST DIVISION—

* * * * *
HON. GUS FULK, Circuit Judge

BRIEF OF APPELLANTS

F. W. A. EIERM ANN,
SCIPIO A. JONES,
W ALLACE L. PURIFOY, Jr., 
ELMER SCROGGENS,
LEON B. RANSOM,

Attorneys for Appellants.





IN THE

Supreme Court of Ar k u s
ROME BONE and MOSE BONE,........Appellants

vs. No. 4123

THE STATE OF ARKANSAS,................ Appellee

APPEAL FROM PULASKI CIRCUIT COURT 
— FIRST DIVISION—

* * *
HON. GUS FULK, Circuit Judge

BRIEF OF APPELLANTS

INTRODUCTION

In presenting to the Honorable Court the 
Brief in this appeal of Rome Bone and Moses Bone 
vs. the State of Arkansas, the attorneys are con-



2

scious o f the fact that there may here and there 
be some overlapping owing to the fact that the two 
attorneys worked independently in the prepara­
tion o f the Brief.

We have also deviated somewhat from cus­
tom by submitting “ Abstract of Testimony”  and 
under the caption “ Brief”  we submit a condensa­
tion of the large volume of testimony for the con­
venience of the Court.

ABSTRACT OF TESTIMONY

STATE’S TESTIMONY

DR. JOHN ROBERTS testifies on direct ex­
amination.

He is deputy coroner and as such made an in­
vestigation of the shooting in Rose City on Septem­
ber 8, 1938, of Mrs. John Deaver.

Located bullet wound, no powder burns, bul­
let entering 2y2 inches below the lower end of the 
breast bone, and half inch to the left of the midline. 
Bullet, after it had entered the interior wall of the 
stomach had a slight tendency to range down. The 
puncture of the stomach was about an inch from 
the lower end of the stomach, went through there 
and ruptured the big blood vessel coming from the



3

heart, the large blood vessel that supplies the low­
er body. (Tr. 35).

Under cross examination Dr. Roberts testi­
fied that the bullet entered straight. Mrs. Deaver 
was a very heavy woman.

Q. Assuming that Mrs. Deaver had bent 
over at the time the bullet entered the 
body, would that cause the course of the 
bullet into the body, would that control 
it?

A. That might have caused the range of the 
bullet downward.

Under re-direct examination witness stated: 
“ Mrs. Deaver was a rather large woman, she had a 
rather protuberant abdomen, that is her stomach 
fell out a bit. I felt if  she was in a bending posi­
tion it would explain why the wound was straight 
in other than wounded at an angle. (Tr. 35).

The point of entry was a straight wound. 
(Tr. 39).

Re-Cross Examination: Bullet ranged
slightly down. (Tr. 39).

JOHN DEAVER, a witness for State lives 
near Kerr at present. In September he lived on 
Miller plantation, which he was renting. His wife 
was killed on September 8th. Had 65 acres in cot-



4

ton, employed on that day about 130 or 135 cotton 
pickers. His wife was in the field to do the book­
keeping. (Tr. 40-41).

Had two wagons and a truck. These defend­
ants were working for him. W ife was shot about 
3 p. m. (Tr. 42).

A  sack of bad cotton came in, with burrs and 
green bolls and some green leaves. Gave orders 
this had to “ quit.” — About that time the payroll 
was delivered. About $250.00 (Tr. 44). Kept the 
money in a fishing tackle box. Had a 32 automatic 
savage pistol, to protect payroll,— for no other 
purpose.

The money was on the ground in the box, the 
gun was lying on the table next to the adding ma­
chine, the money was on the right hand side of my 
wife against her leg, the gun was lying on the 
table next to the adding machine. (Tr. 45).

The yellow boy (Roma Bone) came in with a 
sack of cotton, I climbed on top to watch him 
empty it, it was trashy and dirty. I said, boy I 
cannot have cotton picked like that and he said, 
that is the way I have picked cotton all of the time. 
I said, you know better than that, you have been 
picking a lot o f cotton for me, good cotton. He 
said, this is the only way I have picked it, I said,



5

the best thing for you to do is to go to the field and 
get your force and bring them in. He said all 
right, and he went back to the field and I suppose 
it was 30 minutes before he came back in with 
three sacks of cotton and it was weighed and I 
climbed on the truck to watch it emptied. The 
dark boy (Mose Bone) climbed up to empty it, the 
yellow one stood by the wagon. The cotton was 
very trashy, green bolls and green leaves and some 
burrs. I called my wife, called the sack numbers 
(Tr. 46) and said to dock each sack three pounds 
for trashy cotton. I watched all the sacks emptied 
and turned like I was going to step o ff the truck, 
and this yellow negro said, no white son-of-a- 
bitch is going to dock me that much and get by 
with it. When he said that I jumped o ff the back 
of the truck, and when I jumped off, he broke for 
the table. I was after him, but before I could 
catch him, some one hit me in the back, knocked 
me down. I fell by his feet, thro wed my right arm 
around his leg but he reached and got the gun, and 
the black one got o ff of me and grabbed a pair of 
scales, something, I don’t know what it was. The 
yellow negro struck at me with the gun and my 
wife screamed, don’t do that. She jumped up and 
started around the table. About that time I was 
hit in the head, knocked me down, I still had the 
negro around the leg and there was some scuffling



6

and hollering going on. I don’t know what all was 
said by my wife, she came around, and I tried to 
reach for the gun and the gun fired over my head, 
and I was hit in the head again and knocked down. 
The yellow negro kicked me in the breast and 
stomped me in the throat. I still held the leg, and 
the black one had the scales working on me. I 
don’t know whether he intended to shoot me or 
what, he throwed the gun down toward my head 
and I grabbed his arm and was scuffling there, 
and my wife fell back, I seen her when she fell 
back.

I reached and got his hand with the gun in it. 
A t that time both negroes were on me. (Tr. 47).

I throwed my left arm up and grabbed it, and 
when I got hold o f the barrel of the gun the yellow 
negro told him to break my arm loose, that is when 
he went to working on my arm. (Tr. 48).

Had double compound fracture o f the arm.

Q. You spoke a moment ago about the negro 
with the gun throwing it down.

A. I don’t know whether or not he intended 
to hit me on the head or to shoot me but 
his arm thrown down till it was in reach 
of my arm.

Q. That is when you grabbed it?
A. Yes, sir.



7

Q. Up till that time had you ever gotten on 
your knees?

A. No, sir. (Tr. 49).

Does not remember whether black negro, 
jumping o ff the truck, knocking him down, was 
ever on top of him.

Never got up in a standing position or on his 
knees. (Tr. 50).

He saw yellow negro shoot his wife. Witness 
was in the cotton middle on his back.

We were about three and a half feet from my 
wife when the difficulty started.— Between there 
and the wagon tongue and the table.— My wife 
jumped up from the table and said “ Don’t do 
that.” — Could not have been talking to me I was 
not doing anything but trying to get loose.”

Q. Did she ever get to the negro that shot 
her?

A. No, sir.
Q. She just started?
A. Looked to me like she got about three feet 

as well as I can remember, as well as I 
could judge.

Q. How did the negro shoot her, how did 
Rome Bone fire the pistol?

A. Throwed it down and fired it like that.
Q. Deliberate aim?



8

A. Yes, sir.
Q. I believe you say the shot went over your 

head?
A. Yes, sir.
Q. You were on your knees at the time?
A. Not on my knees, I was trying to climb 

up as far as I could. (Tr. 51).
Q. And your w ife’s position, was she stand­

ing straight or was she bent over?
A. She was standing straight.

Leslie Crosnoe was there. I didn’t see him 
during the fight. Homer Crosnoe was there. 
Don’t know what he was doing. I turned the gun 
loose. The yellow negro took the gun when they 
left. I f the yellow negro had any other weapon, I 
never saw it. (Tr. 52).

A fter the negroes left, he was conscious and 
knew what he was doing. Was bleeding profuse­
ly. Arm broken on three places. My wife was 
about four feet from where I was laying. She 
was not conscious. He did not stay till the ambu­
lance came. (Tr. 53).

Q. Now at the time the actual shot was fired 
killing your wife, did you have hold of the 
gun or any part of it?

A. No, sir.
Q. Did you have hold of the hand of the



9

negro that shot your wife?
A. No, sir.
Q. It was not till after he fired that you 

caught hold of his hand?
A. No, sir.
Q. Had you succeeded in getting hold of his 

hand before that time?
A. No, sir, I had not. (Tr. 55).

When the difference started the black negro 
was on the truck emptying the cotton. Witness 
on back of the truck, about the length of the wagon 
tongue. Draws sketch o f the wagon, the truck and 
the table where wife was sitting. (Tr. 56).

The fight took place between the wagon ton­
gue and the table. It is about six feet across there. 
Introduces the gun. Does not know why the gun 
was not fired the second time. Does not know 
whether he tried to shoot him. (Tr. 57).

Record of ledger book with records of sacks, 
etc. introduced over objection by the defense and 
exceptions saved. (Tr. 58).

CROSS EXAM INATION OF JOHN D E A V E R :

Lives at Kerr since October. Was there about 
ten days. Doctor sent me South. Health was bad. 
Went to Corpus Christi. Did not know that case



10

had been set for November 29th. Sister might 
have sent word to prosecution, saying he could not 
be present. (Tr. 59). Was at the hospital from 
the 8th to the 11th of November. Had no communi­
cation about the case being set for trial here.

Formerly lived at Brushy Island. Son-in-law 
of John Lee. (Tr. 60).

Was in the bootlegging business. Convicted 
o f possessing whiskey.

Defendants were good cotton pickers. Rome 
Bone took the gun from the table, it was laying 
open for any one to see it, it was not covered up. 
Had seen it three or four minutes before. (Tr. 
61-62).

Q. Now as a matter of fact you picked up 
that gun?

A. I didn’t.
Q. Is it a fact or is it not that you cursed the 

negro and told him you had killed 25 or 
30 negroes yourself?

A. I do not cuss my hands and I did not cuss 
them.

Q. Did you or did you not attack Mose when 
he was on the truck?

A. No, sir.
Q. Is it a fact or is it not that you came to 

the truck and stood there and threatened



11

Mose with that revolver?
A. No, sir.
Q. Is it a fact or is it not that Mose jumped 

o ff the truck and got hold of you and 
thereby both of you fell to the ground?

A. No, sir.
Q. Nothing true?
A. Nothing you have stated.

Q. Now is it not a fact you have stated to 
representatives of the press that the gun 
went o ff during a scuffle?

A. I don’t remember if  I did.
Q. But you don’t deny it?
A. Not as I remember it, no, sir. (Tr. 62).

Did not see Rome (the yellow negro) get the 
scales. Did not see Crosnoe get the singletree.

Went on the truck where Mose was emptying 
sacks. Did not get into argument on the truck. 
Did not rush from the truck to get the gun, and did 
not rush back to the truck to threaten Mose.

The gun was not in his hands during struggle. 
I caught the barrel of the gun after my wife was 
killed.— Did not have possession of the gun at the 
time the shot was fired.

Q. Then after all this thing in the truck, 
then why were you tussling to get hold of



12

the gun, what were you tussling for? 
(Tr. 63).

He had possession of the gun.

Q. So you say Mose had possession o f the 
gun?

A. I said the yellow negro had possession of 
the gun.

Q. Then the yellow negro was on the ground 
with you?

A. The yellow negro was on the ground and 
the black negro was on the truck.

Q. Now you say Rome had the gun?
A. Yes, sir.
Q. And you were tussling on the ground 

with the gun?
A. With Rome.
Q. With Rome?
A. Yes, sir.
Q. When was it the weighboss came with the 

single tree and hit Rome?
A. I don’t know.
Q. Where were you?
A. I was on the ground. (Tr. 64).
Q. But Rome got the scales, not Rome?

A. Rome is the one that had the gun.

Q. Did you or did you not testify that Rome



13

had used the scales on you?
A. I didn’t.
Q. There where Mose and you were lying on 

the ground fighting each other?
A. No, sir.
Q. Where was Rome then?
A. He was standing astraddle of me with 

me on the ground.
Q. Now assuming that to be true, where was 

he before he got straddle of you?
A. He was standing in front of the wagon 

before he made a lunge for the gun. A f­
ter he got the gun he was 2 y2 or 3 feet 
from the wagon, between the table and 
the wagon tongue.

Q. How did you get on the ground?
A. Mose knocked me down, he jumped from 

the wagon or truck.
Q. Mose knocked you down?
A. Yes, sir.
Q. And you and Mose tussled together?
A. No, sir.
Q. Well, after you were on the ground who 

did you tussle with?
A. Rome was standing over me, Mose knock­

ed me down, he didn’t get on top o f me 
or hold me down, he knocked me down 
and Rome straddled me with the gun in 
hand.



14

Q. What happened to Mose after he knock- 
you down?

A. Don’t know.
Q. You know that Mose fell with you at the 

time?
A. I don’t know whether or not he did, but 

he was not on me. (Tr. 65).

Q. Now when the shot was fired, which way 
were you, were you standing?

A. No, sir.
Q. Where were you?
A. Laying on the ground. (Tr. 66).

Q. Then which direction did the shot take?

A. The shot was fired in easterly direction, 
I was laying with my head to the east and 
feet to the west. The cotton middles were 
running east and west, cotton rows.

Q. The shot went directly over your head?
A. Yes, sir.
Q. How close did it go to your head?
A. I would say a foot or 18 inches, some­

thing like that.
Q. Your wife was how far away?
A. Looked to me like three or four feet, as 

well as I can remember.
Q. And that shot was about a foot or 18 

inches over your head and you were lying 
down?



15

A. I was on my elbow.
Q. About 18 inches about like that?
A. No.
Q. About 18 inches over your head.

A. Not the way you measure it, it was more 
than 18 inches o ff of the ground, I was 
on my elbow.

Q. This boy was standing upright?
Q. And you were reclining?
A. On my left arm.
Q. Was your head away from your wife or 

toward her?
A. My head was turned like this in this di­

rection.

The face was turned toward the wife. (Tr. 
67). The bullet went about four feet o ff of the 
ground. The shot was fired about two feet over 
my head. W ife was about 3 or 3y2 feet from his 
head, Rome was about 3 feet from the wife. 
(Tr. 68). Then he shot. No tussling on the ground.

Q. What were you doing on the ground if 
you were not tussling?

A. You have a man standing astraddle of 
you and him with a gun in his hand—

Q. How about the other fellow.
A. Don’t know what Mose was doing. (Tr. 

9).



1G

Never had the butt of the gun in his hand. 
(Tr. 70). Was lying with his head toward the 
East, lying on the side. At times in different po­
sition. Denies that he had hold of the revolver 
several times.— Does not know anything about the 
singletree. (Tr. 71).

Q. Did you try to shoot that gun?
A. I could not try when I didn’t have it in 

my hand.
Q. Is it a fact or not that the gun jammed on 

you?
A. No, it did not jam on me because I didn’t 

have possession of it.
Q. Then how did the prosecution get the in­

formation the gun jammed?
A. I don’t know. (Tr. 72).

«

JOHN D EAVER— RE-DIRECT EXAM I­
N ATIO N :

Q. What size woman was your wife?
A. She weighed around 185 pounds.

RE-CROSS EXAM INATION

Q. Your wife had a rather protruding abdo­
men.

A. No extra amount, she was a fleshy wo­
man. You know fleshy women generally 
have terribly large stomachs. (Tr. 73).



17

LESLIE CROSNOE (Witness for the S tate):

DIRECT EXAM INATION

Age 24, was working for John Deaver on Sep­
tember 8th at Rose City.

Was weighing cotton at the end of the tongue 
on the wagon. There was also the truck and the 
wagon where Mrs. Deaver was sitting. Knows the 
defendants when he sees them. (Tr. 75). The 
two and their sister sent bad cotton about 3 p. m. 
I called Mr. Deaver and he went on the truck where 
the cotton was being emptied. George Walls, a col­
ored boy, emptied it. Mose was on the truck. Mr. 
Deaver was standing on the tail guard looking up 
in there where the cotton was. Mr. Deaver told 
Mrs. Deaver to dock them three pounds. Rome 
said, no white son-of-a-bitch can do that way and 
get by with it. “ He was standing between the back 
end of the truck and the table, and he started 
walking toward the table. Well, Mr. Deaver had 
about somewhere around $300.00 in a cash box 
at the table.”

Q. What else was on the table?
A. Well there was a gun there he had in 

order to protect his money. When this 
negro said no white son-of-a-bitch can do 
that and get by with it he went to walk­
ing toward the table, and Mr. Deaver



18

seen it he was making for the gun.
MR. E IE R M A N N : I object to what Mr.

Deaver saw.
Q. What did Mr. Deaver do?
A. He jumped down and started toward the 

table too, then Moses, (Tr. 77) sailed o ff 
the back end of the truck on to Mr. 
Deaver.

Q. Did he light on his back?
A. Partly on his back.
Q. What happened then?
A. The other one, Rome, started on, went on 

and got the gun. I saw that, and he was 
standing there with the gun and the other 
one had the scales.

Q. You say he was standing with the gun?
A. Rome had turned around with the gun 

and came back to him.
Q. How close was he to Mr. Deaver?
A. He was about four or five feet.
Q. You mean when he got the gun?
A. When he got the gun.
Q. Go ahead?
A. And I saw they were beating him up, this 

other one had the scales beating on him 
with the scales, and the singletree was 
laying there. I attempted to keep them 
from killing Mr. Deaver, but when I 
started to go in to protect him, this Mose, 
I believe it was, struck me with the 
scales and after that I could not tell you 
what happened.



19

Q. Did you ever strike either of them?
A. I struck at Rome I believe it was, but 

whether or not I hit him I could not tell 
you.

Q. Did you ever hit Mr. Deaver?
A. No, sir. (Tr. 78).

Had not heard Mr. Deaver curse the negroes. 
Did not see the shot fired.

CROSS EXAM INATION

When the trouble started witness was toler­
ably close to the back o f the truck, between the 
wagon and the truck. The truck was facing west, 
the wagon was on the southside of the truck. The 
distance between the wagon and the truck was 
about four or five feet. Rome was out toward the 
end of the tongue and I was up close to the wagon. 
(Tr. 79).

Mr. Deaver was on the back of the truck. He 
was about 6 or 8 or 10 feet from Rome.

Q. From the place where Rome stood how 
far did he have to go to the table where 
Mrs. Deaver was?

A. I guess it would be 12 or 13 feet, may be 
a little further. Mr. Deaver had about 
15 or 18 feet. (Tr. 80).

The water barrel was back west of the truck.



20

Does not know who was at the water barrel, could 
not see the water barrel. (Tr. 81).

George Walls was on the truck emptying sacks. 
(Tr. 82). Did not hear any argument between 
Deaver and Rome. Mose jumped o ff the truck on 
Mr. Deaver, 6 feet away. (Tr. 83).

Q. And Mr. Deaver had the gun in his hand 
pointed toward Mose (on the truck) ?

A. No.
Q. Bear in mind you are under oath.
A. I realize that.
Q. Rome and Mr. Deaver went for the gun?

A. And at that time they were going toward 
the table.

Q. But who had, all through the examination 
you have testified that just as soon as 
Rome called Mr. Deaver a son-of-a-bitch 
he turned and took hold of that gun, they 
were that near the table then. Now then 
did he get that gun twice? (Tr. 83).

A. No, sir.
Q. Why do you testify that at two different 

times he got the gun? Did he get it 
twice? All right now when Mose jumped 
o ff the truck, what happened?

CO U RT: It is the Court’s duty to protect the
witness.

Q. Now you testified here according to what



21

the stenographer read now that he got the 
gun when he walked away from the 
table, prior to that you have testified it 
was when Rome made this derogatory 
remark. Now then I will ask you when 
did Rome get the scales.

A. He didn’t get the scales.

Mose got the scales after he had knocked Mr. 
Deaver down.

Q. They were on the ground? (Tr. 84).
A. I didn’t say they were on the ground.—  

Had gotten the singletree before Mose 
hit him. Rome was standing near by Mr. 
Deaver.

Q. Don’t you know that you struck Mr. 
Deaver on the arm when you hit at 
Rome?

A. I know he was struck with the scales 
about the time I swung. (Tr. 85).

Witness had testified that there were about 
$300.00 in the box. Defense attempted to bring 
out that he had obtained the information from Mr. 
Deaver, as indeed defense contends that this wit­
ness was trained and coached by Mr. Deaver in his 
testimony. The Court did not allow defense to im­
peach the veracity of the witness, to which defense 
took exceptions.

MR. E IE R M A N N : Save my exceptions.
(Tr. 87).



22

Q. Now then that gun, do you know how it 
was lying there?

A. Nothing more than it was lying on the 
table.

Q. Did you see it?
A. Well at that time I was not paying at­

tention to the gun.
Q. You didn’t see that gun there at all?
A. Not at the time, I didn’t.
Q. Did you see it before?
A. Well I know the gun was there.
Q. How long have you been working for Mr. 

Deaver?
A. I guess a week or week and a half.
Q. That is all? Now then after you were 

hit with the scales what did you do?
A. I don’t know.
Q. Now is it not a fact that you went o ff to 

get a gun, you said you were going to get 
a gun and come back?

A. I don’t think I would be able to get a gun.
Q. You went away?
A. I don’t know. (Tr. 87).

LESTER CONW AY— Witness for the State.

DIRECT EXAM INATION
15 years old, lives at Levy.



23

Was working at Rose City September 8th for 
Mr. Deaver. My brother Charles was with me. 
He is 13 years old. (Tr. 89).

Was down there when Mrs. Deaver was shot, 
was about 20 or 30 steps from the wagon.— Was 
watching them. Was first attracted when my 
brother looked up and he told me they were fight­
ing. (Tr. 90). I looked around and this blackest 
negro hit Mr. Deaver. Both got on him then and 
Mose went and got the cotton scales and com­
menced beating on Mr. Deaver, and Mr. Deaver 
told them not to kill his wife, she run in to help 
him and Rome shot Mrs. Deaver. Mose was on 
Mr. Deaver. He was holding Mr. Deaver and 
kinda fighting. (Tr. 91).

Rome and Mr. Deaver were close together. 
Mr. Deaver was lying on the ground. Mose had 
Mr. Deaver down.— I saw the shooting.

Q. What did you see when the shot fired?
A. Well, the lightest negro (Rome) when 

Mrs. Deaver tried to pull him off, he 
turned and shot her, then he got on Mr. 
Deaver and the other one got the cotton 
scales and he commenced beating Mr. 
Deaver with them.

Q. Now let’s see, when you looked around 
there you say you saw Mr. Deaver on the 
ground and Mose, the black one, was on



24

top of him?
A. Kinda to the side of him.
Q. Down on the ground?
A. Yes, sir.
Q. Did you see him with the cotton scales 

then?
A. No, sir, he had not gotten the cotton 

scales when I looked around. (Tr. 92).
Q. Was Mrs. Deaver shot before Moses got 

the cotton scales or after.
A. Before.

Being led by the prosecution, in evident dis­
may, the prosecution asking:

Q. You are positive about that, if  you are not 
positive about anything, don’t say so.

A. I am not sure about that.

Is positive that Rome shot Mrs. Deaver once, 
did not try to shoot any more.

Q. Only tried to shoot her one time, was she 
holding him?

A. No, sir, he slung her off.
Q. How did she have hold of him?
A. Kinda like this trying to pull him o ff of 

Mr. Deaver.
Q. On his hip?
A. Yes, sir.



25

Q. Was she standing in front or in back of 
him?

A. In back of him. (Tr. 93).

CROSS EXAM INATION

Was standing Northeast from the wagon. 
(Tr. 94). When I first looked around Rome was 
fighting Mr. Deaver, on the ground. Mose was 
on the ground, too. Both were kinda scuffling with 
Mr. Deaver.— And the darkest one got the scales 
and was beating Mr. Deaver, then Mrs. Deaver 
came and tried to pull one of them o ff and he 
slung her o ff and shot her.— The light one (R om e). 
(Tr. 96).

She had gotten on the light one, pulled him 
off. She was shot while she and Rome were facing 
each other. They were right close at each other. 
(Tr. 97). About 3 feet. (Tr. 98).

CHARLES CONW AY (Witness for the 
S ta te):

DIRECT EXAM INATION
Age 13 years. Was picking cotton right be­

hind his brother. (Tr. 99) First thing he heard 
a negro cursing and saw Mr. Deaver and Rome 
fighting. (Tr. 100). The black negro jumped o ff 
o f the wagon down on Mr. Deaver’s back and



26

knocked him down, then he got the cotton scales 
and went to beating Mr. Deaver, and the yellow 
negro held him, I didn’t see the gun before the shot 
was fired, when the shot was fired I seen it, he 
whirled and shot Mrs. Deaver.

