Chambers, Julius; and Others, after firebomb in Chambers's office, February 1971 - 11 of 16

    It CAROLINA

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To be argued by
V in e  H. S m ith

United i>tatro (Hirnrit (ta rt of Appeals
FOR THE SECOND CIRCUIT

C. C. A. #176

UNITED STATES OF AM ERICA, ea; rel. W INFRED 
W ILLIAM  LYNN,

Relator-Appellant,

against

COLONEL JOHN W. DOWNER, Commanding Officer of 
Camp Upton, New York,

Respondent-Appellee.

BRIEF FOR COLONEL JOHN W . D O W N E R , 
RESPONDENT-APPELLEE

H arold M. K ennedy,
United States Attorney, 

Eastern District of New York, 
Attorney for Colonel John W . Downer.

V ine H. S m it h ,
F rank J. P arker,

Assistant United States Attorneys,
Of Counsel.

ITKAL PRINTING CO., INC., CEDAR ST., NEW YORK, WO 2-3242



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I N D E X

PAGE

Statement ................................................................................ 1

Constitutional and Statutory Provisions ...............   2

Facts ......     6

Point I .............................................................................r ..... 8

Relator has not proved that his classifica­
tion, selection, and induction into the Army of 
the United States were in any way affected by 
reason of race or color, or that he was inducted 
as part of a “ Negro quota.”

Point II  ........................................ ...................................... 12

The induction routine of which relator com­
plains involves no unlawful discrimination and 
does not violate either the constitutional or 
statutory rights of the men inducted.

Conclusion ....................................................... ...................... 20

Cases Cited

Brown v. Duchesne, 19 How. 183, 194 .............................  14

Helvering v. N. Y. Trust Co., 292 U. S. 455, 464 ............ 14

U. S. v. Drum, 107 F. (2d) 897; cert. den. 310 U. S. 648 19





Inttefi §>tnt£B (Etrrutt Court of Appralo
FOR THE SECOND CIRCUIT

U nited S tates of A merica, ex rel. W in­
fred W illiam  L y n n ,

Relator-Appellant,

against

Colonel J ohn  W. D owner, Commanding 
Officer of Camp Upton, New York,

Respondent-Appellee.

BRIEF FOR COLONEL JOHN W . D O W N E R , 
RESPONDENT-APPELLEE

Numerals in parentheses refer to pages of the tran­
script of record unless otherwise stated. All references 
to exhibits are to relator’s exhibits unless otherwise 
stated.

Statement

Relator appeals from an order of the United States 
District Court for the Eastern District of New York, 
made by Honorable Marcus B. Campbell, District Judge, 
dated January 11, 1943, dismissing relator’s petition for 
a writ of habeas corpus, quashing the writ issued pur­
suant thereto, and remanding the relator, Winfred W il­
liam Lynn, to the custody of the respondent, the Com­
manding Officer at Camp Upton. The basis of the 
proceeding is relator’s contention that his induction into 
the Army of the United States, and the resulting military



2

custody and control of Ms person, were and are violative 
of the Constitution of the United States, in particular, 
the Fifth Amendment, and of the statutes, in particular, 
the Selective Training and Service Act of 1940, as 
amended, and the rules and regulations promulgated 
thereunder, because, as relator alleges, the induction ordei 
was applied to relator as a member of a “ Negro 
quota”  (6).

Notice of Appeal (2 );
Order appealed from (3 );
Writ of habeas corpus (4 );
Petition for writ of habeas corpus (5-8).

Constitutional and Statutory Provisions

The constitutional provision referred to in the petition 
is the Fifth Amendment (6). Presumably, the reference 
is to the portion of that amendment which provides that 
no person shall “ be deprived of life, liberty, or property, 
without due process of law.”

No violation of this clause or of any part of the Bill 
of Eights, however, was urged at the hearing in the Dis­
trict Court, and none is asserted in appellant’s brief in 
this Court.

Further constitutional provisions which may properly 
be noted in this connection are those which authorize 
Congress to declare war and to raise and govern an 
Army, viz. Article 1, Section 8, Clauses 11, 12 and 14, and 
that which constitutes the President, the Commander-in- 
Chief of the Army and Navy, Article 2, Section 2, 
Clause 1.

The only statutory provision upon which the appellant 
appears to rely is the clause forbidding discrimination 
contained in Section 4 of the Selective Training and 
Service Act of 1940, as amended December 20, 1941 (U. S.



3

Code, Title 50, Sec. 304; Animal Pocket Part 1942, p. 115- 
116). The material portion of this Section which we 
quote somewhat more fully than the appellant’s excerpt 
(See Appellant’s Brief, p. 2) is as follows:

Sec. 304. M anner of S electing M en for T rain­
ing  and Service ; Quotas.

(a) The selection of men for training and 
service under section 3 [section 303 of this appen­
dix] (other than those who are voluntarily in­
ducted pursuant to this Act) shall be made in an 
impartial manner, under such rules and regulations 
as the President may prescribe, from the men who 
are liable for such training and service and who 
at the time of selection are registered and classi­
fied but not deferred or exempted: Provided, that 
in the selection and training of men under this Act, 
and in the interpretation and execution of the pro­
visions of this Act, there shall be no discrimination 
against any person on account of race or color: 
Provided further, That in the classification of 
registrants within the jurisdiction of any local 
board, the registrants of any particular registra­
tion may be classified, in the manner prescribed by 
and in accordance with rules and regulations pre­
scribed by the President, before, together with, or 
after the registrants of any prior registration or 
registrations: and in the selection for induction of 
persons within the jurisdiction of any local board 
and within any particular classification, persons 
who were registered at any particular registration 
may be selected, in the manner prescribed by the 
President, before, together with, or after persons 
who were registered at any prior registration or 
registrations.”



4

We further call attention to the following portion of 
the previous section of the same statute, Section 3 of the 
Selective Training and Service Act of 1940 (U. S. Code, 
Title 50, Sec. 303, 1942 Pocket Part, p. 114) which is, we 
believe, material to the question involved herein:

“ Provided, That within the limits of the quota 
determined under Section 4(b) [section 304(b) of 
this appendix] for the subdivision in which he re­
sides, any person, regardless of race or color, be­
tween the ages of eighteen and forty-five, shall be 
afforded an opportunity to volunteer for induction 
into the land or naval forces of the United States 
for the training and service prescribed in subsec­
tion (b), but no person who so volunteers shall be 
inducted for such training and service so long as 
he is deferred after classification: Provided fur­
ther, That no man shall be inducted for training 
and service under this Act unless and until he is 
acceptable to the land or naval forces for such 
training and service and his physical and mental 
fitness for such training and service has been satis­
factorily determined: Provided further, That no 
men shall be inducted for such training and service 
until adequate provision shall have been made for 
such shelter, sanitary facilities, water supplies, heat­
ing and lighting arrangements, medical care, and 
hospital accommodations, for such men, as may be 
determined by the Secretary of War or the Secre­
tary of the Navy, as the case may be, to be essential 
to public and personal health: * * (Em­
phasis ours.)

The Act of July 28, 1866 (10 U. S. C. 253, 282) pro­
vides as follows:



5

“ 253. N egro R egiments. Enlisted men o f  two 
regiments of cavalry shall be colored men.

“ 282. N egro R egiments. Enlisted men of twm 
regiments of infantry shall be colored men.”

The National Defense Act (Chapter 508 of the Statutes 
of 1940; 54 Stat. 713; U. S. Code, Title 10, Section 621a) 
provides as follow s:

“ No negro, because of race, shall be excluded 
from enlistment in the Army for service with 
colored military units now organized or to be 
organized for such service.”

Regulations pertinent to the issue here presented in­
clude the following sections of Selective Service Regula­
tions, Second Edition (6 Fed. Reg. 6848, 7 Fed. Reg. 6516, 
2092 and 5343):

“ 632.1 I nduction Calls by the  D irector of 
Selective S ervice. When the Director of Selective 
Service receives from the Secretary of War or the 
Secretary of the Navy a requisition for a number 
of specified men to be inducted, he shall distribute 
the number of specified men requisitioned among 
the States to be called upon to furnish such men to 
fill such requisition. He shall then issue a call on a 
Notice of Call on State (Form 12) to the State 
Director of Selective Service of each State con­
cerned, sending two copies thereof to the Secretary 
who issued the requisition. The State Director of 
Selective Service, upon receiving such call, shall 
confer with the Corps Area Commander (or repre­
sentative of the Navy or Marine Corps) for the



6

purpose of determing the number of specified men 
to be delivered, in order to actually induct a net of 
the number of the specified men in such call, and 
arranging the details as to the times when and the 
places where such men will be delivered. (Em­
phasis ours)

“ 632.2 I nduction Calls by the State D irector 
of Selective Service, (a) After conference with 
the Corps Area Commander (or representative of 
the Navy or Marine Corps), the State Director of 
Selective Service shall issue calls to local hoards to 
meet the number agreed upon as necessary in order 
to fill the State call. * * *

“ 632.3 Selection of M en to F ill  I nduction 
Call, (a) Each local board, when it receives a call, 
shall select a sufficient number of specified men to 
fill the call. It shall first select specified men who 
have volunteered for induction. To fill the balance 
of the call, it shall select specified men from such 
group or groups as the Director of Selective Ser­
vice may designate, provided that within a group 
selection shall be made in sequence of order num­
bers. * * *”

Facts

Relator, Winefred William Lynn, a citizen of the 
United States and a Negro, duly registered under the 
Selective Training and Service Act of 1940, as amended 
(50 U. S. C. A. Sec. 301, et seq.). On August 7, 1942, 
New York City Headquarters, Selective Service System, 
issued call No. 29 to Local Board No. 261, Jamaica, Long 
Island, for the period September 1, 1942, through Septem­
ber 30, 1942, for “ the first 90 White men and the first 50 
Negro men who are in 1-A,”  which men were to report on



7

September 18, 1942 (55, Ex. 1). On September 8, 1942, 
Local Board No. 261 mailed relator an order to report for 
induction into the armed forces of the United States at 
92-32 Union Hall Street, Jamaica, Long Island, at 7 :00 
A. M. on September 18, 1942 (58, Ex. 3). Relator refused 
to report for induction pursuant to this order (24) and 
was subsequently indicted by the grand jury for the East­
ern District of New York for failure to report for induc­
tion under the Selective Training and Service Act of 1940, 
as amended (26).1

A  petition for a writ of habeas corpus to obtain the 
release of relator from custody under the indictment on 
the ground that he, a Negro, had been ordered to report 
for induction under a call for Negro men was dismissed 
by the Honorable Mortimer Byers, United States District 
Judge, on December 4, 1942, in the District Court for the 
Eastern District of New York (5, 27, 28). Thereafter, 
relator Lynn reported for induction in response to an 
order dated December 10, 1942, requiring him to report at 
Local Board No. 261 at 9:00 A. M. on December 19, 1942 
(56, Ex. 2). On December 19, 1942, relator was inducted 
into the Army of the United States (5, 9, 44) and was 
sent to Camp Upton, New York.1 2

The record discloses that relator was inducted as a 
delinquent and not in response to any of the quota calls 
issued prior to his induction (44, 45, 50, 51, 52, 53). De­
linquents are inducted without regard to calls and without 
any reference to race or color (43, 44). Beyond an in­
dication that relator Lynn’s name may have appeared on 
a Delivery List listing the names of selectees with nota­
tions as to their race, there is no evidence which estab­

1. The indictment was returned on November 10, 1942, according to the 
records o f the District Court,

2. On December 23, 1942, the criminal case against relator was terminated 
by the entry o f a nolle prosequi, according to the records o f the District Court.



8

lishes that relator was identified, treated, selected, or 
inducted as a Negro (44). The record likewise fails to 
disclose any evidence that relator’s classification, selec­
tion, and induction into the Army of the United States 
were in any manner affected by his being a Negro (37).

ARGUM ENT  

POINT I

Relator has not proved that his classification, selec­
tion, and induction into the Army of the United States 
were in any way affected by reason of race or color, 
or that he was inducted as part of a “ Negro quota.”

Elsewhere in this brief (Point II, Post) we shall show 
that the practice of issuing specific quota requisitions in­
volves no violation of either the constitutional or the 
statutory rights of the men inducted into military service, 
and that the induction routine of which such requisitions 
are part is plainly lawful.

Before discussing that question, however, it is in order 
to point out that the relator at bar has failed to show- 
even that his own induction was effected pursuant to the 
routine which he attacks, or that it was any part of the 
practice which he undertakes to stigmatize as unlawful 
discrimination.

1.

The petition for a writ of habeas corpus alleges that 
relator is illegally restrained of his liberty because he 
was inducted into the Army of the United States “ as a 
member of a ‘ Negro quota’ ”  (6). Relator, under his own 
theory of the case, was therefore required to prove that



9

he was in fact inducted as a member of a “ Negro quota.”  
The District Court found that relator failed to meet this 
burden of proof (52).

In our statement of facts, preceding this portion of 
our argument, the evidence disclosing the circumstances 
of the relator’s induction into service has been sum­
marized. A  brief further reference to certain particularly 
informing portions of the record will suffice to show not 
only that the relator has not established his induction into 
the Army pursuant to the practice which he assails, but 
that, in fact, he has proved that he was not inducted un­
der that practice.

The local board ordered him to report for induction 
on September 18, 1942 (Ex. 3; 58-9). He did not obey 
that order and was not inducted into service under it 
(24-5). On the contrary, by reason of his failure to re­
port for such induction on the day specified in the order 
he became delinquent, and, according to the practice of 
the local board regarding delinquents, he was permitted 
to be inducted at any time thereafter, irrespective of his 
color (43). He was, accordingly, inducted on December 
19 pursuant to a further order which was issued without 
any reference to White and Negro quotas (45). Relator’s 
witness, John William Black, testified:

“ Q. Then he was inducted under a requisition 
order for September, October, November or Decem­
ber? A. Not necessarily. He was ordered to re­
port under a requisition for September, but he did 
not report. From there on he is a delinquent and 
as soon as they get him they will take him in.

Q. He was inducted? A. He was.
Q. Under an order of the board? A. That’s 

right.



10

Q. And the order of the board arranged for 
the induction in response to a requisition from 
your office asking for a certain number of Negroes 
and a certain number of Whites! A. No, that re­
quisition went out in August for delivery in Sep­
tember. He did not go in until December.

Q. Didn’t those other requisitions read the same 
way! A. Those are for other men.

Q. When he does show up, when do your records 
show under what order he was inducted! A. No 
particular order, they just show him as an inducted 
man. He went in in December.”  (45)

It is too clear to admit of plausible question that the 
relator’s induction at the time and under the circum­
stances disclosed by this evidence was not effected in 
accordance with the quota clause of which he complains. 
Since it was not, the military custody of his person fol­
lowing his induction cannot be invalidated because of 
the use of such a quota, even if that use had been un­
authorized.

2.
Even if relator had sustained his allegation that he 

was inducted as a member of a “ Negro quota,”  this fact 
alone would be immaterial. He would not have estab­
lished that his own selection and induction were affected 
in any way merely because of the existence of a “ Negro 
quota.”  For instance, relator has not proved that the 
fact that he was a Negro and that there were “ Negro 
quotas”  had anything to do with the time when he was 
called or inducted.

In any event, there is a total absence of any evidence 
or probability that relator was inducted or directed to 
report for induction ahead of men whose numbers were



11

lower than his own (37). Appellant’s counsel argues 
(Appellant’s Brief, pp. 7-8) that the failure to show that 
relator was called ahead of his turn in the draft lottery 
is irrelevant. He contends that there is discrimination 
as soon as it appears that by reason of his color he was 
called either sooner or later than he would have been if 
there had been no separate quota requisitions.

This argument, it is submitted, begs the question. It 
is not discrimination—certainly not discrimination against 
a registrant—if by reason of the induction practice he 
was called at a time later than his turn. I f such was 
the fact, it is obvious that if called in turn he would have 
been in the custody of the Army sooner than he was. I f 
relator’s grievance is that he was not called for induction 
at an earlier date, there is no indication in the record that 
relator in any way desired or attempted to enter the 
armed forces at an earlier date or that he was prohibited 
from volunteering for induction. In any event, upon what 
possible basis can it be urged that it is unlawful for the 
Army to have him now because the Army should have had 
him sooner?

Appellant’s brief rings the changes loud and often 
upon the relator’s claim of discrimination, but fails to 
show anywhere how the observance of a diffeient practice 
would have made the slightest difference in his present 
status. He would have been as he is, in the Army, had 
the induction practice been precisely what he claims it 
should have been.



12

POINT II

The induction routine of which relator complains 
involves no unlawful discrimination and does not vio­
late either the constitutional or statutory rights of the 
men inducted.

As we have seen (Point I, ante) the relator at bar was 
not inducted pursuant to the routine involving Negro 
quotas of which he complains. Nevertheless, we desire 
to point out that the routine in question was and is clearly 
legal and that the appellant’s criticisms of its use find no 
support in the provisions of the statute upon which he 
relies.

The calls of the Selective Service System for specified 
(White or Negro) men are based on the requisitions for 
“ specified”  (White or Negro) men made on the Director 
of Selective Service by the Secretary of War or the Sec­
retary of the Navy. The Director then distributes the 
number of “ specified”  men to be inducted among the 
several States in accordance with their proportion of 
White and Negro registrants. (13, 14, 16, 18. Part 632, 
Selective Service Regulations, Second Edition.) The Sec­
retary of War and the Secretary of the Navy make sep­
arate requisitions for White men and Negro men because 
of the organization of the armed forces into White units 
and Negro units and the need for specified men to fill 
existing or new units in each category at acceptable times 
and places and when “ adequate provision shall have been 
made fo r”  accommodating such specified men. (See pro­
viso in Section 3 (a) of the Selective Training and Service 
Act of 1940, as amended.)

This proviso of Section 3 (a) of the Act requires that 
no man be inducted unless and until the Army has pro­
vided adequate accommodations for the men requisitioned



13

and since separate accommodations and facilities are fur- , 
nished to White and Negro units separate Calls and 
Delivery lists for induction become a necessary admini­
strative detail by reason of this military organizational 
separation. Major Francis V. Keesling, Jr., Legislative 
Officer of the Selective Service System, in testifying on 
May 6, 1942, before a Subcommittee on Appropriations of 
the House of Representatives concerning the Department 
of Labor—Federal Security Agency Appropriation Bill 
for 1943, stated:

“ Mr. Chairman, the act (Selective Training and 
Service Act of 1940) contains a provision that there 
shall be no discrimination on account of race or 
color. The act also has a provision that men will 
not be taken into the Army until and unless facil­
ities are available.

“ The Selective Sefvice System delivers men to 
the Army in accordance with requisitions made 
upon the System by the War Department. These 
requisitions state specifically how many colored and 
how many white selectees are to be delivered. We 
have taken the position that it would be most inad­
visable for the Selective Service System to deliver 
men to the Army for induction whom we knew in 
advance would be rejected.

“ To do otherwise would be an unnecessary ex­
pense to the Government and a hardship on the 
individuals concerned.”  (Hearings Part 2, p. 1063)

1.

It is noted that appellant concedes (Appellant’s Brief, 
pp. 13-14) that, once in the Army, men may be organized 
into White and Negro units. But, counsel, nevertheless, 
insists upon “ the narrow question whether, in the selec-



14

tion of men for service, they are to be chosen as American 
citizens, or whether there are to be differences and dis­
crimination in their selection, dependent upon race or 
color.”  (Appellant’s Brief, p. 14).

This is a “ narrow question”  indeed. It is here con­
ceded (as it must be in view of the legislative provisions 
and history involved) that after induction separate White 
and Negro units are lawful. As to that, the judgment of 
the men responsible for producing an effective army.con­
trols. But counsel, nevertheless, insists that an induction 
routine calculated to supply men in conformity with the 
contemplated army organization is forbidden. In other 
words, the Army may decide its own needs, but in taking 
its inductees it cannot take them as it needs them, or as it 
is ready to use or accommodate them

This contention and the reading of the statute upon 
which it is predicated are, it is submitted, plainly absurd. 
Nothing in the statutory provision upon which appellant 
relies justifies, much less requires, the holding that Con­
gress in passing this Act intended to handicap the Nation 
by precluding the orderly flow of men selected for mili­
tary service into the Army for organization into the units 
which the army executives concededly were authorized 
to create.

Appellant’s reading of the statute violates the familiar 
rule that in the construction of the language employed 
by the legislature the court will examine “ the whole stat­
ute (or statutes on the same subject) and the objects and 
policy of the law, as indicated by its various provisions, 
and give to it such a construction as will carry into execu­
tion the will of the legislature as thus ascertained, ac­
cording to its true intent and meaning.”

Brown v. Duchesne, 19 How. 183, 194;
Helvering v. N. 7. Trust Co., 292 IT. S. 455, 464.



15

For this rule, appellant’s interpretation of the statu­
tory provisions involved in the case at bar would sub­
stitute a requirement that the statute be read, if possible, 
so as to frustrate or at least to handicap and retard the 
accomplishment of the purpose which its enactment was 
intended to promote. To say that the proviso forbidding 
discrimination against any person prohibits an induction 
practice essential to the lawful creation and maintenance 
of army units is without support in precedent or reason, 
and is opposed to the most obvious dictates of common 
sense. Neither the language of the statute nor any rule 
of construction requires an interpretation of this Act 
which demands the impossible or the impractical.

The practice of issuing requisitions stating separately 
the number of White men and the number of Negro men 
to be called for induction from a particular district is 
not “ discrimination against any person on account of 
race or color,’ ’ within the meaning of the Selective Train­
ing and Service Act. Such a practice was clearly author­
ized as an incident of the right of the Army executives to 
organize, the inductees in White and Negro units.

The interpretation of Section 4 (a) of the Act dealing 
with “ discrimination”  for which the appellant is strain­
ing finds no support in the other provisos of the Act, the 
adjudicated cases, or in the legislative history of the pro­
vision in question. It is unthinkable that Congress in 
forbidding discrimination against any person on account 
of race or color intended a more sweeping use of the 
term “ discrimination”  than the scope thereof already 
made familiar by judicial decisions relating to the Four­
teenth Amendment.

2.

A review of the legislative history of the statutory 
provision that there shall be no discrimination against



16

any person on account of race or color “ in the selection 
and training of men”  under the Selective Training and 
Service Act of 1940, as amended, demonstrates that Con­
gress did not intend to prohibit the calling of White and 
Negro registrants in accordance with the needs of the 
armed forces.

As a preliminary matter, it is important, we believe, 
to note that Congress used the words “ selection and 
training”  together. If the making of separate White and 
Negro quota calls to meet the requisitions of the armed 
forces is invalid, it must follow that the separation of 
inducted men in the armed forces into White and Negro 
units is also invalid, since “ discrimination”  is prohibited 
in the “ training”  of men as well as in their “ selection.”

The Selectve Training and Service Act of 1940 as 
introduced into Congress contained no provision against 
discrimination because of race or color. On August 23, 
1940, Senator Wagner proposed an amendment providing 
that any person, regardless of race or color, should be 
afforded an opportunity to volunteer. (86 Cong. Eec. p. 
10,789.) This amendment was adopted as part of Sec­
tion 3 (a).

In the course of the debate in the Senate on the amend- - 
ment offered by Senator Wagner to preclude discrimina­
tion in accepting voluntary enlistments, the following ex­
planation was given:

“ Mr. Overton. Mr. President, may I ask if the 
complaint voiced in the letter the Senator from 
New York has just read is so much concerned with 
enlistment as it is with the desire of the colored 
people that there should be established what is 
known as mixed units in the armed forces?

“ Mr. Wagner. No; it has nothing to do with 
that. They are refused enlistments altogether.



17

There is no question of whether they are to be in­
tegrated or not. The complaint is against the re­
fusal to permit them to serve. That is the only 
point I am making.

“ Mr. Wagner. The Senator from Louisiana 
may make that statement, but I think if he will 
inquire he will find that in the aviation units no 
colored enlistments at all are accepted. The colored 
American citizen cannot enlist there; they will not 
accept him; which is quite a different thing from 
the question of segregation. That question I am 
not considering at all.”  (86 Cong. Rec. p. 10, 890).

The provision in Section 4 (a) of the Selective Train­
ing and Service Act of 1940, as amended, against dis­
crimination on account of race or color in the selection 
and training of men under ”  A'"L “ J +

gressman Fish on Septembe:
11,675). In describing the purpose of his amendment, 
Congressman Fish stated that it was intended only to 
afford to soldiers drafted for induction into the Army the 
same assurance against discrimination which Senator 
Wagner’s amendment provided for volunteers. (86 Cong. 
Rec. 11,675.) It is clear that the amendment had no refer- j 
ence to separate units or to the calling of registrants in 
a manner made necessary by the existence of separate 
units.

During the consideration of the Act, Congressman 
Thomason of Texas included in his remarks a letter dated 
August 31, 1940, from the Joint Army and Navy Selec­
tive Sex-vice Committee (86 Cong. Rec. 11,427). This 
letter informed Congress that the Selective Service pro-

*

introduced into the House



18

gram contemplated separate White and Negro quotas and 
calls. Congressman Andrews of the Military Affairs 
Committee stated on the floor of the House during the 
consideration of the Fish amendment that the amendment 
offered by Mr. Fish seeks to do what the War Department 
already states it will do under regulations, that is, draft 
one Negro out of every ten (men) who are called.”  (86 
Cong. Rec. p. 11,675 et seq.) It will be noted that Con­
gressman Andrews was referring to the fact that Negroes 
were to be called in accordance with their percentage of 
the population. The records of the Selective Service 
System disclose that this purpose has been carried out as 
far as practicable.