The yellow negro (Rome) whirled and shot 
Mrs. Deaver. (Tr. 101). Stayed till the ambu­
lance came.

When the negroes started o ff the yellow negro 
held it up and said, see there is your gun, then they 
walked behind the wagon and stood there a little 
bit, then walked across the field. The yellow 
(Rome) negro stuck the gun down his belt.

Q. You are sure the light colored boy shot 
Mrs. Deaver?

A. Yes, sir, it was no stray shot either. (Tr.
102).

Saw Leslie Crosnoe there with a singletree.

They hit him with the cotton scales, the black 
one. He was knocked unconscious and he kinda 
turned around and walked off. He saw Mr. Deaver. 
He got in the truck and went to his house. He 
drove the truck to the house.

CROSS EXAM INATION
His father is K. H. Conway, working for the 

W. P. A.



When the fight first started the yellow negro 
and Mr. Deaver were fighting, I heard him curs­
ing is how come to look around.

Q. When the cursing and the fussing was 
going on who had the gun?

A. I don’t know who had the gun, didn’t see 
the gun till he whirled and shot Mrs. 
Deaver.

Did not know the names of the boys and did 
not read the newspapers about the event even 
though he had been there and saw the trouble.

A t beginning of fight, Rome and Deaver were 
in front of the wagon, just a step or two from the 
wagon. (Tr. 104).

Q. What was the first thing you saw?
A. Mr. Deaver and the yellow negro fight­

ing.
Q. They were on the ground?
A. I didn’t see the gun.
Q. They were lying on the ground?
A. No, sir, they were on foot then.
Q. They were fighting standing on their 

feet?
A. Yes, sir.
Q. How were they fighting?
A. Fist fighting.



28

Q. Fist fighting?
A. Yes, sir.
Q. Then what happened?

A. The black negro jumped o ff of the 
wagon, he had been in the front end of 
the wagon, it was loaded with cotton, and 
was up on top emptying his cotton. He 
jumped o ff on Mr. Deaver’s back and 
knocked him down, then he got the cotton 
scales and went to beating Mr. Deaver 
with them.

Q. A fter he had fallen down with Mr. 
Deaver he jumped up?

A. He just knocked Mr. Deaver down, then 
he run and got the cotton scales and went 
to beating him and the yellow negro held 
him down.

Q. Where did Rome, that is the yellow 
negro, come from?

A. He was fighting Mr. Deaver on the 
ground.

Q. A fter Mose got away, did Rome jump on 
Mr. Deaver?

A. He was beating him with the cotton 
scales and went to beating him. Then 
Mrs. Deaver tried to pull him off. (Tr. 
106) .

Q. Mrs. Deaver was trying to pull him o ff?
A. Yes, sir.
Q. They were on the ground?



29

A. Yes, sir.
Q. Then what happened?
A. He whirled. I don’t know whether or 

not he had the gun or if Mr. Deaver had 
the gun. I never did see it before he 
whirled and shot, she was trying to pull 
him o ff and he whirled and shot her. She 
was about 18 inches from him. (Tr. 
107).

DEFEN DAN TS’ TESTIMONY

ROME BONE, witness for himself.

DIRECT EXAM INATION
Lives at 816 Pine Street, North Little Rock, 

this is where my father lives. I came there Tues­
day, September 5, 1938. This trouble happened 
on the following Thursday. Entered employment 
of Mr. Deaver on Wednesday, September 7th. He 
is 24 years old. (Tr. 109). The story of de­
fendant down to his employment by Tom Fleming 
who is a salesman for Lockwood Hosiery Mills, a 
cripple. (Tr. 110-111). His employment was to rub 
him, bathe him and dress him morning and night. 
He learned it at Mayo Bros, Rochester, at Indian­
apolis and Johns Hopkins Hospital, Baltimore, 
Md. Chiropractic work.

Q. You have heard the testimony saying 
you fired the shot that killed Mrs. 
Deaver, is it true?



30

A. No, sir.

Giving location of objects in the field.— The 
table was sitting back East from the truck. Mrs. 
Deaver was sitting at the table, facing west. The 
wagon was facing east. (Tr. 112). She was fac­
ing the back end of the truck. The table was 
about 10 or 12 feet from the truck. The wagon 
was south of the truck facing east. Tells in his 
own words what happened. Did not make disre­
spectful remark to Mr. Deaver, did not call him 
ugly name.

On the 8th of September we picked cotton for 
Mr. Deaver. I picked that Wednesday and went 
out again that Thursday morning. Along about 
12 o’clock we went in for lunch and my sister, I 
didn’t see her sack. We weighed our sacks during 
the meal hour. I had about 35 or 40 pounds in my 
sack and we decided to go get a drink of water. 
She said, Rome take my sack and we did. I picked 
it up and toted it to the wagon, and the weighboss, 
I don’t know who he was, weighed it. I had a book 
and pencil. Mr. Deaver said who is that picking 
this bad cotton, he said, I don’t want it. He told 
him it (Tr. 113) was the Bone girl and he said, 
God damn, I have got a good mind to kick her 
naked. He got down like he was going to her and 
I said, Captain, don’t kick her. You pay us and



31

we will go home, and he said, get your sacks. My 
brother and I went down in the field and got the 
sacks, got the other three sacks, and Mr. Deaver 
said, I have a good mind to kick her naked. We 
brought our sacks back and Mose got up on the 
truck to empty the sacks, I was getting the sacks 
weighed, and Mr. Deaver went to the back of the 
truck and got on the truck. Said something to 
Mose, what he said to Mose, I don’t know, then he 
got o ff the truck and headed for the table, said 
you black son-of-a-bitch don’t get smart with me 
or I will kill 25 or 30 of you niggers. He went to 
the table and opened the box to get the gun out 
and stepped back where Mose was. I walked back 
with the book and pencil in my hands, said don’t 
kill that boy, we will get away and go home. He 
turned to me and put the gun in my jaw and said, 
don’t get smart with me or I will blow your damn 
brains out, and I commenced backing back, backed 
about six feet and Mose jumped on him. The 
weighboss was standing at the wheel. When he 
jumped down he grabbed hold of the gun, and they 
went around and around with the gun. Then the 
weighboss grabbed the singletree o ff the wagon 
and the only thing I could see to get was the scales. 
I rushed to get the scales. The weighboss run there 
and drawed back and he missed Mose and hit Mr. 
Deaver somewhere behind the head, and Mrs.



32

Deaver got up (Tr. 114) and started over there 
and said, wait a minute. I run across there and 
then the gun fired and she fell back and said, Oh 
John, quit, you have done shot me, and we passed 
a couple of licks around there with the single tree 
and the scales, me and the weighboss, we passed a 
couple of licks and he broke and run and said, stay 
there till I get back, he said stay here and he left 
running. I went (Tr. 114) back to where Mr. 
Deaver and Mose were “ wrassling,”  tussling over 
the gun. I went back and laid the scales down and 
caught hold of the gun. I got Mr. Deaver’s arm up 
my leg, and he said, boys quit, I have done shot my 
wife, I have got to get a doctor, and I said, give me 
the gun and he said, if  I give you the gun, will you 
quit, and I said, yes, and he handed me the gun 
and I took the gun. I got up and I said, this is 
your gun, you will own it when the sheriff gets 
here, and he said, yes. He got up and went to 
where Mrs. Deaver was laying and then got the 
money and put it in the truck, and as we were 
walking away from there, Mr. Deaver come by us 
in the truck and which way he went, I don’t know. 
We come on up to the railroad and walked on up 
to about the 2100 block on East 3rd Street. Went 
to Maple’s place where they were selling tires, my 
brother knows him. I said, have you got a phone? 
And he said, no, ask Dr. Van at the drug store



33

there. I walked in and asked permission to use the 
phone and the lady said yes. I walked back and 
picked up the phone. The lady said Central, I be­
lieve. I said, will you ring police headquarters, 
she said 0. K. and she rung them and another lady 
answered, good afternoon, North Little Rock. I 
said, can I speak to the chief and she said, he is not 
in. As I was coming out of the drug store two or 
three carloads of police were going to Rose City, 
they went on down and come back and I noticed a 
carload coming out from North Little Rock going 
to Rose City. I flagged them down and they pull­
ed to a stop. I throwed up my hands and walked 
o u t . They brought us into North Little Rock and 
brought us from there over here.”  (Tr. 115).

Q. Now Rome, you didn’t say anything 
about the trouble with your sister Erne­
stine, what happened there?

A. Well, in her cotton, I didn’t see her cot­
ton, but where she (Tr. 115) was picking 
was some tall rank cotton. I don’t know 
whether or not she had any leaves. All 
I asked him to do was not to kick the little 
girl. Mr. Deaver called from the truck 
to dock her 10 pounds. I said to pay us 
and we would go home. He did not fire 
us, I never got on the truck, Mose was on 
the truck.

I was not tussling on the ground with Mr. 
Deaver, I never got on the ground.



84

Mose and Mr. Deaver were on the ground 
with the gun. Mose had hold of the barrel of the 
gun and Mr. Deaver had the gun this way. They 
were tussling with the gun around and around 
and the weighboss got the singletree and I looked 
and seen the scales, that was the only thing I could 
get, he was fighting for life and death. (Tr. 116).

Mose and Mr. Deaver were down on the 
ground with the gun. I grabbed the scales from 
the wagon and the weighboss had the singletree 
trying to hit Mose, and every time he tried to hit 
Mose, why he would swing Mr. Deaver around 
and he would hit Mr. Deaver, and Mrs. Deaver 
got up and said, let me get there. I run in front 
of Mrs. Deaver and about that time the gun shot.

Mrs. Deaver didn’t get a hold of me and pull 
me back, she didn’t put her hands on me. I didn’t 
shoot. Never got my hands on the gun till after 
the fight and all was over. A fter I got hold o f the 
gun, I didn’t shoot at any one or anything. I held 
the gun up and asked Mr. Deaver, said Captain is 
this your gun? And he said, yes. I said, will you 
own it when the sheriff gets here and he said yes. 
— Did not try to shoot the gun and therefore don’t 
know whether it jammed.

There were two white people there with the 
exception of Mr. Deaver, a bunch of colored people



35

were standing outside the wagon.

I was fighting the weighboss with the scales 
to keep him from getting down on my brother. 
(Tr. 118).

Never hit Mr. Deaver. Does not know how 
Mr. Deaver had his arm broken.— Did not stand on 
his neck I did not get on him no way at all. Mose 
didn’t stand on his neck.

Mose did not get the scales, did not get up till 
after the gun shot. When Mrs. Deaver was shot 
she said, Oh John, quit, you have done shot me. 
She fell right there.— Mr. Deaver said, Stop boys, 
I have done shot my wife, I have got to get a doctor 
and then surrendered possession of the gun.

Q. I don’t know whether or not you made 
that clear, you said Mr. Deaver got the 
gun out of the box?

A. Yes, sir. (Tr. 118).
Q. What is the first thing he did after he got 

the gun out of the box?
A. He started to the truck where Mose was.

Q. Did he try to use the gun on him?

A. He turned the gun on me, said you black 
son-of-a-bitch don’t get smart or I will 
blow your damn brains out, said he would 
kill 25 or 30 of you.

Q. Did he attempt to shoot any one?



36

A. No more than he turned the gun toward 
Mose.

Q. And when you spoke to him he turned the 
gun on you?

A. Turned it on me and slapped the gun in 
my jaw.

Q. Did Mrs. Deaver make any remark about 
you, say anything about you when the 
argument started?

A. Yes, sir, Mrs. Deaver said, John let them 
alone, them are the best pickers we have 
got.

Never had possession of the gun until after 
the fight. Mr. Deaver had possession of the gun.—  
I had not a bit o f ill feeling against Mrs. Deaver. 
— No reason why I should shoot her. I didn’t know 
nothing about either of them, I was just picking 
cotton, I didn’t know who I was picking cotton for 
till I was arrested and put in jail.— Had never 
known of the gun before, had not seen it. Saw Mr. 
Deaver take it out of the box. (Tr. 119-120).

CROSS EXAM INATION

Going over his life history. (Tr. 121-122) 
routine.

Had a table in the field where Mrs. Deaver 
was, a little adding machine. I don’t know that 
the money was there, I knew it was there on Wed-



37

nesday.— Was not convicted of a felony. (Tr. 124- 
125).

A t 2 p. m. he and Mose and Ernestine, carry­
ing the girl’s sack. We went to get a drink of 
water. A t that time Mr. Deaver said he didn’t 
want that kind of cotton, that he had a great mind 
to get down and kick her naked. She is 12 or 13 
years old. (Tr. 126). Mr. Deaver said to dock 
her 10 pounds.— I said captain don’t kick her, pay 
us o ff and we will go home.

Q. Where was he then?
A. Down on the ground. (Tr. 127).

I told him there were three more sacks down 
there, and he said go get your sacks and I will pay 
you. I went down, me and Mose and the other 
little boy, get the sacks and come back, and 
what he said to Mose I don’t know.— I was at the 
wagon tongue figuring the weights. He (Mr. 
Deaver) is the one that went to the table and got 
the pistol.— He said you black son-of-a-bitches 
don’t get smart, or I will kill about 25 or 30 of 
you.— I thought he was going to do that.

Q. How far did he walk from the wagon to 
where the gun was?

A. He walked from the truck to the table.
Q. How far?



38

A. 10 or 15 feet.
Q. Then he started back to Mose?
A. Yes, sir.
Q. Mose was on the wagon?
A. Mose was on the truck.
Q. In plain sight, plain view?
A. No, another fellow was on the truck, a 

colored fellow. I don’t know who he was. 
Mose was on the front of the truck and 
the other fellow was on the back of the 
truck.

Mr. Deaver was standing at the back of the 
truck when he made the remark.— That statement 
was made before he got the gun.— Then he went 
to the table and got the gun and came back. He 
came back to the truck and drawed the gun. I 
walked across to him and said, don’t kill that boy, 
we will quit picking and go home. He said, you 
black son-of-a-bitch, don’t get smart or I will blow 
your brains out. (Tr. 129).

Q. He walked over there to kill Mose?
A. Yes, sir.
Q. Although Mose was not over 15 feet from 

him?
A. He was on the truck.
Q. There was not anything to keep him from 

shooting?



39

A. He could not hit him that way.
Q. He was getting around to get a better 

shot?
A. Yes, sir.
Q. Mose was on the truck?
A. Yes, sir.
Q. He was going to kill Mose?
A. Yes, sir.
Q. But you interceded and he turned his 

back on Mose and started punching you 
in the face with the pistol?

A. Yes, sir.
Q. That is when Mose jumped o ff of the top 

of the truck on him?
A. Yes, sir.

They went down on the ground.— I used the 
scales only on the weighboss, (Crosnoe).— never 
hit Mr. Deaver. (Tr. 130).

When Mr. Deaver surrendered the gun, I had 
hold of his hand. Mose and Mr. Deaver were on 
the ground holding on to the gun. I did not have 
a hold of the gun. I tried to wring it out of his 
hand.— Mose was laying there. Mose had hold of 
the barrel of the gun, Mr. Deaver had hold o f the 
gun this way.

Q. How did you get blood all over your



40

trousers from the knees down?
A. I went over and got hold of Mr. Deaver’s 

hand and tried to get the gun, he had 
blood all over his hands.

Q. Where did he get that from?
A. I don’t know where he had it.
Q. You don’t know anything about who hit 

him?
A. I know the weighboss hit him, he hit at 

Mose and missed Mose and hit Mr. 
Deaver on the arm.

Q. Do you know how many times Mr. 
Deaver was hit?

A. No, sir.
Q. You do know that every time the weigh­

boss would hit at Mose, he would miss 
him and hit Mr. Deaver.

A. It seemed like that. (Tr. 131).
Q. Did he ever hit Mose?
A. Hit him on the arm.

I got the scales and was hit by him.— Had 
sparring match, I would hit him and he would 
run back and hit me and I would run back. Got 
the scales at the wagon tongue 10 or 12 feet long. 
(Tr. 132).

Q. Why didn’t you give him the pistol back?
A. I was keeping it till the sheriff got there.



41

Q. He didn’t appear to be mad at you?
A. I know he was not feeling so good.
Q. You speak as if  everything he had to say 

was a kind voice, as if  you had not had 
any trouble at all, is that the impression 
you want to leave ?

A. He just said, if  I give you the gun, is the 
fight all over with? I told him yes. (Tr. 
133).

Up to that time they were unable to wrench 
the gun from Deaver.

Q. Don’t you know his arm was broken all 
to pieces then?

A. No, sir.
Q. Did anybody hit him after that?
A. We left after he gave up the gun.

He was bleeding profusely around the head. 
— Didn’t seem to be bleeding so bad. Got some 
blood on me.

Mose never had hold of the scales.— Positive 
he never hit Mr. Deaver with scales. I hit the 
other fellow. (Tr. 134).

Mose and Mr. Deaver were down on the 
ground when the shot was fired. Mrs. Deaver 
came around the table.

Q. What position was she in?



42

A. She was bending over. (On behest of 
prosecution, demonstrates). (Tr. 135).

RE-DIRECT EXAM INATION 
The fight had been desperate.
Q. Mr. Robinson also asked you about the 

position Mrs. Deaver was in and you said 
you took good notice of that, as a matter 
o f fact, you testified she passed right in 
front of you?

A. No, I passed in front of her.
Q. And you could notice how she was com­

ing. “
A. Yes, sir.

RE-CROSS EXAM INATION
Q. As counsel puts it, you had whipped him 

into line at the time you got the pistol?
A. I was whipping him into line.
Q. That is the reason he gave up the pistol?
A. No, sir. (Tr. 137).

RE-DIRECT EXAM INATION 
ROMA BONE recalled as witness for himself.
Q. There is one question I failed to ask you 

before. It occurred to me afterward. 
You did hit Mr. Crosnoe with the scales?

A. Yes, sir.
Q. A fter he was hit, what did he do?
A. He said, Stay here till I get back with my 

gun.



43

RE-CROSS EXAM INATION

Q. You had struck him across the head with 
the scales introduced in evidence yester­
day?

A. Yes, sir.

Q. He had not hit you?
A. Yes, sir, he hit me.
Q. Where?
A. On the hip. (Tr. 138).

ERNESTINE BONE, witness for defend­
ants.

DIRECT EXAM INATION

Lives at 816 Pine Street, North Little Rock.

Was in the cotton field of Mr. Deaver Sep­
tember 8th.

Q. State to the jury anything and every­
thing you have seen or heard of the fight 
and shooting as between Mose, Rome and 
Mr. Deaver.

A. First I heard Rome tell Mr. Deaver they 
had three more sacks and they would get 
them and weigh them, and if  he would 
pay them o ff we would go home. They 
emptied the sacks and Mose was on the 
truck.



44

I did not hear what was said but Mr. Deaver 
got down o ff the truck and went to the desk and 
got his pistol and started back to the truck at 
Mose. Rome was on the ground and he said, 
White folks there is no use shooting, pay us o ff and 
we will go home, so Mr. Deaver turned and hit 
him in the side of the head with the flat of the pis­
tol. (Tr. 139). About that time Mose hopped 
from the truck on him and that throwed Mr. 
Deaver on the ground, and Mose and Mr. Deaver 
were on the ground tussling over the pistol. The 
weighboss grabbed the singletree and hit at Mose 
and Rome grabbed the scales and was hitting at 
the weighboss. But when the weighboss went away 
Rome went to help Mose to take the gun from 
Mr. Deaver. By the time Rome got there Mrs. 
Deaver was up and said, let me get around there. 
She came running up and by the time Mrs. Deaver 
got around there, the pistol fired. She said, Oh 
John, I told you to quit, you have done shot me. 
And Mr. Deaver said, Let me up, boys, I have shot 
my wife, and he said, I ’ll give you the pistol. He 
got up and turned his wife over and then went to 
the desk and got the money box and put it in the 
truck and drove off.

Q. Do you know anything about the scales, 
who got the scales?

A. Rome got the scales.



45

Q. Did you see Rome striking anybody with 
them?

A. He hit the weighboss.
Q. Did he strike Mr. Deaver with the scales?
A. I don’t know.
Q. You did not see that?
A. No.

CROSS EXAM INATION
Q. Ernestine, you were right there by the 

truck?
A. By the water barrel at the side o f the 

truck.
Q. Where was Rome?
A. He was up there by the wagon and the 

truck.
Q. Were you closer than he was?
A. No, sir. (Tr. 140).

About 15 feet from the truck. Rome was be­
tween the truck and the wagon, he was not out to­
ward the end where the scales were. Mose was on 
the truck, Mr. Deaver was up there. Witness was 
getting a drink of water. Several people were 
there. It was about 3 o’clock. (Tr. 41).

Didn’t hear Mr. Deaver say anything.— They 
went back down to get the sacks, Rome and Mose 
did. Rome weighed them.



46

Her little brother also stayed by the water 
barrel. The weighboss weighed the sacks.

Q. Mose was on top of the truck?
A. Yes, sir.
Q. He jumped o ff  the truck on to Mr. 

Deaver?
A. Yes, sir.
Q. Now you say Rome is the one that got the 

scales?
A. Yes, sir. (Tr. 142).
Q. He was hitting the weighboss with the 

scales?

Does not know how many times. She was 
watching them, the weighboss was standing 
there hitting at Mose on the ground. Mr. 
Deaver was on the ground. The weighboss used a 
singletree.

Q. How long did he stand hitting at Mose?
A. Till Rome hit him, then he left.

Does not know how long. (Tr. 143).
Q. What position was Mose in when the 

weighboss was hitting at him?
A. Him and Mr. Deaver were on the ground 

tussling.

Mose was on top of Mr. Deaver and the weigh­
boss was hitting at Mose. Does not know how the 
weighboss hit Mr. Deaver. Moses and Mr. Deaver



47

were still tussling on the ground when the shot was 
fired, tussling over the pistol.

Q. Down on the ground?
A. Yes, sir.
Q. Where was Rome?
A. He went to help Mose take the pistol. 

(Tr. 144).

Rome was not on the ground, he was bent 
over. Mrs. Deaver was sitting at the table, she 
hopped up and come running around Behind Rome, 
I don’t know whether she was fixing to hit Rome 
or pull him off. (Tr. 145).

RE-DIRECT EXAM INATION
Q. Did you notice how Mrs. Deaver was 

standing? Straight or bending, or what 
was she doing?

A. She was coming up and she was bent over 
like that.

RE-CROSS EXAM INATION
Q. What position was Rome in?
A. He had hold of Mr. Deaver’s arm, he was 

not on the ground, he was bent over.
Q. What position was Mose in?
A. He had his knees on the ground he was 

partly bent over, he was not laying down.
Q. What position was Mr. Deaver in?
A. He was laying down. (Tr. 146).



48

LAW RENCE WESTON, witness for defend­
ants.

DIRECT EXAM INATION
10 years old.— Examined by the Court. (Tr. 

147).

The Court holds he is competent. (Tr. 147a).

Picking cotton at Mr. Deaver’s on September 
8th.

Does not know how the trouble first started. 
When he went around to the water barrel and got 
back, Mose and Mr. Deaver were tussling over the 
pistol and Rome was trying to help Mose get the 
pistol, and Mrs. Deaver said, Let me get up there, 
and about the time she got up there the pistol 
fired. This is all he knows. (Tr. 148).

CROSS EXAM INATION
No questions.

AM AN DA MOODY, witness for defendants.

Lives on Redwood Street, North Little Rock. 
Was in the Deaver field on September 8th, 
picking cotton. Had gone to the water keg to get 
some water behind the truck or aside o f it.

They got there in a tussle down on the 
ground, and I heard Mrs. Deaver say, John, I told



4!)

you to put that thing up, now you have done shot 
me. When she said she was shot I broke and run. 
(Tr. 150-151). Mr. Deaver and one of the boys 
were on the ground. Did not see the gun. Does 
not know who got the gun first. Didn’t begin to 
see it until they were on the ground. One of the 
boys jumped o ff the wagon.

CROSS EXAM INATION
Was standing at the water keg. (Tr. 151). 

Did not see either of defendants with the cotton 
scales.

Q. Do you know who fired the shot?
A. In tussling the gun went off. (Tr. 151- 

152).

GERALDINE SIMS, witness for defendants.

Lives at 1804 E. 3rd Street, North Little 
Rock. Was in Deaver’s cotton field on September 
8th, picking cotton. I was on the scene of the 
fight. I saw Mrs. Deaver when she went there and 
she said, Oh John, quit, you have done shot me. 
Then she hollered again, Oh John, then she keeled 
over. Did not see the fight.

Q. Do you know how many white men were 
around there at the time? (Tr. 153).

A. Well, Mr. Deaver was there and the 
weighboss was too, and there was a man 
in a truck. I don’t know who he was, but



60

he left when the gun fired, he left out of 
the field when the gun fired. I saw the 
weighboss running down in the field and 
got the riding boss, the man that was 
riding over the field, got the mule he was 
on and rode out of the field. He came 
back, him and Homer and another man. 
Mr. Deaver drove out of the field.

Q. Did they have anything with them?

Homer had a pistol and one of the others had 
a shotgun. When they came back, the body of Mrs. 
Deaver was still there. Mr. Deaver, when he got 
up, first went to his wife, then he went over in 
front of the wagon somewhere, then he went to the 
truck and got in the truck and drove the truck out 
of the field.

NO QUESTIONS IN CROSS EXAM INATION
(Tr. 154)

GEORGE W ALLS, witness for defendants.

Lives in Dixie Addition. Works now in the 
same field where the trouble was September 8th. 
Mr. Oliphant is manager here now. Worked for 
Mr. Deaver from March 14 up till September. Was 
at the scene of trouble September 8th. (Tr. 155).

Was working on the truck emptying sacks, 
the darkest boy ( Mose) was on the truck, the other 
boy was on the ground and I was emptying a sack



61

on the truck. Mr. Deaver began looking at his 
cotton as he was emptying it on the truck. He ask­
ed him, if  that was the way his daddy taught him 
to pick cotton, and he said that was the way he had 
picked it all his days, and Mr. Deaver said, well 
you won’t pick any for me. He said, that is what 
I know. I am quitting already as fast as I can. 
I have got one more sack to be weighed and I am 
going after that. You give me my money. What 
else they said I didn’t understand that. Anyway 
Mr. Deaver got o ff of the back end of the truck and 
walked over to kinda of a little desk out there, 
where they had the figures and things at. When he 
turned he had the gun in his hand, where he had 
picked it up from I could not say. When he start­
ed back to the truck, toward the boy on the truck 
with me, the other boy, the bright one on the 
ground (Rome) told him, don’t do that. Then he 
turned around and what he said to him I don’t 
know. They had words but I was not close enough 
to listen directly to what they were saying to one 
another. I know they got into it on the ground. 
When he turned to the other boy on the ground 
(Rom e), the brother on the truck (Mose) jumped 
from the truck and grabbed Mr. Deaver and held 
him by the arms, held the gun from him, then they 
got to scuffling and they fell on down by the 
wagon. The other brother had walked back, and



52

Crosnoe, one of the weighbosses, he got a double 
tree or a single tree later and began to hit the dark 
boy, then the other brother got the pair of scales to 
help protect him. Then him and the weighboss 
were facing each other backwards and forwards, 
and while they were scuffling Mrs. Deaver came 
up, come around in front of them while they were 
scuffling. When she stepped up there to where 
they were scuffling, the gun discharged. I could 
not say who pulled the trigger, the gun was dis­
charged in the scuffle.

Q. When Mr. Deaver got the gun originally, 
what did he do with the gun?

A. Pointed it toward the truck.

After the shot was fired I left from the truck. 
The bright boy (Rome) got the scales.

Q. You say prior to that, previous to that or 
before that the weighboss was hitting 
with that singletree down on Mose and 
Mr. Deaver?

A. The dark boy (M ose), yes, sir. (Tr. 157).

CROSS EXAM INATION
Does not know how long these boys have been 

working there. His duty was emptying sacks.

The first I saw was when Mr. Deaver was 
feeling through the cotton. He left the truck a f­
ter he felt through the cotton. The brighter negro,



63

Rome Bone, was on the ground while the discussion 
was going on between Mr. Deaver and Mose Bone. 
Mr. Deaver walked over and got the gun. Rome 
Bone was still standing there. (Tr. 158).

Mose Bone was still on the truck when Mr. 
Deaver came back, near the middle of the truck.

The sidewalls of the truck were about 4
feet.

Mr. Deaver got into an argument with 
Rome. The darker boy was still on the truck. 
He jumped out of the back end which is lower 
than the sides. Does not know how low the 
back end is.

He was standing where he could be seen off 
the ground without trouble, in plain view of Mr. 
Deaver. The back of the truck struck Mose 
about his knees. Mr. Deaver could have shot 
him then. Mose jumped on his (Deaver’s) back 
and they fell. Rome did not do anything till the 
weighboss came up and then he got the scales, 
and began hitting with it. (Tr. 160). Then 
he hit the weighboss once. He hit Mr. Deaver, 
but I could not tell how many times. That was 
before the shot was fired. I was on the ground 
when the shot was fired. Does not know who 
fired the shot. After the shot was fired they



64

still kept tussling. After the shot was fired 
they continued scuffling and the boys asked Mr. 
Deaver to turn the gun loose. Rome got the gun 
after the shot was fired. He asked him to turn 
the gun loose and Mr. Deaver said, will you 
quit, my wife is shot, let me take her to a doc­
tor, and I will pay you. Mrs. Deaver was stand­
ing when the shot was fired. (Tr. 162). Mr. 
Deaver was down on the ground scuffling. He 
was kinda down on his knees, still holding the 
gun. Heard Mrs. Deaver say, I am shot. (Tr. 
163).

JULIA WIGGINS: (Witness for Defend­
ants.

Lives at 1704 E. 3rd Street, North Little 
Rock. Was in Mr. Deaver’s cotton field on 
September 8th— saw the fight.

I was picking cotton. They had a mule to 
carry the women’s cotton ujp to the scales. 
When they carried my sack up they had weigh­
ed it when I got there. I walked around where 
Mrs. Deaver was keeping the records and asked 
her how much I did have. She said 45, and I said 
I will get my 200 all right. I go behind the wagon 
where the water was to get some water, and I 
met Rome and asked him how much he had



65

picked and he told me. I said I wish I could pick 
cotton like you. I walked around, and I heard 
them arguing and scrapping and walked fast 
to see what was happening. Mr. Deaver and 
the boys was in an argument. (Tr. 164).

They got together in such a hurry until it 
taken two eyes to see and some more. I was 
looking all I could look, all I could see. Mr. 
Deaver was on the ground and the boy was on 
top of him. I said, they are fighting; at that 
time the people began drawing near. They were 
fighting and fighting about the cotton, I guess, 
I don’t know what else they could be fighting 
about. I said, Lord have mercy. At that time 
Mrs. Deaver got up and started around there 
and before she got around she was shot. When 
she fell, I ran about two yards and laid down in 
the field. When I looked through the cotton 
stalks I see her. Everybody went to running 
and goings on so I looked up to see if this woman 
was really shot, she had one hand back there, 
said, Oh I am shot, I said, sure she is shot. Does 
not know who fired the shot.

Q. Did you notice in which direction the 
shot came?

A. No, sir, I didn’t, like they were tussling 
I could not tell you what direction.



56

They were tussling all around.
Q. Did you see any one standing firing the 

shot, or did the shot come from the 
ground?

A. The shot come out of the bunch there 
the way they were clustered together. 
(Tr. 165).

CROSS EXAMINATION

Met the Bone boys, Mose and Rome, that

day.
Others there when she was at the water 

barrel, were the weighboss, Mr. Deaver, Mrs. 
Deaver, those two boys and some more people. 
I don’t know who they was. When the shot was 
fired they were struggling on the ground. (Tr. 
167).

The shot came out of the group.
Q. When did Mrs. Deaver say, Oh, I am 

shot?
A. When the gun fired. (Tr. 169).

JOE WIRGES: (Witness for Defendants).

Lives at Sylvan Hills. Reporter and pho­
tographer for the Gazette. Reported part of 
the Deaver-Bone matter. Took a picture of the 
scene. Was present a't the Infirmary when Mr.



67

Deaver made statement to Deputy Sheriff Har­
ris. (Tr. 170).

Identifies picture. (Exhibit C).
Reported the interview in the Gazette.
Q. Did Mr. Deaver at tha)t time make a 

statement as to who fired the shot?
MR. PACE: We object, no proper founda­

tion has been laid.

JOHN DEAVER recalled:
Thinks he made a statement at the Infirm­

ary. Does not remember what he said. Was 
half unconscious and in great jpain. Would not 
be positive.

COURT: You still have not laid any foun­
dation, there is nothing to impeach.

MR. EIERMANN: Of course if he cannot 
remember that is as far as we can go. 
Under the circumstances I think Mr. 
Wirges should be allowed 'to testify to 
what he heard. (Tr. 171).

MR. PACE: I object.
COURT: Objection sustained.
MR. EIERMANN: Save my exceptions.

MOSE BONE, witness for himself:

Lives at 816 Pine Street about 3 months.

Worked for Mr. Deaver two days. Was in-



58

volved in the fight.

Stating in his own words:

On the 8th of September my brother Rome 
and sister and I were picking cotton for Mr. 
Deaver near Rose City. Rome and I started to 
get a drink of water and my sister asked Rome 
to carry her sack and weigh it, and he carried 
my sister’s sack up there and weighed it and 
Mr. Deaver asked who was picking ‘that bad cot­
ton. I think the weighboss told him it belonged 
to the Bone girl, and he said he did not want it 
picked that way, and he told his wife to dock 10 
pounds and he said, I have a good mind to kick 
her naked. Rome told him to pay us off and we 
would go home, he said he would get the other 
sacks and Rome and I went down the field to 
get the (Tr. 174) other three sacks. Went 
down and got the other three sacks and come 
back and weighed them, and Rome was keeping 
the weights and I was emptying the sacks. I 
climbed on the truck to empty the sacks and 
Rome emjptied his sack first. Then he put mine 
up there and I empties mine, and George Walls 
was emptying Lawrence’s sack for me. Mr. 
Deaver climbed on the back of the truck, I was 
about center ways. He said, is that the way you



69

pick cotton. I don’t want that kind of cotton pick­
ing, I don’t want it picked that way. I told him 
that is the only way I pick cotton, I have picked 
cotton that way all my life, and he said, you 
won’t pick it for me that way. I said, well as 
soon as you pay us off we will go home, and he 
got off of the back of the truck and said, don’t 
get smart with me, I will kill 25 or 30 of you 
mean negroes. He got off the truck and walk­
ed over to the table and got his gun and walked 
half way from the table to the truck and held 
the gun on me, and Rome said, don’t kill us and 
he turned and jabbed it into Rome and said, 
don’t open your mouth, you black son-of-a- 
bitch, I will blow your brains out. He was fix­
ing to shoot my brother Rome and I jumped off 
of the truck and grabbed him and we went 
tussling over the gun. The weighboss was 
standing there. Mr. Deaver and I were tussling 
there and the weighboss grabbed the singletree 
and hit me on the elbow about three times, once 
on the elbow and twice on the shoulder, me and 
Mr. Deaver were down in the cotton middles, 
he was hitting one another of us, I didn't know 
who he was hitting at. I did not see who got 
the scales. The weighboss was standing there 
before I jumped off of the truck. I remember



60

he hit at me with the singletree, hit at me and 
hit Mr. Deaver. Hit me once on the elbow 
and twice on the shoulder. At that time I heard 
Mrs. Deaver. I could not see her. Mr. Deaver 
had one hand on the gun and I had hold of the 
gun, the barrel of 'the gun, I could not see what 
was going on or coming up. (Tr. 175).

I heard Mrs. Deaver say, let me get around 
there, and about that time the gun went off. I 
don’t know who shot the gun, me and Mr. Deav­
er had the gun, tussling over the gun. I was 
trying to 'take it away from him and he was 
trying to keep me from taking it away from him. 
Then Mrs. Deaver said, Oh John, you have shot 
me, and Deaver said, boys, I shot my wife, quit, 
I have got to> get a doctor. We told him to turn 
loose and we wouldn’t bother him. He said, if I 
turn the gun loose, you won’t bother me, and I 
said no. Then he turned the gun loose and went 
over to his wife, and called to her, but I never did 
hear her say anything, then he walked over to 
the table and got the money box and started for 
the truck. Rome said, say, this is your gun, and 
held the gun up to the crowd. Rome said, I want 
to see if you are going to own it when I give it to 
the sheriff, so we four left and walked up by the 
Rock Island viaduct and the Buckeye Oil Mill



61

and turned out on 3rd, then up to Maple’s 
place in the 2200 block and asked for a phone 
and he said to go to Dr. Van’s Drug Store across 
the street and Rome went over and asked per­
mission to use the phone, and the lady told him 
to go in the back, the phone was in the back. He 
went there and called police headquarters and 
asked for the chief but he was out and then he 
went back to Maple’s place and two or three 
carloads of police came by and we flagged at 
one of them and they stopped and picked us up. 
We held up our hands and they picked us up 
and took us to the city hall in North Little Rock 
and transferred us to the county jail.

Q. Now you say you were on the truck?
A. I was on the truck. (Tr. 167).

Emptying my sack. While I was there Mr. 
Deaver climbed on the truck and the argument 
started.

He got off the truck and said, don’t get 
smart, I will kill 25 or 30 of you negroes. Then 
he walked to the table and got his gun and 
walked half the distance back from the table 
and held the gun on me. Rome spoke, there is 
no use killing the boy, pay us off and we will go 
home.



62

George Walls was on the truck . . . When 
Rome spoke he (Deaver) iput the gun on Rome 
and said, shut up your mouth or I will blow your 
brains out. I saw he was fixing to shoot and I 
jumped off of the truck and grabbed him before 
he could pull the trigger, and he and I began a 
tussle for the gun . . . Rome did not tussle with 
him. (Tr. 177).

I was on the ground and know nothing 
about the scales, I was busy trying to hold the 
gun.

When the shot was fired Mr. Deaver 
and I both held the gun. Mr. Deaver had hold 
of the but-t end of the gun. (Tr. 178).

CROSS EXAMINATION
When witness was on the truck Mr. 

Deaver also came. Mr. Deaver s a i d  to  
dock 10 pounds each sack. H e started 
cussing. The only thing he (the witness) said, 
to pay us off and we’ll go home. Mr. Deaver 
went to the table. Rome was over at the wagon 
tongue with the back of the book laying on the 
wagon tongue, figuring.

The wagon was South of the truck, the 
front end of the truck was west and the back 
end east . . . was figuring in a cotton weight



63

book. Mr. Deaver got the gun, I was on the 
truck. He walked half-way back and held the 
gun up.

Q. Before he got to Rome, was there any­
thing to have kept him from shooting 
you, if he wanted to?

A. I don’t imagine there was.
Q. So Rome must have been mistaken, 

Rome walked up to him? (Tr. 180).
A. That is when he hit Rome four or five 

times with the barrel of the gun and 
that is when I jumped off of the truck 
and grabbed him, he was punching 
Rome in the jaw.

We both went down on the ground ?s I 
grabbed him. He (Deaver) did not drop the 
gun. I grabbed the barrel of the gun. I was hit 
three times from the singletree, once there (on 
the head) and twice on the shoulder. (Tr. 181).

Q. Did you see Rome hit him with those 
scales?

A. I didn’t see it because he didn’t.

We were up and down. I heard Mrs. Deav­
er, could not see her. Does not know how close 
she came. She did not get close enough to get 
hold of the gun.

Q. I will ask you, if you said this (at the



64

jail), I had hold of the barrel of the 
gun. His wife came up and grabbed 
the gun. We tussled with the gun and 
he fired the gun? . (Tr. 182).

A. I never did say his wife come up be­
cause I never did see her because I was 
at the time on the ground.

Q. You say you were bloody, that was off 
of Mr. Deaver?

A. Some of it was off of me and some of it 
was off of him.

Q. Where did it come off of you?

A. Off of my arm where it was bleeding 
on the elbow.

Rome did not tussle. He never got up there 
till after the gun fired and the weighboss was 
gone.

Q. How do you know he was gone ?
A. I heard him say, wait till I get back.

Did not see him go off but heard him and 
after the fight I didn’t see him there.

Q. How long did you tussle after the shot 
was fired?

A. I could not say exactly, but not very 
long.

Q. Mr. Deaver said, I have done shot my 
wife, let me up?



65

A. Shortly after. (Tr. 183).

A fter Mr. Deaver gave up the gun, Rome got 
it and held it up to the crowd.— He never pointed 
it at Mr. Deaver.— Never squeezed it. Mr. Deaver 
and I did all the fighting on the ground.— Nobody 
else was down but me with Mr. Deaver tussling. 
(Tr. 184).

STATE’S REBU TTAL TESTIMONY

GEORGE W ALLS, witness for defendants, 
recalled by the State.

Q. You said, I believe that Mr. Deaver gave 
that gun to Rome?

A. A fter the fight was over.

Never said that he pointed the gun and 
squeezed it like a lemon squeezer.

Denies that he made such a statement at the
jail.

Q. Tell me did you make the statement, “ Q. 
— You mean they kept tussling?

A. They hadn’t ever quit. The bright boy 
must have known how to shoot the gun, 
he kept holding it in his hand and kept 
saying, God damn, are you going to pay 
me.

Q. Was his hand working like that?
A. He was just squeezing the handle



66

like a lemon squeezer.
Q. Where was it pointed?
A. Back at Mr. Deaver.”
A. No, sir, the answer I made was, the boy 

asked him if he was going to pay him.—  
Denies the statement as cited above com­
pletely. (Tr. 185 and 186).

JOHN WILLIAMS, witness for the State.

Deputy prosecuting attorney— Took state­
ment of George Walls on September 8th.

Proceeds to testify as to the above statement.

MR. E IE R M A N N : “ I f it please the Court
I think the whole statement should be 
read.”

CO U RT: That would be true if  it were the
defendant, i f  you want the statement in 
I will permit you to examine it. (Tr. 
188).

CROSS EXAM INATION
Witness states that this was the original copy, 

he made the transcript from the original notes.

MR. E IR M A N N : May I examine this whole
thing?

COURT: Yes, sir, proceed. Let me call
your attention to what the Court con­
ceives your privilege to be. It appears 
you would be entitled to examine that to



67

discover if  there any matters contained 
in there, answers to questions subject to 
impeachment, and that only.

BRIEF

DR. JOHN ROBERTS, Deputy Coroner, wit­
ness for State, testifies that he has examined the 
body of Mrs. John Deaver who was killed in cotton 
field at Rose City. There was one bullet wound, 
no powder burns, 2 y2 inches below lower end of 
breastbone. The bullet, after it had entered the 
stomach, had a slight tendency to range down. 
Bullet had entered straight. Mrs. Deaver was a 
very heavy woman, with protuberant abdomen. If 
she bent over at the time the bullet entered the 
body, that might have caused the range of the bul­
let downward, if  the bullet was fired from the 
ground. (Tr. 38). The point of entry was a 
straight wound. (Tr. 39).

JOHN D EAVER (Witness for the State), 
testifies:

On September 8,1938, he had employed 130 or 
135 cotton pickers on 65-acre field at Rose City. 
W ife was shot about 3 p. m. He had a payroll of 
about $250.00. Kept money in a fishing tackle 
box. Had a 32 automatic savage pistol to protect 
payroll,— for no other purpose. Money on the



68

ground, gun lying on the table next to adding ma­
chine. Wife was there at the table under parasol, 
keeping books. (Tr. 45).

The yellow boy (Roma Bone) came in with a 
sack of cotton, I climbed on top to watch him emp­
ty it, it was trashy and dirty. I said, Boy I cannot 
have cotton picked like that and he said, that is the 
way I have picked cotton, all of the time.— I said, 
the best thing for you to do is to go to the field and 
get your force and bring them in. He came back 
in about 30 minutes with three sacks of cotton and 
it was weighed, the dark boy (Moses Bone) climb­
ed up to empty it, the yellow one stood by the 
wagon. The cotton was very trashy, green bolls 
and green leaves and some burrs. I called my 
wife to dock each sack three pounds. When I 
turned to get off the truck, this yellow negro said, 
no white son-of-a-bitch is going to dock me that 
much and get by with it. I jumped off the back of 
the truck and he broke for the table. I was after 
him, but before I could catch him, some one hit me 
in the back, knocked me down.— “I fell by his feet, 
throwed my right arm around his leg, but he 
reached and got the gun,” and the black one got 
off me and grabbed a pair of scales, something, I 
don’t know what it was. The yellow negro struck 
at me with the gun and my wife screamed, don’t do



69

that. She jumped and started around the table. 
About that time I was hit in the head, knocked me 
down, I still had the negro around the leg and there 
was some scuffling and hollering going on. I 
don’t know what all was said by my wife, she came 
around and I tried to reach for the gun and the 
gun fired over my head, and I was hit in the head 
again and knocked down. The yellow negro kick­
ed me in the breast and stomped me in the throat. 
I still held the leg, and the black one had the scales 
working on me. I don’t know whether he intended 
to shoot me or what, he throwed the gun down to­
ward my head and I grabbed his arm and was 
scuffling there, and my wife fell back, I seen her 
when she fell back. I reached and got his hand 
with the gun in it. A t that time both negroes 
were on me. (Tr. 47).

Then they began working on my arm. (Tr. 
48). Had compound fractures. Until that time 
he had never gotten on his knees. (Tr. 49). Had 
never gotten in a standing position or on his knees. 
(Tr. 50).

Was about 3y2 feet from his wife when the 
difficulty started. Between there and the wagon 
tongue.— She never got to the negro that shot her. 
She just started. Looked to me like she got about 
three feet. Rome Bone “ throwed”  the pistol down



70

and fired with deliberate aim.— The shot went over 
his (Deaver’s) head. (Tr. 51).

I turned the gun loose. The yellow negro took 
the gun and they left. (Tr. 52).

A fter the negroes had gone, witness did not 
stay until the ambulance came. (Tr. 53). The 
fight took place between the wagon tongue and the 
table. It is about six feet across there. (Tr. 57).

CROSS EXAM INATION OF JOHN D EAVER

Lives at Kerr since October. Was there about 
ten days, then left for Corpus Christi, Texas, on 
advice of doctor. Did not know the case had been 
set for November 29. Sister might have sent word 
to the prosecution that he could not be present. 
(Tr. 59). Was at the hospital from the 8th to the 
11th of November. Had no communication about 
the case being set for trial.

Formerly lived at Brushy Island. Son-in-law 
of John Lee. (Tr. 60). Was in the bootlegging 
business. Convicted of possessing whiskey. De­
fendants were good cotton pickers.— Rome Bone 
took the gun from the table, it was laying open for 
any one to see it, it was not covered up. Had seen 
it three or four minutes before. (Tr. 61-62). I did 
not pick up the gun.— Did not attack Mose when he



71

was on the truck.— Did not come to the truck and 
threaten Mose with the revolver.— Mose did not 
not jump o ff the truck and get a hold of him and 
both fell to the ground.

Q. Now is it not a fact you have stated to 
representatives of the press that the gun 
went o ff during a scuffle?

A. I don’t remember if  I did.
Q. But you don’t deny it?
A. Not as I remember it, no sir. (Tr. 62).

Did not see Rome (the yellow negro) get the 
scales, or Crosnoe get the singletree.— Did not 
have possession of the gun at the time the shot was 
fired. (Tr. 63).

Was tussling on the ground with Rome.

Q. When was it the weighboss came with 
the singletree and hit Rome.

A. I don’t know.
Q. Where were you?
A. On the ground. (Tr. 64).
Q. But Rome got the scales, not Mose?
A. Rome is the one that had the gun.
Q. When Mose and you were lying on the 

ground fighting each other, where was 
Rome then?

A. He was standing astraddle of me with me



72

on the ground.
Q. Where was he before he got astraddle of 

you?
A. He was standing in front of the wagon 

before he made a lunge for the gun. A f­
ter he got the gun he was 2y2 or 3 feet 
from the wagon, between the table and 
the wagon tongue.

Q. How did you get to the ground?
A. Mose knocked me down, he jumped from 

the wagon or truck.

Did not tussle with Mose.— Does not know 
what happened to Mose after he knocked him 
down. (Tr. 65).

When the shot was fired he was lying on the 
ground. (Tr. 66). The shot was fired in an 
Easterly direction. I was laying with my head to 
the East and the feet to the West. The cotton mid­
dles were running East and West. The shot went 
over his head a foot or 18 inches. W ife was about 
three or four feet away.— I was on my elbow. The 
bullet went about four feet o ff of the ground. The 
shot was fired about two feet over my head.

W ife was about 3 or 3y2 feet from his head. 
Rome was about 3 feet from his wife. (Tr. 68).

No tussling on the ground. Does not know 
what the other negro was doing. (Tr. 69).