The Army has been organized into separate units for 
White and Negro men since at least 1866 {supra, pp. 
4-5). Under the Selective Service Act of 1917 it was 
the recognized and necessary practice to call White and 
Negro registrants in accordance with the needs and requi­
sitions of the Army. (See Second Report of Provost 
Marshal General, p. 191.) These facts were known to the 
members of Congress when the provision in question was 
adopted. The same Congress in July, 1940, recognized 
that the Army placed and would continue to place Negroes 
in separate military units when it prohibited the exclusion 
of Negroes because of race from enlistment in the Army 
for service with “ colored military units”  (10 TJ. S. C. A. 
621(a), supra, p. 5). If Congress had intended to 
prohibit the induction of White and Negro registrants in 
the only practical manner possible in order to meet the 
requirements from time to time of the armed forces, such 
intention would, we believe, have been clearly expressed. 
The fact that the Selective Training and Service Act has 
been amended approximately fourteen times since Septem­
ber 16, 1940, and has been almost continuously a matter of 
searching inquiry by Congress and the fact that Congress



19

has never questioned the manner of selecting and calling 
White and Negro registrants are further evidence that 
Congress considers its intentions are not being violated. 
(See statement of Major V. Keesling, Jr., before House 
Subcommittee, supra, p. 13.)

3.

It is our duty, we believe, to point out that if the 
existence of separate calls for White and Negro regis­
trants to meet the requisitions of the armed forces is 
invalid and if all registrants, White or Negro, inducted 
under such calls are illegally in the armed forces, and 
subject to release by the courts under writs of habeas 
corpus, the security of the country is in peril). That the 
courts will not construe a draft act in such a manner, 
where no individual substantial prejudice is established, 
was announced as follows by this court in United States 
v. Brum, 107 F. (2d) 897, cert, denied 310 U. S. 648:

“ Such rights (the rights of the individual) 
deserve adequate protection. They do not call for 
an overtechnical construction of the regulations not 
necessary for such protection and merely hampering 
to the Government in its tremendous task of mobiliz­
ing its man power into an effective fighting organ­
ization for the military service which the country 
had decided upon.”  (Opinion 107 F. (2d) at 900.)



20

CONCLUSION

The order appealed from should be affirmed.

Respectfully submitted,

H arold M. K ennedy,
United States Attorney,

Eastern District of New York, 
Attorney for Colonel John W. Downer.

V ine H. S m ith ,
F rank J. P arker,

Assistant U. S. A ttorneys, 
Of Counsel.



UNITED STATES CIRCUIT COURT OF APPEALS 
F or th e  Second Circuit

No. 176— October Term, 1943.

(Argued December 8, 1943 Decided February 2, 1944.)

United States of A merica, ex rel., W infred W illiam  Ly n n ,

Relator-Appellant,

— vs.—

Colonel J ohn  W. D owner, Commanding Officer of 
Camp Upton, New York,

Respondent-Appellee.
B e f o r e  :

Sw a n , A ugustus N. H and and Clark ,
Circuit Judges.

Appeal from the District Court of the United States for the 
Eastern District of New York.

Habeas corpus proceeding to test the legality of the 
relator’s induction into the United States Army. The rela­
tor appeals from an order quashing the writ and remanding 
him to the custody of the respondent. Affirmed.

Conrad J. Ly n n , A lbert C. G ilbert and H ays, 
St . J ohn , A bramson & Sch u lm a n , for ap­
pellant; Arthur Garfield Hays, Albert C. 
Gilbert and Gerald Weatherly, of counsel.

H arold M. K ennedy, United States Attorney, 
for respondent; Vine H. Smith and Frank 
J. Parker, Assistant United States At­
torneys, of counsel.

761



The appellant, a Negro, is a citizen of the United States 
who was inducted into the Army on December 19, 1942. 
He waived furlough and was sent immediately to Camp 
Upton at which the respondent, Col. Downer, is the com­
manding officer. By petition for a writ of habeas corpus 
the appellant sought release from the Army on the ground 
that he was inducted “ as a member of a ‘Negro quota’ ” 
in violation of the provision of the Selective Training and 
Service Act of 1940, 50 USCA Appendix §304(a ), pro­
hibiting “discrimination against any person on account of 
race or color” . The respondent made return to the writ, 
alleging that the appellant was held as a soldier iu the 
Army, having been lawfully selected for service and duly 
and regularly inducted. By traverse to the return the ap­
pellant reasserted that he was unlawfully selected for in­
duction into the armed forces as a member of a Negro 
quota. After a hearing, the district court quashed the 
writ and dismissed the petition for failure of proof.

The record discloses the following: The appellant duly 
registered under the Selective Service Act with Local Board 
No. 261, Jamaica, Long Island. He received from his local 
board an order dated September 8, 1942 to report for in­
duction on September 18th. This order was issued pur­
suant to a requisition by the New York City Director of 
Selective Service which informed Local Board No. 261 
that “Your Quota for this Call is the first 90 White men 
and the first 50 Negro men who are in Class 1A » 
Separate Delivery Lists (Form 151) are to be made for 
the White and Negro registrants delivered.”  The New 
York City Director testified: “We receive ^requ isition  
from the government for so many white men and so many 
colored men for indnction each month and then we

Swan, Circuit Judge:

762



break that list down among the local boards and that is 
on a proportionary basis and each board will be called upon 
to produce so many whites and so many Negroes for in­
duction.”  1 Desiring to contest the validity of the induc­
tion order based on the above-mentioned requisition, the ap­
pellant failed to report for induction on September 18th. 
By such failure he became a delinquent. Under section 11 
of the Act, 50 USCA Appendix §311, he was indicted for 
disobedience of the induction order. Thereafter his lawyers 
advised him that in order to raise the question of dis­
crimination he must go into the Army, and the local board 
was informed that he was ready to go. It issued an order 
dated December 10, 1942, requiring him to report for in­
duction on December 19, 1942. This order he obeyed. He 
was thereupon inducted and sent to Camp Upton for train- 
ing. The testimony is to the effect that he was inducted as 
a delinquent and that a delinquent will be inducted “with­
out any quota call”  and without reference to his race or 
color. It further appears that requisitions were made upon 
Local Board 261 calling for 117 whites and 103 Negroes in 
October, 134 whites and 100 Negroes in November, and 
174 whites and 97 Negroes in December; but that these 
requisitions related to men other than the appellant. The 
trial judge ruled that the relator had not proved that “he

1 This practice apparently conforms with the Selective Service 
Regulations, 2d edition, 6 Fed. Reg. 6848; 7 Fed. Reg. 2092, 5343, 
6516; Sec. 632.1 Induction Calls by the Director of Selective Ser­
vice; Sec. 632.2 Induction Calls by the State Director of Selective 
Service; Sec. 623.3 Selection of Men to Fill Induction Call, “ (a) 
Bach local board, when it receives a call, shall select a sufficient 
number of specified men to fill the call. It shall first select 
specified men who have volunteered for induction. To fill the 
balance of the call, it shall select specified men from such group 
or groups as the Director of Selective Service may designate, pro­
vided that within a group selection shall be made in the sequence 
of order numbers. * * * ”

763



was inducted under any order which calls for so many 
whites and so many colored,” and therefore had not suc­
ceeded in raising1 the question which the habeas corpus 
proceeding was intended to present for decision.

If the appellant was inducted as a delinquent, he be­
came delinquent by refusal to obey the September induc­
tion order which was issued pursuant to the requisition 
for 90 whites and 50 Negroes for induction in September. 
Hence the requisition was a direct cause of his induction 
into the Army and constituted, we believe, sufficient proof 
of the allegation in his petition that he was inducted as 
“a member of a Negro quota.”

The appellee argues that even if this be true, the record 
is barren of any evidence that the appellant was inducted 
or directed to report for induction ahead of men whose draft 
numbers were lower than his own, and therefore there is 
no proof of discrimination against him on account of race 
or color.” To this appellant’s counsel replies that the 
existence of separate quotas for whites and Negroes makes 
it incredible that he was called for induction precisely in 
his turn under the draft; and that there was discrimina­
tion against him if he were called either sooner or later 
than would have happened in the absence of separate quotas.2 
If the appellant was called for induction later than his turn, 
his grievance seems to be that the military custody in which 
he now finds himself should have begun at an earlier date. 
But how does the fact that the Army should have had him 
sooner make unlawful its having him now? Delay in 
calling him may have resulted in discrimination against

2 Counsel cites Selective Service Regulations 2d ed., Sec. 623.1(c) 
reading as follows: “ (c) In classifying a registrant there shall 
be no discrimination for or against him because of his race, creed, 
or color, or because of his membership or activity in any labor, 
political, religious, or other organization. Each registrant shall 
receive equal and fair justice.”

764



others who were called ahead of their turn, but we find it 
difficult to regard it as a discrimination making illegal the 
Army’s present custody of him. Even if the induction 
practice had been conducted without separate quotas, as 
he claims it should have been, he would now be, as he is, 
in the Army. In f a i l i n g  to prove that the requisition under 
which he was called for induction resulted in calling him 
ahead of his turn in the draft, a majority of the court be­
lieves that the petition was properly dismissed for failure 
of proof that he was aggrieved by the discrimination, if any 
there was.

But the dismissal may also be sustained on broader 
grounds which we are inclined to discuss, since the parties 
have thoroughly briefed and argued the question of statutory 
construction and the question is an important one.

In arguing that the practice of calling for specified num­
bers of whites and Negroes for induction during a given 
month is contrary to the statute, the appellant relies upon 
the following language in section 4, 50 USCA Appendix 
§304:

“ (a) The selection of men for training and service 
under section 3 [section 303 of this appendix] (other 
than those who are voluntarily inducted pursuant to 
this Act) shall be made in an impartial manner, under 
such rules and regulations as the President may pre­
scribe, from the men who are liable for such train­
ing and service and who at the time of selection are 
registered and classified but not deferred or exempted: 
Provided, That in the selection and training of men 
under this Act, and in the interpretation and execu­
tion of the provisions of this Act, there shall be no 
discrimination against any person on account of race 
or color; * * * ”

765



In interpreting and applying this language the Army’s his­
tory of separate regiments of whites and Negroes must not 
be overlooked. Indeed, the appellant does not contend, and 
could not successfully do so, that after selectees are law­
fully inducted under the Selective Training and Service 
Act of 1940 they may not be segregated into white and 
colored regiments. Since July 28, 1866 federal statutes 
have made provision for separate Negro regiments. 14 Stat. 
332. And the same Congress which enacted the Selective 
Training and Service Act in September 1940 had passed in 
July of that year section 2(b) of the National Defense A ct 
which is printed in the margin.8 Also relevant to inter­
preting the language under discussion are provisions in 
section 3 (a ), 50 USCA Appendix §383(a), to the effect that 
the men inducted into the land and naval forces shall be 
assigned to camps or units of such forces for training and 
service, and that no men shall be inducted until adequate 
accommodations for them have been provided.3 4 Reading

3 54 Stat. 713: Sec. 2. “ (b) The President may, during the fiscal 
year 1941, assign officers and enlisted men to the various branches 
of the Army in such numbers as he considers necessary, ir­
respective of the limitations on the strength of any particular 
branch of the Army set forth in the National Defense Act of 
June 3, 1916, as amended: P r o v id e d  that no Negro, because of 
race, shall be excluded from enlistment in the Arm y for service 
with colored military units now organized or to be organized for 
such service.”

4 So far as material, §303(a) reads as follows:

“ * * * P r o v id e d , That within the limits of the quota deter­
mined under section 4(b) (section 304(b) of this appendix) for 
the subdivision in which he resides, any person, regardless of race 
or color, between the ages of eighteen and forty-five, shall be 
afforded an opportunity to volunteer for induction into the land 
or naval forces of the United States for the training and service 
prescribed in subsection (b ), * * * P r o v id e d  fu r th e r , That no 
man shall be inducted for training and service under this Act 
unless and until he is acceptable to the land or naval forces for 
such training and service and his physical and mental fitness for 
such training and service has been satisfactorily determined:

766



the Act as a whole and in the light of the Army’s long es­
tablished practice of segregating enlisted men into separate 
white and colored units, we believe that requisitions calling 
for a specified number of whites and a specified number of 
Negroes for induction during a given month and based on 
relative racial proportions of the men registered with a 
local board and subject to call for induction, is a necessary 
and permissible administrative procedure, and the regula- 
tlonJ which sanction it5 are notviolative of the Act. The 
induction routine that has been established is calculated 
to supply men in conformity with the contemplated military 
organization which permits separate colored regiments. 
The Army executives are to decide the Army’s needs, to 
provide accommodations and facilities for selectees and 
to induct them only when camps or units are ready to re­
ceive them. To hold that the provision in section 4 for­
bidding discrimination invalidates such induction routine 

• would frustrate, or at least impede, the development of 
an effective armed force, the prompt creation of which was 
the very purpose and object of the Act.

Nothing requiring this result is to be found in the legis- 
lative history of the Selective Training and Service Act 
of 1940. As originally introduced the bill contained no 
provision forbidding discrimination on account of race or 
color. On August 23rd Senator Wagner proposed the 
amendment, which was incorporated into section 3, to the

P r o v id e d  fu r th e r , That no men shall he inducted for such train­
ing and service until adequate provision shall have been made 
for such shelter, sanitary facilities, water supplies, heating and 
lighting arrangements, medical care, and hospital accommoda­
tions, for such men, as may be determined by the Secretary of 
W ar or the Secretary of the Navy, as the case may be, to be 
essential to public and personal health: * * * The men inducted 
into the land or naval forces for training and service under this 
Act shall be assigned to camps or units of such forces: * » * ”

5 See note 1, su p ra .

767



effect that any person regardless of race or color shall be 
afforded an opportunity to volunteer.6 In debate he ex­
plained that this had nothing to do with segregation into 
white or colored military units.7 The provision against 
discrimination which appears in section 4 was proposed by 
Congressman Fish on September 6th. His amendment, he 
stated, was intended to afford to soldiers drafted for in­
duction into the Army the same assurance against dis­
crimination that Senator Wagner’s amendment provided 
for volunteers.8 During consideration of the Fish amend­
ment Congressman Andrews of the Military Affairs Com­
mittee informed the House of Representatives that the 
amendment seeks to do what the War Department already 
states it will do under regulations, namely, call Negroes for 
induction in accordance with the ratio they bear to the 
population.9 And Congressman Thomason of Texas in­
cluded in his remarks during the consideration of the Act 
a letter from the Joint Army and Navy Selective Service 
Committee which informed Congress that the selective ser­
vice program contemplated separate white and Negro quotas 
and calls.10

If the Congress had intended to prohibit separate white 
and Negro quotas and calls we believe it would have ex­
pressed such intention more definitely than by the general 
prohibition against discrimination appearing in section 4. 
Moreover, it is not without significance, we think, that the 
induction procedure which has been established has never 
been altered by congressional action, although the Act has 
been often amended since its original enactment. In our

6 86 Cong. Rec. p. 10,789.
7 86 Cong. Rec. p. 10,890.
8 86 Cong. Rec. p. 11,675.
9 86 Cong. Rec. p. 11,676.

10 86 Cong. Rec. p. 11,427.

768



opinion the statutory provisions which the appellant in­
vokes mean no more than that Negroes must be accorded 
privileges substantially equal to those afforded whites in 
the matter of volunteering, induction, training and service 
under the A ct; in other words, separate quotas in the requisi­
tions based on relative racial proportions of the men sub- 
ject to call do not constitute the prohibited “ discrimina­
tion” . Compare cases dealing with discrimination claimed 
to be repugnant to the Fourteenth Amendment. Plessy v. 
Ferguson, 163 U. S. 537; Gong Lum v. Rice, 275 U. S. 78; 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337. Judgment 
affirmed.

Clark , Circuit Judge (dissenting) :

In a case of this kind, with such serious social implica­
tions, it seems to me peculiarly desirable that judges shall 
confine themselves to the legislative intent to the utmost 
extent possible. Here that intent does not seem to me 
disputable on the words of the statute itself; but if any 
doubt exists, I think it must be dispelled by a consideration 
of the legislative history. The statute presents a closely 
integrated system of selection of fit registrants according 
to state and local quotas based on the number of available 
men, with an overriding prohibition against any discrimina­
tion in selection for race or color; and the history of this 
prohibition shows just how overriding it was intended to be.

In stating the legislative history, the opinion stresses the 
fact that segregation had previously existed in the Army 
and that the Wagner and Fish amendments to the Selective 
Training and Service Act were made in the light of that 
fact. It argues, therefore, that the amendments, following 
cases dealing with discrimination claimed to be repugnant

769



to the Fourteenth Amendment, require only equal, even if 
separate, treatment of Negro inductees while in the Army.1 
All that can be accepted without reaching our conclusion; 
that requires the further step which overlooks the expressed 
purpose of the proponents and nullifies the provision that 
in the selection of men for induction there shall be no 
discrimination against any person on account of race or 
color.

Thus, Senator Wagner explained his amendment as not 
an attempt to control the Army after it received the selectees, 
but a requirement of:' equal opportunity to serve; and he 
presented a letter from the Secretary of the National As­
sociation for the Advancement of the Colored People asking 
for the amendment because Negroes had been allowed to 
enlist only in certain specified regiments. 86 Cong. Rec. 
10,789, 10,889. This amendment—which is not the im­
portant one here and which was passed only after long de­
bate and determined opposition mainly on the ground that 
it was unnecessary, 86 Cong. Rec. 10,888-10,895—thus con­
cerned the important matter of choice of men for the Army. 
When the matter came up later in the House, the Fish 
amendment was supported to make assurance sure and to 
quiet the doubts of representatives of the colored people. 
Again there was a sharp debate, not in opposition to the 
principle expressed, but on the ground that the provision 
was unnecessary, as already incorporated in that Act. 
Congressman Fish said he was not the originator of the 
amendment, but sponsored it by request of a group of 
prominent colored leaders “who are interested in and repre­
sent the interests of 11,000,000 Negroes in America.”  86

1 Referring to this case, Professor Robert E. Cushman, in S o m e  
C o n stitu tio n a l P r o b le m s  o f  C ivil L ib e r ty , 23 B. U. L. Rev. 335, 
361, makes this same point of “the general policy of segregation” 
upheld in P le s s y  v. F e r g u so n , 163 U. S. 537; but he does not dis­
cuss the question of discrimination in s e le c tio n .

770



Cong. Eec. 11,675, 11,676. And so at length after one vote 
wherein the amendment appeared to he lost, it finally passed 
the House by a fairly close vote, 86 Cong. Rec. 11,680, and 
remained in the bill at all times thereafter.

In this debate on the Fish amendment, the Committee 
on Military Affairs, which had reported the bill, opposed 
the change. The Army letter to Congressman Thomason of 
Texas, 86 Cong. Rec. 11,427, seems to me of quite a different 
tenor than as stated in the opinion f  but the intimation it 
contained that estimates of registrants were being made 
according to color may be one of the things which led to 
disquietude upon the part of the colored people and to the 
proposal of the amendment two days later. It is significant, 
too, that Chairman May of the Committee on Military A f­
fairs, in opposing the amendment as unnecessary, reported 
that the Committee was adopting two provisions adequate to 
cover the matter—one the Wagner amendment to the Senate 
bill, and the other the proviso to §3(a) quoted in the 
opinion that no man should be inducted until he was ac­
ceptable to the land or naval forces. Then he explained 
that this proviso was not to be used to permit discrimina­
tion by the clear statement: “That latter provision merely 2

2 Tlie letter does not mention separate white and Negro quotas 
and calls; it does, however, attempt an estimate of the number 
of registrants, and, taking Texas, as an example, considers 
separately the white and Negro population and the white and 
Negro persons already serving in the Army. So far as appears, 
this method of estimating may be required by the nature and 
form of the available statistics.

It is easy to slip from the discrimination here, which is based 
solely on Arm y calls for men, to that stated at the end of the 
opinion, viz., “separate quotas in the requisitions based on rela­
tive racial proportions of the men subject to call.” Whether or 
not that would violate the quota provisions of §4 (b ), it is obvious 
that such a system, substantially following population trends, is 
more likely to come closer to calling the Negroes in their proper 
turn than does the one actually employed. The same is true of 
induction of Negroes “in accordance with the ratio they bear to 
the population,” also referred to in the opinion.

771



means that he must stand the same kind of medical ex­
amination and physical test as any other man, regardless 
of race, color, or condition.” 86 Cong. Rec. 11,676. The other 
similar proviso, also quoted from the same statute, that 
no man should be inducted until adequate sanitary and other 
facilities were available had just been adopted that same 
day after similar considerable debate as to its necessity 
and expressly to meet the condition asserted to have ob­
tained in the First World War when men were said to have 
been inducted only to become sick or die because of lack 
of adequate sanitary and other facilities. 86 Cong. Rec. 
11,670.

It seems hardly doubtful that these provisos added to 
§3(a) are but the protection thought necessary for the 
inductees and were not intended, and should not be con­
strued, to nullify the anti-discrimination (Fish) amend­
ment to the next section, §4(a), which in terms refers to 
and conditions the earlier section thus, “ The selection of 
men for training and service under section 3 * * * shall be 
made in an impartial manner * * * : Provided, That in the 
selection and training of men under this Act, and in the 
interpretation and execution of the provisions of this Act, 
there shall be no discrimination against any person on ac- , 
count of race or color.” (Italics added.) And the Wagner 
amendment to §3(a) itself refers forward to and depends 
upon “the limits of the quota determined under section 4(b) 
for the subdivision in which he resides.”  Thus, all parts 
of the statute must be read together and the provision 
against discrimination in selection for color must be given 
meaning. In fact, I find it difficult to think of more apt 
language to express the Congressional intent; the sugges­
tion that Congress should have said something more, or 
amended the statute, means in effect that it should be watch­
ful to see how a statute is violated and then expressly nega­
tive such violation or be assumed to sanction it.

772



Now it seems to me that the result stated in the opinion 
simply wipes out this provision so insisted upon as assur­
ance to prevent this very result. For it is not seriously 
contested that white and colored draftees are not called ac­
cording to their officially determined order numbers (es­
tablished originally by the much publicized drawing from 
the gold fish bowl in Washington and later by similar im­
partial chance), but only according to the calls of the Army 
officials separately for whites and for Negroes. The dis­
location occasioned by a single such separate call, intensi­
fied as these calls are repeated throughout the history of 
the draft, was frankly admitted by Colonel Arthur V. 
McDermott, the New York City Director of Selective Ser­
vice, who testified below. He said: “ I will repeat— Gen­
erally speaking, both Negroes and whites are called ac­
cording to their order numbers, but if the number of Negroes 
called is less than the number of whites called, then after 
the Negro quota has been filled, drawing by order numbers, 
then the board would proceed according to order numbers, 
but skipping the Negroes.” To the question, “ Then you do 
have a Negro quota and a white quota?”  he answered, “ Oh, 
yes.” And to the question, “Am I not right in my state- 
ment"that Negroes and white men are not called in turn 
or serially, but that the question of color has something to 
do with the time they are called?”  he answered, “ That’s 
right.” This well-understood practice has led to rather 
bitter comment recently in Congress, where Congressman 
McKenzie of Louisiana has pointed out the disruption of 
a community caused by the taking of pre-Pearl Harbor 
white fathers, while single available Negroes are left un­
called. 89 Cong. Rec. A-5268, A-5269.3

3 The Congressman quotes from a Louisiana newspaper a statement 
that from a certain parish in that State there have been called for 
military service a group of men with pre-Pearl Harbor children, 
while 267 Negro single men remain on the Class 1-A list, and 
that both white and Negro citizens are disturbed by the dis­
crimination.

773



Law Brief Press— NYC



IN THE

Caprone <£mu‘t of to  Btixtix
October Term ,  1943

No.

U nited States of A merica ex rel. W infred 
W il l ia m  L y n n ,

Petitioner,
— against—

Colonel J ohn  W. D owner, Commanding Officer 
-ad Camp Upton, New York,

Respondent.

PETITION FOR A W RIT OF CERTIORARI TO THE 
UNITED STATES CIRCUIT COURT OF APPEALS FOR 
THE SECOND CIRCUIT AND BRIEF IN SUPPORT

THEREOF

A rthur  G arfield H ays, 
G erald W eatherly,

Counsel for Petitioner.

Conrad J. L y n n , 
A lbert C. G ilbert, 

On the Brief.





I N D E X
PAGE

Petition for Writ of Certiorari....................................  1-7

Statement of Matter Involved ....................................  1-4

F a c ts ........................................................................... 2-3

Opinions Below ......................................................  4-5

Jurisdiction ..................................................................... 5,9

Questions Presented ....................................................... 5

Statutes and Regulations.............................................. 2, 23-24

Reasons for Granting W r i t ..........................................  5-6

Certification of Merit ....................................................  7

Brief in Support of P etition ........................................  9-24

Statement of Case ..........................................................  9

Summary of Argum ent..................................................  9

Point I

The selection and induction of Petitioner pur­
suant to the Negro quota requisition, in conjunc­
tion with the separate Negro delivery list, was 
discrimination against him on account of race or 
color and in violation of the statute..................  10-20

Point II

The judgment of the Circuit Court of Appeals 
should be reversed, and Petitioner should be dis­
charged ..................................................................... 21

A rgument ................................................................................  10-20

Conclusion ..............................................................................  20

A ppendix ..................................................................................  23-24



2

he was selected and inducted under a “Negro quota,” in 
violation of the “no discrimination” provision of the Selec­
tive Training and Service Act of 1940 (50 U. S. C. A. 
App. Sec. 304 [a ]). The opinions in the Circuit Court of 
Appeals appear in the Record at pages 63-74, folios 64-77, 
and are reported in 140 F. 2d 397.__

The Statutes and Regulations.