73

Never had the butt of the gun in his hand. 
(Tr. 70).

Was lying with his head toward the East. 
Does not know anything about the singletree. (Tr. 
71).

Does not know how the prosecution got the in­
formation the gun jammed. (Tr. 72).

Under re-direct examination he testifies that 
his wife weighed around 185 pounds.

Under re-cross examination he testified: “ She 
was a fleshy woman. You know fleshy women 
generally have terribly large stomachs. (Tr. 73).

LESLIE CROSNOE (Witness for State).

DIRECT EXAM INATION 
Weighed cotton at the end of the tongue of the 

wagon. (Tr. 75). The two (Rome and Mose Bone) 
and their sister had bad cotton about 3 p. m. Sacks 
were being emptied on truck by George Walls, a 
colored boy. Mr. Deaver on the truck told Mrs. 
Deaver to dock them three pounds.

Rome said, no white son-of-a-bitch can do that 
and get by with it. He (Rome) was standing be­
tween the back end of the truck and the table, and 
he started walking toward the table, where Mr.



74

Deaver had about $300.00 in a box at the table.

There was a gun there to protect the money. 
When Mr. Deaver seen it, he was making for the 
gun (Tr. 77), he jumped down and started toward 
the table (Tr. 77), then Moses sailed o ff the back 
end of the truck on Mr. Deaver. He lighted part­
ly on his back.

Then Rome started on, went on and got the 
gun. I saw that, he was standing there with the 
gun and the other one had the scales. He was about 
four or five feet from Mr. Deaver when he got the 
gun.

And I saw they were beating him up, this 
other one had the scales beating on him with the 
scales and the singletree was laying there. I at­
tempted to keep them from killing Mr. Deaver, but 
when I started to go in to protect him, this Mose, 
I believe it was, struck me with the scales and after 
that I could not tell you what happened. Believes 
he struck Rome, but never struck Mr. Deaver. (Tr. 
78).

CROSS EXAM INATION OF 
LESLIE CROSNOE

When the trouble started witness was tolera­
bly close to the back of the truck, between the wag-



7 5

on and the truck. The truck was facing west, the 
wagon on the southside of the truck. The distance 
between the wagon and the truck was about four 
or five feet. Roma was toward the end of the ton­
gue and I was up close to the wagon. (Tr. 79).

Mr. Deaver was about 6 or 8 or 10 feet from 
Rome. Rome would be 12 or 13 feet maybe a little 
further from where he was to go to the table. Mr. 
Deaver about 15 or 18 feet from the table. (Tr. 
80).

George Walls was on the truck emptying 
sacks. (Tr. 82). Mr. Deaver did not point the 
gun at Mose on the truck.

Denies that he testified as to two different 
times Mose got the gun. Mose got the scales after 
he had knocked Mr. Deaver down. (Tr. 84). Had 
gotten the singletree before Mose hit him.

Does not know that he struck Mr. Deaver, but 
knows that he was struck with the scales about the 
time I swung. (Tr. 85).

Witness had testified that there were $300.- 
00 in the box. Defense attempted to bring out that 
he had obtained the information from Mr. Deaver, 
as indeed defense contends that this witness was



76

trained and coached by Mr. Deaver in his testi­
mony.

The Court did not allow defense to impeach 
the veracity of the witness, to which defense took 
exceptions. (Tr. 87).

Did not see the gun lying on the table.— Did 
not see it before, but knew it was there. Had been 
working there a week or week and a half.— Does 
not know what he did after he was hit with the 
scales. Denies that he said he would return with 
gun, as he walked off. (Tr. 87).

LESTER CONWAY, (Witness for State).

DIRECT EXAM INATION
White, 15 years old. Was picking cotton at 

scene o f murder, September 8, 1938. (Tr. 89).

Was watching the fight.— Saw the blackest 
nigger (Mose) hit Mr. Deaver. Both got on him 
then and Mose went and got the cotton scales and 
commenced beating on Mr. Deaver, and Mr. Dea­
ver told them not to kill his wife, she run in to 
help him and Rome shot Mrs. Deaver. Mose was 
on Mr. Deaver. He was holding Mr. Deaver and 
kinda fighting. (Tr. 91).

Rome and Mr. Deaver were close together.



77

Mr. Deaver was lying on the ground. Mose had 
Mr. Deaver down. I saw the shooting.

Q. What did you see when the shot was 
fired?

A. Well, the lightest negro (Rome) when 
Mrs. Deaver tried to pull him off, he 
turned and shot her, then he got on Mr. 
Deaver and the other one got the cotton 
scales and he commenced beating Mr. 
Deaver with them.

Q. Now let’s see, when you looked around 
there you say, you saw Mr. Deaver on the 
ground and Mose, the black one, was on 
top of him?

A. Kinda to the side of him.

Q. Down on the ground?
A. Yes, sir.
Q. Did you see him with the cotton scales 

then?
A. No, sir, he had not gotten the cotton 

scales when I looked around. (Tr. 92).

Q. Was Mrs. Deaver shot before Mose got 
the cotton scales or after?

A. Before.

Being led by the prosecution in evident dis­
may, the prosecution asking?

Q. You are positive about that, if  you are not 
positive about anything, don’t say so.



78

A. I am not sure about that.

Is positive Rome did not try to shoot again. 
Mrs. Deaver had tried to pull Rome off, pulling 
around his hips. She was in back o f him. He slung 
her off. (Tr. 94).

CROSS EXAM INATION

When I first looked around both Rome and 
Mose were scuffling on the ground with Mr. Dea­
ver.— She was shot while she and Rome were fac­
ing each other.

CHARLES CONWAY, (Witness for the 
State).

DIRECT EXAM INATION

Age 13.— Was picking cotton right behind his 
brother. (Tr. 99). First thing he hears a negro 
cursing and saw Mr. Deaver and Rome fighting. 
(Tr. 100).

Didn’t see the gun before the shot was fired. 
When the shot was fired I seen it, he whirled and 
shot Mrs. Deaver. (Tr. 101).

Q. You are sure the light colored boy shot 
Mrs. Deaver?



79

A. Yes, sir, it was no stray shot either. (Tr.
102).

He saw Mr. Deaver leave in his truck and go 
to the house.

CROSS EXAM INATION

Didn’t see the gun.

Q. They were lying on the ground?

A. No, sir, they were on foot then.

Q. They were fighting standing on their 
feet?

A. Yes, sir.

They were fist fighting.

Q. Then what happened?
A. The black negro jumped o ff of the wag­

on, he had been in the front end of the 
wagon, it was loaded with cotton. He 
jumped o ff on Mr. Deaver’s back and 
knocked him down, then he got the cotton 
scales and went to beating Mr. Deaver 
with them.

Q. A fter Mose got away, did Rome jump on 
Mr. Deaver?

A. He was beating him with the cotton 
scales and went to beating him. Then 
Mrs. Deaver tried to pull him off. (Tr. 
106).



80

Q. Then what happened?
A. He whirled. I don’t know whether or not 

he had the gun or if  Mr. Deaver had the 
gun. She was about 18 inches from him. 
(Tr. 107).

DEFEN DAN TS’ TESTIMONY

ROMA BONE, Witness for himself.

Lives with his father at 816 Pine Street, 
North Little Rock. Arrived there Tuesday prior 
to Thursday, September. 8. (Tr. 109). The story 
o f his life (Tr. 110-111) reveals that he traveled a 
good deal. His last employment was with Mr. Tom 
Fleming, a salesman for Lockwood Hosiery Mills, a 
cripple, whom he rubbed, bathed and dressed. Had 
learned it at Mayo Brothers, Rochester, Minn., at 
Indianapolis and Johns Hopkins Hospital, Balti­
more, Md.

Denies that he fired shot.— Describes the lo­
cation of objects in Deaver’s field.— The table was 
sitting back East from the truck, where Mrs. Dea­
ver sat. Wagon was facing East. (Tr. 112). She 
was facing back end of truck. Wagon was South 
of the truck.

Tells in his own words what happened. Did 
not make disrespectful remark to Mr. Deaver. Did



81

not call him ugly name— son-of-a-bitch.

Vide for full statement in Abstract of the tes­
timony.

Did not see his sister’s (Ernestine) cotton. 
All I asked him not to kick the little girl. Mr. Dea- 
ver called to dock her ten pounds. I said, pay us 
and we’ll go home.— Mose was on the truck. I 
was not tussling on the ground. I never got on 
the ground.— Mose and Deaver were on the ground 
with the gun. Mose had hold of the barrel of the 
gun and Mr. Deaver had the gun this way. I 
grabbed the scales from the wagon and the weigh- 
boss had the singletree. He would swing the 
singletree at Mose and hit Mr. Deaver.

Mrs. Deaver did not get a hold of me and pull 
me back, she didn’t put her hands on me. I never 
got a hold of the gun until after the fight was over 
and Mr. Deaver surrendered it to me. (Tr. 118). 
Never hit Mr. Deaver. Mose did not get the scales.

When Mrs. Deaver was shot she said, Oh 
John, quit, you have done shot me. She fell right 
there. Mr. Deaver said, “ Stop boys, I have done 
shot my wife, I have got to get a doctor”  and then 
surrendered possession of the gun.

I had no ill will against Mrs. Deaver. No



82

reason why I should shoot her. I didn’t know 
nothing about either of them. I was just picking 
cotton for them. Had never known the gun before, 
— had not seen it. Saw Mr. Deaver take it out of 
the box. (Tr. 119-120).

CROSS EXAM INATION

Was never convicted of a felony. It was 2 p. 
m., when Ernestine’s sack came up, and when Mr. 
Deaver said he had a great mind to get down and 
kick her naked.

Thereafter we went and got the other sacks. 
Don’t know what Mr. Deaver said to Mose on the 
truck. I was at the wagon tongue figuring the 
weights. Mr. Deaver went to the table and got the 
pistol.

He said, you black son-of-a-bitches, don’t get 
smart, or I will kill 25 or 30 of you. He walked to 
the truck about 10 or 15 feet.

Another colored fellow was on the truck. Mr. 
Deaver drawed the gun on Mose. I walked across 
to him and said, Don’t kill that boy, we’ll go home. 
(Tr. 129).

When he interceded Mose jumped o ff the 
truck on Deaver. Went down on the ground. Used



83

the scales only on the weighboss, never hit Mr. 
Deaver. (Tr. 130).

When Mr. Deaver surrendered the gun, I had 
hold of his hand.

I know the weighboss hit him (D eaver); he 
hit at Mose and missed him and hit Mr. Deaver. 
(Tr. 131).

Mose and Mr. Deaver were down on the 
ground when the shot was fired.— When Mrs. 
Deaver came she was bending over, (Demonstrates 
at behest of prosecution). (Tr. 135).

RE-DIRECT EXAM INATION

When Mrs. Deaver came, I passed in front of 
her. (Tr. 137). Admits he hit Crosnoe with the 
scales. After that he (Crosnoe) said, “ Stay here 
till I get back with my gun.”

RE-CROSS EXAM INATION

Crosnoe had hit him with singletree on the 
hip. (Tr. 138).

ERNESTINE BONE, witness for defend­
ants.



84

DIRECT EXAM INATION

Was in the cotton field of Mr. Deaver Sep­
tember 8th.

Q. State to the jury anything and every­
thing you have seen or heard of the fight 
and shooting as between Mose, Rome and 
Mr. Deaver?

A. First— I heard Rome tell Mr. Deaver 
they had three more sacks and they would 
get them and weigh them, and if he would 
pay them o ff we would go home. They 
emptied the sacks and Mose was on the 
truck. I did not hear what was said but 
Mr. Deaver got down o ff the truck and 
went to the desk and got his pistol and 
started back to the truck at Mose. Rome 
was on the ground and he said, White 
folks there is no use shooting, pay us o ff 
and we will go home, so Mr. Deaver turn­
ed and hit him in the side of the head 
with the flat of the pistol, (Tr. 139). 
About that time Mose hopped from the 
truck on him and that throwed Mr. Dea­
ver on the ground, and Mose and Mr. 
Deaver were on the ground tussling over 
the pistol. The weighboss grabbed the 
singletree and hit at Mose, and Rome 
grabbed the scales and was hitting at the 
weighboss. But when the weighboss 
went away, Rome went to take the gun 
from Mr. Deaver. By the time Rome got 
there, Mrs. Deaver was up and said, let 
me get around there. She came running 
up and by the time Mrs. Deaver got



85

around there, the pistol fired. She said, 
Oh John, I told you to quit, you have done 
shot me. And Mr. Deaver said, Let me 
up, boys, I have shot my wife, and he 
said, I ’ll give you the pistol. He got up 
and turned his wife over and then went 
to the desk and got the money box 
and put it in the truck and drove off. 
(Tr. 140).

CROSS EXAM INATION

Mose and Mr. Deaver were still tussling on 
the ground when the shot was fired,— tussling over 
the pistol. (Tr. 144).

RE-DIRECT EXAM INATION

Mrs. Deaver was coming up and she was bent 
like that. (Demonstrates).

RE-CROSS EXAM INATION

Q. What position was Rome in?

A. He had hold of Mr. Deaver’s arm ; he was 
not on the ground, he was bent over.

Q. What position was Mose in?

A. He had his knees on the ground, he was 
partly bent over, he was not laying 
down.



86

Q. What position was Mr. Deaver in?
A. He was laying down. (Tr. 146).

LAW RENCE WESTON, Witness for de­
fendants.

DIRECT EXAM INATION

10 years old. Examined by the Court. (Tr. 
147).

The Court holds he is competent. (Tr. 147 a).

Picking cotton at Mr. Deavers on September 
8th. Does not kjnow how the trouble started. 
When he went around to the water barrel and got 
back, Mose and Mr. Deaver were tussling over the 
pistol and Rome was trying to help Mose get the 
pistol, and Mrs. Deaver said, Let me get up there 
and about the time she got up there, the pistol 
fired. This is all he knows. (Tr. 148).

CROSS EXAM INATION
No questions.

AM AN DA MOODY, Witness for the defend­
ants.

DIRECT EXAM IN ATIO N
Was in Deaver field on September 8th, pick-



87

ing cotton. Had gone to water keg behind truck 
for water. Saw them tussling on the ground. 
Heard Mrs. Deaver say, “ John, I told you to put 
that thing up, now you have done shot me.”  When 
she said, she was shot, I broke and run. (Tr. 150- 
151). Did not see the gun.

CROSS EXAM INATION

Q. Do you know who fired the shot?
A. In tussling the gun went off. (Tr. 151- 

152).

GERALDINE SIMS, Witness for defend­
ants.

DIRECT EXAM INATION

Was at the scene of the fight September 8th. 
I saw Mrs. Deaver when she went there and she 
said, “ Oh John, quit, you have done shot me.”  
Then she hollered again, “ Oh John” and keeled 
over. Did not see the fight.— White people around 
there were Mr. Deaver, the weighboss and a man 
on a truck, but he left out of the field when the 
gun fired.

I saw the weighboss running down in the field 
and got the riding boss, got the mule he was on and 
rode out of the field. He came back, him and



88

Homer (Crosnoe) and another man. Mr. Deaver 
drove out of the field. Homer had a pistol and one 
o f the others had a shotgun.— When they came 
back, the body of Mrs. Deaver was still there. Mr. 
Deaver, when he got up, first went to his wife, 
then went over in front of the wagon somewhere, 
then he went to the truck and got in the truck and 
drove the truck out of the field. (Tr. 154).

CROSS EXAM INATION 

No questions.

GEORGE W ALLS, Witness for defendants.

DIRECT EXAM INATION

Works on same field now on which he work­
ed when Mrs. Deaver was killed, now working for 
Mr. Oliphant, the manager. (Tr. 155).

Was at scene of the trouble September 8, 
1938. Was working on truck, emptying sacks.

Reference is made to the full statement as 
printed in Abstract of Testimony.

On further examination witness testified that 
when Mr. Deaver had got the gun originally, he 
pointed it toward the truck. After the shot was



8 9

fired I left from the truck. The bright boy, (Rome) 
got the scales.— Prior to that the weighboss had 
been hitting with the singletree down on Mose and 
Mr. Deaver. (Tr. 157).

CROSS EXAM INATION

The first he saw was when Mr. Deaver was 
feeling through the cotton. A fter that he left the 
truck. Rome was on the ground during the dis­
cussion between Mr. Deaver and Mose.

Mr. Deaver walked over and got the gun. 
Rome was still standing there. (Tr. 158).

When Mr. Deaver came back with the gun 
Mose was still standing on the truck. He could be 
seen o ff the ground without trouble. Mr. Deaver 
could have shot him then. Mose jumped on Mr. 
Deaver’s back. Rome did not do anything till the 
weighboss came up with the singletree, then he got 
the scales. (Tr. 160). He hit Mr. Deaver but 
that was before the shot was fired. A fter the shot 
was fired they continued tussling and scuffling 
and the boys asked Mr. Deaver to turn the gun 
loose. (Tr. 162). Mr. Deaver was down on the 
ground, he was kinda on his knees, still holding 
the gun. Heard Mrs. Deaver say, I am shot. 
(Tr. 163).



90

JULIA WIGGINS, Witness for defendants.

DIRECT EXAM INATION

Saw the fight. Was picking cotton. Refer­
ence is made to full statement in Abstract o f Tes­
timony. (Tr. 164).

Saw no one standing firing the shot. The shot 
come out of the bunch there, the way they were 
clustered together. (Tr. 165).

CROSS EXAM INATION

Met the Bone boys, Mose and Rome, that day. 
When the shot was fired they were struggling on 
the ground. (Tr. 167).

JOE WIRGES, Witness for defendants.

Reporter and photographer for the Gazette. 
Reported part of the Deaver-Bone matter, took 
picture of the scene. (Tr. 170).

Was present at the Infirmary when Mr. 
Deaver made statement to Deputy Sheriff, Harris. 
(Tr. 170).

Identifies picture (Exhibit C ).

Mr. Deaver at that time made statement as to 
who fired the shot, which was reported in the



91

Gazette.

Objected to by prosecution on ground that no 
proper foundation was laid.

JOHN D EAVER recalled.

Thinks he made statement at the Infirmary. 
Does not remember what he said.

COURT: You still have not laid any foun­
dation, there is nothing to impeach.

MR. E IE R M A N N : Of course if  he cannot
remember that is as far as we can go. 
Under the circumstances I think Mr. 
Wirges should be allowed to testify to 
what he heard. (Tr. 171).

MR. PACE: I object.

COURT: Objection sustained.

MR. E IE R M A N N : Save my exceptions.

MOSE BONE, Witness for himself.

DIRECT EXAM INATION

Worked for Mr. Deaver two days. Was in­
volved in the fight. (Tr. 174).

Reference is made to the full statement, re­
printed in the Abstract o f Testimony.



9 2

Further testifying:

Was on the truck emptying his sacks.— Mr. 
Deaver threatened to kill 25 or 30 o f you negroes. 
Then he walked to the table and got his gun and 
walked half the distance back from the table and 
held the gun on me. Rome spoke there is no use 
killing the boy, pay us o ff and we’ll go home.

George Walls was on the truck When Rome 
spoke Mr. Deaver put gun on him. He was fixing 
to shoot and I jumped o ff the truck and grabbed 
him before he could pull the trigger, and he and I 
began to tussle for the gun.— Rome did not tussle 
with him. (Tr. 177).

CROSS EXAM INATION

When witness was on the truck Mr. Deaver 
also came and cussing docked each sack 10 pounds. 
The only thing I said was to pay us o ff and we’ll 
go home. Mr. Deaver went to the table. Rome 
was over at the wagon tongue with the back o f the 
book laying on the wagon tongue, figuring, was 
figuring cotton weight. Rome walked up to him. 
(Tr. 180). Mr. Deaver hit Mose with the gun four 
or five times, that is when I jumped o ff the truck. 
We both went down on the ground as I grabbed 
him. He (Deaver) did not drop the gun. I grab-



93

bed the barrel o f the gun. I was hit three times 
from the singletree. (Tr. 181). We were up and 
down. I heard Mrs. Deaver, could not see her.— I 
was bloody, some o f it was of me and some of it was 
o ff  of him.— Rome did not tussle. Could not have 
been long the tussle continued after the shot was 
fired.

After Mr. Deaver gave up the gun, Rome got 
it and held it up to the crowd. He never pointed 
it at Mr. Deaver.— Never squeezed it. Mr. Deaver 
and I did all the fighting on the ground. Nobody 
else was down but me with Mr. Deaver tussling. 
(Tr. 184).

STATE’S REBUTTAL

GEORGE W ALLS, witness for defendants, 
recalled by the State.

Denies that he ever said, Rome, after receiv­
ing the gun from Mr. Deaver, pointed it and 
squeezed it like a lemon squeezer. (Tr. 186).

JOHN W ILLIAM S, witness for the State.

Deputy prosecuting attorney. Took state­
ment of George Walls on September 8.— Proceeds 
to testify as to above statement.

MR. E IE R M A N N : “ I f it please the Court,



94

I think the whole statement should be 
read.”

COU RT: That would be true if  it were the
defendant, if  you want the statement in 
I will permit you to examine it. (Tr. 
188) .

CROSS EXAM INATION

Witness states this was the original copy. He 
made the transcript from the original notes.

I N S T R U C T I O N S  

The Court gave the following instructions:

Gentlemen of the Jury: You have heard the 
evidence. The instructions I am giving are to 
be considered together as constituting the law 
of the case.

1
The defendants are accused of murder in 

the first degree. The information is as follows: 
“In the Pulaski Circuit Court, First Division, 
State of Arkansas, plaintiff, vs. Moses Bone 
(B.M.) and Rome Bone (R.M.), defendants. Fel­
ony information. Comes Fred A. Donham, Pros­
ecuting Attorney within and for Pulaski County, 
Arkansas, and in the name, by the authority,



95

and on behalf of the State of Arkansas informa­
tion gives accusing Moses Bone and Rome 
Bone, of the crime of murder in the first degree 
committed as follows to wit: The said Moses 
Bone and Rome Bone, in the County and State 
aforesaid, on the 8th day of September, A. D., 
1938, unlawfully and feloniously, wilfully, and 
with malice aforethought, and after premedita­
tion and deliberation did assault, kill and mur­
der Mrs. John Deaver by then and there shoot­
ing her, the said Mrs. John Deaver, with a pistol, 
then and there loaded with gunpowder and 
leaden bullets, and then and there had and held 
in the hands of them, the said Moses Bone and 
Rome Bone, and with an unlawful and felonious 
intent then and there, her, the said Mrs. John 
Deaver, wilfully and maliciously to kill and mur­
der, against the peace and dignity of the State 
of Arkansas. Fred A. Donham, Prosecuting At­
torney, by John T. Williams.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.



96

2

Under this information or indictment, it is 
com petent for you, if you think the evidence jus­
tifies it, to convict the defendants, or either o f 
them, o f murder in the first degree, murder in 
the second degree, or of manslaughter, or to ac­
quit him or them outright.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record. Defend­
ants further excepted to the giving o f said in­
struction for the reason that both defendants 
are charged jointly with both having the gun 
in their hands and both firing the shot and 
therefore both would have to have hold o f the 
gun and both would have had to fire the shot 
to commit the murder and defendants’ excep­
tions were accordingly noted o f record.

3

The defendants start out in the beginning 
o f the trial with presumption of innocence in 
their favor. This is a presumption that begins 
with the trial of the case and continues through­
out the trial, or until the evidence convinces you 
o f their guilt beyond a reasonable doubt. You



97

pass on the guilt or innocence of the defend­
ants, and decide, according to the law and the 
evidence, if the defendants, or either of them, 
are guilty and what he or they are guilty of, and 
what his or their punishment should be, if guilty. 
The effect o f the presumption o f innocence is to 
put upon the State the burden of proving to 
your satisfaction, beyond a reasonable doubt, 
every material allegation in the information.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling o f the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

4
The Court does not have anything to do 

with the evidence. It is the province o f the 
Court to declare to you the law applicable to any 
phase o f the case and the testimony and to re­
turn a verdict in accordance with both the law 
and the testimony. You are to exercise your 
judgment, your com m on sense, your experience, 
none o f which you are to leave behind you when 
you go into the jury room  to deliberate on the 
case.

To the giving o f which instruction to the 
jury the defendants, at the time, objected,



98

which said objection was by the Court over­
ruled, to which ruling o f the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

5

You may judge o f the credibility of a witness 
by the manner in which he gives his testimony, 
his demeanor upon the stand, the reasonable­
ness or unreasonableness of his testimony, his 
means of knowledge as to the facts about which 
he testifies, the consistency or inconsistency 
with itself or the other testimony in the case, 
his interest in the case, the feeling he may have 
for or against the defendant, his bias for or prej­
udice against the defendant, or any other fact 
or circumstance tending to shed light upon the 
truth or falsity of such testimony, and it is for 
you at last to say what weight you will give to 
the testimony of any and all witnesses.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling o f the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

6
I will now give you the law defining the dif-



99

ferent degrees of homicide included in the 
charge in this information, without reference to 
the law of self-defense. I will speak of that 
hereafter.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

7
Murder is the unlawful killing of a human 

being, in the peace o f the State, with malice 
aforethought, either expressed or implied.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling o f the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

8
The manner o f the killing is not material, 

further than it m ay show the disposition o f mind 
or the intent with which the act was committed.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling o f the Court the defend-



100

ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

9
Express malice is that deliberate intention 

o f mind unlawfully to take away the life o f a hu­
man being, which is manifested by external cir­
cum stances capable o f proof.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

10
Malice shall be implied when no considera­

ble provocation appears, or where all o f the cir­
cumstances of the killing m anifest an abandon­
ed and wicked disposition.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling o f the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

11
The killing being proved, the burden of 

proving circumstances o f mitigation that justify



101

or excuse the homicide shall devolve on the ac­
cused, unless by proof on the part of the State it 
is sufficiently manifest that the offense amount­
ed only to manslaughter or that the accused 
was justified or excused in committing the hom­
icide.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

12
All murder which shall be perpetrated by 

means of poison, or by laying in wait, or by any 
other kind of wilful, deliberate, malicious and 
premeditated, or which shall be committed in 
the perpetration of, or in the attempt to perpe­
trate arson, rape, robbery, burglary or larceny, 
shall be deemed murder in the first degree.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

13
All other murder shall be deemed murder in



102

the second degree.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

14

You will observe from this that in order to 
constitute murder in the second degree, it is 
necessary to show that the killing was unlawful 
and done with malice aforethought. It is imma­
terial for how long the malice existed, that it 
existed and preceded and caused the homicide. 
No deliberation is necessary in murder in the 
second degree. To raise it to murder in the first 
degree, there must not only be malice afore­
thought, but the specific intent to kill and pre­
meditation and deliberation. Premeditation 
means thought of beforehand. Deliberation 
means a weighing in the mind of the conse­
quences of a course of conduct, as distinguished 
from acting upon a sudden impulse without the 
exercise of the reasoning powers; but irresisti­
ble impulse is no defense. It is immaterial for 
how long the premeditation and deliberation ex-



103

isted, so that they did exist and precede the 
homicide.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

15
To make it clear to you, if the killing is un­

lawful and done with malice aforethought, and 
nothing more is proved, it is murder in the sec­
ond degree. If in addition to that, there was the 
specific intention to kill and premeditation and 
deliberation, it would be murder in the first de­
gree. There can be no murder without malice.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

16
Manslaughter is the unlawful killing of the 

human being, without malice, express or im­
plied, and without deliberation. It may be either 
voluntary or involuntary.



104

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

17

Voluntary manslaughter is a killing upon a 
sudden heat of passion, caused by a provocation 
apparently sufficient to make the passion irre­
sistible. That is what voluntary manslaughter 
means. But words alone do not justify an as­
sault. Killing upon a sudden passion caused by 
mere words and without a mutual combat and 
not in self-defense, is murder, not manslaugh­
ter.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

18
If the killing be in the commission of an un­

lawful act, and without malice, and without the 
means calculated to produce death, or in the 
prosecution of a lawful act, done without cau-



105

tion and circumspection, it is involuntary man­
slaughter.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

19
In this connection, I will state that if you 

have a reasonable doubt as to the degree of the 
offense, you must give each defendant the ben­
efit of the doubt and find him guilty only of the 
lower degree. In other words, if he is guilty and 
you have a reasonable doubt as to whether it 
is murder in the first degree or murder in the 
second degree, you must convict him only of 
murder in the second degree. If you have a 
reasonable doubt as to whether it is murder in 
the second degree or voluntary manslaughter, 
you should convict him only of voluntary man­
slaughter. If you have a reasonable doubt as 
to whether it is voluntary or involuntary man­
slaughter, you should convict him only of invol­
untary manslaughter. If you have a reasona­
ble doubt of his guilt upon the testimony in the 
whole case, it is youir duty to acquit him. What



106

I have just said applies separately to each de­
fendant.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

20
As I have stated to you, the burden of proof 

is upon the State to prove all the material al­
legations, in the information, and that beyond 
a reasonable doubt, but as I said before, the 
killing being proved, the burden of proving cir­
cumstances of mitigation that justify or excuse 
the homicide devolve upon the defendants, un­
less by proof on the part of the State, it is suf­
ficiently manifest that the offense amounted 
only to manslaughter, or that the accused was 
or were justified or excused in committing the 
homicide. You are further instructed, however, 
that upon the whole case the burden is upon the 
State to establish each defendant’s guilt beyond 
a reasonable doubt.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend-



107

ants, at the time, excepted and caused their 
said exceptions to be noted of record.

21
Now as to the law of self-defense. The 

Court instructs the jury as follows:

Justifiable homicide is the killing of a hu­
man being in necessary self-defense, or in the 
defense of habitation, person or property, 
against one who manifestly intends or endeav­
ors, by violence or surprise, to commit a felony. 
If the homicide with which any person shall be 
charged shall appear upon the trial to be justi­
fiable or excusable, such person shall be fully 
acquitted and discharged.

So you see if either or both defendants were 
justified upon the ground of self-defense, he or 
both are entitled to a discharge and acquittal.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

22
The bare fear of these offenses, to prevent 

which the homicide is alleged to have been com-



108

mitted, shall not be sufficient to justify the 
killing. It must appear that t h e  circum­
stances were sufficient to excite the fears of a 
reasonable person, and that the party killing 
really acted under their influence and not in a 
spirit of revenge.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

23

In ordinary cases of one person killing an­
other in self-defense, it must appear that the 
danger was so urgent and pressing that in order 
to save his own life, or to prevent his receiving 
great bodily injury, the killing of the other was 
necessary, and it must also appear that the per­
son killed was the assailant, or that the slayer 
had really in good faith, endeavored to decline 
any further contest before the mortal blow or 
injury was given.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their



1 0 9

said exceptions to be noted of record.

24

You have been told that in ordinary cases 
of one person killing another in self-defense, it 
must appear that the danger was so urgent and 
pressing, that in order to save his own life, or to 
prevent his receiving great bodily injury, the kill­
ing of the other was necessary, but to whom 
must it appear that the danger was urgent and 
pressing? It must appear to the defendant. To be 
justified, however, in acting upon the facts as 
they appear to him, he must honestly believe, 
without fault or carelessness on his part, that 
the danger is so urgent and pressing that it is 
necessary to kill the assailant in order to save 
his own life, or to prevent his receiving great 
bodily injury. He must act with due circumspec­
tion. If there was no danger, and his belief in 
the existence thereof is imputable to negligence, 
he is not excused, however honest the belief 
may be.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.



110

25

No one resisting an assault made upon him 
in the course of a sudden brawl or quarrel, or 
upon a sudden encounter, or from anger sud­
denly aroused at the time it was made, is justi­
fied in taking the life of his assailant, unless he 
is so endangered by such assault as to make it 
necessary to kill the assailant to save his own 
life, or to prevent his receiving great bodily in­
jury, and he must employ all the means in his 
power, consistent with safety, to avoid the dan­
ger and avert the necessity of killing. The dan­
ger must apparently be imminent, irremediable 
and actual, and he must exhaust all the means 
in his power, consistent with his safety, to pro­
tect himself without killing his adversary, and 
then the killing must be necessary to avoid the 
danger. If however, the assault is so fierce as 
to make it, apparently, as dangerous for him to 
retreat as to stand his ground, it is not his duty 
to retreat, but he may stand his ground, and, if 
necessary to save his own life, or to prevent his 
receiving great bodily injury, slay his assailant. 
So long as the danger continues he may pursue 
the other party and relieve himself of the im­
pending danger by the use of such force as may 
reasonably appear to him to be necessary to



Il l

save his own life or to prevent great bodily harm 
to himself, provided the danger actually con­
tinues to exist or his belief in its existence is not 
a negligent belief on his own part.

To the giving of which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted of record.

26
You are instructed that if you find from the 

evidence that the defendants, by his or their 
own words or conduct, provoked or invited the 
deceased to make an attack upon him or them 
and thus brought on a combat between the de­
fendants or either of them, and the deceased, 
then the defendants or either of them, was not 
justified in killing the deceased for the purpose 
of saving his or their own lives, or preventing a 
great bodily injury to him or them, until he or 
they had, in good faith, withdrawn from the 
combat, or made a bona fide effort to withdraw 
from the combat and had done all in his or their 
power to avoid the danger and avert the neces­
sity of killing the deceased. In other words, a 
person cannot provoke an assault, or voluntarily



112

bring on himself a combat, and then kill his as­
sailant and claim the benefit o f self-defense, 
until he has in good faith, withdrawn from the 
combat, or made a bona fide effort to withdraw 
from  the combat, and done all in his power to 
avoid the danger and; avert the necessity o f kill­
ing.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling o f the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

27
You have been told that you should give the 

defendants the benefit o f a reasonable doubt. 
Reasonable doubt is said not to be any possible 
or imaginary doubt for all things that depend up­
on human testimony are susceptible o f some 
possible or imaginary doubt. To be convinced be­
yond a reasonable doubt is where after an entire 
consideration and comparison of all the testi­
m ony the minds of the jurors are left in that 
condition where they have an abiding faith to a 
moiral certainty o f the truth o f the charge. A 
moral certainty I think is defined as such a cer­
tainty as a juror would be willing to act upon in



113

the important affairs of his own life.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objections were by the Court over­
ruled, to which ruling o f the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

28

If you find the defendants guilty, and you 
are satisfied o f that beyond a reasonable doubt, 
then it is your duty to convict them of the crime 
that you find them guilty of. If you find that 
they are not guilty, or if you have a reasonable 
doubt o f their guilt, it is your duty to acquit 
them. This question you alone can decide. 
Exercise your reason, your judgment, your com ­
mon sense and experience, and give to the tes­
timony of any and all witnesses such weight as 
you think such testimony is entitled to. You 
may convict one defendant and acquit the other, 
or you may convict both or acquit both, as the 
law and the evidence justifies. Declare in your 
verdict as to each defendant, whether he is 
guilty or not guilty, and if guilty state what o f­
fense he is guilty of.

To the giving o f which instruction to the 
jury the defendants, at the time, objected,



114

which said objection was by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

29

The punishment for murder in the first de­
gree is death or life imprisonment. The punish­
ment for murder in the second degree is impris­
onment in the State penitentiary for not less 
than five nor more than twenty-one years. The 
punishment for voluntary manslaughter is im­
prisonment in the penitentiary for not less than 
two nor more than seven years. The punish­
ment for involuntary manslaughter is imprison­
ment in the penitentiary for a period not ex­
ceeding one year.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling of the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

30
If you find the defendants, or either of 

them, guilty o f murder in the first degree and 
desire to inflict the death penalty, you will say: 
“ We, the jury, find the defendant guilty of mur-



115

der in the first degree as charged in the infor­
mation.”  If you return that verdict, then the 
law fixes the punishment as death.

If you find the defendants, or either of them, 
guilty of murder in the first degree and want to 
fix the punishment at life imprisonment, then 
your verdict will b e : “  We, the jury, find the de­
fendant guilty of murder in the first degree and 
fix his punishment at life imprisonment in the 
State penitentiary.”

If you find the defendants, or either o f them, 
guilty o f murder in the second degree you will 
say: “ We, the jury, find the defendant guilty of 
murder in the second degree and fix his punish­
ment at a term not less than five nor more than 
twenty-one years.”

If you find the defendants, or either o f them, 
guilty of voluntary manslaughter, you will say: 
“ We, the jury, find the defendant guilty o f vol­
untary manslaughter, and fix his punishment at 
not less than two, nor more than seven years.”

If you find the defendants, or either o f them, 
guilty of involuntary manslaughter, you will say: 
“ We, the jury, find the defendant guilty of in­
voluntary manslaughter and fix the punishment 
not to exceed one year.”



116

If you find the defendants, or either o f them, 
guilty of any degree less than murder in the 
first degree, and cannot agree on the punish­
ment, then you will so state, in which event the 
Court will fix the punishment within the limits 
the same as you could have done in the first in­
stance.

If you find the defendants, or either o f them, 
not guilty, or if you have a reasonable doubt of 
his or their guilt, then you will say: “ We, the 
jury, find the defendant not guilty.”

In either event you will sign your verdict by 
one o f your members as foreman.

To the giving o f which instruction to the 
jury the defendants, at the time, objected, 
which said objection was by the Court over­
ruled, to which ruling o f the Court the defend­
ants, at the time, excepted and caused their 
said exceptions to be noted o f record.

SCIPIO JONES: Your Honor, we object to 
that portion o f the closing argument on the part 
of the State wherein the Assistant Prosecuting 
Attorney is urging a verdict o f conviction of the 
defendants and emphasizes that Mr. Deaver, 
the husband of the deceased, had his arm 
broken in two places by the defendant and that



117

another white man was knocked unconscious, 
and defendants request the Court to instruct 
the jury that they could not convict defendants 
for having knocked one o f the witnesses uncon­
scious and breaking another witness’ arm in 
two places.

COURT: There was no testimony intro­
duced; to that effect. This testimony related to 
facts constituting a part o f the res gestae. The 
Prosecuting Attorney therefore has a right to 
discuss it. The Court, in view of the absence of 
the jury, states however, that the Court 
doesn’t understand that the Prosecuting Attor­
ney intended for the jury to consider that he 
was asking for a conviction of murder based on 
these facts. He was asking the conviction bas­
ed on the shooting o f Mrs. Deaver, and was de­
tailing to the jury what he considered to be ag­
gravating circumstances, which might help 
them to determine the degree of murder. I 
think the general instructions given by the 
Court were sufficient to protect the substantial 
rights o f the defendants. The motion to admon­
ish the Prosecuting Attorney or the jury in this 
connection is denied for the further reason that 
it would cause the Court to single out and give



118

prominence to a portion o f the evidence. 

SCIPIO JONES: Save my exceptions:

II.

IN THE PULASKI COUNTY CIRCUIT COURT 
— FIRST D IV IS IO N -

STATE OF ARKANSAS, ........................... Plaintiff
vs.

ROME BONE and MOSES BONE,....Defendants

MOTION FOR NEW TRIAL

Now come Rom e Bone and Moses Bone, 
defendants herein, and respectfully move the 
Court to set aside the verdict o f the jury hereto­
fore entered in this cause and to grant to your 
defendants a new trial for the following rea­
sons:

1. The verdict of the jury should be set 
aside for the reason that the verdict o f guilty 
rendered by the jury did not reflect a calm, de­
liberate and dispassionate consideration o f the 
evidence, but was based on prejudice and pas­
sion and against the evidence.



119

2. The verdict of the jury should be set 
aside because it is contrary to the evidence ad­
duced at the trial.

3. The verdict o f the jury should be set 
aside because it is contrary to the law and evi­
dence because the state failed to prove the 
necessary essential elements contained in the 
information filed herein beyond a reasonable 
doubt as is required by law.

4. The verdict o f the jury is contrary to 
both the law and the evidence.

5. The verdict o f the jury should be vacat­
ed and a new trial granted for the reason that 
'the defendants were not tried by men of their 
peer as provided in both State and Federal Con­
stitutions.

6. The verdict o f the jury should be vacat­
ed for the reason that the Court admitted into 
evidence improper testimony prejudicial to the 
defendants and permitted witnesses offered in 
behalf o f the State to testify as to opinions and 
conclusions.

7. The verdict o f the jury should be va­
cated for the reason that the Court excluded 
important testimony offered in behalf o f the de-



120

fendants.

8. The verdict o f the jury should be set 
aside for the reason that the guilty verdict here­
tofore entered in this cause obviously m anifest­
ed hatred and prejudice against the defendants 
on the part of the jury sworn to deliberate on 
the guilt or innocence o f the defendants fairly 
and impartially.

9. The verdict o f the jury should be vacat­
ed and a new trial granted for the further rea­
son that the Court improperly instructed the 
jury as to the law applicable to the case at bar.

10. The verdict o f the jury should be set 
aside for the reason that the Court erred in 
overruling defendants’ motion to quash the in­
form ation filed herein.

11. The verdict o f the jury should be set 
aside for the reason that the Court erred in 
overruling defendants’ motion for a peremptory 
challenge of the jury panel.

12. The verdict o f the jury and the judg­
ment o f the court should be set aside and a new 
trial granted because the court erred in over­
ruling the defendants’ motion to quash jury 
panel before hearing testimony defendants of-



121

fered to prove the allegations in said motion to 
quash, not only as to the regular panel originally 
drawn, but that this defect was not cured by 
(placing three N egroes’ names on the list of 
Petit Jurors the morning o f the trial, as this was 
contrary to the Statutes.

13. The verdict o f the jury should be set 
aside and a new trial granted for the reason 
that the State’s Attorney committed a fatal er­
ror in making certain prejudicial statements 
against the defendants which incited prejudice 
and hatred against the defendants on the part 
o f the jurors.

14. The verdict of the jury should be set 
aside and a new trial granted for the reason 
that the Court, over objection o f defendants, 
permitted the State’s Attorney to argue a sepa­
rate and distinct cause o f action relating to the 
mutilating or fracturing of the arm of a certain 
Mr. Deaver, the husband of the deceased!, which 
was foreign to the issue for which the defend­
ants were on trial.

15. The verdict o f the jury should be set 
aside and a new trial granted for the reason that 
the Court permitted the State’s Attorney to ar­
gue emphatically and at length on a question



122

foreign to the issue and for which the defend­
ants were not on trial relating to  the defend­
ants, either or both of them, knocking a certain 
white man unconscious.

16. The verdict o f the jury should be set 
aside and a new trial granted on account of the 
multiplicity o f errors appearing in the record 
which so prejudiced the minds o f the jurors to 
the extent that a verdict o f death was voted 
against Rom e Bone.

17. The Court erred in refusing to in­
struct the jury emphatically to disregard; any re­
mark made by the State’s Attorney in his clos­
ing argument relating to the fracture of the arm 
o f a certain Mr. Deaver, the husband of the de­
ceased, by the defendants.

18. The Court erred in refusing to instruct 
the jury to disregard any remark made by the 
State’s Special Attorney relating to the defend­
ants’ knocking a certain white man uncon­
scious.

19. That the Court erred in permitting 
Dick Alnut, a member of the trial jury in this 
cause, to serve as such juror on account of him 
having served as a member o f the regular jury 
panel at the March Term, 1938, which is con-



123

trary to the Statutes.

20. The Court erred in permitting D. H. 
Anderson, another member o f the trial jury in 
this cause, to serve as such juror on account of 
him having having served as a member of the 
regular jury panel at the March Term, 1937.

21. The Court erred in permitting J. N. 
Vanderporten, another member of the trial jury 
in this cause to serve as such juror on account 
of him having served as a member o f the regu­
lar jury panel at the March Term, 1937.

22. The Court erred in permitting Ira An­
drews and H. V. Holloway to serve as members 
o f the trial jury for the reason that their names 
do not appear on the official list o f electors of 
Pulaski County.

23. The said jury mingled freely with 
other persons in the Clerk’s Office and in the 
hall-ways during recess and conversed with 
them.

24. It is specifically stated by F. W. A. 
Eiermann, that on Tuesday, December 20, being 
the second day of the trial, he saw at the begin­
ning o f the noon recess, Dick Alnutt, one o f the 
trial jurors, in confidential conversation with



124

one, whom he is informed and believes to be a 
Chief o f Police, Wilbanks, o f England, Arkansas. 
Therefore, the jury was not kept separate and 
apart from  the people as required by law during 
the trial. He is also informed and believes and 
so states it as a fact, that the said Wilbanks 
was antagonistic to  these defendants and 
friendly with the prosecuting witness, John 
Deavers, and relatives to the deceased.

25. Defendants also state that during the 
course o f the trial Charles Roberts, Sr., a 
wealthy planter, father o f the arresting officer, 
and close friend o f John Deaver, was seated 
with the Court, on the Judge’s bench, during the 
entire trial and during recess in the presence of 
the jury, he would mingle and converse freely 
with the relatives and friends o f the deceased, 
all of which tended to be prejudicial to the de­
fendants. In support o f the Motion for New 
Trial, affidavit o f F. W. A. Eiermann is hereto 
attached and made a part of this Motion.

26. The Court erred in refusing the chal­
lenge to the array o f the panel.

27. The Court erred in denying instruc­
tion No. 2, as being inconsistent with the infor­
mation in which both defendants were charged



125

with holding and firing the gun causing the 
death of the said Mrs. John Deaver.

28. The Court erred' in denying the last in­
struction requested by the defense.

29. The Court erred in permitting the 
State to introduce into evidence Exhibit “ B” 
(John Deaver’s record book— introduced by 
John Deaver).

30. The Court erred in not requiring State’s 
witness, Leslie Crosnoe, on cross examination, 
to answer the following question, “ I am not ask­
ing that, I am asking whether or not there might 
have been four or five hundred dollars there?”

31. The Court erred in not permitting Joe 
W irges to  be put on the stand as a witness for 
the defendant and detail whatever statement 
was made by John Deaver in the infirmary, a f­
ter John Deaver had testified that he did not re­
member positively what he had stated at that 
place.

32. The judgment of the Court should be 
set aside for the reason that after the regular 
panel o f Petit Jurors had been exhausted, the 
Court on its own motion, directed the Sheriff 
twice to summons special jurors and in summon-



126

ing about twenty-five special jurors, the Sheriff 
summoned only white persons and excluded 
about fifty (50) Negroes who were in and 
around the Courthouse who were qualified to 
serve as jurors for the reason that they were 
Negroes and for no other reason.

33. The verdict o f the jury and the judg­
ment of the Court should be set aside because o f 
the incidents devolved in the trial and those 
cited in the motion for new trial and the feeling 
growing out of 'them that no fair trial was had, 
or could have been had and that the trial did not 
therefore constitute due process of law.

34. The verdict is shocking to public con ­
science and contrary to evidence; the State’s 
evidence being inconceivably repugnant and of 
no probative force in tha't, if the State’s evi­
dence were true, the bullet fired from  said gun 
would have had to take a circuitous route.

35. The Court erred in not declaring a 
mistrial and setting the cause for a hearing de 
novo on account o f the many errors committed 
by the State’s Attorney during the trial o f the 
defendants.

WHEREFORE, your defendants pray that 
this Honorable Court will enter an order vacat-



127

ing the verdict o f the jury and setting the 
trial for hearing de novo for the reasons and 
grounds hereinabove set forth.

Respectfully submitted,

F. W. A. EIERMANN, 
SCIPIO A. JONES, 

Attorneys for Defendants.

AFFIDAVIT

STATE OF ARKANSAS, )
)

COUNTY OF PULASKI. )

Before me, O. D. Longstreth. a Notary Pub­
lic, in and for the County and State aforesaid, 
this day personally appeared, F.W.A. Eiermann, 
who, being by me duly sworn, upon oath says:

During the trial o f the State of Arkansas vs. 
Rom a Bone and Moses Bone, I had occasion to 
observe that during recesses the members of 
the jury mingled freely with other people in and 
about the Clerk’s office, and on the second day 
o f the trial, on December 20, 1938, I observed 
that juror R. R. (Dick) Allnut. at noon of said 
day, was engaged in conversation with one. 
who, according to my information and belief,



128

was Chief of Police Willbanks of England, Ar­
kansas, and was so absorbed in the conversa­
tion that all other jurors had filed out of the 
Clerk’s office through the ante-room into the 
hallway, when he finally fell in behind them.

F. W. A. EIERMANN.

Subscribed and sworn to before me this 9th 
day of January, 1939.

O. D. LONGSTRETH,
My Commission Expires: Notary Public.

March 25, 1939.

BRIEF AND ARGUMENT

Appellant Moses Bone was convicted of sec­
ond-degree murder and received a sentence of 
twenty-one (21) years in the penitentiary and 
Rome Bone was convicted of murder in the first 
degree and sentenced to death. Both were tried 
on information charging them jointly with the 
murder of Mrs. John Deavers. She came to her 
death by reason of a gun-shot wound from a pistol 
belonging to her husband during an altercation 
between her husband and appellants. The tragedy 
occurred in a cotton field where the defendants 
with more than one hundred other negroes, were 
picking cotton for John Deavers, husband of the



129

deceased. Mrs. Deavers had a desk or table at the 
place of weighing, and was engaged in keeping a 
record of the amounts due the cotton pickers. She 
also had a box on this desk containing some $300 
to pay o ff the cotton pickers. There was a gun on 
the table, either in this box or on the top of the 
table, at the time of the altercation between Deav­
ers and the defendants. The deceased was not en­
gaged in the altercation and there is a dispute as 
to whether it was precipitated by Deavers or the 
defendants.