The portion of the statute involved in this application 
(50 U. S. C. A. App. Sec. 304 [a ]), reads as follows:

“ * * * In the selection and training of men under this 
Act, and in the interpretation and execution of the pro­
visions of this Act, there shall be no discrimination 
against any person on account of race or color.”

Selective Service Regulations (2d ed.) Sec. 623.1, read, 
so far as material, as follows:

“ (c) In classifying a registrant there shall be no dis­
crimination for or against him because of his race, 
creed, or color, or because of his membership or activity 
in any labor, political, religious, or other organization. 
Each registrant shall receive equal and fair justice.”

The Facts.

Relator-appellant is an American citizen and a Negro 
(R. 23, fol. 68). He duly registered under the Selective 
Service Act of 1940. He received an order to report for 
induction on September 18, 1942 (Relator Exhibit 3; R. 58, 
fol. 172; R. 23-24, fols. 68-71). That order was made pur­
suant to the requisition for induction of August 7, 1942, 
which appears as Relator Exhibit 1 (R. 55, fol. 163. Cf. 
R. 45, fol. 134; R. 22-23, fols. 66-67; R. 55, fol. 164; R. 58, 
fol. 174; R. 24, fols. 70-71). That requisition called on



3

Local Board No. 261, setting forth its quota “ for this call” 
as “ the first 90 white men and the first 50 Negro men who 
are in Class 1-A.”

The method which led to Lynn’s induction is clear from 
the testimony of Col. Arthur Y. McDermott, New York City 
Director of Selective Service, who said (R. 13-14, fols. 
39-40) :

“We receive a requisition from the government for 
so many white men and so many colored men for induc­
tion each month and then we break that list down 
among the local boards and that is on a proportionary 
basis and each local hoard will be called upon to pro­
duce so many whites and so many Negroes for induc­
tion.”

Col. McDermott further testified that men ordinarily were 
taken in their turns, but that there was an exception in 
case of Negroes and whites (R. 15, fols. 43-44). There was 
“a Negro quota and a white quota” (R. 16; fol. 46). There 
was also “ a separate delivery list” (R. 14; fol. 41).

The facts” are clear from the categorical testimony of 
Col. McDermott (R. 16, fol. 46) :

“ * * * you do have a Negro quota and a white quota? 
A. Oh, yes.”

Also at R. 17, folio 51:
“ Colonel, am I not right in my statement that Negroes 
and white men are not called in turn or serially, but 
that the question of color has something to do with the 
time they are called? A. That’s right.”

The issue was clearly stated by the trial court (R. 32; 
fol. 96) :

“ The petition raises the issue fairly enough, whether 
or not he was sent under a Negro quota, and if he



4

was they contend that is not in accordance with the 
law and the Constitution.”

The Opinions Below.

The majority of the Circuit Court of Appeals, Mr. Justice 
Swan and Mr. Justice Augustus Hand, held “that requisi­
tions calling for a specified number of whites and a specified 
number of Negroes for induction during a given month and 
based on relative racial proportions of the men registered 
with a local board and subject to call for induction, is a 
necessary and permissible administrative procedure, and the 
regulations which sanction it are not violative of the Act” 
(R. 68; fol. 69).

Mr. Justice Clark, dissenting, held that the language and 
history of the Statute forbade this procedure, adding (R. 
72; fol. 74) :

“  * * * In fact, I find it difficult to think of more apt 
language to express the Congressional intent; the sug­
gestion that Congress should have said something more, 
or amended the statute, means in effect that it should 
be watchful to see how a statute is violated and then 
expressly negative such violation or be assumed to sanc­
tion it.”

In answer to the alleged practical difficulties which it is 
said might arise if petitioner’s position were upheld. Judge 
Clark said (R. 74; fol. 76) :

“  * * * This registrant asserts his desire to serve and 
his willingness to do so if inducted according to law. 
I think it unsound to overlook a violation of law as to 
him on a premise which we ourselves would reject as 
patriotic citizens and which is contrary to the whole 
spirit of the Act, namely, that avoidance of service is



5

to be desired. But notwithstanding the fears expressed 
by the United States Attorney, this cannot mean the 
release from the Army of large numbers of soldiers; 
alike with volunteers, those who have gone into service 
properly without immediately raising any objections 
they have, and relying upon them as steadfastly as did 
this registrant here, surely have no ground to approach 
the court.”

Jurisdiction.

The Jurisdiction of this Court is invoked under Section 
240 (a) of the Judicial Code as amended by the Act of 
February 13, 1925, c. 229, §1 (43 Stat. 938), 28 U. S. C. A. 
§347 (a). The judgment of the Circuit Court of Appeals 
was entered February 21, 1944 (R. 75).

Question Presented.

1. Whether, consistently with the “no discrimination” 
provision of the statute, Negro American citizens can be 
selected and inducted, not strictly in their turn according 
to their order numbers as determined by the impartial Na­
tional draft lottery, but under separate “Negro quotas” 
based on the percentage of negroes in the population of the 
local board area.

Reasons Relied on for the Allowance of the Writ.

The Circuit Court of Appeals has decided an important 
question of federal law which has not been, but should be, 
settled by this Court.

It has decided:

(a) That it is not “discrimination against” petitioner, a 
patriotic American citizen, to call him for induction later



6

than his turn according to the impartial national draft 
lottery;

(b) That it is not “ discrimination against” petitioner to 
call him, not strictly in his turn according to his order num­
ber as determined by the impartial national lottery, but 
pursuant to a separate “Negro quota” based on the per­
centage of Negroes in the population of the local board 
area.

Petitioner and the dissenting Justice of the Court below, 
Mr. Justice Clark, view the practice of the Draft Authori­
ties, thus upheld, as a direct violation of the expressed 
will and policy of Congress. Where a statute says there 
shall be “ no discrimination” in the selection of men, can the 
civilian authorities through draft boards handle the selec­
tion of men in such a way that the color of a man plays 
a significant part in his induction? American citizens are 
entitled to be called to serve in their turn as American citi­
zens and this applies to all—Jew, Protestant, or Catholic, 
white, red or black. Petitioner considers the present method 
of selection a tragic blow to the freedom and solidarity of the 
nation, affecting in its consequences not only the liberties, 
sensibilities, and self-respect of the 13,000,000 Negroes of the 
counfry, but also the liberties of all others. Selection of 
men is'a civilian not a military function. If the unequivocal 
direction of Congress can be flouted by ministerial officers, 
civil or military, the liberties of all of us—and particularly 
the rights of the millions of young men, white and black, 
now being drafted—are endangered.

A herefore petitioner prays that a writ of certiorari may 
issue out of and under the seal of this Court, directed to 
the 1 nited States Circuit Court of Appeals for the Second 
Circuit, commanding that Court to certify and send to 
this Court for review and determination, as provided by



7

law, this cause and a complete transcript of the record and 
of all proceedings had herein; that the order of the 
United States Circuit Court of Appeals affirming the judg­
ment in this cause may be reversed; and that petitioner 
may have such other and further relief in the premises as 
this Court may deem proper.

Dated April ~) , 1944.

A rthur G arfield H ays, 
G erald W eatherly ,

Counsel for Petitioner.

I hereby certify that I have examined the foregoing peti­
tion for a writ of certiorari and that in my opinion it is 
well founded and the cause is one in which the petition 
should be granted.

A rthur  Garfield H ays,
Counsel for Petitioner.





i i ’ttjm n tt?  (H orn*! o f  tlip  S t a t e s
October Term , 1943 

No.

United States of A merica ex  rel. W infred W illiam  Ly n n ,

Petitioner,
— against—

Colonel J ohn  W. D owner, Commanding Officer at Camp 
Upton, New York,

Respondent.
-*■-----------------------------------

BRIEF US SUPPORT OF PETITION FOR CERTIORARI

Jurisdiction.

The statement of jurisdiction is in the foregoing petition.

Statement of the Case.

The facts have been set forth in the foregoing petition.

SUMMARY OF ARGUMENT 

POINT I.

The selection and induction of petitioner pursuant 
to the Negro quota requisition, in conjunction with the 
separate Negro delivery list, was discrimination against 
him on account of race or color and in violation of the 
statute.

POINT II.

The judgment of the Circuit Court of Appeals should 
be reversed, and petitioner should be discharged.



10

A R G U M E N T  

POINT I.

The selection and induction of petitioner pursuant 
to the Negro quota requisition, in conjunction with the 
separate Negro delivery list, was discrimination against 
him on account of race or color and in violation of the 
statute.

The law says there should be no discrimination because 
of race or color. Col. McDermott says that color has some­
thing to do with the time men are called. Is this, or is this 
not, discrimination?

The word “discriminate” is defined in Webster’s New 
International Dictionary (2d ed.) as follows:

“ * * * having the difference marked * * * distinct; * * * 
to serve to distinguish; to mark as different; to differ- 
entiate; * * * to separate by discerning differences; to_ 
rlist.ingnlshL; * * * to make a distinction; * * * to make 
a difference in treatment or favor (of one as compared 
with others) * * * ”

In the Standard Universal Dictionary, “discriminate” is 
defined:

“ To note the differences between; note or set apart 
as different; differentiate; distinguish; * * * to make 
a distinction.”

The word “discrimination” is defined by Webster and the 
Standard Universal Dictionary as:

“ The act of discriminating or state of being discrimin­
ated; * * * a distinction as in treatment; * * * differ­
ence in treatment * * * . ”



11

The monumental New English Dictionary prepared by 
Dr. J. A. H. Murray and other Oxford scholars, defining 
the phrase “ to discriminate against,” says (Vol. 3, p. 436) :

“ * * * to make an adverse distinction with regard to ; 
to distinguish unfavourably from others.”

The word discriminated is derived from the Latin “dis- 
crimino” which means “ to divide,” “ to distinguish.”

It may be that colloquially and on occasion the term is 
used to indicate an unfair, injurious and unjust distinction, 
but the statute here refers not to unjust, or unfair or in­
jurious discrimination, but to discrimination.

It should be noted that in the last war, the Selective 
Draft Act of 1917 (50 U..B. C, A. Ann. Sec. 2011 did not 
provide against discrimination. The purpose of that clause 
in the Act of 1940 was clearly to prevent officials who were 
administering the Act from making any differentiation based 
on race or color.

The provision originated in an amendment offered by 
Congressman Fish. 86 Cong. Rec. 11,675, col. 1. The Fish 
amendment, in almost exactly the same language as now 
appears in the Statute, read:

“Provided, That in the selection and training of men, as 
well as in the interpretation and execution of the pro­
visions of this act, there shall be no discrimination 
against any person on account of race, creed, or color.”

This was immediately objected to on the ground that the 
same provision was already in the Bill before the House. 
86 Cong. Rec. 11,675, Col. 1. The ruling of the Chairman 
was, however (86 Cong. Rec. 11,675, Col. 2) :

“ The Chairman (Mr. Warren in the chair). Sub­
section (a) of section 4 provides that The selection of



12

men subject to the training and service provided for in 
section 3 (other than those who are voluntarily in­
ducted pursuant to his act) shall be made in an im­
partial manner/ and so forth. The Chair regards the 
amendment as a further clarification and holds that it 
is in order and therefore overrules the point of order.”

Thereupon there was a sharp debate, not in opposition 
to the principle expressed, but on the ground that the pro­
vision was unnecessary, as already incorporated in the Act. 
The amendment was supported, however, as Judge Clark 
said (R. 71, fob .72), “ to make assurance sure and to quiet 
the doubts of representatives of the colored people.” Con­
gressman Pish said he w as^otthe originator of the amend­
ment, but sponsored it by request of a group of promiagnt 
colored leaders “who are interested and represent the 
interests' of eleven million Negroes in America.” 86 Cong. 
Rec. 11,675, 11,676.

At length, after one vote wherein the amendment appeared 
to be lost, it finally passed the House by a vote of 121 to 99. 
86 Cong. Rec. 11,680.

We think it is clear that the expressed Congressional in­
tent was and is that Avhites and Negroes are to be selected 
for service without discrimination.

The facts show, however, that whites and Negroes are 
not treated the same. Under the Selective Training and 
Service Act, a lottery of selective service numbers was held. 
American citizens were to be chosen in the order to which 
their numbers were drawn. This applied to colored men, 
white men, Indians, Catholics, -Tews, Protestants and every 
other group in the country. There can be no more justifi­
cation for calling colored men otherwise than serially, than 
there could be for calling Catholics, Jews and Protestants 
according to their religion, rather than according to their 
numbers.



13

Can it be said that men are not treated differently 
where the local boards are called upon for different quotas? 
If a citizen is called later than his turn, there is quite as 
much discrimination against him as if he is called earlier 
than his turn. He has a legal right to be chosen according 
to his number. The evidence shows this is not done so far 
as Negroes are concerned. It was not done in this case. 
The facts warrant no conclusion other than that Negroes 
are not called serially and in their turn. Is this discrimi­
nation? We submit that the treatment of one citizen differ­
ently from another constitutes discrimination.

In answer to this, the following arguments may be made 
by the government:

A

The statute says there should be no discrimination against 
any person on account of race or color. Does it follow from 
this that discrimination is permissible if it is not against 
any persont It is submitted that discrimination against 
a group is discrimination against every person in that 
group. It may be claimed that while there is discrimina­
tion, it is not “ against.”  It is submitted that discrimina­
tion of any kind is discrimination “against”  as well as 
“for.” The regulations make clear the intent of the Act. 
They provide that there shall be no discrimination “ for 
or against” any person because of his race, creed or color, and 
that “each registrant shall receive equal and fair justice.” * 
Further than this, the Selective Training and Service Act 
(50 U. S. C. A. App. §304 (a) ) ,  says selection “ shall be 
made in an impartial manner.” The purpose of the Act 
was to assure that all American citizens should be treated 
alike.

Selective Service Regulation, 2nd Ed., Sec. 623.1.



14

B

It has been suggested that it may well have been that 
under the method of selecting inductees, petitioner suffered 
no disadvantage, that if he had been called strictly in his 
turn according to his order number as determined by the 
national lottery, he might have been called sooner, and that 
therefore he has nothing of which to complain. It is sub­
mitted that this would not excuse discrimination. Any 
such argument assumes that it is an advantage to a man 
not to be called in his turn. Some of us feel that it is 
an honor to serve the country, that one might well be prej­
udiced through a denial of his right to serve at the proper 
time. In the Court below, with reference to the Govern­
ment’s suggestion that petitioner was not injured if he 
was called later than his turn, Judge Clark said (E. 74; 
fol. 76) :

“  * * * But I do not think the supposition can be accepted 
as being in accord with the habits and thoughts of 
patriotic citizens during the present crisis or permitted 
by the statute, which requires that there be no dis­
crimination for color, not that there be no legally dis­
advantageous discrimination. This registrant asserts 
his desire to serve and his willingness to do so if 
inducted according to law. I think it unsound to over­
look a violation of law as to him on a premise which 
we ourselves would reject as patriotic citizens and 
which is contrary to the whole spirit of the Act, namely, 
that avoidance of service is to be desired. * * * ”

At any rate, petitioner’s complaint is that he was not 
called in his turn pursuant to the requirements of the law; 
that he was called out of his turn because of his color. 
Whether or not he would have been called sooner or later



15

under the circumstances has nothing to do with the ques­
tion at issue. Petitioner makes no complaint that as a 
citizen, he was called upon to fight for his country. He 
does complain that his people are not granted their rights. 
He insists upon his rights, whatever might be the effect 
upon him personally.

C

Argument might be made that, in view of the fact that 
there are separate quotas, white men are called out of their 
turn, and that therefore there is no discrimination between 
them and Negroes. This is equivalent to saying that there 
is discrimination against whites as well as against Negroes. 
This was the testimony of Mr. Black (R. 31, fol. 92), con­
nected with the Selective Service Headquarters in New York 
(R. 42, fol. 126). Indeed, strong complaint against dis­
crimination against whites in favor of Negroes has recently 
been made on the floor of Congress, where Congressman 
McKenzie of Louisiana quotes from a Louisiana newspaper 
a statement that from a certain Parish in that State there 
have been called for military service a group of married men 
with pre-Pearl Harbor children, while 267 Negro single 
men remain on the Class 1-A list, and that both white and 
Negro citizens are disturbed by the discrimination. 89 Cong. 
Rec. A-5268, A-5269.

D

Argument might be made that petitioner has not proved 
that he was not called at precisely the same time as that 
at which he would have been called had men been inducted 
strictly according to their order numbers, irrespective of 
the separate quotas for whites and Negroes. The answer 
to this is that such an outcome would be wholly coincidental. 
The mathematical probabilities and possibilities are such



16

that this result is so unlikely that it can be ignored. That 
petitioner would be called at the same time under either 
method of selection would not happen in one case out of 
tens of thousands, or perhaps millions.

Using the requisition of August 7th (Exhibit 1, R. 55, 
fol. 163) as an example, the record shows by the testimony 
of the Selective Service officials, that the local board has 
its lists of registrants, known as delivery lists; that the 
local board has separate delivery lists—one for Negroes and 
one for whites, though there is only one series of older 
numbers (R, 13-14, fols. 39-41) ; that, on receiving the 
requisition for 90 whites and 50 Negroes, the local board 
first takes the Negro list, counts down on it the first fifty 
class 1-A Negroes and calls them for induction; that then 
the local board takes the white list and counts down on it 
the first ninety whites, and calls them for induction. In 
other words, the Negroes and whites are not on one delivery 
list in the order of their order numbers, as determined by 
the national lottery, to be taken indiscriminately according 
to such order numbers; but, after the order numbers are 
determined indiscriminately, the Negroes and whites are 
separated and thereafter dealt with as separate groups on 
separate lists by separate requisitions.

To use these actual numbers for the purposes of example, 
let us suppose that 180 white men and 100 Negroes were 
available to the local board (following the proportions as 
shown by Relator Exhibit 1). Now let us suppose that on 
the list of eligible and available men, the first 140 men, ac­
cording to order numbers, were white; that the next 100 men 
on the list, according to order numbers, were Negroes; and 
that the last 40 men, on the list of 280 available and 
eligible men, were white. Let us further suppose that the 
present requisition came to the local board, calling for 90 
whites and 50 Negroes. According to the present system,



17

the board takes the Negro list and counts down the first 
50 Negroes and calls them for induction (R. 15-16, fols. 45- 
46), so that it is inevitable that 50 Negroes will be called; 
and then the Board takes the white list and counts down the 
first 90 whites, and calls them for induction. But if only one 
list were used, containing the mixture of whites and Negroes 
which we have supposed, the result would be as follows: The 
Board would count down on the one list the first 140 men, 
and it would happen that these first 140 men would all be 
whites, so that no Negroes wmuld be inducted under that 
requisition.

We cannot think that in a case so vitally affecting the 
lives, liberties and rights of great bodies of American citi­
zens, it can be required that the petitioner’s complaint 
should be disposed of on the basis of the bare possibility that 
it might have happened that petitioner would have been 
called for induction under the present system at exactly 
the same time as if he had been selected without the use 
of a separate Negro quota and a separate Negro delivery 
list.

Moreover, as Judge Clark wrote in the Court below (R. 
73, fol. 76) :

a * * * It is suggested, however, that even if the statute 
is violated, this registrant cannot take advantage of it, 
for he has not shown that his call was not delayed; 
rather than accelerated, by the practice, with the fur­
ther correlative supposition that delay must of necessity 
be an advantage. Even if this supposition is to be 
accepted, there was evidence in the record that Negroes 
might be called in advance of whites, that in fact a 
call for Negroes would be allocated ‘to those boards 
where Negroes are’ ; and since this was a matter pe­
culiarly within the Government’s knowledge, it would



18

seem under the circumstances to have the burden of 
going forward with the evidence. * * * ”

E

It has been argued that petitioner failed to prove that he 
was inducted under this system of separate quota lists. This 
contention was overruled by all of the Circuit Court of 
Appeals, the majority as well as the dissenting judge (E. 
65, fol. 66).

F

It may be argued that this case is parallel with those where 
state laws have been held constitutional which provide for 
the separation of races in the enjoyment of privileges, if 
the privileges given to the separate groups are equal. See 
Gong Lum v. Rice (1927), 275 U. S. 78; Missouri ex rel. 
Gaines v. Canada (1938), 305 U. S. 337; Plessij v. Ferguson 
(1896), 163 IT. S. 537. These cases are wholly inapplicable. 
They deal only with the question of the power of the state 
as limited by the equal protection and dne process provi- 
sions of the Fourteenth Amendment of the Federal Con­
stitution. The situation is quite different in the present 
case, which deals with a function of the federal government, 
governed by federal law, and wherein the federal law spe­
cifically provides that there shall be no discrimination.
""Judge Clank's answer to the Government’s contention in 

this respect was as follows (R. 74; fols. 76-77) :

“ It is to be noted that in final analysis the case for the 
validity of the call here rests upon the policy of segre­
gation, where equal facilities are afforded, as sanctioned 
by various Supreme Court decisions. But actually 
these precedents call for the contrary result. It must 
not be overlooked that they do insist upon equal accom­



19

modations, which here must mean equal calls to ser­
vice. * * * ”

G

Finally, it may he argued that if petitioner’s contention 
is upheld, the entire army system of the United States 
would have to he reorganized.

Again Judge Clark answered this contention in the Court 
below (R. 74; fol. 76) :

“ * * * notwithstanding the fears expressed by the United 
States Attorney, this cannot mean the release from 
the Army of large numbers of soldiers; alike with 
volunteers, those who have gone into service properly 
without immediately raising any objections they have, 
and relying upon them as steadfastly as did this regis­
trant here, surely have no ground to approach the court.”

Since the Act applies to training as well as to the selec- 
tion of men, we submit that there is no legal warrant for 
discrimination in the armed forces. That issue, however, is 
not in this case. If it were, the case might raise the question 
of whether or not there were equal accommodations.

This case raises the question of discrimination in selection 
only. Petitioner objects to selection by civilian boards un­
der a separate Negro quota in the draft call. The illegal 
act was completed when he received the notice to appear for 
induction. What happened to him thereafter is not decisive 
of this question. It may very well be that selection in 
racial quotas facilitates the Army policy of segregating 
Negroes in training. -So. too, might the desire of the Army 
for able-bodied men be satisfied by ordering conscientious 
objectors to report to the armed services. But the end at­
tained does not validate the means employed. In both in­



20

stances it might be found that the resulting service was 
illegal and writs granted not only because of the character 
of the service but because of the manner in which it was 
procured.

As the Court said in Ver Mehren V. Sirmyer (C. C. A. 8th, 
1929) 36 F. 2d 876, 881:

“ The induction of a civilian into military service is a 
grave step, fraught with grave consequences. * * * But 
what we emphasize is the necessity that all the steps 
prescribed by statute, and by regulations having the 
force of law, shall be strictly taken before it can be held 
that a person has been lawfully inducted into the 
military service. * * * ”

CONCLUSION

It may appear to the court that in our argument from 
(A ) to (G) we have set up straw men in order to knock 
them down; but, as appears from the record, these are the 
kind of arguments the Government made in the courts below. 
We submit that the only question here is as to whether the 
selection of citizens in the draft, not strictly according to 
order number, but in part because of color, constitutes dif­
ferentiation, and whether or not this differentiation is dis­
crimination. When we recall that the present method is 
not different in substance from that used in the last war, 
and that Congress added to the present Act the provision 
prohibiting discrimination, we might well ask ourselves what 
the prohibition means. We submit that by the new words, 
Congress intended that the selection of men by civilian 
boards should be made strictly according to order number, 
that men have a right to be so chosen; that they have a 
right to be called in their turn as American citizens without 
regard to race or color.



21

POINT II.

The judgment of the Circuit Court of Appeals should 
be reversed, and petitioner should be discharged.

Respectfully submitted,

A rthur  Garfield H ays, 
Gerald W eatherly,

Counsel for Petitioner.

On the Brief:

Conrad J. Ly n n , 
A lbert C. G ilbert.





23

APPENDIX

Selective T raining  and Service A ct of 1940, Section 
304 (a) :

“The selection of men for training and service under 
section 3 [section 303 of this appendix] (other than 
those who are voluntarily inducted pursuant to this 
Act) shall be made in an impartial manner, under such 
rules and regulations as the President may prescribe, 
from the men who are liable for such training and ser­
vice and who at the time of selection are registered and 
classified but not deferred or exempted: Provided, That 
in the selection and training of men under this Act, 
and in the interpretation and execution of the provisions 
of this Act, there shall he no discrimination against any 
person on account of race or color: Provided further, 
That in the classification of registrants within the juris­
diction of any local board, the registrants of any par­
ticular registration may be classified, in the manner 
prescribed by and in accordance with rules and regula­
tions prescribed by the President, before, together with, 
or after the registrants of any prior registration or 
registrations; and in the selection for induction of per­
sons within the jurisdiction of any local board and 
within any particular classification, persons who were 
registered at any particular registration may be se­
lected, in the manner prescribed by and in accordance 
with rules and regulations prescribed by the President, 
before, together with, or after persons who were regis­
tered at any prior registration or registrations.” (50 
TJ. S. C. A. Section 403 (a), 54 Stat. 887, as amended 
Dec. 20, 1941 c. 602, §3, 55 Stat. 845.)