From these judgments the defendants have 
appealed to this court and respectfully urge that 
they are entitled to a reversal in both cases for the 
following reasons:

(1 )  . The evidence does not sustain the ver­
dict.

( 2 )  . The court erred in instructing the jury
to the prejudice of the defendants.

(3 )  . The court erred in permitting prejudi­
cial argument of the prosecuting attor­
ney without admonition to the jury.

(4 )  . The court erred in not granting a new
trial because of misconduct of the jury.

(5 )  . The court erred in overruling the mo­
tion to quash the venire.

We shall discuss these in the order named.



130

I.

THE EVIDENCE DOES NOT SUSTAIN 
THE VERDICT.

When given its highest probative value the 
evidence of the state fails to show that the plain­
tiffs or either of them are guilty of murder. The 
evidence of Deavers, husband of the deceased, 
shows that he was scuffling with Rome Bone over 
the possession of the gun. He testified that Rome 
had kicked him and threatened him with the gun 
and that Moses had struck him with the scales. 
As to the shot, he testified, “ I don’t know whether 
he (Rome) intended to shoot me or what, he draw- 
ed the gun down toward my face and I grabbed his 
arm and was scuffling there and my wife fell back, 
I seen her when she fell back.”  He testified fur­
ther that he caught Rome’s hand with the gun in 
it, and further:

Q. “ You were trying to get up all the time?”
A. “ Trying to grab the barrel of the gun. 

When I drawed the gun down toward me 
I snatched hold of it, and I drawed my 
left arm up and grabbed it and when I 
got hold of the barrel of the gun the yel­
low negro told him to break my arm loose, 
that is when he went to working on my 
arm.”  (Tr. 47-48).

It is true that the witness testified at another



131

point (Tr. 51) that Rome Bone deliberately fired 
at the deceased; yet, the evidence is entirely lack­
ing of premeditation and deliberation sufficient 
to constitute murder, even as to Rome Bone. The 
evidence is undisputed that there had been no con­
troversy between the deceased and either of the 
defendants and there could have been no motive 
for either of them to seek to kill her. Apparently 
the state tried the case on the theory that the kill­
ing of Mrs. Deavers was premeditated and the evi­
dence fails to support this theory.

While the law presumes that a person intends 
the necessary and natural consequences of his acts, 
and when death results as a consequence, the pre­
sumption is that there was an intention to kill, 
yet there is no presumption of law that such kill­
ing is murder. Tiner v. State, 115 Ark. 1*91*.

Something more is required to justify a ver­
dict of murder in the first degree, than merely 
that the deceased was killed through an alterca­
tion between her husband and the defendants. The 
case of Easterly v. State, 69 Ark. 789, presented 
a similar situation. This court held that where 
the defendant and several negroes were engaged 
in a game of craps, and on emerging from the 
building a dispute arose over a trivial matter and 
immediately the defendant and another negro drew



132

their pistols and began firing at the deceased and 
it was doubtful which of them fired the fatal shot, 
the evidence was not sufficient to sustain a con­
viction of murder in the first degree.

In the case of Ranson v. State, 18k Ark. 257, 
this court held that even where the defendant ad­
mitted killing deceased, the fact that co-defendants 
were defendant’s companions and were at the 
scene of the homicide was not sufficient to justify 
a conviction. In the case of Burris v. State, 38 
Ark. 221, it is held that even evidence that accused 
killed the deceased would not, of itself, make out 
a case of murder in the first degree under the stat­
utes.

This case follows the early and leading case 
of Bivens v. State, 11 Ark. k55. The question be­
fore the court in the Bivens case was whether or 
not a judgment of conviction of first degree mur­
der could be sustained without evidence of premed­
itation. This court held, quoting Syllabi:

“ When a case of malicious homicide is not 
one of the particular cases enumerated in the 
statutes the proof must show that the actual 
death of the party slain was the ultimate re­
sult sought by the concurring will, delibera­
tion, malice, and premeditation of the party 
accused.”

“ The premeditation to kill must exist as a



133

course deliberately fixed upon before the act 
of killing and not formed by provocation re­
ceived at the time of the act or so recently be­
fore as not to afford time for reflection.”

Certainly there is nothing in the evidence in 
this case that would indicate any premeditated in­
tention to kill the deceased by either of the defend­
ants. In fact, the evidence on the part of the state 
shows not only that there was no such intention, 
but that there was no motive or provocation for 
such intention. According to the evidence of the 
state, the only part the deceased took in the alter­
cation at all was to try to separate her husband 
and the defendants. Even if this could be con­
sidered provocation it must surely be said that it 
was “ received at the time of the act or so recently 
before as not to afford time for reflection.”

The rule is stated in the Bivens case, supra, 
as follows:

“ Where there is a homicide with a deadly 
weapon and no circumstances of mitigation, 
justification or excuse appear, the law im­
plies malice. But a killing with a deadly wea­
pon with nothing more would not make out 
an offense of murder in the first degree.”

The Supreme Court reversed this case for the 
reason that the evidence failed to show any pre­
meditation on the part of the accused.



134

In a great many cases this court has recog­
nized the rule that a conviction of murder in the 
first degree cannot stand without proof of premed­
itation, and has in many instances reduced the 
conviction from first degree murder to murder in 
the second degree, or remanded with instructions 
to the trial court to do so. Where the evidence of 
premeditation is lacking, there is no evidence suf­
ficient to support a verdict of conviction of mur­
der in the first degree.

Some of these cases are:
Easterly v. State, 69 Ark. 189;
Levy v. State, 70 Ark. 610.

In the same way and by the same reasoning, 
the court in the following cases modified the judg­
ments so as to sustain convictions of manslaughter 
instead of second degree murder, the evidence fail­
ing to show malice.

Noble v. State, 75 Ark. 21+6;
Darden v. State, 73 Ark. 315.

Somewhat analogous to such cases are Davis 
v. State, 155 Ark. 21+5, and Smith v. State, 191+ Ark. 
101+, wherein this court reduced the death penalty 
inflicted by the trial court to life imprisonment on 
account of the failure of the evidence to sustain 
verdicts inflicting the extreme penalty.



135

In Hogan v. State, 191 Ark. 437, this court, 
by the same reasoning, reduced a sentence of death 
to life imprisonment on account of prejudicial re­
marks of the prosecuting attorney. Under the au­
thorities of these and many other decisions of this 
court, and the general rules of law, the convictions 
of murder in these cases cannot stand.

For conviction of murder in the first degree 
the jury must be satisfied beyond reasonable doubt 
that the killing was willful, deliberate, malicious 
and premeditated.

How could the jury have been so satisfied in 
the case of Rome Bone when there was no evidence 
at all that the killing was willful, deliberate, ma­
licious or premeditated?

As to the conviction of Moses Bone of murder 
in the second degree, there is no evidence that he 
fired the gun or that he had it in his hands in a 
position to fire it. There is no evidence that he 
had anything to do with the death of Mrs. Deavers 
other than the fact that he was there and in con­
troversy with her husband. No facts are shown 
and no evidence adduced which would in the slight­
est degree sustain any inference of malice suffi­
cient to raise his degree of guilt above manslaught­
er if, indeed, he is guilty of any grade of homicide 
at all.



136

In this connection we would also call the 
Court’s attention to the very recent case McClen­
don vs. State, determined April 3, 1939, in which 
the Court held that during conflict a man having 
been killed without malice or premeditation was 
not murder in the first degree, but voluntary man­
slaughter. In the case at bar, the killing was 
clearly accidental.

II.

THE COURT ERRED IN INSTRUCTING THE 
JURY TO THE PREJUDICE OF THE 

DEFENDANTS.
A statement of the instructions of the court 

to the jury shows that over the objections of the 
appellants, instructions were given which were 
highly prejudicial. By instruction No. 2, the jury 
is charged that they may convict “ the defendants, 
or either of them of murder in the first degree, 
murder in the second degree or to acquit him or 
them outright.”  As there was no evidence of pre­
meditation it was error to give this instruction 
permitting a conviction of murder in the first de­
gree. There being no evidence of malice, the court 
should not have instructed the jury so as to permit 
a finding of guilty of murder in the second de­
gree, the highest offense of which either of the



137

defendants could be guilty under the evidence, be­
ing manslaughter.

The general instruction on first degree mur­
der (No. 12, Tr. 195), was prejudicial because it 
permitted the jury to return a verdict of murder 
in the first degree without any evidence to sus­
tain such a verdict. It was further prejudicial in 
that, being an abstract definition of murder in the 
first degree, it told the jury that “ murder commit­
ted in the perpetration of, or in the attempt to per­
petrate, arson, rape, robbery, burglary, or larceny, 
shall be deemed murder in the first degree.”  The 
particular vice of giving this instruction in this 
case is that, by it, the jury is allowed to speculate 
on whether or not the defendants were in the act of 
attempting to rob the deceased or the witness 
Deaver or to steal the money which the testimony 
shows was on the table at which Mrs. Deavers sat. 
This testimony was injected by the state, but there 
is no evidence of any attempt to rob or steal. The 
undisputed evidence shows that this was an acci­
dent resulting in death from a fight and scuffle 
between the husband of the deceased and appel­
lants. On account of the evidence of money on the 
table, the giving of this abstract instruction was



138

peculiarly prejudicial.

The leading case, and one that has been con­
sistently followed throughout the years, is that 
of Rayburn v. State, 69 Ark. 177. In this case 
there was an indictment, which, like the informa­
tion here, charged a premeditated murder. There 
was neither charge nor proof that the killing was 
done in perpetration of or in the attempted perpe­
tration of robbery, and yet the court charged the 
jury that, “ I f you find from the evidence beyond 
a reasonable doubt that defendant in the perpetra­
tion of, or in the attempt to perpetrate the robbery 
of A. T. Carpenter, shot and killed Carpenter, 
then the defendant is guilty of murder in the first 
degree; and you will so find.”  In the first opin­
ion the Supreme Court held the instructions cor­
rect and affirmed a conviction. On re-hearing, 
however, the court, by Chief Justice Bunn, dis­
cussed at length the distinction between murder 
committed in the attempt to rob and to commit 
other felonies there named, and other premeditat­
ed murder. A fter pointing out the distinction, 
the court held that such murder, while of the same 
degree, required different charges and different 
proof in order to sustain convictions. There being 
no evidence that the killing was done in the perpe-



139

tration of or in the attempted perpetration of rob­
bery, it was held that the giving of the instruction 
quoted above was error prejudicial to the defend­
ant, such as to call for a reversal of the judgment 
of conviction. In the same way in this case, the 
court erred in the giving of instruction No. 12 and 
the defendants were prejudiced thereby.

Instructions Nos. 20, 21, 22, 23, 24, 25 and 
26, embodying in an abstract way the general law 
of self defense, are inapplicable, abstract, unsup­
ported by any evidence, and the giving of them was 
prejudicial error. There was no theory of self 
defense in this case to require such instructions. 
Self defense is a defense advanced by the defend­
ant to excuse or justify the killing. Neither of 
these defendants attempted to justify the killing 
of Mrs. Deavers on this ground, nor is there any 
evidence from which they could have justified the 
adoption of such a theory. The giving of all these 
instructions, therefore, was bound to be mislead­
ing. By them the jury could very well have been 
led to believe that in the absence of evidence of self 
defense (there being none) they would be justified 
in finding the defendants guilty of murder, when, 
as a matter of fact, the evidence would not sustain 
a higher degree of homicide than manslaughter.



140

I I I .

THE COURT ERRED IN PERM ITTING PREJ­
UDICIAL ARGUMENT OF THE PROSE­

CUTING ATTORN EY W ITHOUT AD ­
MONITION TO THE JURY.

In his closing argument to the jury the prose­
cuting attorney urged a verdict of conviction of the 
defendants and emphasized by way of argument 
that Mr. Deavers, the husband of the deceased, 
had his arm broken in two places by the defend­
ants and that another white man was knocked un­
conscious. Counsel for appellants objected and 
requested the court to instruct the jury to disre­
gard this argument and that they “ could not con­
vict the defendants for having knocked one witness 
unconscious and breaking another witness’ arm in 
two places.”  (Tr. 205A).

The court overruled this objection and prayer 
for instruction and appellants were thereby prej­
udiced. They, as pointed out to the court by ap­
pellant’s counsel, should not have been convicted 
in this case because of any assault they may have 
made on witnesses. The argument was calculated 
to, and doubtless did, inflame the minds of the 
jury against appellants. Perhaps the best 
evidence that it would have this effect is the fact 
that they were convicted as they were without evi-



141

dence to sustain the verdict as rendered. In the 
recent case of Hogan v. State, 191 Ark. h37, Jus­
tice McHaney discusses at length the effect of such 
prejudicial remarks on the part of the prosecuting 
attorney and holds that in many instances even an 
admonition of the court is not sufficient to remove 
the prejudice. Solely because of the prejudicial 
remarks of the prosecuting attorney the court re­
duced a sentence of death to life imprisonment.

IV.

THE COURT ERRED IN NOT GRANTING A 
NEW  TRIAL BECAUSE OF MISCON­

DUCT OF THE JURY.

One of the grounds for a new trial in the mo­
tion of appellants is that the jury was not kept 
separate and apart from the audience in the court 
room as required by law and that one of the jurors 
was seen in confidential conversation with an­
other person. Also it is set out in the motion for 
a new trial that the jury mingled freely with other 
persons in the clerk’s office and in the hallway 
during recess and conversed with other persons. 
This allegation in the motion for a new trial was 
supported by the affidavit of F. W. A. Eierman, 
counsel for defendants. (Tr. 22). By this a ffi­
davit it is shown that although the direction of the



1 4 2

court was that the jury should be kept together 
and separate and apart from others, they were per­
mitted to mingle freely with other people and en­
gage in conversation with others. It shows furthel 
that one of the jurors was at one time entirely sep­
arated from the other members of the jury and en­
gaged in serious and absorbing conversation with 
a spectator in the court room.

This affidavit is undisputed. The state o f­
fers no evidence to contradict it.

Under the well settled law of practice in this 
state, where it is shown that the jury has been 
separated and that any member of it has conversed 
with outsiders, the burden is on the state to prove 
that no improper influence was exercised; in other 
words, the burden of establishing the purity of 
the jury when allowed to separate is on the state. 
Sutherland v. State, 76 Ark. U87; Vaughn v. State, 
57 Ark. 1. This assignment of error is peculiarly 
important in this case because of the intense feel­
ing manifested against these defendants. They 
are negroes and were charged with the murder of 
a white woman, charges which arouse a great deal 
of passion and prejudice of white people generally. 
They were being tried in a white man’s court by 
white officers and white jurors. It is of particu­
lar importance that these jurors be kept as nearly



143

as possible from the influence of the antagonistic 
feeling which doubtless permeated the entire body 
of white spectators attending the trial. In view 
of the finding of the jury on the nature of evi­
dence introduced, it certainly cannot be said that 
no prejudice resulted from this permitting the 
jurors to mix and mingle with hostile, prejudiced 
spectators.

V.

THE COURT ERRED IN OVERRULING THE 

MOTION TO QUASH THE VENIRE.

The defendants in this case are negroes. Re­
alizing that the uniform practice is, was, and has 
been for many years, to select only white jurors 
for the trial of criminal cases in Pulaski County, 
and to exclude from jury service, solely because of 
race, all negroes, and that the panel selected by 
the jury commissioners for the term of court at 
which this trial was to be had was so selected, coun­
sel for appellants, on the calling of the case against 
them on the 19th day of December, 1938, present­
ed to the court the following m otion:



144

“ MOTION TO QUASH THE PRESENT 
VENIRE OF PETIT JURORS.

BEFORE IN A N Y W A Y PLEADING TO THE
CHARGES CONTAINED IN THE INFOR­
MATION I N  T H E  ABOVE STYLED
CAUSE.

Come Rome Bone and Mose Bone, defend­
ants herein, and move the Court to quash the pres­
ent panel of Petit Jurors from which venire it is 
now proposed to draw the Petit Jury which is to 
try Petitioners on the indictment of information 
in the above entitled cause and aver, as follow s:

THAT said petit jury is composed exclusive­
ly of white persons and that ah persons of color, 
or of African descent, known as negroes, were ex­
cluded from said jury solely on account of their 
race and color and for no other reason.

THAT the total population of Pulaski Coun­
ty, Arkansas is 137,727, divided in the following 
proportion: White, 97,212; Negro, 40,215; and
out of said population, there are approximately 
11,347 legal electors, 1,500 of whom are Negroes 
of African descent, qualified to serve as Grand 
and Petit Jurors.

THAT the negro population is about one-



145

fifth  (1 /5 ) of the total population of said County 
and about one-eleventh (1 /11 ) of the total legal 
electors of said County are persons of color of A f­
rican descent, known as negroes and were excluded 
in the selection of said Petit Jury on account of 
their race and color and for no other reason.

In the selection and formation of the pres­
ent panel o f Petit Jurors, negroes were excluded 
for no other purpose or reason, except that they 
are negroes.

YOUR Petitioners further state that while 
white electors are regularly elected to serve as 
Grand and Petit Jurors at each term of the Pu­
laski Circuit Courts, no negroes have been select­
ed and that said Negro electors have been system­
atically excluded from serving as Grand and Petit 
Jurors in said Pulaski County for more than forty 
(40) years solely because they are negroes, which 
is a discrimination against those defendants who 
are negroes and such discrimination is a denial to 
them of equal protection of the laws of the United 
States as guaranteed by Section One of the Four­
teenth Amendment to the Constitution of the Unit­
ed States of America. Petitioners further allege 
that due process of law is being denied them by the 
State of Arkansas, through its Administrative 
Officers, and pray that the present venire o f Petit



146

Jurors be quashed.
SCIPIO A. JONES,

Attorney for Defendants.

Rome Bone and Moses Bone, Petitioners here­
in, on oath state that they have read over the fore­
going allegations in this petition, and that they are 
true to the best of their knowledge and belief.

ROME BONE,
MOSES BONE,

Defendants herein.

Subscribed and sworn to before me, a Notary 
Public, this 19th day of December, 1938.

LILLIAN L. SPIVEY,
Notary Public.

( S E A L ) .  My Commission expires 11/27/40. 
“ Endorsed.”

Filed this 19th day of December, 1938.
J. R. GLADDEN, Clerk;

By H. E. CAPE, D. C. (Tr. 7-8).

By this motion, appellants challenged the 
manner in which the venire was selected by the 
jury commissioners in that qualified negro elec­
tors had been systematically excluded from serv­
ing as Grand and Petit Jurors solely because of 
their race and color, thereby denying appellants



147

due process of law and discriminating against 
them on account of their race and color so as to 
deny them equal protection of the law under the 
constitution of the United States.

It will be seen from the motion, that it was 
presented before in any way pleading to the 
charges against the appellants contained in the 
information and was a challenge to the jury panel 
selected by the jury commissioners in the custom­
ary manner. Before counsel for defendants had 
finished reading the said motion and before he 
had an opportunity to place on the stand witnesses 
subpoenaed to testify to the truth of the allegations 
of said motion, the same was by the court over­
ruled. The recital of the record is that the motion 
is by the court denied, “ for the reason that there 
has been three colored men placed on the panel 
before motion herein, was filed.”  (Tr. 6). Ap­
pellants duly saved their exceptions.

The recital of the proceedings (Tr. 4) shows 
that the regular panel of twenty-four (24) was 
called and “ upon roll call all twenty-four jurors 
answered present.”  This panel was of white jur­
ors selected by the jury commissioners. We quote 
further from the record as follow s:

“ Thereupon J. H. Hollis, Louis Hart and Har­
ry Lytle ask leave to be excused from the panel,



148

which is by the court granted, and comes W. H. 
Smith, E. S. Scott and J. H. Cowan, who are duly 
summoned by the sheriff, being colored electors o f 
Pulaski County, and found to be qualified elec­
tors, and are duly sworn as Petit Jurors and plac­
ed on the regular panel which is designated as 
Panel No. 1 of this term of court.”

Thus it will be seen that the court realized 
and appreciated the truth of the allegation of ap­
pellants’ motion to quash the venire, and that he 
sought to cure the error of the jury commissioners 
by excusing three jurors of their selection and 
substituting on the panel three negroes selected 
by the sheriff. Thus the learned trial judge con­
cedes the truth of the allegations of the motion. 
His action of overruling the motion without the 
hearing of testimony was equivalent to sustaining 
a demurrer to the motion, thereby admitting the 
truth of the allegations contained in it. His ac­
tion in having three negro electors called to replace 
three regular jurors excused by him for no reason 
at all, goes even further than this. It is an ad­
mission on the part o f the court that the appellants 
had been deprived of their constitutional rights in 
the manner in which the panel had been selected 
and is an effort on his part to correct this error 
without the necessity of granting the motion, purg-



149

ing the roll of jurors and requiring that the jury 
commissioners select a panel without discrimina­
tion.

The trial and conviction of a negro by a jury 
composed of white persons upon information filed 
by a white person from which jury all negroes 
were excluded, solely on account of race or color 
pursuant to established practice of a white jury 
commission, is a denial of equal protection of the 
law guaranteed by the Hth Amendment to the 
Constitution of the United States.

This rule of law has been settled beyond ques­
tion by many decisions of the Supreme Court of 
the United States and is uniformly recognized by 
the appellate courts of the several states. It is 
not contended that appellants in this case were dis­
criminated against and denied equal protection of 
the law by reason of any statute of the state. In 
fact the Constitution of the State of Arkansas 
guarantees to them the same protection. Art. 2, 
Sec. 10 of the Constitution of Arkansas of 1874 
provides that “ the accused shall enjoy the right 
to a speedy and public trial by an impartial jury.”  
The spirit of this Constitutional protection re­
quires that the defendants have presented a full 
panel selected by jury commissioners. The legis­
lature has gone to great lengths in the enactment



150

of laws which, properly enforced, would guarantee 
this “ impartial jury”  without discrimination.

Sec. 8306, Pope’s Digest, provides that, “ jur­
ors in both civil and criminal cases shall be se­
lected as follows: The Circuit Courts at their
several terms shall select three Jury Commission­
ers, possessing the qualifications of Petit Jurors, 
etc.”

Section 8314, Pope’s Digest, requires these 
commissioners to select “ from the electors of said 
county lists of petit jurymen, having the qualifi­
cations of grand jurors, viz: ‘Of good character, 
of approved integrity, sound judgment and reas­
onable information.’ ”

Sec. 8315 of Pope’s Digest requires them to 
select separate panels for each four weeks of the 
term, where the term extends more than four 
weeks and a separate panel for each two weeks 
and fraction thereof, where the term is of 
greater duration than two weeks and not more 
than four. It is also provided by this section that 
the commissioners shall select with each panel a 
list of alternates to be used in completing the reg­
ular panel of twenty-four jurors in the event any 
of those on the regular panel are excused.

Sec. 8316 provides for the selection, by the



151

commissioners, of a special panel of not less than 
twenty-five, “ for the use of said court in all cases 
when the regular panel may have been exhausted 
in impaneling any jury, said list to be drawn in 
lieu of summoning by-standers.”

By Sec. 8317, the legislature fixes the man­
ner of drawing from this special panel and pro­
vides that, “ whenever the regular panel shall be 
exhausted as provided in the foregoing section the 
court, instead of summoning by-standers, shall di­
rect the clerk to draw from said box a sufficient 
number of names to complete the jury being im­
paneled, and shall hand the same to the sheriff, 
who shall forthioith proceed to summon said par­
ties for service on said jury. Provided, if  said 
list so drawn from said box shall be exhausted, 
the court shall order the sheriff to summon by­
standers as provided by law.”

Secs. 3979 and 3980, Pope’s Digest, provide 
the manner of the selection of jurors in felony 
cases and the circumstances under which by­
standers may be summoned. Sec. 3980 is as fol­
lows:

“ When the panel is exhausted the court 
shall order the sheriff to summon by-standers 
to at least twice the number necessary to com­
plete the jury, whose names shall be placed in



152

the box and drawn, and such jurors shall be 
sworn, examined, and disposed of in the same 
manner as is provided by drawing, examin­
ing, and disposing of the regular panel. If 
the jury is still incomplete, by-standers shall 
again be summoned to twice the number ne­
cessary to complete the jury, who shall, in like 
manner, be drawn, sworn and disposed of, 
and the mode herein provided shall be con­
tinued until the jury is completed.”