24

S e l e c t iv e  S e r v ic e  R e g u l a t i o n s  (2d E d .)  S e c t i o n  623.1;

Selective Service Regulations (2d Ed.) Section 623.1 
read, so far as material, as follows:

“ (c) In classifying a registrant there shall be no 
discrimination for or against him because of his race, 
creed, or color, or because of his membership or activity 
in any labor, political, religious, or other organization. 
Each registrant shall receive equal and fair justice.”

J udicial Code op the  U nited States, Section 240 (a) ,  
as amended:

“ In any case, civil or criminal, in a circuit court of ap­
peals, or in the Court of Appeals of the District of 
Columbia, it shall be competent for the Supreme Court 
of the United States, upon the petition of any party 
thereto, whether Government or other litigant, to re­
quire by certiorari, either before or after a judgment 
or decree by such lower court, that the cause be certified 
to the Supreme Court for determination by it with the 
same power and authority, and with like effect, as if 
the cause had been brought there by unrestricted writ 
of error or appeal.” (28 U. S. C. A. §347 (a).)



N o .  9 4 1

Jit ite j&ttjron* dfaurt of tfo ‘SnM States
October T erm, 1943

U nited States of A merica ex rel. W infred 
W illiam L ynn , petitioner 

v.
Colonel John W . Downer, Commanding 

Officer at Camp U pton, N ew Y ork

O N  P E T I T I O N  F O R  A W R I T  O F  C E R T I O R A R I  T O  T H E  U N IT E D  
S T A T E S  C I R C U I T  C O U R T  O F  A P P E A L S  F O R  T H E  S E C O N D  
C I R C U I T

MEMORANDUM FOR THE RESPONDENT





I N D E X

Page
Opinions Below_____________________________________________________  1
Jurisdiction______________________________    1
Question Presented---------------------------------------------------------------------------  2
Statutes and Regulations Involved________________________________ 2
Statement____________________________________________________________  6
Discussion___________________________________________________________  10
Conclusion___________________________________________________________  19

C IT A T IO N S
Cases:

E x  -parte C atanzaro, 138 F. (2d) 100, certiorari denied,
March 27, 1944______________________________________________  12

E x  parte W e il , 317 U. S. 597__________________________________  10
F ish er  v. B a ker, 203 U . S. 174______________________________...  10
Ia s ig i  v. V a n  de Carr, 166 U. S. 391--------------------------------------  19
Joh n son  v. H o y , 227 U. S. 245_______________________________  10
N ish im u ra  E k iu  v. Lrnited States, 142 U. S. 651------------------- 19
Stallings v. S p la in , 253 U. S. 339-------------------------------------------  10
T ornello  v. H u d sp eth , 318 U. S. 792---------------------------------------  10
Xjnited States ex rel. In n e s  v. C rystal, 319 U. S. 755 ------------- 10
L n ited  States ex rel. M en sevich  v. T od, 264 U. S. 134----------  19
W a les  v. W h itn e y , 114 U. S. 564_____________________________  10
W eb er  v. Squier, 315 U. S. 810_______________________________  10
Z im m erm a n  v. W a lker, 319 U. S. 744 ------------------------------------  10

Statutes and Regulations:
Act of July 28, 1866, c. 299, §§ 3, 4, 14 Stat. 332---------------- 13
National Defense Act of 1940, c. 508, § 2 (b), 54 Stat. 7 1 2 „  13
Selective Service Regulations:

Sec. 623.1__________________________________________________ 4
632.1 ____________________________________________________  5
632.2  ____________________________________________________  5
632.3 ____________________________________________________  6

Selective Training and Service Act of 1940, as amended (50
U. S. C. App., Supp. I l l ,  Sections 303 (a) and 304 (a ))._  2, 13,

14, 16, 18
Miscellaneous:

86 Cong. R ec.:
10,890______________________________________________________ 14
11,427_____________________________________________________  15
11.675 ___________________________________________________  14
11.676 ___________________________________________________  15

Rules of the Supreme Court:
Rule 4 5 ( 1 ) ____________     12
Rule 45 (2)________________________________________________  9

Rules of the Circuit Court of Appeals for the Second Circuit:
Rule 31 (2)________________________________________________  9,11

Rules of the Circuit Court of Appeals for the Third Circuit:
Rule 17 (1)________________________________________________  12

588918— 44------- 1 (I)





Jn d[m rt uf to tfoM states
October Term, 1943

No. 941

U nited States of A merica ex rel. W infred 
W illiam Lynn , petitioner 

v.
Colonel John W . Downer, Commanding 

Officer at Camp U pton, New  Y ork

O N  P E T I T I O N  F O R  A  W R I T  O F  C E R T I O R A R I  T O  T H E  U N IT E D  
S T A T E S  C I R C U I T  C O U R T  O F  A P P E A L S  F O R  T H E  S E C O N D  
C I R C U I T

MEMORANDUM FOR THE RESPONDENT

OPINIONS BELOW

The majority (R. 63-69) and dissenting (R. 
69-74) opinions in the circuit court of appeals 
are reported at 140 F. (2d) 397.

j u r i s d i c t i o n

The judgment of the circuit court of appeals 
was entered on February 21, 1944 (R. 75). The 
petition for a writ of certiorari was filed on April 
28, 1944. The jurisdiction of this Court is in­
voked under Section 240 (a) of the Judicial Code, 
as amended by the Act of February 13, 1925.

(i)



2

QUESTION PRESENTED

Whether petitioner’s induction into the Army 
was illegal by virtue of the fact that he was called 
as one of an all-negro quota.1

STATUTES AND REGULATIONS INVOLVED

The Selective Training and Service Act of 1940, 
as amended (50 U. S. C. App., Supp. I l l ,  Sec­
tions 303 (a) and 304 (a), in pertinent part 
provides:

Sec. 3. (a) Except as otherwise provided 
in this Act, every male citizen of the 
United States, and every other male person 
residing in the United States, who is be­
tween the ages of eighteen and forty-five 
at the time fixed for his registration, shall 
be liable for training and service in the 
land or naval forces of the United States: 
Provided, * * * That within the lim­
its of the quota determined under section 
4 (b) for the subdivision in which he resides, 
any person, regardless of race or color, 
between the ages of eighteen and forty-five, 
shall be afforded an opportunity to volun­
teer for induction into the land or naval

1 As we shall show (infra, pp. 10-12), there may also be a 
question as to whether the present case has become moot by 
virtue of the fact that petitioner is no longer in the custody 
of respondent.

Although the petition for a writ of habeas corpus alleged 
that petitioner had been inducted in violation of the Fifth 
Amendment to the Constitution of the United States, the peti­
tion for a writ of certiorari limits the question presented to 
one of violation of the nondiscrimination provisions of the 
Selective Training and Service Act of 1940.



3

forces of the United States for the training 
and service prescribed in subsection (b), 
but no person who so volunteers shall be 
inducted for such training and service so 
long as he is deferred after classification: 
Provided further, That no man shall be 
inducted for training and service under this 
Act unless and until he is acceptable to the 
land or naval forces for such training and 
service and his physical and mental fitness 
for such training and service has been satis­
factorily determined: Provided further, 
That no men shall be inducted for such 
training and service until adequate pro­
vision shall have been made for such shel­
ter, sanitary facilities, water supplies, 
heating and lighting arrangements, medical 
care, and hospital accommodations, for 
such men, as may be determined by the 
Secretary of War or the Secretary of the 
Navy, as the case may be, to be essential 
to public and personal health * * *.
The men inducted into the land or naval 
forces for training and service under this 
Act shall be assigned to camps or units of 
such forces * * *.

Sec. 4. (a) The selection of men for train­
ing and service under section 3 (other than 
those who are voluntarily inducted pur­
suant to this Act) shall be made in an 
impartial manner, under such rules and 
regulations as the President may prescribe, 
from the men who are liable for such train­
ing and service and who at the time of 
selection are registered and classified but



4

not deferred or exempted: Provided, That 
in the selection and training of men under 
this Act, and in the interpretation and 
execution of the provisions of this Act, 
there shall be no discrimination against any 
person on account of race or color: Pro­
vided farther, That in the classification of 
registrants within the jurisdiction of any 
local board, the registrants of any par­
ticular registration may be classified, in the 
manner prescribed by and in accordance 
with rules and regulations prescribed by 
the President, before, together with, or 
after the registrants of any prior registra­
tion or registrations; and in the selection 
for induction of persons within the juris­
diction of any local board and within any 
particular classification, persons who were 
registered at any particular registration 
may be selected, in the manner prescribed 
by and in accordance with rules and regu­
lations prescribed by the President, before, 
together with, or after persons who were 
registered at any prior registration or 
registrations.

The Selective Service Regulations, at the time 
at which petitioner was ordered to report for in­
duction, provided in pertinent part as follows: 2

2 The Regulations quoted have since been amended but not 
in any respects pertinent to the present case or in any way 
reflecting a change in policy in the matter of negro and white 
quotas.

The petition also cites (Pet., p. 2) Sec. 623.1 of the Selec­
tive Service Regulations, which reads in part as follows:

(c) In classifying a registrant there shall be no clis-



5

632.1 INDUCTION CALLS BY THE 
DIRECTOR OF SELECTIVE SERVICE. 
When the Director of Selective Service 
receives from the Secretary of War or the 
Secretary of the Navy a requisition for a 
number of specified men to be inducted, 
he shall distribute the number of specified 
men requisitioned among the States to be 
called upon to furnish such men to fill such 
requisition. He shall then issue a call on a 
Notice of Call on State (Form 12) to the 
State Director of Selective Service of each 
State concerned, sending two copies thereof 
to the Secretary who issued the requisition. 
The State Director of Selective Service, 
upon receiving such call, shall confer with 
the Corps Area Commander (or representa­
tive of the Navy or Marine Corps) for the 
purpose of determining the number of spec­
ified men to be delivered, in order to actu­
ally induct a net of the number of the 
specified men in such call, and arranging 
the details as to the times when and the 
places where such men will be delivered.

632.2 INDUCTION CALLS BY THE 
STATE DIRECTOR OF SELECTIVE 
SERVICE, (a) After conference with the 
Corps Area, Commander (or representative

crimination for or against him because of his race, creed, 
or color, or because of his membership or activity in any 
labor, political, religious, or other organization. Each 
registrant shall receive equal and fair justice.

However, it should be noted that this case involves no ques­
tion of discrimination with respect to petitioner s classifi­
cation.



6

of the Navy or Marine Corps), the State 
Director of Selective Service shall issue 
calls to local boards to meet the number 
agreed upon as necessary in order to fill 
the State call. * * *

632.3 SELECTION OE MEN TO FILL 
INDUCTION CALL, (a) Each local 
board, when it receives a call, shall select 
a sufficient number of specified men to fill 
the call. It shall first select specified men 
who have volunteered for induction. To fill 
the balance of the call, it shall select speci­
fied men from such group or groups as the 
Director of Selective Service may desig­
nate, provided that within a group selection 
shall be made in sequence of order num­
bers.

STATEMENT

Relator, a negro, registered for the draft with 
Local Board No. 261, Jamaica, Long Island. No 
question is raised as to the propriety of his I -A  
classification. On September 8, 1942, the Local 
Board ordered him to report on September 18 
for induction into the Army (R. 58-59). The 
order was issued pursuant to call No. 29, directed 
by New York City Headquarters of Selective 
Service to the Local Board, which fixed as the 
Board’s quota for September “ the first 90 White 
men and the first 50 Negro men who are in Class 
I -A ”  and required that separate delivery lists



7

be made for the white and negro registrants de­
livered (R. 55-56).3

Petitioner disobeyed the Local Board’s order 
to report for induction (R. 24) and was sub­
sequently indicted for violation of the Selective 
Training and Service Act (R. 26). Following an 
abortive habeas corpus proceeding (see R. 5) his 
attorneys advised him that in order to be able 
to raise any issue of racial discrimination he 
would have to submit to induction (R. 27). The 
Local Board issued another order on December 
10, 1942, requiring him to report for induction 
on December 19 (R. 56-57). This he did, and 
on December 19 he was inducted as a delinquent 
and sent to Camp Upton, New York. On De­
cember 23 the criminal proceeding against him 
was terminated by the entry of a nolle prosequi. 
On the same day the writ of habeas corpus in 
the present proceeding was issued, returnable on 
December 28 (R. 1, 4). The petition for the 
writ challenged the validity of his induction as 
a member of a “ Negro quota,”  alleging that it 
constituted a violation of the Constitution of the

3 Within each quota (white or colored as the case may be) 
the men are called strictly in accordance with their order 
numbers. However, the fact that negroes and whites are 
called separately, pursuant to separate quotas, concededly 
results in departures from the order in which they would be 
called on the basis of order numbers alone, without regard 
to color. (See E. 13-18.)

588918— 44------ 2



8

United States and the nondiscrimination provi­
sions of the Selective Training and Service Act 
(supra, pp. 3-4).

The district court ruled that no question of 
the effect of alleged racial discrimination on the 
validity of an induction was properly before it, 
on the view that petitioner was in fact inducted 
as a delinquent rather than as a member of a 
negro quota (R. 53). At the close of the hear­
ing, on January 4, 1943, the court announced its 
decision orally, stating (R. 54): “  W rit dis­
missed, and the relator is remanded to the 
authorities from whence he came.”  Judgment 
was entered accordingly on January 11, 1943 
(R. 3). Petitioner’s notice of appeal to the 
Circuit Court of Appeals for the Second Circuit 
was filed on January 18, 1943 (R. 2), but the 
stipulation as to the content of the record on 
appeal was not entered into until August 9, 1943 
(R. 60) and the case was not argued in the circuit 
court of appeals until December 8, 1943 (R, 63).

The War Department advises that in the mean­
time, on January 9, 1943, in reliance on the dis­
trict court’s oral dismissal of the writ of habeas 
corpus and before the filing of the notice of ap­
peal, petitioner was transferred in ordinary course 
from Camp Upton to the basic training center 
at Camp Siebert, Alabama, and that at no time 
since has he been in the custody of respondent. 
On April 20, 1943, he was transferred from Camp



9

Siebert to the 739th Sanitary Company at Camp 
Beale, California; on October 19, 1943, he was 
transferred to the 1962nd Service Unit Station 
Complement; and on October 22, 1943, he was 
transferred to a medical sanitary company with 
which he is now serving overseas with the rank 
of corporal. These transfers have all been in 
regular course,, At no time did petitioner ask 
either the district court or the circuit court of 
appeals for an order requiring that he be retained 
in respondent’s custody or otherwise within the 
jurisdiction of the court.4 Respondent himself is 
no longer commanding officer at Camp Upton, hav­
ing been retired from active duty on November 6, 
1943, on account of age.

No suggestion of possible mootness was made 
to the circuit court of appeals. That court, re­
jecting the basis of the district court’s decision 
{supra, p. 8), held that since petitioner’s 
delinquency resulted from his refusal to obey 
the September induction order issued pursuant 
to the requisition for 90 whites and 50 negroes,

4 Ernie 31 (2) of the Buies of the United States Circuit 
Court of Appeals for the Second Circuit is substantially 
identical with Eule 45 (2) of the Eevised Buies of this Court. 
It provides: “Pending an appeal from a decision discharging 
a writ of habeas corpus after it has been issued, the prisoner 
may be remanded to the custody from which he was taken by 
the writ, or detained in other appropriate custody, or en­
larged upon recognizance with surety, as to the court or 
judge rendering the decision may appear fitting in the cir­
cumstances of the particular case.”



10

such requisition “ was a direct cause of his in­
duction into the Army and constituted * * *
sufficient proof of the allegation in his petition 
that he was inducted as ‘ a member of a Negro 
quota’ ”  (R. 65). It affirmed, however, with one 
judge dissenting (R. 69-74), the district court’s 
dismissal of the writ of habeas corpus and held 
that “ the statutory provisions [supra, pp. 3-4] 
which the appellant invokes mean no more than 
that Negroes must be accorded privileges sub­
stantially equal to those afforded whites in the 
matter of volunteering, induction, training and 
service under the Act; in other words, [that] 
separate quotas in the requisitions based on rela­
tive racial proportions of the men subject to call 
do not constitute the prohibited ‘ discrimination’ ”  
(R, 69).

DISCUSSION

1. On the basis of the facts set forth in the 
Statement {supra, pp. 8-9), we respectfully 
suggest that the case may be moot. United States 
ex rel. Innes■ v. Crystal, 319 U. S. 755, 783; cf. 
Zimmerman v. Walker, 319 U. S. 744; Tornello 
v. Hudspeth, 318 U. S. 792; Ex parte Weil, 317 
U. S. 597; Weber v. Sqaier, 315 U. S. 810; Stall­
ings v. Splain, 253 U. S. 339, 343; Johnson v. Hoy, 
227 U. S. 245; Fisher v. Baker, 203 U. S. 174, 181; 
Wales v. Whitney, 114 U. S. 564. Respondent’s 
custody of petitioner had terminated more than 
a week prior to the filing of the notice of appeal 
to the circuit court of appeals from the order of



11

the district court dismissing the writ of habeas 
corpus. Such termination was in regular course 
of Army procedure, and was taken in reliance on 
the order dismissing the writ.6 Under such cir­
cumstances we believe that in order to preserve 
his appeal it was incumbent upon petitioner to 
procure an order from the court, in accordance 
with Rule 31 (2) of the Rules of the circuit court 
of appeals (see footnote 4, supra, p. 9), preserv­
ing respondent’s custody pending appeal. Other­
wise, an unfounded habeas corpus proceeding in­
terferes unduly with the regular course of Army 
training procedure, by requiring the commandant 
of a temporary reception center such as Camp 
Upton to retain the petitioner in his custody 
throughout the whole period during which an 
appeal may be taken from a decision discharging 
the writ, even though such an appeal may never 
be taken.15 We do not suggest that the deliberate

5 As shown in the Statement (supra, pp. 8-9), the de­
cision dismissing the writ was orally announced on Jan­
uary 4, 1943; judgment was entered accordingly on Jan­
uary 11; in the meantime, on January 9, petitioner had 
been transferred to Camp Siebert, Alabama; the notice of 
appeal was not filed until January 18; and the appeal was 
not perfected until many months later. While the transfer 
to Camp Siebert prior to actual entry of the order dis­
missing the writ may have been premature, it was validated 
by the entry of the order; and petitioner thus had been 
validly out of respondent’s custody for a week at the time 
the notice of appeal was filed on January 18.

6 Especially where, as here, there was such a long delay 
in perfecting the appeal, petitioner is in no position to com­
plain that respondent’s custody of him was not maintained.



12

“ passing about of the body of a prisoner from 
one custodian to another after a writ of habeas 
corpus has been applied for can defeat the juris­
diction of the Court to grant or refuse the writ 
on the merits of the application.” 7 But where, 
as here, the termination of respondent’s custody 
of petitioner was authorized by the order dis­
charging the writ, and was not in violation of any 
other court rule or order, we believe that there 
has ceased to be any controversy between peti­
tioner and respondent, and therefore we respect­
fully suggest that the case is moot.

2. On the merits petitioner’s contention is that 
his induction as a member of an all negro quota

7 Ex parte Catamaro, 138 F. (2d) 100, 101 (C. C. A. 3), 
certiorari denied, March 27, 1944. The Catamaro case is 
not inconsistent with the suggested mootness of the present 
proceeding. There, pending an appeal from the denial of 
an application for a writ of habeas corpus, the petitioner 
had been convicted of a violation of the Selective Service 
Act and had been transferred from the custody of the United 
States Marshal to the federal penitentiary at Lewisburg, 
Pennsylvania. In holding that the case was not thereby 
rendered moot, the court pointed out that Eule 17 (1) of 
its Rules expressly provided, the same as does Rule 45 (1) 
of the Revised Rules of this Court, that “Pending review 
of a decision refusing a writ of habeas corpus, the custody 
of the prisoner shall not be disturbed”, and that conse­
quently “The only way the Marshal could explain an inability 
to produce the petitioner in response to the writ, if issued, 
would be to set up a violation of the rule of this Court, which 
might serve as a confession, but hardly an avoidance.” No 
such considerations are applicable here, where the appeal is 
from an order discharging a writ of habeas corpus, and a 
different rule obtains. See footnote 4, supra, p. 9.



13

was illegal by virtue of the proviso of Section 
4 (a) of the Selective Training and Service Act 
{supra, pp. 3 -4 ) that “ in the selection and train­
ing of men under this Act, and in the interpreta­
tion and execution of the provisions of this Act, 
there shall be no discrimination against any per­
son on account of race or color” . It should be 
noted at the outset that the words “ selection and 
training”  are so linked together in the statute as 
presumptively to make anything a discrimination 
in training if  it is of a type that at an earlier 
stage would constitute a discrimination in selec­
tion. Yet petitioner has not challenged the pro­
priety of the military policy of separate training 
and service for the white and negro races, to which 
the practice of fixing separate white and negro 
quotas in the process of selection is subsidiary.

We believe that the proviso of Section 4 (a) 
clearly was not intended to abrogate the long- 
established policy of separate training and 
service.8 Senator Wagner of New York, in spon­
soring an amendment to Section 3 (a) for the 
purpose of making the privilege of voluntary

8 Since the Act of July 28, 1866 (c. 299, §§ 3, 4, 14 Stat. 
332), statutory provision has been made for separate negro 
regiments. The same Congress that enacted the Selective 
Training and Service Act of 1940 also enacted Section 2 (b) 
of the National Defense Act of 1940 (c. 508, § 2 (b), 54 Stat. 
712, 713), providing “that no negro, because of race, shall 
be excluded from enlistment in the Army for service with 
colored military units now organized or to be organized for 
such purpose.”



14

enlistment available “ regardless of race or color”  
{supra, pp. 2-3), explained that in certain 
branches of the service, the air forces in particu­
lar, negroes were “ refused enlistments alto­
gether” , and that his amendment was designed 
to open all branches of the service to negroes 
but did not contemplate the establishment of 
mixed units. He stated: “ There is no question 
of whether they are to be integrated or not. The 
complaint is against the refusal to permit them 
to serve. That is the only point I  am making.”  
(86 Cong. Eec. 10,890.) On the same day on which 
Senator Wagner’s amendment, as adopted by the 
Senate, was accepted by the House Military A f­
fairs Committee and approved by the House in 
Committee of the Whole, Congressman Pish of 
New York proposed the amendment which be­
came the nondiscrimination provision of Section 
4 (a). To the objection that the substance of 
the amendment was already in the bill, in the 
form of Senator Wagner’s amendment, Congress­
man Fish replied: “ My amendment applies to the 
drafted element of the personnel. * * * I f
a colored man is good enough to serve his coim- 
try and die for it, there should be no discrimin­
ation under the provisions of this bill in regard 
to his right to serve in the various branches of 
the Army.”  (86 Cong. Kec. 11,675.) [Italics 
supplied.] And Congressman Andrews, of the 
House Military Affairs Committee, added: “ The



15

committee amendment applies only to those who 
volunteer. The amendment offered by Mr. Pish 
seeks to do what the W ar Department already 
states it will do under regulations, that is, draft 
one Negro out of every ten who are called.” 9 (86
Cong. Rec. 11,676.)

It thus seems clear, first, that Congress did not 
contemplate requiring mixed units in training and

9 As the majority below states (R. -69), “Congressman 
Thomason of Texas included in his remarks during the con­
sideration of the Act a letter from the Joint Army and Navy 
Selective Service Committee which informed Congress that 
the selective service program contemplated separate white 
and Negro quotas and calls.” The dissenting judge dis­
agrees with the majority’s interpretation of this letter (R. 
71), but the following extract therefrom (86 Cong. Rec. 
11,427) is believed to sustain the majority’s interpretation:

“At the present time there is not sufficient information to 
make any exact estimates of quotas. As an example of the 
method in which a quota would be determined, these figures 
are submitted for your State of Texas. None of the figures 
are based on anything except estimates.

“Estimated number of registrants in Texas: 510,000 
white, 89,000 colored.

“Estimated class I (men available) :
“170,000 white 

29,667 colored

“199,667 estimated total available.
“If we estimate that 40,944 residents of Texas are mem­

bers of the armed forces, the quota basis for Texas then 
becomes 240,611.

“If we estimate that 37,944 of those in the armed forces 
are white and 3,000 are colored, the State of Texas would 
then be entitled to a credit for each of these amounts. Un­
der a call for 400,000 men, using the above figures, Texas 
would furnish an estimated 24,021 men.”



16

service, and, second, that it regarded as proper 
the calling of negroes and whites in numbers re­
spectively bearing the same proportion to the total 
numbers of negro and white registrants. The 
dissenting judge in the court below states (R. 71, 
fn. 2) : “ It is easy to slip from the discrimination 
here, which is based solely on Army calls for men, 
to that stated at the end of the opinion, viz., 
‘ separate quotas in the requisitions based on rela­
tive racial proportions of the men subject to 
call.’ ”  But in fact the calls for men are based 
directly on the “ relative racial proportions of the 
men subject to call.”  Since 10.8 percent of the 
registrants are colored, the military services adjust 
their calls with the end in view that on a national 
basis 10.8 percent of the men inducted will be 
colored. This percentage is maintained by adjust­
ing local calls as nearly as possible to the ratios 
of white and colored registrants currently avail­
able in each locality. Of course, it has not always 
been possible to maintain monthly inductions of 
negroes in the ratio of the negro registration to 
the total registration. This was especially true 
at the beginning. Section 3 (a) of the Selective 
Training and Service Act specifically provides 
that “ no men shall be inducted for such training 
and service until adequate provision shall have 
been made for such shelter, sanitary facilities, 
water supplies, heating and lighting arrange­
ments, medical care, and hospital accommodations,



17

for such men”  (supra, p. 3). Also the activa­
tion of military units requires trained overhead 
personnel, and at the inception of Selective Service 
there was insufficient trained negro personnel to 
form the nuclei for new units. It is necessary to 
form new units and to secure replacements for old 
units in accordance with the demands of the tacti­
cal and strategic situation. Single quotas without 
regard to race might result in getting too many men 
of one race or the other at any given time, with the 
effect of overcrowding housing facilities and inter­
fering with training schedules. As a result of 
initial difficulties in activating negro units, for a 
while negroes were not inducted in the ratio of the 
negro registration to the total registration. How­
ever, trained personnel and housing how being 
available, negro registrants have been called in 
such numbers as to make their percentage in the 
military services nearly equal to the percentage 
of negro registrants in the total registration. 
Full equivalence in the induction ratios was 
achieved by the Army in 1942, and has since been 
maintained. For the period from February 
through November 30, 1943, negroes represented 
11 percent of the men delivered to the Army and 
9.9 percent of those delivered to the Navy (in­
cluding the Marine Corps and Coast Guard), or a 
total of exactly 10.8 percent of all the men de­
livered to the armed services.



18

These figures, which have been supplied by 
Selective Service, show that by the separate quota 
method Negroes are being called in numbers pro­
portionate to their numbers in the total registra­
tion; and petitioner does not contend that any of 
the services, or any branches thereof, are closed 
to them, or that they are not subjected to exactly 
the same standards of acceptability as all other 
registrants, or that they are not afforded exactly 
the same treatment and facilities in training and 
service. The intent of Congress in enacting the 
nondiscrimination provision thus appears to have 
been fulfilled. The dissenting judge apparently 
concedes (R. 71, fn. 2) that the method of basing 
calls on the relative racial proportions of the men 
subject to call comes fairly close to calling Negroes 
in the sequence of their normal order numbers 
as among all registrants; and calls made without 
regard to race would not be adaptable to the needs 
of separate training and service based on a policy 
which Congress clearly contemplated and which 
petitioner does not challenge. This policy and the 
calls based thereon, involve no discrimination; and 
we therefore believe that petitioner has not es­
tablished discrimination against Negroes within 
the prohibitions of Section 4 (a) of the Selective 
Training and Service Act.10

10 As the court below points out (R. 66), “Even if the in­
duction practice had been conducted without separate quotas, 
as he [petitioner] claims it should have been, he would now 
be, as he is, in the Army.” Under these circumstances, a



19

CONCLUSION

For the foregoing reasons we believe that the 
decision of the court below is correct and that it 
presents no question requiring review by this 
Court. Accordingly, in the event that the Court 
should determine that the cause is not moot, it is 
respectfully submitted that the petition for a writ 
of certiorari should be denied.

Charles F ahy ,
Solicitor General.

Tom C. Clark,
Assistant Attorney General.

Chester T. Lane,
Edward Cf. Jennings,

Special Assistants to the Attorney General.
May 1944.

slight departure from liis number order sequence as among all 
registrants should not in any event entitle him to release 
from military service to which he is properly subject. Cf. 
United States ex rel. Mensevich v. Tod, 264 U. S. 134, 137: 
“The validity of a detention questioned by a petition for 
habeas corpus is to be determined by the condition existing at 
the time of the final decision thereon” ; Iasigi v. Vam.de Cart, 
166 U. S. 391; Nishimura EJciu v. United States, 142 U. S. 
651, 662: “A  writ of habeas corpus is not like an action to 
recover damages for an unlawful arrest or commitment, but 
its object is to ascertain whether the prisoner can lawfully 
be detained in custody; and if sufficient ground for his de­
tention by the government is shown, he is not to be discharged 
for defects in the original arrest or commitment.”

U. S. GOVERNMENT PRINTING OFFICE: 1944





IN  TH E

Supreme (tort nf tljr Inttri Stairs
October T erm , 1943 

No. 941

U nited S tates of A merica ex rel. 
W infred W illiam  L y n n ,

Petitioner, 
v.

Colonel J ohn  W . D owner, Commanding 
Officer at Camp Upton, New York

Respondent.

O n  t h e  p e t i t i o n  f o r  a  w r i t  o f  c e r t io r a r i  t o  t h e  u n i t e d

STATES CIRCUIT COURT OF APPEALS FOR THE SECOND 

CIRCUIT.

' 1,1 l""' ... --- ' *----
BRIEF O N  B E H A L F  O F  T H E  N A T IO N A L  A S S O C IA ­
T IO N  F O R  T H E  A D V A N C E M E N T  O F  CO LO R E D  

P E O P LE, AMICUS CURIAE.

W illiam  H. H astie, 
T hurgood M arshall,

Counsel for
National Association for the 
Advancement of Colored People

L eon A . R ansom ,
Washington, D. C.

M ilton R . K onvitz,
Newark, New Jersey.

Of Counsel.





I N D E X

PAGE

Preliminary S tatement_________________________________  3

I. The lower Court committed error when it 
attempted to interpret the language of the Act 
by reference to debates in Congress__________  6

II. The lower Court committed error when it con­
sidered other legislation relating to separate 
regiments___________________________________  7

III. The lower Court committed error when it con­
sidered the Act in the light of assumed or pro­
jected consequences_________________________  8

IV. Selection by racial quotas is “ discrimination”
within the meaning of the Act_________    9

C o n c l u s i o n _____________________________________________________________  11
*

Cases Cited

Commissioner of Immigration of Port of Netv York v.
Gottlieb, 265 U. S. 310____________________________  7,9

Corona Coal Company v. United States, 263 U. S. 537 9
Greenport Basin <& Construction Co. v. United States,

260 U. S. 512_____________________________________  8
Hirabayashi v. United States, 320 U. S. 81____________  4, 9
Russell Motor Car Co. v. United States, 261 U. S. 514 7
United States v. Missouri Pacific Railroad Co., 278 U. S.

269 _______________________________________________  6, 8
United States v. Standard Brewery, 251 U. S. 210_____ 6





IN' THE

intprem? (tort of tljr Inttrd Stairs
O ctober T erm , 1943 

No. 941

U nited S tates of A merica ex rel.
W infred W illiam  L y n n ,

Petitioner,
v.

Colonel J ohn  W. D owner, Commanding 
Officer at Camp Upton, New York

Respondent.

BR IEF O N  B E H A L F  O F  T H E  N A T IO N A L  A S S O C IA ­
T IO N  F O R  T H E  A D V A N C E M E N T  O F  CO LO R ED  

P E O P LE , AMICUS CURIAE.

Preliminary Statement.

The National Association for the Advancement of 
Colored People has been in existence for thirty-live years 
as a membership organization consisting of hundreds of 
thousands of members o f both the Negro and white races. 
It is interested in the defense of the constitutional and legal 
rights of Negroes. Its special interest in this case is appar­
ent from the reference by Judge Clark in his dissenting 
Opinion in the United States Circuit Court of Appeals 
(R. p. 70) to the letter of the Secretary of the Association 
to Senator Wagner, read by the Senator when he offered 
his amendment to the Selective Training and Service- Act 
relating to the prohibition of discrimination on account of 
race or color.

3



4

This case is of central importance to the more than 
thirteen million members of the Negro race in the United 
States, and members of other minority races in the United 
States, for it represents the second time in the history of 
our country that the question of discrimination by the Fed­
eral Government against a group of persons by reason of 
their color or race, is presented to the United States Su­
preme Court. In the case of Hirabayashi v. United States,1 
the Court considered the question of the constitutionality 
of the curfew order issued by the Commander of a West 
Coast military area, which required all persons of Japanese 
ancestry resident in the area to be in their places of resi­
dence between a certain hour in the evening and a certain 
hour in the morning. M r. Justice M urphy , in his concurring 
opinion, said (p. I l l ) : “ Today is the first time, so far as 
I am aware, that we have sustained a substantial restric­
tion of the personal liberty of citizens of the United States 
based upon the accident of race or ancestry. ’ ’ He said that 
in his opinion the decision in that case “ goes to the very 
brink of constitutional power”  (p. 111).

We respectfully submit that the facts in the case sub 
judice take the case beyond the brink of constitutional 
power of the Federal Government.

The opinion of Judge S wan for the United States Cir­
cuit Court of Appeals discusses at length the history of the 
anti-discrimination provisions in the Selective Training and 
Service Act. It was his view that the interpretation by the 
Court of these provisions was borne out by the following 
considerations:

1. The debates in Congress when the bills were pending;

1 320 U. S. 81.



5

2. The Arm y’s history of separate regiments of whites 
and Negroes; and

3. The contention that selection by racial quotas was 
made necessary by segregation in training, and that doing 
away with the former may lead to confusion with respect to 
the latter.

We submit that the Court committed error by consider­
ing the foregoing matters; for the statutory provisions 
against discrimination in the selection and training of men 
under the Selective Training and Service Act are entirely 
free from any ambiguity or uncertainty. The Act prohibits 
“ discrimination” , and discrimination means nothing more 
nor less than differentiation or distinction. The separation 
of races means a distinction between the races, a differenti­
ation in treatment between the races, discrimination be­
tween the races.

The essence of the Selective Service scheme is a selec­
tion of individuals by lot, each to be called for military ser­
vice in order determined solely by chance. The separate 
listing of Negro and white registrants and separate calls 
under racial quotas as now practiced and admitted on the 
present record, substitutes for the operations of chance, as 
contemplated by the Act, the will o f the persons administer­
ing the Act as to whether persons selected on any and every 
call shall be of one race or another. This is more than 
racial discrimination. It is racial discrimination in viola­
tion of the basic policy and theory of Selective Service 
legislation.



6

I.

The lower Court committed error when it attempted 
to interpret the language of the Act by reference to 
the debates in Congress.

It is well-settled that the intention of Congress is to be 
ascertained primarily from the language used in the statute. 
In United States v. Standard Breweryfi Mr. Justice Day 
said:

“ Nothing is better settled than that, in the con­
struction of a law, its meaning must first be sought 
in the language employed. I f that be plain, it is the 
duty of the courts to enforce the law as written, pro­
vided it be within the constitutional authority of the 
legislative body which passed it.”

In United States v. Missouri Pacific Railroad Co.fi Mr. 
Justice B u t l e r  said:

“ It is elementary that where no ambiguity exists 
there is no room for construction. * * * Appellants 
seek to support the view for which they contend by 
some of the legislative history of the enactment and 
especially by explanatory statements made by Sena­
tor Elkins in connection with the report of the ma­
jority of the Senate committee submitting the bill for 
the act in question. Where doubts exist and con­
struction is permissible, reports of the committees of 
Congress and statements by those in charge of the 
measure and other like extraneous matter may be 
taken into consideration to aid in the ascertainment 
of the true legislative intent. But where the language 
of an enactment is clear and construction according 
to its terms does not lead to absurd or impracticable 
consequences, the words employed are to be taken as

2 251 U. S. 210, at p. 217.
3 278 U. S. 269, at p. 277.



7

the final expression of the meaning intended. And in
such cases legislative history may not be used to sup­
port a construction that adds to or takes from the 
significance of the words employed” .*

The language of the Act is not of doubtful meaning; 
adherence to the letter of the law would not lead to injustice 
or absurdity or to contradictory provisions. Under the 
circumstances the lower Court committed error when it at­
tempted to interpret the language of the Act by reference 
to the debates in Congress.

II.

The lower Court committed error when it con­
sidered other legislation relating to separate regiments.

Since the language of the Act is not uncertain or am­
biguous, the lower Court committed error when it gave con­
sideration to what it assumed to be the general policy of 
Congress as disclosed by the course of legislation relating 
to the Arm y’s history of separate regiments of whites and 
Negroes; for the rule requiring statutes in pari materia to 
be construed together is a rule of construction that is to be 
applied as an aid in determining the meaning of a doubtful 
statute and cannot be invoked where the language of the 
statute is clear and unambiguous. 4

4 Italics supplied.
See als'o:

Russell Motor Car Co. v. United States, 261 U. S. 514, 
at p. 522;

Commissioner of Immigration of Port of New York v. 
Gottlieb, 265 U. S. 310.



8

As was said by Mr. Justice B r a n d e is  in Greenport Basin 
& Construction Co. v. United States:5 “ As the language of 
the Act is clear, there is no room for the argument of plain­
tiff drawn from other * * * measures.”

III.

The lower Court committed error when it con­
sidered the Act in the light of assumed or projected 
consequences.

Since the language of the Act adequately expresses the 
intention of Congress, it must be given effect regardless of 
any assumed consequences, and the lower Court committed 
error when it considered what effect, what inconvenience or 
hardship, a construction other than that adopted by it might 
cause. A breakdown of segregation in selection may or may 
not lead to a breakdown of segregation in training. In the 
absence of any ambiguity in the language of the Act it is 
not for the Court to speculate what may be the consequences 
of a decision that the setting up of racial quotas for the 
selection of men is a violation of the Selective Training and 
Service Act.

It was said by the Court in United States v. Missouri 
Pacific Railroad Co., supra:

“ The language of that provision is so clear and 
its meaning so plain that no difficulty attends its con­
struction in this case. Adherence to its terms leads 
to nothing impossible or plainly unreasonable. We 
are therefore bound by the words employed, and are 
not at liberty to conjure up conditions to raise doubts 
in order that resort may be had to construction. It 
is elementary that where no ambiguity exists there is 
no room for construction. Inconvenience or hard­
ships, if any, that result from following the statute as

5 260 U. S. 512, at p. 516.



9

written, must be relieved by legislation. * * * Con­
struction may not be substituted for legislation.” 6 * 8

IV.

Selection by racial quotas is “ discrimination” with­
in meaning of the Act.

The position taken by the petitioner in the case sub 
jtidice with respect to the meaning of the term “ discrimina­
tion”  as used in the Act, is supported by the opinion of Mr. 
Chief Justice S t o n e  in the Hirabayashi case, supra. Said 
the Chief Justice (p. 100):

“ Distinctions between citizens solely because of 
their ancestry are by their very nature odious to a 
free people whose institutions are founded upon the 
doctrine of equality. For that reason, legislative 
classification or discrimination based on race alone 
has often been held to be a denial of equal protec­
tion.”

It will be noted that in the above passage the Chief 
Justice spoke of discrimination in the sense of “ distinc­
tions between citizens ’ ’.

In the same case Mr. Justice M ubphy, in a concurring 
opinion, said (p. 110):

“ Distinctions based on color and ancestry are 
utterly inconsistent with our traditions and ideals. 
They are at variance with the principles for which we 
are now waging war. We cannot close our eyes to 
the fact that for centuries the Old World has been

6 278 U. S. 269, at pp. 277-278.
See also:

Commissioner of Immigration of the Port of New York v. 
Gottlieb, supra, at p. 313;

Corona Coal Company v. United States, 263 U. S. 537, 
p. 540.



1 0

torn by racial and religious conflicts and has suffered 
the worst kind of anguish because of inequality of 
treatment for different groups. * * * To say that any 
groups cannot be assimilated is to admit that the 
great American experiment has failed, * *

Note should be taken of the fact that Mr. Justice Mub- 
p h y , too, in the above passage spoke of “ distinctions based 
on color and ancestry ’ ’ and not discrimination; for discrimi­
nation means “ distinction based on color and ancestry” .

It is apparent from the opinions of the various Justices 
in the Hirabayashi case that the curfew order was sustained 
only because of the critical military situation which pre­
vailed on the Pacific Coast in the Spring of 1942, and the 
urgent necessity of taking immediate action to forestall 
sabotage and espionage. The opinion of the Chief Justice 
narrowly limits the scope of the decision to the facts in that 
case (p. 102).

In the instant case no critical military situation exists 
which necessitates the selection of men for the armed forces 
through quotas based on race distinctions. Furthermore, 
the Act of Congress clearly prohibits such differentiation on 
the basis of race or color— a situation entirely different 
from that of the Hirabayashi case, where a military order 
was made which expressly distinguished between one race 
and another, and this order was validated by an express Act 
of Congress; and even there the Court held that the order 
and the Act of Congress came to the very brink of constitu­
tional power.



1 1

Conclusion.

It is respectfully submitted that the judgment of the 
Circuit Court of Appeals should be reversed, and petitioner 
should be discharged.

Respectfully submitted,

W illiam  H. H astie,
T hubgood M arshall,

Counsel for the National Association 
for the Advancement of Colored People

L eon A. R ansom ,
Washington, D. C.

M ilton R. K onvitz,
Newark, New Jersey.

Of Counsel.



L a w y e r s  P ress, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300



IN  THE

i>upmtte dmtrt of %  Ilmtib
O ctober T eem , 1943 

No. 941

U nited S tates op A merica ex rel. 
W inifred W illiam  L y n n ,

Petitioner,
v.

Colonel J ohn  W. D owner, Commanding Officer at 
Camp Upton, New York,

Respondent.

\ .

BRIEF O N  B E H A L F  O F  T H E  N A T IO N A L  A S S O C IA T IO N  
FO R T H E  A D V A N C E M E N T  O F  C O LO R E D  PEOPLE, 
AMICUS CURIAE, O N  P E T IT IO N  F O R  R E H E A R IN G  OF  

A P P L IC A T IO N  F O R  W R IT  O F  C E R T IO R A R I.

The petition for certiorari was denied on the ground that 
the cause is moot, because petitioner was no longer in the 
custody of Colonel John W. Downer, respondent. The rea­
son offered for the denial of petition for certiorari has be­
wildered the millions of Negroes and other citizens whose 
interest in this case has been manifested repeatedly.

The proceedings were for a writ of habeas corpus, the 
right to which is fundamental to personal liberty. The 
sources of the writ go back to the earliest struggles for 
freedom. The writ establishes the basic right of freedom 
from unlawful detention. The constitutional provision re­
lating to this writ is a mandate to the judiciary that no man



2

shall be deprived of his liberty without a hearing or without 
legal cause. Since habeas corpus is a writ of right (Stevens 
v. McClaughry, 207 F. 18, C. C. A. 8), it may he issued even 
upon very informal application (Chase v. State, 93 Fla. 963, 
113 S. 103), and the proceedings are to be free from techni­
calities (Kay v. Carr, 88 F. (2d) 297, C. C. A. 9). But here 
this Honorable Court has denied relief upon the most tech­
nical of grounds, a change in the personnel of the command 
to which petitioner was subject—an event over which peti­
tioner had not the faintest control. The constitutional prohi­
bition against suspension of the privilege of the writ has 
thus been patently nullified by permitting the army to avoid 
responsibility by a mere change in command. Petitioner and 
all others similarly circumstanced asked for a decision in 
this case on the merits of the questions presented. It is 
respectfully submitted that such a decision should be af­
forded them.

Respectfully submitted,

W illiam  H . H astie, 
T hubgood M abshall, 

Counsel for National 
Association for the Advance­
ment of Colored People

L eon A. R ansom,
Washington, D. C.

M ilton R . K onvitz,
Newark, New Jersey.

Of Counsel



(E m trt n f  tty? U n ttefc  S t a t e s
October T erm , 1943

1 st t h e

No. 941

U nited States of A merica ex rel. 
W infred W illiam  L y n n ,

v.
Petitioner,

Colonel J ohn  W. D owner, Commanding Officer at 
Camp Upton,, New York,

Respondent.

P E T IT IO N  F O R  R E H E A R IN G  O F  A P P L IC A T IO N  FOR  
W R IT  O F  C E R T IO R A R I

A rthur Garfield H ays, 
Gerald W eatherly, 

Counsel for Petitioner.





INDEX

PAGE

I—The issues herein are not moot, and a new re­
spondent may be brought in “ at any stage of 
the action” ; hence the cause is not m o o t ..........  2

II—Because the same state of facts now presented 
by the Government existed when this cause was 
argued in the Circuit Court of Appeals, and a 
new respondent could then have been brought
in, the Government, by failing to urge the 
claimed mootness there, has waived the right to 
claim it here ..............................................................  9

III— The writ of habeas corpus cannot be evaded by
passing the body of the petitioner from one cus­
todian to another ...................................................... 10

IV— The cases cited by the Government are wholly
inapplicable ................................................................  15

Conclusion .............................................................................  19

Cases C ited

Barnardo v. Ford, (1892) A. C. 326 .............................. 11
Barry, Matter of, 136 IT. S. 597 ............................. 8
Bowen v. Johnston, 306 U. S. 19 ....................................  19
Bryant v. Zimmerman, 278 U. S. 6 3 .............................. 7
Catanzaro, Ex parte, 138 F. 2d 100, cert. den. March 

27, 1944 ..................................................................4,14,15
Falbo v. United States, 320 U. S. 549 .......................... 4
Fisher v. Baker, 203 IT. S. 1 7 4 .......................................  18
Fong Yim, Ex parte, 134 F. 938 ....................................6,13
Holmes v. Jennison, 14 Pet. 540 ...................................  7
Jackson, Matter of, 15 Mich. 417 ........................6,12,15,19
Johnson v. Hoy, 227 U. S. 245 .......................................  18
Jones v. Biddle, 131 F. 2d 853, cert. den. 318 U. S. 784 3
Jung Woon Kay v. Carr, 88 F. 2d 297 ........................ 5



11 INDEX

PAGE

Mississippi, State of v. Johnson, 4 Wall. 475 ..............  3
McGowan v. Moody, 22 App. D. C. 1 4 8 ........................  2, 3
Nichols v. Cornelius, 7 Ind. 6 1 1 ......................................  9
People ex rel. Billotti v. N. Y. Asylum, 57 App. Div.

383 ................................................................................... 6,13
People ex rel. Dunlap v. New York Asylum, 58 App.

Div. 133 ......................................................................... 6,13
Queen v. Barnardo, L. R. 24 Q. B. Div. 283, a ff ’d, 

Barnardo v. Ford (1892), A. C. 326 .................... 11,15
Rex v. Crewe, [1910] 2 K. B. 576 ..................................  4, 6
Rivers v. Mitchell, 57 Iowa 1 9 3 ...................................... 6,13
Sanders v. Allen, 69 App. D. C., 307 ............................ 6,13
Simmons v. Georgia Iron & Coal Co., 117 Ga. 305 . .3,7, 9 
Stallings v. Splain, 253 U. S. 339 ..................................  17
Tornello v. Hudspeth, 318 U. S. 792 ............................  17
United States v. Davis, 5 Cranch C. C. 622 ..............  6,13
United States ex rel. Innes v. Crystal,, 319 U. S. 755 16
Wales v. Whitney, 114 U. S. 564 ..................................  18
Weber v. Squier, 315 U. S. 8 1 0 ......................................  16
Weil, Ex parte, 317 U. S. 597 ...................... ................... 17
Zimmerman v. Walker, 319 U. S. 744 ..........................  16

S tatutes and R ules C ited

28 U. S. C. A. Sec. 455 .............. ........................................ 4
16 Car. I, c. 10, sec. 8 ........................................................  4
U. S. Rules of Civil Procedure,

Rules: 21, 25, 81 (a) (2) ..........................................  5,6
Rules of the U. S. Circuit Court of Appeals for the 

Second Circuit,
Rule 31 ..........................................................................  15

O t h e r  A u t h o r i t i e s

Ferris on Extraordinary Legal Remedies (1926), page 
28, Sec. 10 .................................................................... 8



I n t h e

#upmup Court of ttir Ituitrti Btatia
October T erm , 1943

No. 941

♦

U nited States of A merica ex rel. 
W infred W illiam  L yn n ,

v.
Petitioner,

Colonel J ohn W. D owner, Commanding Officer at 
Camp Upton, New York,

Respondent.

------------1-----------

PE TITIO N  F O R  R E H E A R IN G  O F  A P P L IC A T IO N  FOR  
W R IT  O F  C E R T IO R A R I

To the Honorable the Supreme Court of the United States:

The petitioner herein, Winfred William Lynn, respect­
fully petitions this Honorable Court for a reconsideration 
of his petition for a writ of certiorari to review the judg­
ment of the United States Circuit Court of Appeals for 
the Second Circuit, which affirmed on February 21, 1944, 
the order of the United States District Court for the 
Eastern District of New York dismissing, after a hearing, 
his petition for a writ of habeas corpus. The petition for 
the writ of certiorari was denied by order entered May 
29, 1944, “ on the ground that the cause is moot, it ap­
pearing that petitioner no longer is in respondent’s cus­
tody, U. S. ex rel. Innes v. Crystal, 319 U. S. 755, and 
cases cited.”



2

Counsel’s reason for filing this petition is that they 
most earnestly feel that, perhaps by reason of their lack 
of time to answer the contention of mootness which was 
unexpectedly and for the first time presented by respond­
ent’s memorandum in this Court,, and perhaps by reason 
of inadequate presentation of the question by the peti­
tioner in United States ex rel. Innes v. Crystal, 319 U. S. 
755,# cited by this Court in this case, this Court fell into 
what counsel conceive to be an error which constitutes a 
grievous injustice to petitioner and his people, as well as 
an appalling precedent.

It is because counsel are so earnestly and so deeply- 
alarmed by- the precedent which this court’s decision here­
in creates, and by its implications, that they are impelled 
to present the following considerations:

POINT I

The issues herein are not moot, and a new respond­
ent may be brought in “ at any stage of the action” ; 
hence the cause is not moot.