Thus it will be seen that no provision is made 
for the calling o f by-standers for filling out the 
regular panel. It is only when a jury is being se­
lected from a regular panel, legal in name, by the 
jury commissioners and this panel has been ex­
hausted that by-standers may be called at all, and 
then to serve only in the particular case. It will 
be noted too, that the law requires twice the num­
ber of by-standers to be called as are necessary 
to complete the jury.

Thus has the legislature safe-guarded the 
rights of accused defendants to the protection af­
forded them by the Constitution and statutes of the 
United States. Amendment 14 to the Constitution 
o f the United States provides that “ no state shall 
make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United 
States, nor shall any state deprive any person 
of life, liberty, or the pursuit of happiness with-



out due process of law; nor deny to any person 
within its jurisdiction the equal protection o f the 
law.”  By the authority of this amendment, Con­
gress has enacted the following statutes: “ No
citizen possessing all other qualifications shall be 
disqualified for service as a Grand or Petit Juror 
in any court of the United States or of any state 
on account of race, color or previous condition of 
servitude.”  8USCA Sec. 44.

Amendment 6 of the Federal Constitution 
provides in part: “ In all criminal prosecutions,
the accused shall enjoy the right to a speedy and 
public trial, by an impartial jury.”  This is iden­
tical with the guaranty of the State Constitution.

THE DISCRIMINATION AGAINST DEFEN D­
ANTS W AS THE RESULT OF THE AC­

TION OF THE STATE’S ADM INIS­
TRATIVE OFFICER.

In the case of Carter vs. Texas, 177 U. S., 
lt.22, Uk. L. Ed. 839, in announcing the rule applic­
able, the Supreme Court of the United States said:

“ Whenever by any action by any State, 
whether through its legislature, through its 
courts, or through its executive administra­
tive officers, all persons of African Race are 
excluded, solely because of race or color, from 
serving as petit jurors or grand jurors in the



154

criminal prosecution of a person of the A fr i­
can race, the equal protection of the law is 
denied to him, contrary to the Fourteenth 
Amendment to the Constitution of the United 
States.”

This doctrine has been consistently followed 
by the United States Supreme Court and is recog­
nized by the decisions of the courts of last resort 
in the several states. It is recognized and follow­
ed in:

Hale vs. Kentucky, 303 U. S. 613, 82 L. Ed. 
1050, (Note 1053— collecting many cases 
on the subject);

Norris vs. Alabama, 291* U. S. 587, 55 S. Ct. 
579, 79 L. Ed. 107k;

Pierre vs. Louisiana, 83 L. Ed. 57U, — U. S. 
_ ,  (decided Feb. 27, 1939).

It has been recognized by this Court in the 
cases o f :

Ware vs. State, 1^6 Ark. 321;
Castleberry vs. State, 69 Ark. 3^6.

ACTION OF THE COURT IN OVERRULING 
DEFEN DAN TS’ MOTION TO QUASH 

THE VEN IRE CONSTITUTES DIS­
CRIMINATION UNDER FEDER­

AL CONSTITUTION.

According to the undisputed allegations of



155

the Motion to Quash the Venire, qualified colored 
electors were excluded from the jury panel solely 
on account of race and color. This constitutes a 
discrimination calling for a reversal. The rule is 
stated in 12 Corpus Juris, 1173:

“ The exclusion by any State of persons 
from jury service on account of race and col­
or, constitutes a violation of the equal pro­
tection clause of the Fourteenth Amendment 
to the Constitution of the United States.”

In citing among other cases, Martin vs. Tex­

as, 200 U. S. 316, 50 L. Ed. h97.

As pointed out in a note in 52 ALR. 921, the 
Fourteenth Amendment to the Constitution of the 
United States does not require the jury commis­
sioners to place Negroes on the jury list simply be­
cause they are Negroes; Smith V8~-Siate,-Jr0kla. 
Grim. App-,-328jlllP .960 ; but appellants are en­
titled to a jury selected by the commissioners, from 
the qualified electors of the county, without dis­
crimination as to race or color. As said in the 
Martin case, supra:

“ What an accused is entitled to demand, 
under the Constitution of the United States, 
is that in organizing the grand jury, as well 
as in the impaneling of the petit jury, there 
shall be no exclusion of his race and no dis-



156

crimination against them because of their 
race or color.”

As said in the case of Montgomery vs. State 
(Fla.) 45 So. 879:

“ The constitutional guaranty of equal pro­
tection of the law does not give to any person 
a right to a jury composed in whole or in part 
of his own, or of any particular race; but ev­
ery person being tried in a court of justice is 
entitled to a jury selected and summoned 
without discrimination of any character. 
* * * * Illegal discrimination in selectinĝ  per­
sons to serve as jurors, affects the validity of 
the panel or venire as an entirety, without ref­
erence to the impartiality of individual jurors 
on the panel. * * * * Every person has a right 
to insist that officers of the law, in selecting 
lists of names of persons to compose the jur­
ies in the Courts, shall not, in such selection, 
discriminate against any citizen subject to 
jury duty because of his race, color or previ­
ous condition of servitude; and if such o ffi­
cers do so discriminate, they violate the Con­
stitution of the United States and the entire 
list of jurors so selected are vitiated and ille­
gal.” (Italics ours).

The Florida Court then cites many cases sus­
taining this doctrine, including Virginia vs. Rives, 
100 U. S., 313, 25 L. Ed. 667.

In the case of Lewis vs. State, 1̂ 5 So. 360, the 
Supreme Court of Mississippi held in that partic-



157

ular case that no discrimination was shown. Be­
cause of the clear and forceful manner in which the 
rule is stated by the court, however, we quote as 
follow s:

“ A  jury may be composed entirely of Ne­
groes or it may be composed entirely of white 
persons, or it may be composed of a mixture 
of the two races, and, in either case, it is a 
perfectly lawful jury, provided no one has 
been excluded or discriminated against simply 
because he belongs to one race or the others 
(Italics ours).

In the instant case, according to the motion 
conceded, all legal electors of African descent 
were excluded from the selection of the petit jury 
panel before which appellants were to be tried and 
such exclusion was solely on account of race and 
color and for no other reason.

THE ADM ITTED DISCRIMINATION WAS 
NOT CURED BY THE CALLING OF 

THREE BY-STANDERS TO FILL 
OUT THE PANEL.

The record in this case shows beyond any 
question that the Court realized that there had 
been an unlawful discrimination in the selection 
of the jury panel to the prejudice of these appel-



158

Jants. Realizing this, he, without permitting the 
introduction of any testimony whatever in sup­
port of the Motion, excused three of the regularly 
selected white members of the panel and replaced 
them with three by-standers, colored electors, 
“ summoned by the Sheriff.”  No reason is assigned 
why these three jurors wished to be excused. It 
is perfectly apparent that they were excused by 
the request of the court so that the three Negro 
by-standers could be called. This is not an un­
reasonable deduction, nor is it intended in any way 
to reflect on the learned trial judge. It is not 
contended at all that he was not acting in the best 
of faith. Our contention is that his action in call­
ing the three by-standers, did not cure the admit­
ted invalidity or illegality of the entire jury panel 
as selected by the jury commission.

In the first place, “ The trial judge cannot ex­
cuse a member of a regularly drawn and summon­
ed jury unless he has some legal excuse.”  Bedford 
vs. State, 18 Ga. App. Ik; 88 SE 7^7.

In the second place, it is illegal discrimina­
tion in selecting persons to serve as jurors by the 
jury commissioners, which affects the validity of 
the panel. As stated in Montgomery vs. State, 
supra, such a discrimination “affects the validity 
of the panel or venire as an entirety, without ref-



159

erence to the impartiality of individual jurors on 
the panel,” and further, “if such officers (jury 
commissioners) do so discmminate, they violate the 
Constitution of the United States and the entire 
list of jurors so selected is vitiated and illegal.” 
Virginia vs. Rives, 100 U. S. 313, 25 L. Ed. 667. 
(Italics ours).

The entire panel being of illegal and discrim­
inatory selection, the condition could not be rec­
tified or righted by excusing a part of the illegally 
selected jurors and replacing them with by-stand- 
ers, even if  such by-standers had been legally call­
ed. However,
THE LAW  AS TO CALLING BY-STANDERS 

W AS NOT COMPLIED W ITH IN CALL­
ING THE THREE NEGRO ELECTORS.

As shown above, the statute, Sec. 3980, pro­
vides the manner of calling by-standers “when the 
panel is exhausted.” Now in this case, the three 
were placed on the panel before the examination 
of jurors on voir dire was begun. By-standers, 
as such, may be legally called only when it is ne­
cessary to make out a jury after the regular panel 
has been exhausted. Then too, it is provided that 
in calling by-standers, “at least twice the number



160

necessary to complete the jury”  must be called. It 
is further provided that after the examination of 
these, if  the jury is still incomplete, “ by-standers 
shall again be summoned to twice the number ne­
cessary to complete the jury, who shall, in like 
manner, be drawn, sworn and disposed of, and the 
mode herein provided shall be continued until the 
jury is completed.”  No such condition existed 
here when the three Negro electors were called 
and there was no occasion nor warrant in law to 
call them as by-standers. In fact, there is no pro­
vision in the law for the filling of a regular panel 
by the calling of by-standers. It is specifically 
provided by the statutes hereinabove referred to 
that the regular panel of jurors shall be filled from 
lists of regular alternates and special panel, se­
lected by jury commissioners. This is the whole 
spirit of the law. The provision for the calling of 
by-standers applies only to the filling of a trial 
panel for a particular case.

THE COURT SHOULD H AVE GRANTED 
APPELLAN TS’ MOTION, PURGED THE 

JU RY PAN EL AND CAUSED THE 
SELECTION OF AN EN TIRELY 

NEW  PAN EL W ITHOUT 
DISCRIMINATION.

This was the approved procedure adopted in



161

the case of Pierre vs. Louisiana,__U. S .___, 83 L.
Ed. 51f.O. In that case, challenge was made to the 
trial venire and a motion made to quash the in­
dictment on the ground of discrimination in the 
selection of grand jurors. The trial court over­
ruled the motion to quash the trial venire, and the 
box containing the general venire was “ emptied, 
purged and refilled”  and an entirely new jury 
composed of both whites and Negroes was drawn. 
The Supreme Court of the United States reversed 
this case on account of the error in overruling the 
motion to quash the indictment, but approved the 
action of the trial court in thus rectifying the dis­
crimination of the jury commissioners in the first 
instance.

In the case of Norris vs. Alabama, supra, the 
jury rolls showed the addition of six Negroes to 
the venire, which the evidence tended to show, 
were added by the clerk and not by the jury com­
missioners. It was there held that this did not 
cure the discrimination of the jury commissioners 
in the original selection of the panel.

The Supreme Court of Alabama in the case 
o f Millhouse vs. the State, 161 Ala. 28k; 168 So. 
665, reversed the judgment of conviction because 
the counsel for the defendant was not permitted 
to show that the calling of a few Negroes for jury



162

service was only colorable compliance with the 
Constitution.

So, it will be seen that the Federal Constitu­
tion and the statutory enactment pursuant there­
to, as well as the Constitution of the State of A r­
kansas with our own statutes, require that colored 
defendants be not discriminated against in the se­
lection of jurors from which the juries are select­
ed to try them. This must certainly be true when 
their very lives are in jeopardy. It is not the fact 
that there were, or were not, Negroes finally pre­
sented for examination or for jury service. The 
controlling point is that in the selection of the panel 
by the jury commission, which panel was present­
ed for the trial of appellants, qualified electors of 
his race were excluded from jury service solely 
because of race and color. This could not be cured 
by the adding of three Negro by-standers, all of 
whom as shown by the record, were promptly ex­
cused by the State. The action of the Court in 
calling them did not and could not affect the sub­
stantial rights of appellants. It simply reduced 
by three the peremptory challenges of the state; 
the state, evidently, excusing them on the theory 
that they wouM be accepted by the defendants.

In the recent California case of People vs. 
Hines, (decided August 8, 1938, 81 P. (2nd)



163

1048), the Court had before it a similar situation 
to this. There was filed by the defendant a Mo­
tion to Quash the venire from which it appears 
that all Negroes were excluded from jury service 
solely because of their race, although a large per­
centage of the population was composed of Negroes 
otherwise eligible for jury service. Just as in the 
case at bar, the facts set out in the Motion were 
not disputed by the State.

A fter stating the general principles involved, 
the Court, in reversing the action of the trial 
Court, in overruling Motion, says that the case is 
ruled by the decision of the Supreme Court of the 
United States in Norris vs. Alabama, supra, and 
earlier decisions of that Court.

It is said that in the California case, as in 
the Alabama case, the same uniform practice of 
excluding all colored persons from jury service 
without regard to qualification, had been follow­
ed for a generation or more. The court then says:

“ The Norris case is decisive of this appeal.”  
And then quotes from the Norris case, as follows:

“ Summing up precisely the effect of earlier 
decisions this court thus stated the principle 
in Carter vs. Texas, 177 U. S. Uh2-bU7; 20 S. 
Ct. 687; kh L. Ed. 839, in relation to exclu­
sion from service on grand juries: ‘When-



164

ever by any action of a state, whether through 
its legislature, through its courts, or through 
its executive or administrative officers, all 
persons of the African Race are excluded, 
solely because of their race or color, from 
serving as grand jurors in the criminal prose­
cution of a person of the African race, the 
equal protection of the laws in denied to him, 
contrary to the Fourteenth Amendment of the 
Constitution of the United States. * * * The 
principle is equally applicable to a similar ex­
clusion of Negroes on petit juries. (Italics 
ours). * * * * And although the state statute 
defining the qualifications of jurors may be 
fair on its face, the constitutional provision 
affords protection against action of the state 
through its administrative officers in effect­
ing the prohibited discrimination.”

THE VERIFIED  MOTION TO QUASH THE 
VEN IRE, BEING OVERRULED W ITH ­

OUT TESTIMONY, AND BEING UN­
DISPUTED BY THE STATE,

MUST BE TREATED AS 
CONCEDED

The motion goes not to the proposition that 
there were no negroes on the jury, but to the dis­
criminatory manner in which the jury commis­
sioners selected the panel by excluding negro elec­
tors, solely because of race and color. The record 
shows that when the case was called for trial there



165

was presented and ready to try the case a panel of 
twenty-four jurors, illegally selected by the com­
missioners. When the motion of the defendants to 
quash the venire was presented, the state did not 
contend that the point was not well taken. No re­
sponse was filed by the state. The court merely 
sought to correct the error of the commissioners by 
excusing three jurors of their choice and impanel­
ing three called by the sheriff.

The appellants did all thy could do, to secure 
a trial by an “ impartial jury”  as is guaranteed 
them by the Federal and State Constitutions.

“ A challenge to the panel is not to be made 
until the case is called for trial and a full jury has 
appeared.”  36 C. J. 376. To the same effect is 
the case of Ware v. State, lk6 Ark. 3217. In Neal 
v. Delaware, 103 U. S. 370, 26 L. Ed. 567, the Su­
preme Court of the United States held that a ver­
ified motion to quash the panel is sufficient in the 
absence of contradiction.

Where a motion to quash is filed, the refusal 
of the court to hear evidence, not only concedes the 
truth of the allegation of the motion, but, in itself, 
constitutes a denial of the equal protection of the 
law contrary to the Federal Constitution; Carter 
vs. Texas, 177 U. S. hk2, kh E. Ed. 839; Castleber-



166

ry vs. State, 69 Ark., 31+6; Ware vs. State, 1U6 
Ark., 321.

The colorable attempt of the trial court to ef­
fect compliance with the statutes of Arkansas and 
the Constitutions of Arkansas and the United 
States, was no more than a subterfuge to evade the 
effects of the defendants’ motion to quash the un­
lawful selected venire of petit jurors and did not 
rectify the constitutional defects of the panel of 
grand jurors, which the subterfuge did not at­
tempt to reach.

We do not wish to be in the attitude of criticis­
ing the learned trial court. We concede that he 
was endeavoring to correct the wrong done by the 
jury commissioners. The point is that the calling 
of three negroes from the street and placing them 
on the panel cannot cure the unlawful discrimina­
tion of the commissioners in the selection of the 
entire panel.

Certainly in overruling this motion and in re­
fusing to require the calling of a new jury without 
discrimination, the court overlooked the ruling of 
the Supreme Court of the United States in the 
Norris case, supra, and many cases cited in that 
opinion. Of course he did not have the benefit of 
the case of Pierre vs. Louisiana, cited above, since



167

this case was not decided until after the trial of the 
present case. We may safely assume that had the 
court acted in the light of these decisions he would 
have followed the clear mandate of the Supreme 
Court of the United States, granted the motion 
and refilled the jury panel from the list of quali­
fied electors without discrimination. The failure 
to do this is error calling for a reversal of the judg­
ments of conviction. It will be noted that the mo­
tion alleges discrimination, not only in the selec­
tion of the petit jury but of the grand jury as well. 
This allegation, along with the other, may be taken 
as conceded. It is important in the consideration 
of the appeal to show the systematic exclusion of 
negroes from grand and petit juries in Pulaski 
County, Arkansas, solely bcause of race and color.

In the case of Pierre vs. Louisiana, supra, the 
trial court overruled the motion to quash the in­
dictment, but sustained the motion to quash the 
petit jury drawn from the same general venire. 
The Supreme Court of the United States held that 
the trial court was correct in quashing the venire 
and discharging the illegally selected petit jury but 
reversed the case for the failure to quash the in­
dictment. Mr. Justice Black stated:

“ I f petitioner’s evidence of such systematic 
exclusion of negroes from the general venire 
was sufficient to support the trial court’s ac-



168

tion quashing the petit jury drawn from the 
general venire, it necessarily follows that the 
indictment returned by a grand jury, selected 
from the same venire, should also have been 
quashed.”

In the Norris case, supra, Chief Justice 
Hughes, when faced with evidence tending to show 
the addition of negro names to the jury list after 
the panel had been made up, together with the evi­
dence of the same systematic exclusion of negroes 
from said jury list over a long period of time, said:

“ For this long-continued, unvarying and 
wholesale exclusion o f negroes from jury 
service, we find no justification consistent 
with the constitutional m andate,.................. ”

“ We think that this evidence failed to re­
but the strong prima facie case which defend­
ant had made. That showing as to the long- 
continued exclusion of negroes from jury 
service, and as to the many negroes qualified 
for that service, could not be met by mere gen­
eralities, if, in the presence of such testimony 
as defendant adduced, the mere general as­
sertions by officials of their performance of 
duty were to be accepted as an adequate justi- 
cation for the complete exclusion of negroes 
from jury service, the constitutional provi­
sion..............adopted with special reference to
their protection ............. would be but a vain
and illusary requirement.”

In the case of State vs. Young, (W . Va.) 97



169

S. E. 134, a similar motion was filed. No response 
was filed by the state and no proof offered, the mo­
tion being simply overruled. The court held this 
to be tantamount to sustaining a demurrer to the 
motion, thereby conceding the truth of its allega­
tions, and reversed the case, the allegations of the 
motion being held to be sufficient to show a denial 
o f the equal protection of the law contrary to the 
Federal Constitution.

So, too, in Ferrow vs. State, (Miss.), 45 So. 
618, a similar motion was filed and overruled 
without the taking of testimony. The Supreme 
Court of Mississippi, in reversing and remanding 
the case, said:

“ It is certainly not necessary to do more 
than read the grounds set out above in order 
to show the fatal error committed by the 
court in not sustaining the motion to quash 
the indictment.”

In this case the trial court sustained the mo­
tion to quash the trial venire but overruled the mo­
tion to quash the indictment.

CONCLUSION

In presenting this discussion of these cases to 
this court, we have passed over some errors in the 
trial which would perhaps call for a reversal. By



170

this it is not meant to abandon those not discussed, 
and we respectfully urge the court to consider the 
entire record. We have sought to present only 
matters which seemed clearly and beyond question 
to entitle appellants to have these judgments of 
conviction reversed and to have an opportunity to 
have such a trial as is guaranteed them by the con­
stitution and laws of the United States and the 
State of Arkansas. Each of the errors pointed out 
herein standing alone would justify reversals. Cer­
tainly they do when taken together. Although a 
great tragedy has occurred in the death o f this un­
fortunate woman, it does not necessarily follow 
that these appellants are responsible for it, nor 
that they merit the punishment inflicted. True 
they were at the scene o f the tragedy. They were 
engaged in an altercation, a quarrel, and a fight 
with the husband of the deceased. Neither of them 
was engaged in a controversy with her. Neither of 
them was having or had had any quarrel with her. 
Nowhere in the record is there any evidence even 
of ill feeling between the deceased and either o f the 
appellants. The truth o f the matter, as shown by 
all the evidence considered in the light of reason 
and experience, is that the unfortunate shooting 
of the deceased was the result o f the struggle be-



171

tween the husband of the deceased and appellants 
over the gun belonging to her husband. The testi­
mony is at variance as to whether the gun was first 
in the hands of the husband of the deceased or in 
the hands of appellant, Rome Bone. There is no 
evidence it was ever in the hands of Moses Bone. 
But, be that as it may, the evidence shows that 
there was no more intention on the part of the ap­
pellants to kill Mrs. Deavers than there was on the 
part of her husband to do so. More is required by 
the state to take the life or liberty of its citizens 
than merely to show that someone was accidental­
ly killed as a result of an altercation, in which such 
deceased person was not involved.

In conclusion it is respectfully submitted that 
in the preceding pages we have shown conclusively 
that:

(1 )  . The evidence does not sustain the ver­
dict, there being no evidence of either malice or 
premeditation sufficient to justify verdicts of any 
degree of homicide greater than manslaughter.

(2 )  . There was error in instructing the jury 
to the prejudices of the defendants. The defend­
ants are negroes, charged with the killing o f a



172

white woman. It is reasonable to assume that the 
general feeling against them because of the charge 
was at fever heat. Although appellants were not 
charged with rape, burglary, or larceny, nor with 
murder in connection with such crimes, yet the 
court used these words in the charge No. 12 to the 
jury. Taking into consideration the tenseness of 
the situation the conclusion is inescapable that the 
mere mention of the words “ rape,”  “ burglary,”  or 
“ larceny,”  in the instructions of the court to the 
jury, wholly uncalled for as it was, tended to in­
flame the minds of the jurors against these negroes 
charged with killing a white woman. The mere 
use of such words by the prosecuting attorney in 
his argument would have been objectionable and 
prejudicial; how much more so then from the lips 
o f the court!

(3.) The argument o f the prosecuting at­
torney without admonition to the jury calls for re­
versal. The appellants were not being tried for as­
sault on the husband of the deceased and another 
white witness and the court should have instruct­
ed the jury to disregard that portion o f the argu­
ment of the prosecuting attorney.

(4).  The undisputed misconduct of the jury 
in separating and mingling with interested specta-



173

tors in the court room, unexplained and unexcused, 
calls for reversals. Had this error been harmless 
it would have been an easy matter to have so shown 
on the motion for a new trial. No attempt was 
made to do this. The fact that such extreme pen­
alties were inflicted by the jury, on the evidence 
shown in this record, is sufficient within itself to 
raise an inference of prejudice and improper in­
fluence in the jury box.

(5).  Beyond question, these cases should be 
reversed for the refusal of the court to quash the 
trial venire and secure one selected according to 
law. Under the record these defendants have not 
been able to enjoy the trial at the hands of an im­
partial jury guaranteed to them by both state and 
federal constitutions. Since the trial court did not 
quash the admittedly illegal venire this court 
should reverse these cases to the end that the ap­
pellants may be protected in their constitutional 
rights. When the record in this case is measured 
by the decisions of the Supreme Court of the Unit­
ed States, by the decisions of this court, and other 
courts of last resort in many other states where 
this question has arisen, the conclusion is inescap­
able that such rights have not been protected as re­
quired by law.



174

ADDITIONAL BRIEF ON INSTRUCTIONS

The Court’s attention is particularly called to 
Instruction 2, where the Court said:

“ Under this information or indictment, it is 
competent for you, if you think the evidence justi­
fies it, to convict the defendants, or either of them, 
of murder in the first degree, murder in the second 
degree, or of manslaughter, or to acquit him or 
them outright.”

To the giving of which instruction to the jury 
the defendants, at the time objected, which said ob­
jections were by the Court overruled, to which 
ruling of the Court the defendants at the 
time, excepted and caused their exceptions 
to be noted of record. Defendants further 
excepted to the giving of said instruction for the 
reason that both defendants are charged jointly 
with both having the gun in their hands and both 
firing the shot therefore both would have to hold 
the gun and both would have had to fire the shot 
to commit the murder, and defendants’ exceptions 
were accordingly noted o f record.

Defendants maintain that the burden was on 
the State to prove the information in its entirety 
in the full meaning of the words o f said informa-



175

tion. And this the State has failed to do.

It was the duty of the State to ascertain which 
one of the two defendants they could reasonably 
charge with murder in the first degree, and if the 
State had no evidence at the time it charged these 
two defendants, it was an unconscionable and un­
scrupulous act on the part of the State to put these 
defendants in jeopardy, and afterward build up a 
case.

Even then it devolved on the State to elect 
which one of the defendants was to be charged with 
murder.

The situation would be different, if  the killing 
had been committed in connection with the com­
mission of some other felony, in which both defend­
ants would have been participants, in compliance 
with Paragraph 2969 (Pope’s Digest) “ All murder 
which shall be perpetrated by means of poison, or 
by lying in wait, or by any other kind of wilful, 
deliberate, malicious and premeditated killing, or 
which shall be committed in the perpetration of or 
in the attempt to perpetrate arson, rape, robbery, 
burglary or larceny, shall be deemed murder in the 
first degree.”



176

Had these two defendants been charged with 
one of the felonies herein mentioned, and some one 
had lost his life as the result of such felony, and 
the two defendants had perpetrated such felony, 
then and in such event, they could have been joint­
ly indicted for the murder, but never in the words 
of the said “ Information”  which presumes a phy­
sical impossibility: “ That the said Mose Bone
and Rome Bone unlawfully and feloniously, wil­
fully and with malice aforethought, and after pre­
meditation and deliberation did assault, kill and 
murder Mrs. John Deaver by then and there shoot­
ing her, the said Mrs. John Deaver, with a pistol, 
then and there loaded with gunpowder and leaden 
bullets, and then and, there had and held in the 
hands of them, the said Moses Bone and Rome 
Bone, and with an unlawful and felonious intent 
then and there, her, the said Mrs. John Deaver, 
wilfully and maliciously to kill and murder, 
against the peace and dignity of the State of A r­
kansas.”

We maintain and urge upon the Honorable 
Court that the State of Arkansas has utterly fail­
ed to prove the charge contained in the “ Informa­
tion.”



177

CONCLUDING ARGUMENT

In viewing the trial of the State of Arkansas 
vs. Mose Bone and Rome Bone, in retrospect and 
surveying same, we are reminded of a word of 
Holy W rit: “ They sought false witness to put him 
to death. But found none. Yea though many false 
witnesses came, yet found they none. At last came 
two false witnesses.”  (Matthew 26:59).

“ For many bare false witness against him, 
but their witness agreed not.”

* * * * *

We cannot conceive of a more flagrant in­
stance of a miscarriage of justice than the case of 
the State of Arkansas vs. Mose Bone and Rome 
Bone, charged with murder in the first degree of 
Mrs. John Deaver, and being found guilty, Mose 
Bone sentenced to 21 years and Rome Bone to 
death.

We shall state our reasons for the above state­
ment and pray the Honorable Court to scrutinize 
closely the events accompanying the procedure and 
to examine carefully the testimony adduced at the 
trial. We do not hesitate to say that the contra­
dictions and incongruities of the State’s testimony 
are as bold and shocking that the public conscience 
must be shocked by the attempt to railroad inno-



178

cent people, even if they are of the colored race, to 
imprisonment and death.

1. The State was in possession of the evi­
dence in this case before the end of the 8th of Sep­
tember, 1938, the day on which Mrs. Deaver was 
shot. The various persons, witnesses to the fatal 
shooting, were separately closeted with deputy 
prosecuting attorneys, and we state without fear 
o f contradiction that the overwhelmingly prepon­
derate weight of evidence pointed to the fact that 
the shot which killed Mrs. Deaver was fired during 
the struggle between Mr. Deaver and Mose Bone, 
for the possession of the pistol which Mr. Deaver 
obtained from a box standing on the table in the 
field, at which Mrs. Deaver was seated.

With this pistol or gun Mr. Deaver threaten­
ed Mose Bone who was on the truck, emptying his 
cotton from the sacks. When Rome Bone interced­
ed for his brother, Mr. Deaver beat him with the 
pistol, and Mose Bone, seeing Rome in danger, 
jumped from the truck upon Mr. Deaver and both 
fell to the ground and the struggle ensued, during 
which Mose attempted to wrest the gun from Mr. 
Deaver’s grasp.

The weigh-boss, Leslie Crosnoe, intending to 
come to the rescue of Mr. Deaver wrestling there



179

on the ground with Mose Bone, obtained a single­
tree from the wagon and beating down on the two 
combatants, struck alternately at both of them 
with the singletree, injuring Mose and breaking 
the arm of Mr. Deaver.

It was during this three-cornered fight that 
Rome Bone rushed for the scales, the only loose ob­
ject around, struck the weigh-boss and put him out 
of the fight, immediately walking away and leav­
ing the field.

While Mr. Deaver and Mose were struggling, 
clutching each other’s hands, wrists, arms and the 
gun, the gun discharged killing Mrs. Deaver who 
had rushed up to rescue her husband.

All of these facts and nothing or little more of 
the essential facts, were in possession of the prose­
cution on that fatal day of September 8, 1938.

The prosecution had Rome Bone, Mose Bone, 
Ernestine Bone, Lawrence Weston, George Walls, 
closeted separately, and under examination on that 
very day. And we challenge the prosecution to 
deny,— which they never did,— and which they 
were anxious to keep out of the record,— that on 
that self-same day John Deaver told them the same 
story as he told to the press, that the gun discharg­
ed accidentally.



180

And if there be any further proof needed for 
our allegations, we point to the record, which 
proves that the State was unable throughout the 
trial, to impeach the testimony of these defendants 
and other defense witnesses,— up to the fatal kill­
ing of Mrs. Deaver.

These witnesses who had been closeted with 
the prosecution told the same facts as on Septem­
ber 8, at which time they could not possibly com­
municate with each other and to build up a fake 
story, for Rome Bone and Mose Bone immediately 
called the police over the telephone to surrender.

And yet it was not until October 6th, 1938, 
that the State filed information against these two 
defendants. We cannot but deplore this new pow­
er placed into the hands of prosecuting attorneys 
to hold human beings on a murder charge without 
presenting their evidence to a Grand Jury.

What had the State done until that time,— al­
most a month? The “ Information”  speaks elo­
quently on this point.

2. The State of Arkansas, on October 6, 
1938, was not in possession of “ testimony” (we ad­
visedly do not call it “ evidence” ) at that time. The 
defense had even then to force the hand of the State 
by its suggestion of a habeas corpus,— to file some-



181

thing or else release the prisoners. Not knowing 
whom John Deaver and the rich planters would 
select to be branded as the “ murderer,”  the State 
followed the example of the weigh-boss, who had 
struck at both combatants on the ground,— the 
State made the ridiculous charge that both of them 
“ with a pistol then and there had and held in the 
hands of them, the said Mose Bone and Rome Bone, 
and with an unlawful and felonious intent then 
and there, her, the said Mrs. John Deaver, wilfully 
and maliciously to kill and murder.”

Hence both of them would have had to hold in 
their hands one pistol, both of them pulled the trig­
ger, both of them fired the one shot.

3. These two negroes were deprived of their 
constitutional rights to have a jury composed of 
their peers, to try the charges against them. With 
all due respect for Judge Fulk, whom the writer 
regards very highly, we cannot bring ourselves to 
believe that his action in excusing three white 
members of the jury panel and substituting three 
negroes, when the State had ten peremptory chal­
lenges, complied with the constitutional require­
ments. Arguments on this issue will be made by 
co-counsel.

4. The planters flocked about the court­
room and one of them, the father of the arresting



182

officer, occupied a seat of honor on the bench with 
the presiding Judge, thus creating an atmosphere 
detrimental and prejudicial to the defendants.

And add to these facts the other fact that the 
jury mingled freely with these elements in the 
ante-rooms of the court-room, and one of them, 
Dick Allnut, was seen in confidential conversa­
tion with a man, said to be Chief of Police Will- 
banks of England Arkansas, and we have an intol­
erable condition.

5. It was not until a late date, when John 
Deaver had hatched his story, in which Rome Bone 
was confused with and substituted for Mose Bone 
in some of the events of that fatal day, in order 
that he could fasten the shooting on Rome Bone; 
but unfortunately for his story, he contradicted 
himself and was contradicted by his own witnesses 
who in turn contradicted each other and them­
selves that we cannot see how any part of their 
story is left to charge these defendants with any 
wrong doing. The only open question would be: 
Who is guilty of manslaughter? The man who got 
the gun from the table or he who tried to wrest it 
from the hands of the other?

We contend that John Deaver procured the 
gun out of his box on the table, that Mose Bone



183

tried to wrest it from him, and that the gun dis­
charged during the struggle, killing Mrs. Deaver.

*  *  *  *  *

Let us now turn to the evidence.

John Deaver testifies that he owned the 32 
automatic savage pistol and had it there to pro­
tect the payroll and for no other purpose. He says 
the money was in a box on the ground, the gun ly­
ing on the table next to the adding machine. What 
would prevent any one from stepping up to that 
table and grasp the gun and box at the same time?

Neither one of his three witnesses had ever 
seen the gun. One of these was his weigh-boss, the 
man who would constantly have business around 
that table with the wife of John Deaver who was 
doing the bookkeeping.

Rome Bone testified he had never seen the gun 
and that Deaver obtained the gun out of the box.

John Deaver testified that Rome Bone “ reach­
ed and got the gun,”  when the latter according to 
the State’s own evidence was 10 to 15 feet from 
the table.

John Deaver is at first careful not to mention 
the name of Mose Bone, when he says: “ I was af­
ter him, but before I could reach him, some one



184

hit me in the back, knocked me down.”  The undis­
puted evidence is to the effect that Mose jumped 
from the truck and knocked Deaver down, but for 
him to say so, would have spoiled his story in the 
claim that Mose Bone got the scales, (when in re­
ality he was on the ground tussling with Deaver) 
and he could not then claim that Rome obtained 
the gun, who in fact had obtained the scales. John 
Deaver would by all means keep the hands of Rome 
free to get the gun. In almost the next breath 
Deaver says, “ there was scuffling and hollering 
going on.”

Throughout the trial there was no suggestion 
of any scuffling on the ground except between 
Deaver and Mose. Hence Mose could not have been 
the one with the scales, and Leslie Crosnoe testifies 
that after he got the singletree Rome Bone beat 
him with the scales, which is exactly what the de­
fendants always said.

John Deaver testifies: “ I tried to reach the 
gun and the gun fired over my head.”  “ The yellow 
negro (Rome) kicked me in the breast and stomped 
me in the throat.”  But he said nothing as to what 
happened to his throat as the result of such brutal 
treatment.

At another time John Deaver denies there was 
any scuffling going on, and then states: “ I grabbed



185

his arm and was scuffling there and my wife fell 
back, I seen her fall back,”  describing the firing of 
the gun. “ I reached and got his hand with the 
gun in it.”

Inadvertently John Deaver identifies the one 
who jumped o ff the truck when he says “ he does 
not remember whether the black negro— which is 
Mose,— jumping o ff the truck, knocking him 
down, was ever on top of him.”  And then he tes­
tifies that he himself never got up or in a standing 
position. Why, if  Mose got the scales, as soon as 
he had knocked him down, running 15 feet, did he 
not get up?

Deaver testifies he saw the yellow negro 
(Rome) shoot his wife,— that she never got to the 
negro,— she came to about three feet of him,— that 
the negro “ fired with deliberate aim,”  although he 
had previously testified, “ I grabbed his arm and 
was scuffing there and my wife fell back, I seen 
her, when she fell back.”

Under cross examination John Deaver admits 
that he is a bootlegger and has been convicted.—  
He claims that he did not know during his stay at 
Corpus Christ!, Texas, where he went soon after 
the fatal day that the case had been set down for 
trial on November 29, which was passed on ac­
count of word received from there by the prosecu-



186

tion, that he was sick at a hospital. Admits that 
he was at the hospital only from November 8th to 
the 11th.

He calls the defendants good cotton-pickers 
and then proceeds to tell how bad they were bring­
ing in trashy cotton, which led to the trouble. He 
denies everything as between him and Mose on the 
truck and that Mose jumped on him, although he 
had previously stated this to be the fact. He does 
not remember and he does not deny that he made 
the statement to representatives of the press that 
the gun went o ff during the struggle. He did not 
see Rome get the scales or Crosnoe get the single­
tree. — Denies that he rushed for the gun. States 
they were tussling on the ground for possession of 
the gun, and it was Rome on the ground with him. 
Does not know when the weigh-boss got the single­
tree, because “ I was on the ground.”

Again Deaver answers the question, how he 
got to the ground: “ Mose knocked me down, he 
jumped from the wagon or truck.”

He testifies that he was lying on the ground 
when the shot was fired. The shot took an Easter­
ly direction. I was laying with my head to the 
East. The shot went directly over my head, a foot 
or 18 inches over my head. W ife was 3 or 4 feet



187

away, I was on my left elbow. The bullet went 
about four feet o ff the ground,— about 2 feet over 
my head. There was no tussling on the ground. 
His wife weighed about 185 pounds, with terribly 
large stomach.

We have listed some of the outstanding con­
tradictions of John Deaver, a veritable jumble of 
conflicting statements.

Now let us turn to his witness, Leslie Crosnoe.

He states there were about $300.00 in a box 
at the table, and he is careful to add immediately 
that “ there was a gun there in order to protect the 
money,”  which would indicate that this boy had 
been drilled to say the same thing his boss Deaver 
had said,— and then he quickly states that “ Rome 
was walking toward the table,”  and Mr. Deaver 
“ seen he was making for the gun.”  How does he 
know what Mr. Deaver saw?

“ Mose sailed o ff the back end of the truck on 
Mr. Deaver.”  Nevertheless he saw “ Rome stand­
ing with the gun and Mose with the scales.”  “ I 
saw they were beating him (Deaver) up and I got 
the singletree. When he was hit by the scales he 
left. Did not see the shot fired. Rome was about 
12 or 13 feet from the table, maybe a little further. 
Mr. Deaver about 15 or 18 feet.



188

Under cross examination Crosnoe testified 
that he got the singletree before Mose hit him, 
while under direct examination he had testified he 
got the singletree when he saw they were beating 
him up with the scales.

Defense was prevented to impeach the witness 
on his testimony that $800.00 were there. It was 
our purpose to show that witness was posted, 
coached and drilled by Deaver, but the Court pre­
vented us.

And we now urge the exceptions which we 
saved at that time, maintaining and contending 
that the opposing party has the right under cross 
examination to impeach the veracity of the wit­
ness.

Another instance indicating that witness had 
been prompted in his testimony, was his statement 
that he had not seen the gun, although he had 
worked there a week or ten days, and as the weigh- 
boss was obliged to do business at that table, where 
Mrs. Deaver was keeping books, he should have 
seen it, if  the gun were lying openly on the table. 
Yet he had not seen it. He finally said: “ All I 
know the gun was there.”

And now we turn to two white boys, Lester 
Conway, aged 15 and Charles Conway, aged 13,



189

who tell a totally different story of the shooting.

LESTER CONW AY testifies that his atten­
tion, while picking cotton, was attracted by the 
fighting. Mose hit Mr. Deav er. Both got on him 
then and Mose went and got the cotton scales, and 
Deaver told them, not to kill his wife and Rome 
shot Mrs. Deaver. Mr. Deaver and Mose were 
down on the ground.

In answer to the q u e s t i o n W h a t  did you see 
when the shot was fired?”  he said: “ Well, the 
lightest negro (Rome), when Mrs. Deaver tried to 
pull him off, he turned and shot her,— then he got 
on Mr. Deaver and the other one got the cotton 
scales and he commenced beating Mr. Deaver with 
them. He had not gotten the cotton scales when I 
looked around. (It should be remembered that at 
that time the weighboss, Leslie Crosnoe, had left, 
who had told about the cotton scales and was hit 
with them). Led by the prosecution, witness fin­
ally said he was not positive, but he said he was 
positive that Rome shot Mrs. Deaver once and did 
not try to shoot any more. Mrs. Deaver had hold 
of him around the hips to pull Rome o ff Mr. Deav­
er, and that Rome ‘slung her o ff.’ She was stand­
ing back of him. She was shot while he and Rome 

were facing each other.”



190

CHARLES CONW AY testifies that he did 
not see the gun before the shot was fired. “ When 
the shot was fired I seen it, he whirled around and 
shot Mrs. Deaver.”

And this boy of 13 years betrays his training 
for the testimony which he was to give, with his 
answer to the question: “ You are sure, the light 
colored boy (Rome) shot Mrs. Deaver?”  Yes, sir, 
it was no stray shot either,”  an apt pupil, anxious 
not to forget any part of his lesson, even before be­
ing asked.

Deaver had testified that his wife had not 
come near the negro, she had just started toward 
him, that the shot fired when he had hold of Rome’s 
hand, that he himself was on the ground,— he saw 
the shot, estimated at various times by him as 12 
inches, 18 inches, 24 inches passing over his head, 
four feet from the ground. Mrs. Deaver was 3 or 
4 feet from Rome.

According to the Conway boys Rome was be­
ing pulled o ff by Mrs. Deaver, but he slung her off, 
deliberately aimed, fired and she fell dead. With a 
bullet wound, according to the Coroner, in her low­
er abdomen, a straight wound with a slight down­
ward tendency after it had entered the stomach,—  
not the abdomen,— and not until then.



191

But little Charles Conway goes a step farther. 
He testifies he saw the fighting. The combatants 
were standing on the ground,— fist fighting, (a 
new story). And then again they were on the 
ground when Mrs. Deaver tried to pull Rome off.

“ He whirled, I don’t know whether or not he 
had the gun, or if  Mr. Deaver had the gun. I never 
did see it before, he whirled and shot, she was try­
ing to pull him o ff and he whirled and shot her. 
She was about 18 inches from him.”  Yet there 
were no powder burns or lacerations on garments 
or body after firing at such close range,— a 
straight wound, according to the Coroner, who tes­
tified that if Mrs. Deaver bent over, as contended 
by the defense, and supported by Lester and 
Charles Conway who claim they saw her reach 
down toward Mr. Deaver, and Mrs. Deaver’s pro­
tuberant abdomen sagging down, it would explain 
that the wound was straight and the bullet had a 
slight tendency downward after it reached the 
stomach, if  the shot was fired from the ground.

Comparing the testimony of John Deaver and 
the two Conway boys, according to Mr. Deaver he 
was lying on the ground, reclining on his left arm, 
with his head Eastward. His wife approached 
about 3 or 4 feet away, from the East. He had 
hold of the negro’s hand when the shot fired, ac-



192

cording to one of his versions, and according to the 
other version the negro fired deliberately. In 
either instance the bullet went over his head, 12, 
18, 24 inches, or 4 feet from the ground.

According to the Conway boys, Mrs. Deaver 
was behind Rome trying to pull him o ff  from Mr. 
Deaver. She was coming from the East, facing 
West, she took a hold of Roma around the hips, 
standing behind him. He “ slung her o ff,”  then 
whirled around facing Mrs. Deaver, thus looking 
East and with his back turned to Mr. Deaver. He 
aimed at Mrs. Deaver and fired deliberately. I f 
Deaver and the Conway boys are telling the truth 
the shot took a circuitous route, backfiring over 
Mr. Deaver’s head without harming Rome, who is 
presumed to hold that backfiring gun and after it 
had passed over Mr. Deaver’s head, turned around 
and shot Mrs. Deaver in the lower abdomen with a 
straight wound.

The whole story is a preposterous, monstrous 
falsehood, as must be evident to any intelligent 
person and this fallacy was pointed out to the jury 
in the argument for the defense by this writer. 
And yet that jury returned with verdicts of guilty.

We have thus far dealt with the evidence of 
the State. Let us now glance at the testimony of



193

the defendants and their witnesses.
We have cited our contention of the facts at 

the outset of this argument and will not now repeat 
it.

The statements of ROME BONE and MOSE 
BONE correspond in every detail.

ERNESTINE BONE supports their state­
ments, that Mr. Deaver “ got down o ff the truck 
and went to the desk and got his pistol, and started 
back to the truck at Mose, that Rome interceded for 
his brother: “ White folks, there is no use shooting, 
pay us o ff and we’ll go home,”  so Mr. Deaver turn­
ed and hit him in the side of the head with the flat 
of the pistol.”

She supports the fact that Mose jumped o ff 
the truck and he and Mr. Deaver fell, that they 
tussled for the possession of the gun, that the 
weighboss got the singletree and hit at Mose, and 
Rome got the scales and hit the weighboss (Leslie 
Crosnoe).

Mrs. Deaver rushed to- the rescue of her hus­
band and the pistol fired during the struggle.—  
Mrs. Deaver cried: “ Oh John, I told you to quit, 
now you have done shot me. Mr. Deaver said, “ Let 
me up, boys, I have shot my wife.— And he sur­
rendered the pistol. He got the money box and put 
it in the truck and drove off. Mrs. Deaver was



194

bent over when the shot fired.

LAW RENCE WESTON saw Mose and Mr. 
Deaver tussling on the ground over the pistol and 
Rome was trying to help Mose. Mrs. Deaver said: 
“ Let me up there and about the time she got up 
there the pistol fired.

AM AN DA MOODY saw them tussling on the 
ground. She heard Mrs. Deaver say: “ John, I
told you to put that thing up, now you have done 
shot me.” — I did not see the gun.

GERALDINE SIMS saw Mrs. Deaver when 
she went there. Heard her say: “ Oh John quit, 
you have done shot me.” — She hollered again, “ Oh 
John”  and keeled over.

The weighboss had left the field when the gun 
fired.— Saw the weighboss running down the field 
and got the riding boss, got the mule and rode out 
of the field. He came back and Homer Crosnoe 
and another man, when Mrs. Deaver’s body was 
still there. Homer had a pistol and one of the 
others a shotgun.— Mr. Deaver had left with the 
truck.

GEORGE WALLS was emptying the sacks on 
the truck. The argument between Mr. Deaver and 
Mose started on the truck. Mr. Deaver got the gun 
and pointed it at the truck, toward Mose. Rome



195

interceded. Mose jumped from the truck and held 
Mr. Deaver’s arms and held the gun from him. 
They got to scuffling, having fallen down by the 
wagon.— The weighboss got the singletree and 
Rome the scales.— When Mrs. Deaver stepped up 
there where they were scuffling, the gun discharg­
ed. I could not say who pulled the trigger, the gun 
was discharged in the scuffle.— After that I left 
from the truck.

JULIA WIGGINS heard them arguing and 
scrapping and I walked fast to see what was hap­
pening. “ At that time Mrs. Deaver got up and 
started around there and before she got around 
she was shot.”  Heard her say: “ I am shot.”
Does not know who fired the shot. Did not see any 
one standing firing the shot. “ The shot come out 
of the bunch where they were clustered together.”

JOE WIRGES— Reporter and photographer 
for the Arkansas Gazette was prevented from tes­
tifying that John Deaver on the day of the tragedy 
told Deputy Sheriff Harris in his presence that the 
gun discharged accidentally.

Even though John Deaver said he did not re­
member we contend that the ground was previous­
ly laid for the interrogation, when John Deaver re­
fused to deny that he had made the statement.

We saved our exceptions and urge upon this



196

Court to sustain us.
Thus the contention of the defendants that 

they acted in self defense, in trying to wrest the 
pistol from the grasp of John Deaver, and that the 
shot was fired during the struggle accidentally, is 
fully supported by the aforenamed witnesses. Not 
one of the statements and testimony of the defense 
has been impeached by the prosecution, while the 
testimony of John Deaver and his three witnesses 
stands forth as contradicted by and among them­
selves.

‘ We know that usually the Supreme Court 
does not pass upon facts in a case, but where there 
is no probative force to testimony on which defend­
ants have been convicted and such testimony is 
shocking to conscience, public and private, this 
Court has repeatedly examined the facts and re­
versed judgments on aforesaid grounds.

And we earnestly pray that the Honorable 
Court will examine the facts as well as the law in 
the case at bar, and reverse the judgment.

Respectfully submitted,
F. W. A. EIERM ANN,
SCIPIO A. JONES,
W ALLACE L. PURIFOY, Jr., 
ELMER SCROGGENS,
LEON B. RANSOM,

Attorneys for Appellants.













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