It is self-evident that the grievance, the wrong, and the 
issues in this cause still continue. Petitioner is still in 
the United States Army by virtue of the same induction 
adjudicated in the Courts below. This is not denied by 
the Solicitor General. The only reason why it is con­
tended that the cause is moot is that the nominal respond­
ent no longer has any interest in the controversy. It is 
evident, however, that Col. Downer, in whose custody the 
petitioner indubitably- was at the time the writ herein was 
served, is not the real party in interest. The real re­
spondent is in fact either the Government of the United 
States, or the President of the United States. See Mc­
Gowan v. Moody (1903), 22 App. D. C. 148, 163-4. The 
President, nevertheless, cannot be sued as such. See State *

* The report indicates that in the Innes case the petitioner was not repre­
sented by counsel.



3

of Mississippi v. Johnson, 4 Wall. 475, 500. Therefore Col. 
Downer was served with the writ as the mere agent of the 
President, merely as “ the person in whose custody the 
party is detained”  (28 U. S. C. A. § 455). But he is 
in no sense a real party to the cause. See Simmons v. 
Georgia Iron & Coal Co. (1903), 117 Ga. 305, 309-310.

Indeed, it is rather clear, under the American authori­
ties as they now stand, that Col. Downer was the only 
person on whom the writ could properly have been served 
in this case.

Thus in McGowan v. Moody (1903), 22 App. D. C. 148, 
it was held that a naval prisoner in Guam, a member of 
the Marine Corps, was not in the custody of the Secre­
tary of the Navy; that the writ of habeas corpus was 
improperly directed to the Secretary; and that the pris­
oner was in fact under only the President’s control. The 
Court said at pages 163-4:

“ * * * The prisoner is not in the actual custody of 
the Secretary. The allegation that he is restrained 
by the agents and subordinates of the Secretary, and 
is within his control, through the custody of a person 
unknown, who exercises his authority under the 
orders of the Secretary, is a conclusion of law. We 
must take judicial notice of the powers and duties of 
the Secretary under the Constitution and laws. The 
officers of the Navy are not his agents. They, like 
the Secretary himself, are the agents and representa­
tives of the President of the United States, who is the 
Commander-in-Chief of the Army and Navy. The 
officers in command of the island of Guam are sub­
ject to his orders. Any authority which the Secretary 
may exercise over them is solely as the representative 
of the President, in his name, and as the organ of 
his will. United States ex rel. Brown v. Root, 18 App. 
D. C. 239, 242.

“ The power to relieve the prisoner, or to produce 
him in obedience to the writ, is in the President, and 
not in the Secretary of the Navy. * * * ”

Again, in Jones v. Biddle (C. C. A. 8th, 1942), 131 F. 
2d 853, certiorari denied, 318 U. S. 784, re-hearing denied



4

319 U. S. 780, 784, 785, it was held that a writ of habeas 
corpus questioning Jones’ imprisonment in ,a federal peni­
tentiary was improperly addressed to the Attorney Gen­
eral, and should have been addressed to the warden of 
the prison wherein the prisoner was confined; that, 
though the Attorney General is the supervisor of federal 
prisons, he has not the custody of the prisoners therein. 
Hence Jones was denied relief, and Attorney General 
Biddle’s return that Jones was not in his custody was 
upheld.

It is thus to be seen that particularly the federal courts 
have most narrowly construed the provision of the statute 
(28 U. S. C. A. § 455) that “ the writ shall be directed 
to the person in whose custody the party is detained.”

Without stopping to discuss here whether that con­
struction is erroneous (compare Rex v. Crewe, [1910] 2 
K. B. 576, at pages 592-3, 604-5, 618 and 629),* we point 
out the alarming position in which this Court’s decision 
in the case at bar, together with the decisions just cited, 
places the present petitioner and all others similarly sit­
uated. In order to question the legality of his order to 
report for induction, petitioner had to wait until he was 
inducted (R. 5, 26; Ex parte Catanzaro, C. C. A. 3rd, 
138 F. 2d 100, certiorari denied March 27, 1944; Falbo 
v. United States, 320 U. S. 549). He was bound to direct 
the writ to the respondent Col. Downer, “ to the person 
in whose custody the party is detained,”  under the 
statute as thus narrowly construed by the federal courts. 
He did so. Col. Downer was subsequently retired 
from the Army and is no longer Commanding Officer at

* There at least two o f the three Lords Justices expressed the opinion, under 
the Habeas Corpus Act of 1640, 16 Car. I, c. 10, sec. 8, which is similar to ours 
in specifying the persons to whom the writ shall be directed, that the writ 
could properly issue from a court in England to His Majesty’s Secretary of 
State for the Colonies to test the legality o f imprisonment in Africa, by order 
o f the High Commissioner o f an African protectorate o f  England, o f an 
African tribesman. It was also held that the court in England had jurisdiction 
o f the case on writ o f habeas corpus.



5

Camp Upton, as pointed out on page 9 of respondent’s 
memorandum; and petitioner has been placed under an­
other commander. These are matters over which peti­
tioner obviously had no control. This court then dis­
missed Ms application “ on the ground that the cause is 
moot, it appearing that petitioner no longer is in respond­
ent’s custody.”

A

It requires no citation of authority (see Jung Woon 
Kay v. Carr, C. C. A. 9th, 88 F. 2d 297, 298) to show that 
habeas corpus proceedings are generally to be free of 
technicalities. Yet this court has applied to the present 
habeas corpus proceeding—a proceeding, we take the 
liberty of saying, of national and transcendent importance, 
“ affecting,”  as we said in our petition, “ not only the 
liberties, sensibilities, and self-respect of the thirteen 
million Negroes of the country, but also the liberties of 
all others,” —in such a case this Court has applied, so 
as to terminate petitioner’s application, a rule which we 
do not believe would be applied in any ordinary civil 
case.*

Suppose Col. Downer had died or had been merely re­
placed. Under the most elementary rules the cause would 
not abate. A  new party defendant, his successor, Would 
simply be substituted and the cause would go on as be­
fore.*

So, in the present situation, the cause being before the 
courts, the facts and law having been fully developed, and 
the Government of the United States being the real party 
in interest, there is no reason why some other army officer 
who is in control of petitioner, “ who has such control 
over the imprisonment that he could order the release of

* United States Rules of Civil Procedure, Rule 25, copied in Appendix E 
hereof; especially subdivision (d ) thereof, relating to death or separation from 
office of public officers.



the prisoner”  (Vaughan Williams, L. J., in Rex v. Crewe, 
supra, [1910] 2 K. B. 576, at pages 592-3, 604-5; substan­
tially concurred in by Farwell, L. J., at page 618 and 
Kennedy, L. J., at page 629), and who is in that sense Col. 
Downer’s successor, cannot be made a party hereto; and 
the cause could then proceed as before. Rule 21* of the 
Federal Rules of Civil Procedure provides in part as 
follows:

“ Parties may be dropped or added by order of the 
court on motion of any party or of its own initiative 
at any stage of the action and on such terms as are 
just.”

And by Rule 81 (a) (2) ** these rules are made applicable 
to appeals in habeas corpus proceedings.

In any event, in view of this Court’s national terri­
torial jurisdiction, if the Judges’ opinions in Rex v. 
Crewe, supra, are correct, *** this Court could issue a writ 
of habeas corpus in aid of its appellate jurisdiction in 
this cause, which is properly before it, to the higher army 
officer who at present “ has such control over the im­
prisonment that he could order the release of the 
prisoner.”

6

* Copied in Appendix A  hereof.

** Copied in Appendix B hereof.

*** See Sanders v. Allen  (1937), 69 App. D. C. 307, where it was held that 
prisoners in the District o f Columbia workhouse at Occoquan, Virginia, are in 
the custody o f the Commissioners of the District o f Columbia, so that the writ 
o f habeas corpus was properly addressed to them, the court (quoting Cooley, 
J., in Re Jackson, IS Mich. 417) saying at page 308:

“ The place of confinement is therefore not important to the relief, 
if the guilty party is within reach of process, so that by the power 
o f the court he can be compelled to release his grasp.”

It is true that the court said at page 309 that “ the problem here is local 
and has no relation to federal procedure generally,” but we submit that the 
principle cannot be thus limited. See a lso :

Matter o f Jackson, IS Mich. 417 (Cooley, J.) ;
Rivers v. Mitchell, 57 Iowa 193;
People ex  rel. Billotti v. N. Y. Asylum, 57 App. Div. 383;
People ex  rel. Dunlap v. New York Asylum, 58 App. Div. 133;
United States v. Davis, S Cranch. C. C, 622;
E x parte Fong Yim (D . C. N. Y .), 134 F. 938.



7

B

Taking higher ground, however, we most respectfully 
urge that in arriving at its present decision in the case 
at bar this Court has tragically misapprehended the na­
ture of the writ of habeas corpus.

While the issuance of the writ of habeas corpus has 
for some purposes,, to prevent a failure of justice, been 
considered as a civil action or suit (Holmes v. Jennison, 
14 Pet. 540; Bryant v. Zimmerman, 278 U. S. 63, 70), it 
is in reality, and even technically, in no sense a mere suit 
between private parties. It is analogous to a proceeding 
in rem and is instituted for the sole purpose of having 
the person restrained of his liberty produced before the 
Judge, in order that the cause of his detention may be 
inquired into and his status fixed. It is an inquisition by 
the Government, at the suggestion and instance of an in­
dividual, but still in the name and capacity of the 
Sovereign. Says the Supreme Court of Georgia, in Sim­
mons v. Georgia Iron and Coal Co. (1903), 117 Ga. 305 
(quoting Church on habeas corpus, §88), at page 309:

“ * * * It was not a proceeding in a suit, but was a 
sumary application by the person detained. No party 
to the proceeding was necessarily before or repre­
sented before the judge,, except the person detaining, 
and that person only because he had the custody of 
the applicant, and was bound to bring him before the 
judge to explain and justify, if he could, the fact of 
imprisonment. It was, as Lord Coke described it, 
festinum remedium. # * *”

The Court continued:
“ * * * While instances may arise where it is im­
portant to determine whether it is a civil or criminal 
proceeding it can never be accurately characterized 
as a technical suit or action. See, in this connection, 
15 Am. & Eng. Enc. L. 157-8; 2 Spell. Ex. Rel. § 1161. 
It may be analogized to a proceeding in rem, and is



8

instituted for the sole purpose of having the person 
restrained of his liberty produced before the judge, 
in order that the cause of his detention may be in­
quired into and his status fixed. The person to whom 
the writ is directed makes response to the writ, not 
to the petition. 9 Enc. P. & P. 1035. When an an­
swer is made to the writ, the responsibility of the 
respondent ceases. See, in this connection, Barth v. 
Clise, 79 U. S. (12 Wall.) 400. The court passes 
upon all questions, both of law and fact, in a sum­
mary way. The person restrained is the central figure 
in the transaction. The proceeding is instituted solely 
for his benefit. It is not designed to obtain redress 
against anybody, and no judgment can be entered 
against anybody. There is no plaintiff and no de­
fendant, and hence there is no suit in the technical 
sense. The judgment simply fixes the status of the 
person for whose benefit the writ was issued; and 
while any one disobeying the judgment may be dealt 
with as for a contempt, the judgment does not fix 
the rights of any one interested, further than to de­
clare that the person detained must be restored to 
liberty. The respondent, in his answer to the writ, 
seeks simply to justify his conduct and relieve him­
self from the imputation of having imprisoned with­
out lawful authority a person entitled to his liberty. 
He comes to no issue with the applicant for the writ. 
He answers the writ. The applicant may traverse 
the answer and thus take issue with the respondent 
as to the truth or legal effect of the facts which he 
sets up. I f  upon an investigation into the matter it 
appears that the detention was without color of au­
thority, the person detained will, of course, be dis­
charged, and he may bring a civil action for dam­
ages, or prosecute the person by whom he was re­
strained of his liberty for false imprisonment. But 
the proceeding itself is not in any sense a suit be­
tween the applicant and the respondent.”

See also:

Matter of Barry, 136 U. S. 597 (see 594);
Ferris on Extraordinary Legal Remedies (1926), 

page 28, sec. 10.



9

Acting on this reasoning, the Court in Simmons v. 
Georgia Iron & Coal Co., 117 Ga. 305, just quoted, held 
that though the writ in that case was improperly ad­
dressed to a corporation, nevertheless the Court should 
consider the cause. The Court said at pages 319-320:

“ * * * But these views are not of serious moment 
now; for, applying the rule of liberal construction 
heretofore referred to, we think the writ may be 
treated as directed to the individuals concerned in 
the illegal restraint of the prisoner. It was directed 
to the agents of the corporation, and served upon one 
of such agents, who responded and, presumably, 
brought the prisoner into court; and hence the irregu­
larity in the address of the writ presented no obstacle 
to an inquiry into the cause of the restraint.”

Similar considerations, we believe, governed the Court 
in Nichols v. Cornelius, 7 Ind. 611. There it was con­
tended that the writ of habeas corpus was improperly 
addressed to and served on the appellant because he was 
“ an agent only of the State of Kentucky, which, if any­
one, is the real party.”  The Court, however, said (p. 
612):

“ It is of little consequence who are made parties 
in cases of this kind.”

POINT II

Because the same state of facts now presented by 
the Government existed when this cause was argued 
in the Circuit Court of Appeals, and a new respond­
ent could then have been brought in, the Govern­
ment, by failing to urge the claimed mootness there, 
has waived the right to claim it here.

It will be observed from page 9 of respondent’s memo­
randum that, so far as clearly appears, the last transfer 
of petitioner by the Army occurred October 22, 1943. 
The case was argued in the Circuit Court of Appeals



1 0

December 8, 1943, and decided February 2, 1944 (E. 63, 
fol. 63).

Notwithstanding these facts, the Government filed a 
brief in the Circuit Court of Appeals, argued the cause, 
and, as stated on page 9 of respondent’s memorandum 
in this Court, “ No suggestion of possible mootness was 
made to the Circuit Court of Appeals.’ ’ This being true, 
and the question being at most merely a question o f the 
absence of a proper party to the proceeding, we believe 
no citation of authority is necessary to show that the 
Government waived the question by failing to raise it in 
the Circuit Court of Appeals.

POINT III

The writ of habeas corpus cannot be evaded by 
passing the body of the petitioner from one custodian 
to another.

In addition to the facts already stated, although the 
correspondence does not appear in the record, petitioner’s 
counsel on November 6, 1943, and again on January 27, 
1944, wrote to Army officers in general control of peti­
tioner advising them of the pendency of petitioner’s ap­
peal in this case and suggesting that it would be inad­
visable to send him out of the United States. In the 
letter of November 6, 1943, counsel said in part:

“ Furthermore, it is most probable that one side or the 
other will carry the case to the Supreme Court of 
the United States, because of the vital issue in­
volved. ’ ’

On November 20, 1943, Brigadier General Eeynolds, 
Chief Staff Corps Director, Military Personnel Division, 
replied in part:

“ There is no indication that the unit to which Private 
Lvnn is assigned will be dispatched overseas during 
1943.’ ’



1 1

Counsel’s letter of January 27, 1944, referred to the 
previous correspondence by dates, and again suggested 
the inadvisibility of sending petitioner out of the country. 
On February 9, 1944, Major General Ulio, Adjutant Gen­
eral, replied in part:

“ Due consideration has been given to the request con­
tained in your letter of 27 January, as well as to 
previous requests in this matter. * * * Should the 
unit to which he is assigned be ordered to proceed 
outside the Continental United States and he is quali­
fied for the duties to which assigned, he will not be 
removed from his unit.”

The full correspondence is copied in Appendix C of this 
petition.

The transfer of petitioner out of the United States was 
an attempted evasion, intentional or otherwise, of the 
jurisdiction of this Court; and precedent is not wanting 
to show that in such a situation this Court still has juris­
diction.

In The Queen v. Barnardo, L. R. 24 Q. B. Div. 283, af­
firmed by the House of Lords in Barnardo v. Ford, (1892) 
A. C. 326, it was shown that, after the respondent had 
been advised by letter that a writ of habeas corpus would 
be applied for to recover custody of the child there in­
volved, the respondent sent the child out of the country to 
Canada. On application being made for the writ of 
habeas corpus, the respondent answered a rule to show 
cause why the writ should not issue by making affidavit 
that the child was no longer in his custody even at the 
time the writ was first applied for and that respondent 
did not know the child’s whereabouts, had no control over 
him, and could not produce him.

The Court of Appeal (Lord Esher, M. R., and Fry, L. J., 
affirming the decision of Lord Coleridge, C. J., and Bowen, 
L. J.) held, after thorough consideration, that the writ of 
habeas corpus should nonetheless issue to the respondent, 
commanding Mm to produce the child.



1 2

Lord Esher, M. R., referring to an earlier decision of 
that Court, said at pages 295-6:

“ * * * ‘ where the Court can collect from the writ 
and return that the party has been in illegal custody 
at a period antecedent to the issuing of the writ, it 
will not rest satisfied with the stereotyped form that, 
at the issuing of the writ or at any time since, the 
party has not been in his possession, custody, or 
power, but will insist on the person to whom the 
writ is directed producing the party or shewing that 
he has lawfully discharged himself of such custody.’ 
It seems to me that the meaning of that must be that 
the fact that the person to whom the writ is to be 
addressed has illegally parted with the custody of the 
child even before the application for the writ is no 
reason why the writ should not issue.”

Fry, L. J., said at pages 299-300:
“ I entirely agree with what the Lord Chief Justice 

said on this head in the Court below. He said, re­
ferring to the argument for the appellant, ‘ It is con­
trary to good sense, because a person would then 
only have to break the law and say, “ You cannot put 
the law in force against me because I have broken 
i t” ; a man would only have to take care beforehand 
to prevent himself from being able to obey a writ, if 
lie thought he was coming to tell the Court so, and 
they could not issue the writ because the person had 
already prevented his being able to return to it. He 
would be able to laugh in the face of the Court and 
to reduce the power and jurisdiction of the Court to 
almost nothing.’ I f there be reason to believe that an 
illegal act has been done in order to defeat the antici­
pated process of the Court, and that on the issue of 
the writ, the person will ultimately be produced, then, 
in my opinion, the writ ought to go .”

A  similar set of facts was presented in Matter of Jack- 
son, 15 Mich. 417. In that case there had been litigation 
in a guardianship proceeding to determine the proper 
custody of the child, Samuel W. Jackson. Before the 
writ of habeas corpus was applied for, the respondent 
sent the child out of Michigan into Canada. In his return



1 o  I d

to the writ of habeas corpus, the respondent said in part: 
“ that the child was not, when the writ was applied for, 
and had not been since, and was not now under the cus­
tody or control of the respondent.”

Since it appeared that the Canadian Courts had ap­
pointed as the child’s guardian the person in whose cus­
tody the child was in Canada, the proceedings were dis­
missed for that reason, and the Court were equally 
divided on the question whether they had any jurisdiction 
of the proceeding and to compel the respondent to pro­
duce the child. Mr. Justice Cooley, however, with whom 
Mr. Justice Christiancy concurred, in an elaborate opin­
ion beginning on page 433 held that the Michigan Court 
did have jurisdiction and that the sending of the child 
out of Michigan even before the writ of habeas corpus 
was applied for was an evasion of the Court’s jurisdic­
tion.

Judge Cooley said, at page 439:
“ The important fact to be observed in regard to 

the mode of procedure upon this writ is, that it is di­
rected to, and served upon, not the person confined, 
but his jailer. It does not reach the former except 
through the latter. The officer or person who serves it 
does not unbar the prison doors, and set the prisoner 
free, but the court relieves him by compelling the op­
pressor to release his constraint. * * * The place of 
confinement is therefore not important to the relief, 
if the guilty party is within the reach of process, so 
that by the power of the court he can be compelled 
to release his grasp.”

See also:
Sanders v. Allen, 69 App. D. C. 307, 308;
United States v. Davis, 5 Cranch. C. C. 622;
Rivers v. Mitchell, 57 Iowa 193;
People ex rel. Billotti v. N. Y. Asylum, 57 App. 

Div. 383;
People ex rel. Dunlap v. New York Asylum, 58 

App. Div. 133;
Ex parte Fong Yim (D. C. N. Y .), 134 F. 938.



14

Considering these authorities, we submit that respond­
ent’s interpretation of the opinion of the Circuit Court of 
Appeals in Ex -parte Catanzaro, 138 F. 2d 100, certiorari 
denied, March 27, 1944, is incorrect. There, pending ap­
peal from the denial of his application for a writ of 
habeas corpus the appellant had been convicted of a vio­
lation of the Selective Service Act and had been trans­
ferred from the custody of the United States Marshal to 
the federal penitentiary at Lewisburg, Pa. In holding 
that the case was not thereby rendered moot, the court 
said at page 101:

“ Furthermore, we do not believe that passing about 
of the body of a prisoner from one custodian to an­
other after a writ of habeas corpus has been applied 
for can defeat the jurisdiction of the Court to grant 
or refuse the writ on the merits of the application. 
It is a general rule of law that where one has become 
subject to the jurisdiction of a court, the jurisdiction 
continues in all proceedings arising out of the litiga­
tion such as appeals and writs of error. 1 Beale, 
The Conflict of Laws (1935) §76.1. * * * ”

Respondent’s memorandum at pages 11 and 12 im­
pliedly admits that the writ of habeas corpus cannot be 
evaded by “ the deliberate ‘ passing about of the body of 
a prisoner from one custodian to another after a writ of 
habeas corpus has been applied for ,’ ”  and that such con­
duct cannot “  ‘ defeat the jurisdiction of the Court to 
grant or refuse the writ on the merits of the applica­
tion.’ ”  The Government continues, however, at page 12:

“ But where, as here, the termination of respondent’s 
custody of petitioner was authorized by the order dis­
charging the writ, and was not in violation of any 
other court rule or order, we believe that there has 
ceased to be any controversy between petitioner and 
respondent, and, therefore, we respectfully suggest 
that the case is moot.”

The Government also suggests (respondent’s memoran­
dum, p. 9) that petitioner should have sought an order



15

from the District Court or the Circuit Court of Appeals 
requiring that he be retained in respondent’s custody or 
otherwise within the jurisdiction of the Court; and the 
Government attempts to make a fine-drawn distinction 
based on the difference between the wording of para­
graphs one and two of Buie 31 of the United States Cir­
cuit Court of Appeals for the Second Circuit (printed in 
Appendix D hereof), depending on whether the writ of 
habeas corpus has been refused or discharged by the 
court below. Thus the Government attempts to distin­
guish from the case at bar the decision of the Circuit 
Court of Appeals for the Third Circuit in Ex Parte 
Catanzaro, 138 F. 100, 101.

Considering, however, the law as evidenced by the de­
cisions in The Queen v. Barnardo, supra, 24 Q. B. Div. 
283, Matter of Jackson, supra, 15 Mich. 417, and the other 
cases above cited, we think all these distinctions are 
shown to be unfounded and are sufficiently disposed of 
without further argument. It is inconceivable that the 
great and liberal principles of the law and privilege of 
the writ of habeas corpus can be restricted by the mere 
procedural rules of the Circuit Court of Appeals, even if 
the wording of those rules can be said to support the 
Government’s argument. That petitioner has been trans­
ferred to a new custodian is simply immaterial, we sub­
mit, in view of the nature of habeas corpus proceedings, 
and does not render the cause moot.

POINT IV

The cases cited by the Government are wholly in­
applicable.

The destruction of the Government’s contention that 
this cause is moot is completed, we submit, by the fol­
lowing analysis of all the cases cited in support thereof 
by the Government, and which shows that none of those



16

eases is in point. In the light of the authorities we have 
cited, it is not strange that this is so.

In United States ex rel. Innes v. Crystal, 319 U. S. 755, 
cited, by this court in its order in the case at bar, the facts 
were, so far as we can ascertain, that pending Innes’ peti­
tion for the writ of certiorari he was transferred from 
the custody of the commanding officer of Governor’s 
Island, New York, to the federal penitentiary at Leaven­
worth, Kansas. As we have pointed out, the report indicates 
that Innes was not represented by counsel in this Court. 
Probably, therefore, the law was not sufficiently presented 
to this Court. But even in that case Innes at least had 
passed from the custody of the Army to the custody of 
the warden of the Federal Penitentiary at Leavenworth, 
and this Court’s denial of his petition for the writ of 
certiorari did not, as in the case at bar, effectively deny 
the petitioner any remedy; because there Innes could 
apply to the United States District Court of Kansas in 
whose territorial jurisdiction the petitioner was situated.

Zimmerman v. Walker, 319 U. S. 744, was a habeas 
corpus proceeding brought on behalf of Zimmerman, a 
resident of Hawaii, to test the legality of his imprison­
ment as a dangerous person, by order of a military board 
in Hawaii. As stated by the Solicitor General’s memo­
randum in the Zimmerman case, “ the War Department 
advises that on March 3, 1943,”  pending Zimmerman’s 
application for the writ of certiorari, “ the petitioner was 
removed from Hawaii and was taken in custody to the 
Continental United States. On or about March 12, 1943, 
at San Francisco he was released from custody uncondi­
tionally.”  Petitioner in the case at bar has certainly not 
been released from the army, unconditionally or other­
wise.

In Weber v. Squier, Warden, 315 U. S. 810, the writ of 
certiorari was denied for mootness, “ it appearing that 
petitioner has been released upon order of the United



17

States Board of Parole and that he is no longer in the 
respondent’s custody. ’ ’

In Tornello v. Hudspeth, Warden, 318 U. S. 792, the 
writ of certiorari was denied for mootness, “ it appear­
ing that petitioner has been pardoned by the President 
and that he is no longer in respondent’s custody.’ ’

Ex Parte Weil, 317 U. S. 597, was a mere motion for 
leave to file an original petition for writ of habeas corpus 
in this Court. No habeas corpus proceeding was then 
pending. Naturally, this Court’s order was:

“ The motion for leave to file petition for writ of 
habeas corpus is denied as moot, it appearing that 
the petitioner is no longer in respondent’s custody.’ ’

The distinction between this case and the case at bar 
is obvious.

In Stallings v. Splain, 253 U. S. 339, a new warrant for 
the same offense was issued for the petitioner after the 
conclusion of the habeas corpus proceedings in the court 
below. He appeared voluntarily before the Commissioner 
and moved that he be discharged. The Commissioner de­
nied the motion. The petitioner then requested that he be 
admitted to bail for his appearance in Wyoming to an­
swer the charges against him. Bail was thereupon fixed 
and was furnished, and the petitioner, Stallings, was 
released. This Court held at page 343:

“ * * * He ceased, therefore, to be in the position 
ordinarily occupied by one who is contesting the 
validity of his detention and who has been released 
on bail pending the habeas corpus proceeding. Sibray 
v. United States, 185 Fed. Rep. 401. Stallings’ posi­
tion was thereafter no better than if he had applied 
for the writ after he had given bail. It is well settled 
that under such circumstances a petitioner is not en­
titled to be discharged on habeas corpus. Respublica 
v. Arnold, 3 Yeates, 263; Bodge’s case, 6 Martin, 
569; State v. Buyck, 1 Brev. 460. Being no longer



1 8

under actual restraint within the District of Columbia, 
he was not entitled to the writ of habeas corpus. 
Wales v. Whitney, 114 U. S. 564.”

In Johnson v. Hoy, 227 U. S. 245, petitioner based his 
petition on the ground that excessive bail was required. 
After a hearing his petition was denied. Pending appeal 
from this denial, he furnished bail. This Court said at 
page 248:

“ * * * He is no longer in the custody of the marshal 
to whom the writ is addressed, and from whose 
custody he seeks to be discharged. The defendant is 
now at liberty, and having secured the very relief 
the writ of habeas corpus was intended to afford to 
those held under warrants issued on indictments, the 
appeal must be dismissed.”

Fisher v. Balter, 203 U. S. 174, was a habeas corpus 
proceeding begun to test the validity of a suspension of 
the writ of habeas corpus in certain Philippine Provinces. 
The suspension was revoked after the decision below and 
before perfection of the appeal. This Court said at page 
181:

“ The question ruled by the court below and solely 
argued before us became in effect a moot question, 
not calling for determination here.”

In Wales v. Whitney, 114 U. S. 564, the petitioner, a 
naval medical officer, was ordered to “ confine yourself to 
the limits of the City of Washington.”  This Court sim­
ply held that he was not thereby imprisoned, and that the 
writ therefore did not lie.

We think no argument is needed to show that all these 
decisions are inapplicable to the case at bar. In the 
light, therefore, of the decisions earlier collated in this 
petition, we submit that the Government’s contention that 
this cause is moot is clearly without foundation.



19

Conclusion

This Court has said (Bowen v. Johnston, 306 U. S. 19, 
26):

“ It must never be forgotten that the writ of habeas 
corpus is the precious safeguard of personal liberty 
and there is no higher duty than to maintain it un­
impaired. ’ ’

And Mr. Justice Cooley wrote in Matter of Jackson, 
15 Mich. 417, at page 433:

“ It would be strange indeed, if, at this late day, 
after the eulogiums of six centuries and a half have 
been expended upon Magna Charta, and rivers of 
blood shed for its establishment; after its many con­
firmations, until Coke could declare in his speech on 
the petition of right that ‘ Magna Charta was such a 
fellow that he will have no sovereign,’ and after the 
extension of its benefits and securities by the Petition 
of Right, Bill of Rights and Habeas Corpus acts, it 
should now be discovered that evasion of that great 
clause for the protection of personal liberty, which 
is the life and soul of the whole instrument, is so 
easy as is claimed here.”

W herefore petitioner prays that his petition fo r  a 
writ o f certiorari in this cause m ay be reconsidered.

Counsel certify that this petition is presented in good 
faith and the sincere belief that it has merit, and not 
for the purpose of delay.

Respectfully submitted,

W infred W illiam L ynn , Petitioner, 
by A rthur Garfield H ays, 

Gerald W eatherly,
Counsel for Petitioner.



2 0

U nited S tates B ules oe C ivil P rocedure 
B ule 21

Misjoinder and Non-Joinder of Parties.

Misjoinder of parties is not ground for dismissal of an 
action. Parties may be dropped or added by order of the 
court on motion of any party or of its own initiative at 
any stage of the action and on such terms as are just. 
Any claim against a party may be severed and proceeded 
with separately.

Appendix A.

Appendix B.

United S tates B ules of Civil P rocedure 
B ule 81 (a) (2 ):

In the following proceedings appeals are governed by 
these rules, but they are not applicable otherwise than on 
appeal except to the extent that the practice in such pro­
ceedings is not set forth in statutes of the United States 
and has heretofore conformed to the practice in actions 
at law or suits in equity: admission to citizenship, habeas 
corpus, quo warranto, and forfeiture of property for vio­
lation of a statute of the United States.



2 1

C o p ie s  o p  C o r r e s p o n d e n c e  R e f e r e e d  To

November 6, 1913
, Col. Clyde L. Hyssong,
Ground Adjutant General,
United States Army,
Army War College,
Washington, D. C.

Dear Sir:
As you probably know, a habeas corpus proceeding is 
pending on appeal in the United States Circuit Court of 
Appeals for the Second Circuit, and which we expect to 
argue toward the end of this month, testing the validity 
of the induction under a “ negro quota”  of Private Win­
fred William Lynn, now stationed, we are told, at Ft. Ord, 
Oakland, California.
The case has been given national publicity, particularly 
among negroes, because it tests the legality of the “ negro 
quota”  system now being used in selecting negroes for 
induction into the Army, and it is the subject of deep and 
anxious feeling among the negroes and those who sym­
pathize with them all over the country.
As I have said, the Assistant United States Attorney of 
Brooklyn in charge of the case, Mr. 1 ine Smith, and our 
office plan and expect to argue the case toward the end 
of this month. Furthermore, it is most probable that one 
side or the other will carry the case to the Supreme 
Court of the United States, because of the vital issue 
involved. But now negro leaders have informed our of­
fice that they fear that Lynn may be sent out of the 
country before his case can be finally determined.
Of course, we do not wish to bother you on the basis of 
rumors, and we do not know the basis of the fear ex­

Appendix C.



2 2

pressed by the negro leaders. Nevertheless,, in order to 
calm their fears, may we take the liberty to suggest, so 
that the Army and its officers may not be subjected to 
unjust criticism on this account, that matters be arranged, 
if  possible, so that Lynn may remain in this country until 
his case is finally disposed of. We believe that this will 
not require many months delay, and we strongly feel that 
because of the wide-spread publicity given to Lynn’s 
case, and of the deep concern the great body of negroes 
and many white persons entertain for it, the interests 
of the Army from the standpoint of public goodwill will 
be best served by allowing him to remain in this country 
for this comparatively short period; and we personally 
shall be most grateful if this is done.

Yours very truly,

(sgd .) Gerald W eatherly 
for

GW :hl H ays, S t . J o h s , A bramson & S chulman

Appendix C.



23

H eadquarters A rmy Service F orces 
W ashington 25, D. C.

. 20 November 1943.

Hays, St. John, Abramson & Schulman,
Counselors at Law,
120 Broadway,
New York 5, New York.

Attention: Mr. Gerald Weatherly 

My dear Sir:
Your letter of November 6 addressed to Brigadier Gen­

eral Clyde L. Hyssong, Ground Adjutant General, Army 
War College, Washington, D. C., with regard to Private 
Winfred William Lynn, has been referred to me for reply.

Private Lynn is at present assigned to the 721st Medi­
cal Sanitation Company, Fort Ord, California. While 
shipment of units to overseas theaters is controlled by 
tactical requirements which are not always stable, there 
is no indication that the unit to which Private Lynn is 
assigned will be dispatched overseas during 1943.

Sincerely yours,

(sgd.) R ussel B. R eynolds, 
Brigadier General, General Staff Corps 
Director, Military Personnel Division

Appendix C.



24

H ays, St. J ohn , A bramson & S chulman  
120 Broadway, New York, N. Y.

Special Delivery 
Air Mail

January 27, 1944.
Brigadier General Russel B. Reynolds,
General Staff Corps Director, <
Military Personnel Division,
Headquarters Army Service Forces,
Washington 25, D. C.

Re: Private Winfred W. Lynn—721st 
Medical Sanitation Company,
Fort Ord, California

Dear Sir:
Referring to my letter of November 6, 1943 and your 

letter of November 20, 1943 on this subject, I am again 
taking the liberty of writing you that negro leaders are 
disturbed by rumors that Private Lynn is about to be 
transferred out of the United States. As you doubtless 
know, his habeas corpus proceeding seeking his release 
from the army has been under advisement by the Circuit 
Court of Appeals here for more than a month, and is the 
subject of widespread interest among the negroes of the 
country. The case may be decided any day. Meanwhile, 
may I again suggest that matters be arranged, if possible, 
so that Private Lynn may remain in this country until the 
decision. We fear the army authorities may be subjected 
to unwarranted criticism if Private Lynn is sent out of 
the country before his case is decided. Naturally, I hope 
such criticism can and will be avoided.

I am very grateful for your letter of November 20th, 
1943, which quieted the rumor which then disturbed negro 
leaders. I am hopeful that you will feel free to give us 
some similar assurance now.

Yours very truly,
(sg d .) Gerald W eatherly

GW :BJG

Appendix C.



25

W ar D epartment 
T he A djutant General ’s Office 

W ashington

In Reply
Refer to AG 201 Lynn, Winifred W.

(27 Jan 44) PE-A 9 February 1944.

Hays, St. John, Abramson & Schulman,
Counselors at Law,
120 Broadway,
New York 5, New York

Attention: Mr. Gerald Weatherly

My dear Sir:
Your letter of 27 January 1944 addressed to Brigadier 

General Russel B. Reynolds, Director, Military Personnel 
Division, Army Service Forces, with regard to Private 
Winfred W. Lynn has been referred to this office for 
reply.

Due consideration has been given to the request con­
tained in your letter of 27 January, as well as to pre­
vious requests in this matter.

The general objectives of classification and assignment 
in the Army are to facilitate the placement of each in­
dividual in the assignment in which he will be of most 
value to the service. These principles have been applied 
in the case of Private Lynn. Should the unit to which he 
is assigned be ordered to proceed outside the continental 
United States and he is qualified for the duties to which 
assigned, he will not be removed from his unit.

Very truly yours,
(sgd.) J. A. Ulio, 

Major General,
The Adjutant General.

Appendix C.



26

R ule 31 of the  R ules of the  U nited States Circuit of 
A ppeals for the  S econd Cir c u it :

Custody of Prisoners on Habeas Corpus.

1. Pending an appeal from a decision refusing a writ 
of habeas corpus, the custody of the prisoner shall not 
be disturbed.

2. Pending an appeal from a decision discharging a 
writ of habeas corpus after it has been issued, the pris­
oner may be remanded to the custody from which he was 
taken by the writ, or detained in other appropriate cus­
tody, or enlarged upon recognizance with surety, as to the 
court or judge rendering the decision may appear fitting 
in the circumstances of the particular case.

3. Pending an appeal from a decision discharging a 
prisoner on habeas corpus, he shall be enlarged upon 
recognizance, with surety, for his appearance to answer 
and abide by the judgment in the appellate proceeding; 
and if in the opinion of the court or judge rendering the 
decision surety ought not to be required, the personal 
recognizance of the prisoner shall suffice.

Appendix D.



27

U nited States R ules of Civil P rocedure 
R ule 25

Substitution of Parties

Appendix E.

(a) Death.
(1) I f  a party dies and the claim is not thereby ex­

tinguished, the court within 2 years after the death may 
order substitution of the proper parties. If substitution 
is not so made, the action shall be dismissed as to the 
deceased party. The motion for substitution may be 
made by the successors or representatives of the deceased 
party or by any party and, together with the notice of 
hearing, shall be served on the parties as provided in 
Rule 5 and upon persons not parties in the manner pro­
vided in Rule 4 for the service of a summons, and may 
be served in any judicial district.

(2) In the event of the death of one or more of the 
plaintiffs or of one or more of the defendants in an action 
in which the right sought to be enforced survives only 
to the surviving plaintiffs or only against the surviving 
defendants, the action does not abate. The death shall 
be suggested upon the record and the action shall proceed 
in favor of or against the surviving parties.

(b) Incompetency. I f  a party becomes incompetent, 
the court upon motion served as provided in subdivision 
(a) of this rule may allow the action to be continued by 
or against his representative.

(c) Transfer of Interest. In case of any transfer of 
interest, the action may be continued by or against the 
original party, unless the court upon motion directs the 
person to whom the interest is transferred to be substi­
tuted in the action or joined with the original party.



28

Service of the motion shall be made as provided in sub­
division (a) of this rule.

(d) Public Officers; Death or Separation from Office. 
When an officer of the United States, the District of 
Columbia, a state, county, city, or other governmental 
agency, or any other officer specified in the Act of Feb­
ruary '13, 1925, c. 229, §11 (43 Stat. 941), U. S. C., Title 
28, §780, is a party to an action and during its pendency 
dies, resigns, or otherwise ceases to hold office, the action 
may be continued and maintained by or against his suc­
cessor, if within 6 months after the successor takes office 
it is satisfactorily shown to the court that there is a 
substantial need for so continuing and maintaining it. 
Substitution pursuant to this rule may be made when it 
is shown by supplemental pleading that the successor of 
an officer adopts or continues or threatens to adopt or 
continue the action of his predecessor in enforcing a law 
averred to be in violation of the Constitution of the 
United States. Before a substitution is made, the party 
or officer to be affected, unless expressly assenting there­
to, shall be given reasonable notice of the application 
therefor and accorded an opportunity to object. ^



363 FIFTEENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA 

Fall Term, 1942

S T A T E  )
)v. ) From Iredell
)WILLIAM MASON WELLMON )

I N  D E X
Organization of Court ---------  1
Bill of Indictment------------  2
P l e a --------------------------- 3
Order Appointing Counsel ------  4
Order for Special Venire------  4
Trial, Jury, etc. -------------  5
■Plea and Verdict --------------  6
Judgment of Death-------------  V
Appeal Entries ----------------  8
Statement of Case on Appeal ---  8

STATE*S EVIDENCE:
Mrs. Cora Sowers------ *------- H
Dr, J. W. Davis-----------------15
Dr, Pressley, L. C. Wagner, W.

M. Murdock, John Brawley, and
L. 0. White-------------------15

Carolina Carson ---------------  15
Gertrude Ingram ---------------  16
Sergeant J, C. Carver ----------- 18
Gertrude Ingram RECALLED ------  20
Ed Daniels------------   20
Guy Scott-----------------------20
Sheriff J. W. Moore-------------21
Mr, A. D. Moose and Mr. J. A. 
McCardy ------------------------- 22

(Continued)



Index No. 363 (continued):
Page #2:

Sheriff J. W. Moore RECALLED --  22
DEFENDANT»S EVIDENCE:

Mason Wellmon------------------- 22
John Mitchell------------------- 25
Thomas M. Rives ----------------- 25
Elihu Frick-- ------------------ 26
William Roberts O’Neil --------- 27
Capt. R, B. Wright--------- *-- 29
James C a s e y ----------------------------------------30

STATE IN REBUTTAL:
Sgt. C. C. Carver RECALLED -----  30
Sheriff J. W. Moore RECALLED --  31
Assignments of Error------------ 33



No. 363 FIFTEENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA 

Fall Term, 1942

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S T A T E  )
)

V .  )

)WILLIAM MASON WELLMON )
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From Iredell

Before PLESS, J., August Term, 1942, Iredell 
Superior Court. Defendant appealed.
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ywv" /wr/v“ r/v A /k /V /» A a a a a /» A /* A A /> /V /V A /V /* A J\ /» '» « <v A '• “  A A '*

ORGANIZATION OF COURT 
NORTH CAROLINA, IN THE SUPERIOR COURT
IREDELL COUNTY. AUGUST TERM, 1941
BE IT REMEMBERED, that a Superior Court was 

begun and held in and for the County and State 
aforesaid, at the Courthouse in Statesville,
N. C., at 10:00 o'clock A.M., when and where 
His Honor, Felix E. Alley, Judge presiding^and 
holding Courts of this the Fifteenth Judicial 
District of North Carolina, Fall Term, 1941, 
is present and presiding, and Hon. Charles L. 
Coggin, Solicitor and Prosecuting Attorney for 
this the Fifteenth Judicial District, is pres­
ent and prosecuting in the name of the State; 
and J. W. Moore, High Sheriff of Iredell Coun­
ty, Is present and opened Court by order of 
the Court.
The following good and lawful men were duly 

drawn, sworn and empanelled to serve as Grand 
Jury for a six months period ending December 
31, 1941, to-wit: F. C. McAuley, Foreman, and 
seventeen others (naming them).



2 -

No. 421 ) RAPE.
State -vs- ) On this the 29th day of
Maison Wellman, alias) July, A.D., 1941, in the 
Mace Wellman, alias ) Superior Court of Ire- 
William M. Wellmon. ) dell County, North Caro­

lina, the Grand Jury,
in a body, composed of eighteen members (Fore­
man and seventeen members by poll as follows:
F. C. McAuley, Foreman, and others (naming 
them)), return into open Court a TRUE BILL OF 
INDICTMENT, signed by F. C. McAuley, Foreman of 
said Grand Jury, charging the defendant, Maison 
Wellman, alias Mace Wellman, alias William M. 
Wellmon, with the capital offense of RAPE, in 
words and figures as following:

BILL OF INDICTMENT
STATE OF NORTH CAROLINA, SUPERIOR COURT 
Iredell County. August Term, A.D. 1941
THE JURORS FOR THE STATE UPON THEIR OATH 

PRESENT: That Maison Wellman, alias Mace Well­
man, alias William M. Wellmon, late of the 
County of Iredell, on the 11th day of February, 
A.D. 1941, with force and arms, at and in the 
County aforesaid, unlawfully, v/illfully and 
feloniously did commit an assault on one Mrs. 
Cora Sowers, a female, and her, the said Mrs. 
Cora Sowers, feloniously, by force and against 
her will, did ravish and carnally know, against 
the form of the statute in such case made and 
provided, and against the peace and dignity of 
the State.

CHARLES L. COGGIN, Solicitor.
No. 421

STATE
vs

Maison Wellman, alias 
Mace Wellman, alias 
William M. Wellmon 

INDICTMENT 
RAPE

Witnesses:
J. W. Moore X
Mrs. Cora Sowers X 
Gertrude Ingram X



-3-
Those marked X sworn by the undersigned 

Foreman, and examined before the Grand Jury, 
and this bill found: A TRUE BILL.

F. C. McAULEY,
Foreman of Grand Jury.

NORTH CAROLINA, 
IREDELL COUNTY.
FLEA:
No. 421 
State -vs-

IN THE SUPERIOR COURT 
AUGUST TERM, 1942 
J. WILL PLESS, JR.,
Judge Presiding.

) RAPE.
) On this the 5th day of

Maison Wellman, alias) August, A.D., 1942,
Mace Wellman, alias ) there comes into open 
William M. Wellmon. ) Court, in the custody

of J. W. Moore, High 
Sheriff of Iredell

County, North Carolina, whose prisoner he is, 
Maison Y/ellman, alias Mace Wellman, alias Wil­
liam M. Wellmon, in his own proper person, and 
the said prisoner being at the Bar of the Court, 
the said bill of indictment in this case was 
read to him, and forthwith it is demanded of 
him, the said Maison Wellman, alias Mace Well­
man, alias William M. Wellmon, how he will ac­
quit himself of the premises in said Bill of 
Indictment specified and charged upon himj and 
the said Maison Wellman, alias Mace Wellman, 
alias William M. Wellmon, answering the bill 
of indictment aforesaid, says he is NOT GUILTY 
of the Felony and Rape therein charged, and, 
therefore, for good or evil, he puts himself 
upon his Country and his God, and Hon. Charles
L. Coggin, Solicitor for the State, in his be­
half, doth the like.
The prisoner, Maison Wellman, alias Mace 

Wellman, alias William M. Wellmon, being pres­
ent at the Bar of the Court in his own^proper 
person and in custody of the High Sheriff of 
Iredell County, North Carolina, and it being 
made to appear to the Court, and the Court 
finding as a fact that the defendant is charged 
with the Capital Offense of RAPE, and that he 
has no counsel and is unable to employ counsel, 
the following Order is signed herewith:



-4-
No, 421
North Carolina, In the Superior Court,
Iredell County. August Term, 1942.

State )
vs ) ORDER

Maison Wellmon, alias)
Mace Wellman, alias )
William M. Wellmon )

It appearing to the Court that the defendant 
is not represented by counsel and that he is 
unable to procure the service of counsel be­
cause of his financial Inability:

IT IS NOW ORDERED That Hon. J. C. Rudisil be, 
and he Is hereby appointed to serve as counsel 
for the defendant In this cause.
This the 5th day of August, 1942.

J. WILL PLESS, JR.,
Judge Presiding.

And It appearing to the Court, upon motion 
of Honorable J. C. Rudisil, that a Special 
Venire will be needed in the trial of this case, 
the Court makes the following ORDER FOR SPECIAL 
VENIRE:
No. 421 In the Superior Court,
North Carolina, August Term, 1942.
Iredell County.

State )
vs ) ORDER FOR

Maison Wellman, alias) SPECIAL VENIRE
Mace Wellman, alias )
William M. Wellman )

It appearing to the Court and the Court find­
ing as a fact that the facts involved in this 
case have been widely discussed in Iredell 
County; that the prosecuting witness Is promi­
nently connected in the said County, and that 
much newspaper publicity was given to the al­
leged attack on the prosecuting witness, the 
Court is of the opinion, and so finds, that 
the ends of justice require that the cause be 
tried by a jury from another county. In these 
facts and to this conclusion the Solicitor for



- 5 -

the State and counsel for the defendant concur 
and consent to said findings and order.

IT IS, THEREFORE, ORDERED That a venire of 
fifty persons qualified for jury service, be 
summoned by the Sheriff of Cabarrus County to 
appear at the Courthouse in Statesville, N.C., 
on Tuesday, August 11, 1942, at 10 o’clock 
A.M., to serve as a venire in said cause.

This the 5th day of August, 1942.
J. WILL PLESS, JR.,

Judge Presiding.
TRIAL, JURY, ETC.

No. 421 ) RAPE.
State -vs- ) The prisoner, Maison
Maison Wellman, alias) Wellman, alias Mace 
Mace Wellman, alias ) Wellman, alias William 
William M. Wellmon. ) M. Wellmon, is present

at the Bar of the Court 
in his own proper person, 

in custody of John W. Moore, High Sheriff of 
Iredell County, North Carolina, whose prisoner 
he is.Prior to the commencement of the drawing of 
the jury from the Special Venire, the prisoner 
at the Bar, Maison Wellman, alias Mace Wellmon, 
alias William M. Wellmon, in custody of John 
W. Moore, High Sheriff of Iredell County, is 
duly warned of his rights of challenges, etc., 
by the•Solicitor for the State according to 
law, whereupon the list of names of the Special 
Veniremen was duly called, the names placed in 
a hat in the presence of the Court, Solicitor, 
private prosecution and defense counsel for 
the defendant, and a child under ten years of 
age proceeds to draw the following names from 
said venire, who were duly elected, sworn and 
empanelled: W. W. Williams and eleven others 
(naming them).
It appearing to the Court that the trial is 

likely to be protracted, it is now, after the 
jury has been duly elected, sworn and empanelled, 
ordered that an additional or alternate juror 
be chosen, sworn and empanelled^ whereupon,
DeWitt Hopkins was duly chosen, sworn and



empanelled as the additional or alternate juror 
Pending trial, Court recesses •until Wednesday 

morning, August 12, 1942, and the prisoner, 
Maison Wellman, alias Mace Wellman, alias Wil­
liam M. Wellmon, in custody of John W, Moore, 
High Sheriff of Iredell County, North Carolina, 
whose prisoner he Is, is remanded to jail to 
await the further orders of the Court.
After the completion of the evidence and the 

charge of the Court to the jury, and prior to 
the retirement of the jury for consideration 
of the case, the Court withdrew and discharged 
DeWitt Hopkins, the thirteenth juror, who did 
not take any part in the consideration of the 
case by the jury.

PLEA and VERDICT 
No. 421 ) RAPE
State -vs- ) Plea: Not Guilty.
Maison Wellman, alias)
Mace Weliman, alias ) The defendant, Maison 
William M. Wellmon ) Wellman, alias Mace

Wellman, alias William
M. Wellmon, being at the 

Bar of the Court in his own proper person, in 
custody of John W. Moore, High Sheriff of Ire­
dell County, whose prisoner he is, and the jury 
which was duly drawn, sworn and empanelled in 
this case on August 11, 1942, after hearing all 
the evidence offered by the State and the de­
fendant and after hearing arguments by private 
prosecution and the Solicitor and arguments 
offered by counsel for the defendant and pris­
oner, and the Court's charge, return into open 
Court in a body and for their verdict say they 
find the prisoner and defendant, Maison Well­
man, alias Mace Wellman, alias William M. Well­
mon, GUILTY OF RAPE IN MANNER AND FORM AS 
CHARGED IN THE BILL OF INDICTMENT. Whereupon, 
the defendant, through his counsel, requested 
and moved that the jury be polled. The Clerk 
called the roll of the jury and each juror, 
upon being asked by the Court to state his 
verdict, replied that his verdict was "Guilty 
of Rape as charged in the Bill of Indictment,"



- 7 -

and that, "I do still assent thereto.” And 
upon this it is demanded of the said Maison 
Wellman, alias Mace Wellman, alias William M. 
Wellmon, if he has anything to say wherefore 
and why the Court here ought not, upon the 
premises and verdict aforesaid, to proceed to 
judgment and execution against him, but the 
said prisoner stood mute and silent and said 
nothing further than he had already said; 
wherefore, the Court proceeds to pronounce the 
following Judgment of Death:
No, 421
North Carolina, In the Superior Court,
Iredell County. August Term, 1942,

S "u £l”fc G •
vs : JUDGMENT OF DEATH

William Mason Wellmon :
William Mason Wellman, you have been indicted, 

tried and convicted by a jury of your County 
of the rape of one Mrs. Cora Sowers. The law 
provides that the punishment for your crime 
is death:
The judgment of the Court, therefore, is 

that you be remanded to the common jail of 
Iredell County, there to remain until the ad­
journment of this Court, and upon the adjourn­
ment of this Court,

It is ordered that you be conveyed by the 
High Sheriff of Iredell County to the peniten­
tiary of the State of North Carolina, and by 
him delivered to the Warden of said penitentiary;
And it is further ordered and adjudged that 

you remain in the custody of said Warden until 
Friday, the 2nd day of October, 1942, and that 
on said day, between the hours of 10 o*clock 
in the forenoon and 3 o*clock in the afternoon, 
that you be taken by the said Warden to the 
place of execution in said penitentiary;
And it is adjudged that the Warden then and 

there cause lethal gas of sufficient intensity



to be administered until you are dead; and 
may God have mercy on your soul.

This the 12th day of August, 1942.
J. WILL PLESS, JR.,

Judge Presiding.
APPEAL ENTRIES

Upon the coming in of the verdict the de­
fendant moves to set the same aside. Motion 
denied. The defendant excepts. The defendant 
moves for a new trial for errors of law com­
mitted during the progress of the trial as­
signed and to be assigned. Motion denied and 
the defendant excepts. To the signing of the 
judgment as it appears in the record, the de­
fendant excepts and gives notice of appeal to 
the Supreme Court in open court. Further notice 
waived. The defendant is allowed 40 days to 
prepare and serve case on appeal, and the State 
is allowed 15 days thereafter to serve counter­
case or file exceptions. Appeal bond fixed in 
the sum of $100.00.

J. WILL PLESS, JR.,
Judge Presiding.

APPLICATION TO APPEAL AS A PAUPER, CERTIFICATE 
OF ATTORNEY and ORDER ALLOWING APPEAL AS A 
PAUPER appear in original transcript of record.

STATEMENT OF CASE ON APPEAL
This was a criminal action tried before His 

Honor, J. Will Pless, Jr., Judge Presiding, 
and a jury at the August Term, 1942, of the 
Superior Court of Iredell County, wherein the 
defendant, Maison Wellman, was charged in the 
bill of Indictment with the crime of rape.

The defendant moved for a continuance of the 
case.Upon the motion of the defendant for a con­
tinuance of this cause, the Court puts into 
the record certain facts which are established 
by the record, and other occurrences within 
the knowledge of the Court, which the Court 
feels should be recorded.



- 9 m

The defendant was indicted at the August 
Term 1941, of the Superior Court of Iredell 
County upon the till of indictment found in 
the record; that prior to that time, June 23,
1941, he had sought habeas corpus upon the ex­
tradition proceedings then pending in the Dis­
trict of Columbia, looking to his return to 
the State of North Carolina. Upon the dismiss­
al of the writ, July 1941, the defendant ap­
pealed to the District Court, which affirmed 
the lower court, and thereupon to the Circuit 
Court, which also affirmed the lower court by 
holding, in effect, that the defendant would 
have to return to the State of North Carolina 
for trial; the decision of the Circuit Court 
being dated July 13, 1942.

It appearing that on Tuesday, August 4th,
1942, pursuant to this decision, the defend­
ant was returned to the State of North Caro­
lina for trial, and on Wednesday morning,
August 5, the Court made inquiry from the 
Sheriff whether the defendant had counsel _̂ to 
represent him at this time. Upon being inform­
ed that he did not, the Court thereupon re­
quested Hon. J. C. Rudisill of the Catawba 
Bar, to represent the defendant, and made
his appointment as appears in the record.On the same date the Court informed Mr. Rudi­
sill and the defendant that in the event the^ 
defendant could not be ready for trial at this 
term of the Court the case would be continued 
upon request of the defendant or his counsel. 
After conference with his client, Mr. Rudisill 
stated that he believed he could be ready and 
that he would not request a continuance at 
that time.

The Court then ordered a venire to be sum­
moned from Cabarrus County to appear in States­
ville on Tuesday, August 11, 1942, but publicly 
stated that in the event the defendant had 
learned by Saturday, August 8th, that he would 
be unable to get ready for trial that the Court 
would withdraw the order for a venire and con­
tinue the cause to the November Term. No such



- 1 0 -

request having been made, the venire was per­
mitted to appear, and is here at this time.

Mr. J. C. Rudisill is one of the eminent and 
outstanding members of the Bar of this section, 
and he indicated his willingness to continue 
to appear in the trial of the cause, although 
the defendant has now employed counsel private­
ly, and the court authorizes and appoints Mr. 
Rudisill to continue in representing the defen­
dant, with Mr. John D. Slawter, of Winston- 
Salem, his privately employed counsel.
Upon the affidavit filed to the effect that 

the defendant was unable to procure witnesses 
referred to in the affidavit, the Court is 
informed that upon the hearings in Washington 
the evidence of each of the witnesses was 
transcribed by a court stenographer, and that 
the transcript is available in which the tes­
timony is preserved, which in effect, gives to 
the defendant the same testimony that he could 
procure by deposition, in as much as the wit­
nesses are not residents of North Carolina and 
are, therefore, not subject to the processes 
of this court, and the defendant has been re­
presented by one or more able counsel in Wash­
ington during the proceedings in this matter 
who the Court assumes would be able to get the 
witnesses to the state at this time if there 
was any reasonable likelihood that they would 
be available at this or any other time. The 
Court is of the opinion that the personal ap­
pearance of the witnesses is so doubtful that 
a continuance for that reason is not justified; 
the Solicitor for the State having consented 
that the transcript of the testimony and all 
exhibits referred to therein, taken in Washing­
ton, D. C., on June 23rd and 24th, 1941, may 
be treated as though the same had been taken 
under the law governing the taking of deposi­
tions, and offered accordingly, in the event 
the witnesses whose testimony is transcribed 
do not appear, and the defendant agrees like­
wise as to evidence taken on behalf of the State at said hearings.



- 1 1 -

Thereupon, the Court being of the opinion 
that the motion for a continuance is not well 
founded, denies the same.
A jury was duly chosen, sworn and empanelled.
It appearing to the Court that the trial is 

likely to be protracted, it is now, after the 
jury has been empanelled, ordered that an ad­
ditional or alternate juror be chosen, sworn 
and empanelled, whereupon Mr. DeWill Hopkins 
was chosen as the additional or alternate juror.

The Solicitor, Charles L. Coggin , and Mr.
E. L. Land appearing for the State, Messrs. 
Rudisill and John D. Slawter appearing for 
the defendant.
The following evidence was offered on behalf 

of the State of North Carolina:
STATE’S EVIDENCE

MRS. CORA SOWERS testified: My name is Mrs. 
Cora Sowers; I live two miles East of States­
ville, about 500 feet from the Southern Rail 
way tracks. I was living there on or about the 
11th day of February 1941, living there alone.
On February 11, 1941, I was 67 years old. The 
nearest neighbor from my home is about 300 feet.

On February 11, 1941, about 1:30 In the after­
noon, I was sitting in my room sewing, and heard someone knocking at the back door, or at 
the side of the house. I went^to the door and 
there was a colored man standing there in the 
yard. I asked him what he wanted and he said.
"Do you own this farm?" When I answered, yes, 
he wanted to know if it was rented for next 
year. I told him I did not know.

Then he questioned me as to who owned the 
other land. I told him he would_have to see 
lawyer Sowers, my son. I told him to go to his 
(lawyer Sowers’) office at the Bank and see him 
about renting the property. The man was stand­
ing in the back yard and I had stepped down off



- 1 2 -

the steps and was standing facing him. He then 
said: "How about us looking over a little bit 
of it (the farm) and I will know what I want 
to do.'! Our conversation must have lasted 25 
minutes. Ho other person came up during that 
conversation; and during the conversation I was 
standing about 4 or 5 feet from the man. After 
he asked about looking over the place we walked 
down below the back yard to a pine field where 
there was a big field back of that and I motion­
ed to him saying "back over there it goes that 
far." There was some shrubbery and broom sage 
as high as my head.
The man walked off through the broom sage 

and he commenced walking up and down. I asked 
him what he was doing and he said, "I am track­
ing off to see how many acres it is." He turned 
and came back to me and said, "What do you say 
about sealing the contract right now." I wheel­
ed off and said, "I told you there was no trade 
to be made until I see and talk it over with my 
sons"; and I made several steps and felt some­
thing hit me and I said, "What do you mean?"
That time he grabbed around and kicked my feet 
out from under me and drug me down into this 
little shrubbery. He threw me down and I kept 
trying to scream and holler; he put his hand 
over my mouth and smothered me and said, "Don’t 
you holler I will kill you right here if you holler." I

I kept clawing and after awhile I found my 
under plate was going down my throat and chok­
ing me to death, some how I managed to pull 
that plate out of my mouth. It was found later 
by someone. By under plate, I mean false teeth, 
they dropped at that place. When I pulled his 
hand off my mouth and started to hollering he 
said_, "Don’t you holler I will kill you right 
here", and he would do me that way until I 
think I kinder passed out but I remember him 
getting up off me. His old face was right down 
over me and I just have a recollection of see­
ing him and when he did leave he turned and 
came back and kinder stooped over my face and



- 1 3 -

looked. I must have fainted because when I 
came to I was lying down and I couldn't move.
The place I have described is about 500 feet 

from my house, it was level and grown up with 
shrubbery. I have seen the man who committed 
that assault on me, he is sitting right over 
there (pointing at prisoner). There is a woman 
sitting beside him.
QUESTIONED BY SOLICITOR:
Q. Who is that man?
A. Well, they say --Q. Do you know him by name?
A. They say It is Mace Wellman.Defendant objects - objection overruled -
EXCEPTION NO. 1.
He Is the man that I have described that come 

to my house and asked to rent the farm and with 
whom I had the conversation mentioned above._
He assaulted me; he had sexual intercourse with 
me at that time. It was not with my consent. I 
kicked him and did all I could. It was about 
30 minutes from the time I first saw the man 
Identified as the prisoner until he assaulted 
me. After I regained consciousness I found my 
clothing and body badly torn and soiled.

I was carried to the hospital and there I 
saw Dr-. Davis, he examined me around 4 o'clock 
the same day. When I first talked to the man 
(prisoner) he stated that he had to leave and 
would be gone a day or two and said he couldn't 
be back until Friday. He asked if I reckoned I 
would remember him if he came back. I told him, 
"Certainly I would know him. I had been stand­
ing facing him and naturally I was sizing the 
man up to see if I thought he would be a desir­
able renter for my farm.
The next time after that occasion I saw the 

prisoner in Washington. I saw him in jail 
Washington; there were 8 or 10 in the line.
They were back in one room and there was a 
screen drawn across. I went inside the en- 
closure and saw that man in there. I saw the



-1 4 .

prisoner the next day at the District Attor­
ney's office.

CROSS-EXAMINATION
I was assaulted on February 11th and I be­

lieve that it was about May 6th or 7th we went 
to Washington. No, I had not seen the prisoner 
at any time at all prior to the time I was as­
saulted and didn't see the man who assaulted 
me any more after that, not until I saw him in 
Y/ashington. The first time I saw him in Wash­
ington the way he was dressed I didn't want to 
be sure about his identity. I wanted to see him 
again to fully convince myself that absolutely 
that was the man. I saw'him in Washington four 
times. He was in jail or in custody every time 
I saw him.
At the time I reported to the officers about 

the assault I told them that I had no way of 
telling whether the man was 5 l/2 feet tall or 
not. I told them he had one or two gold teeth 
or some gold or dental work, metal filling of 
some description in his mouth,
Q. You are positive that the man who assault­

ed you had that trouble with his teeth?
A. I remember seeing that. The man who as­

saulted me had some kind of metal filling 
or something on a couple of his teeth to 
the side; teeth that could be seen when 
he opened his mouth. I

I can't say whether the prisoner has been in 
the prison at all times since I saw him In Y/ash­
ington. I can't say that, but I suppose so. I 
saw him four times in Y/ashington; I went up 
there to see if I could identify the man who 
had been arrested there. I think that the 
first ̂ day that I saw him was the 6th or 7th.
The first time I saw him he was in jail and 
the next time I saw him he was in the District 
Attorney's office. I stayed in the hospital 24 
hours, and they carried me to my son's and Mr. 
Scott was the first officer I talked with. Y/hen 
I described the man who had assaulted me I told 
the officer I was a poor hand to judge weight



- 1 5 -

but he was about 175 or 190 pounds; I also told 
him that the man was somewhere between 35 and 
40 years old.

DR. J, W. DAVIS (witness for the State) tes- 
tifled: (Dr7 Davis ?<ras admitted as a medical 
expert).

Prior to and on February 11, 1941, I worked 
all the time as owner and operator of Davis 
Hospital. I saw Mrs. Cora S. Sowers on February 
11, 1941, I first saw her shortly after 4 P.M., 
at the time she came in she was excited and 
semi-hysterical and in a condition of shock.
We did not ask her so many questions until af­
ter she had become composed. I examined her 
and found that she was bruised about the face 
and arms and different parts of the body.

She stated she had been assaulted, so I made 
a vaginal examination and found there was hair 
in the vaginal entrance which would be compat­
ible with her statement,. Then some of the vag­
inal secretion was examined and found to con­
tain live sperm which was conclusive test. From 
my examination of her and medical treatment I 
have an opinion satisfactory to ray__self that 
she had been criminally assaulted, that is, 
that some person had had sexual intercourse 
with her within the past few hours. There were 
some scratched places and red places about her 
face and cheek.No CROSS-EXAMINATION.
After being duly sworn, the following wit­

nesses testified on behalf of the State that 
Mrs. Cora Sowers was a woman whose general 
character was good:
DR. PRESSLEY 
L. C. WAGNER 
W. M. MURDOCK 
JOHN BRAWLEY 
L. 0. WHITE.
CAROLINA CARSON testified: I live in Belmont 

on trie opposite side of the railroad from Mrs. 
Sowers. I recall that Mrs. Sowers is alleged to



-16-
have been assaulted. I saw her in her front 
yard, in fact I was the first one to get to 
her. Her clothes were torn off her and her 
hair and stockings; and you couldn't lay your 
hand on her face but where she was bloody. I 
called the police and her son around 3 o ’clock.
GERTRUDE IMGRAM testified: I live in Belmont 

about one-half mile from Mrs. Sowers. I have 
lived there about 20 years. I did not know 
Mason Wellmon on February 11, 1941, I had not 
seen him prior to that time to my knowledge.
On the 11th of February 1941, I saw the prison­
er, Mason Wellmon, about 2 o'clock in the af­
ternoon. I was walking on my way from work when 
I came into the section of the railroad. As I 
was walking down the railroad and got opposite 
the baby bed factory I saw a man walking down 
the railroad track going down on the other side, 
he was going from me one time and then he turn­
ed and came back walking slow. He sat down on 
the side of the bank for a moment and when I 
got near him he got up and commenced doing like 
he was counting on his fingers and counting the 
railroad ties. He also made signs like he was 
writing something.
When we got opposite each other he turned his 

head away and spoke and went right on counting 
and acting like he was writing something* When 
he got to the little road that goes in front of 
the house where Mrs. Cook lives he went up that 
path. When I last saw him he was about 500 feet 
from the home of Mrs. Sowers. And he was travel­
ing in the direction of Mrs. Sowers’ home.
He had on a brown coat fastened up and a grey 

hat turned up in front and fitting over his 
eyes. I don’t know about his pants and shoes.
I could see him very plain because the sun was 
shining bright. After that day the next time I 
saw him was in Washington, the 6th, 7th or 8th 
of May. He was in the big jail and there were 
8 or 10 colored men with him. I didn’t identify 
the prisoner the first day because he was dress­
ed strangely and I did not recognize him so good; 
but I saw him the next day in the District Attor­



-17-
ney's office in Washington, D. C. He was dress­
ed in brown and I recognized his face good.
There were 6 or 7 colored men in the line-up 

that day. Mrs. Sowers was not with me when I 
identified the prisoner in jail. I saw the 
prisoner again after I saw him in the District 
Attorney's office at the trial in Washington.
I identified him at the trial; and I also saw 
him the third time and I identified him again.

CROSS-EXAMINATION
I have known Mrs. Sowers about 30 years. I am 

now working for Lawyer Sowers, her son. I have 
worked for him a little over a year. After I 
saw the man on the railroad the first person I 
talked to about this case was Post McWhirty, a 
colored man, who came to the house to kill my 
dog for me, that was the same day, February 11, 
1941. I saw that man and told somebody I seen 
him and I know that it was the 1 1 th day when I 
saw him because it was the day I went to work; 
but I do not know what day of the month this is. 
I haven’t got that on my mind. I hadn’t heard 
anything about the reward of the $1,0 0 0 offered 
when I told someone about the man I saw on the 
railroad. I told about that the same day it 
happened. I had never seen the man before in 
my" life and I did not see him any more after 
that until May 6th or 7th when Sheriff Moore 
carried me to Washington. When I went to the 
jail in Washington I did not point out a man 
by the side of the prisoner as the one whom I 
saw on the railroad. There were several men in 
that line-up. A man had on Mason’s coat and a 
brown hat, I said, "That is the man’s clothes, 
he has got on his clothes." Yes, I identified 
the clothes and the man who had on the clothes 
was standing beside Mason Wellmon but I only 
identified the clothes. I saw the prisoner 
again in the District Attorney's office on the 
8th of May. The reason I went back on the 7th 
to identify him was when I first saw him he was 
dressed so that I couldn't identify him, I 
didn’t recognize him he didn’t look like him­
self. Seems like it was in April that I saw and picked out a picture of the defendant from



-18-
a lot of photographs which Sheriff Moore and 
Sheriff Scott brought to me. I was at home 
when I picked out those pictures of the de­
fendant and I told them I would like to see 
the man.

SERGEANT <T. ,C. CARVER, being duly sworn, tes tified:
During the month of February, March, April, 

May and June 1941, I was connected with the 
squad of the Metropolitan Police in Washington 
D. C. I am now connected with the homicide 
squad of the Metropolitan Police.
In consequence of information which I re­

ceived I took charge of the prisoner, Mason 
Wells, in Washington. I arrested him on April 
24, 1941, he was in my custody from Thursday 
to the following Saturday before he was placed 
in the District jail. The first night I took 
him to his room on nB" Avenue and let him 
change to the clothes he has on now. When he 
was arrested he had on his working clothes.

I was with him every day thereafter until 
he was committed to the District jail on Sat­urday.

I arranged for a line-up in the District 
jail on May 6th, around 2 o’clock in the after 
noon. I called the Captain of the jail around 
2 o ’clock In the afternoon arranging for the 
prisoner to be dressed in his street clothes 
and to have several other men here his size as 
I was bringing some people over for the pur­
pose of identification; that was Mrs. Sowers 
and this colored woman (Gertrude Ingram) and 
Sheriff Moore and Sergeant Perry. There were 
eight men in the first line-up, they were all colored.

I did not see the first line-up until the 
jailer came and told us to come in. I did not 
actually arrange the line-up myself.
Mrs. Sowers, Gertrude Ingram, Sheriff Moore, 

Sergeant Perry and myself all walked into a



-19-
small room and these prisoners were lined up 
behind a screen* I had difficulty in identify­
ing the prisoner when I first went into the 
line-up because the place was poorly lighted 
and the prisoner had a grey cap partly turned 
down over his ear and a coat with a sleeve 
pulled up to here - - - - - .  I made some com­
ment about the poor lights and Gertrude Ingram 
told me that the colored man that she pointed 
out had on the clothes but she wasn’t positive 
about the man.

I arranged for another line-up the following 
morning in the Marshall's office. Gertrude In­
gram, Mrs. Sowers, Sheriff Moore and myself 
were present. There were five men in this 
line-up including Mason Wellmon.
When Mrs. Sowers came in for the second iden­

tification she walked right up and put her hand 
on Wellmon.
After Mrs. Sowers identified the person she 

left the room and Gertrude Ingram came in and 
identified the prisoner, saying "this is the 
man". I Y/as also present at the first trial 
on extradition proceedings. Mrs. Sowers and 
Gertrude Ingram identified the prisoner that 
time also.

CROSS-EXAMINATION
On the first occasion an effort was made at 

identification, Sheriff Moore, Mrs. Sowers, 
Gertrude Ingram and another officer were all 
with me there in the District jail but none 
could make Identification on that occasion 
because of poor lighting and the way he was 
dressed.
And I arranged for the second identification 

the following day.



- 2 0 -

GERTRUDE INGRAM (recalled for cross-examin­
ation] testified": I have been married twice; I 
don't know whether my first husband is dead or 
not, I never got a divorce from him and he 
never served a summons on me to get a divorce from me.

ED DANIELS testified: I am Deputy Sheriff 
and was a Deputy Sheriff at the time of this 
occurrence. I assisted in its investigation. 
During my investigation Mr. Scott, of the State 
Bureau of Investigation, Mr. Bailey and Mr.
Reid went with me to talk with Gertrude Ingram. 
She related that she was going home from work 
that afternoon between 1 and 2 o'clock, and 
that she saw a man down there on the railroad 
and that he was going from her and that he 
went on a little piece and then came back to­
ward her. (Witnesses testified to principally 
the same as testified to by Gertrude Ingram 
when she was on the stand under direct examin­ation) .

I don’t remember Gertrude Ingram saying any­
thing about the man having gold teeth. I had 
information that the man that was seen on the 
railroad had some gold in his mouth and we talk­
ed to about every man in this county that had 
gold teeth upon the information that the man 
who took Mrs. Sowers out had some gold In his mouth.

GUY SCOTT testified: That I am former Sheriff 
of Forsyth County and for about four years now 
I have been connected with the State Bureau of 
Investigation as Special Agent. I was with Mr. 
Ed Daniels when he talked to Gertrude Ingram 
and I later saw Gertrude Ingram possibly about 
the first of April. I had several pictures of 
colored men that I showed to her possibly 12 or 
15 at that time. She looked at them very care­
fully, she finally picked up this picture of 
Mason Wellmon and said: "that looks very much 
like him; I wouldn't be certain 'unless I saw 
the man but that looks more like him than any­
thing I have seen yet." I saw Mrs. Sowers,



- 2 1 -

pros e cut ing witness, for the first time on the 
12th of February 1941, when she related to me 
what had taken place and the description of the 
man.

CROSS-EXAMINATION
During my conversation with Mrs. Sowers when 

I first talked with her about what occurred she 
said that the man that assaulted her most posi­
tively had some gold in his upper teeth but she 
wouldn't say whether it was a crown or a fill­
ing. My investigation and my work was based up­
on that description, her testimony and from 
Information we might be able to get from any 
source and as a result of this information.
I assisted in the arrest of four or five peo­
ple. They were held until Mrs. Sowers could 
view them and she said they were not the ones.

SHERIFF J. W, MOORE testified: I am Sheriff 
of“Iredell County, and I visited the home of 
Mrs. Sowers on February 11, 1941, at approxi­
mately 3 o'clock. When I saw her, her clothes 
were torn, she was bleeding on both sides of 
her mouth and her teeth were out and she was 
lying there crying. I next saw her ten days or 
two weeks later at her son’s home in States­
ville. She said that the man who assaulted her 
was a tall man and had some gold capped teeth 
at the right side; said he was about the size 
of her son, Neil, but his shoulders were broad­
er, sharp face, sharp chin and he wasn't a Negro 
looking man. Mrs. Sowers saw about 12 to 20 men 
before she identified the defendant.

I was present when Mrs. Sowers identified the 
prisoner in Washington. Mrs. Sowers walked in 
and walked down the line until she came to Well- 
mon. She stopped and looked him up and down and 
turned and walked back by the guard and the 
guard said, "Do you identify him or don't you?" 
She said, "He looks like the man but if he is 
the man he has changed somewhat from the time 
I saw him." I
I was also present when Gertrude Ingram came 

in there. She said that looks like the suit of 
clothes (the one next to Mason Wellmon) the man



- 2 2 -

was wearing when I passed him on the railroad 
track.
MR, A. D. MOOSE and MR. J. A. McCARDY, after 

being duly sworn, testified: That the general 
character of Gertrude Ingram was good.
SHERIFF J. W. MOORE (recalled for cross- 

examination) testified: We picked up something 
like 12 people for investigation, most of these 
people we arrested and put in jail for investi­
gation had gold teeth or had some gold in their 
teeth. We got a picture of the defendant from 
the Penitentiary in Raleigh maybe two or four 
weeks after the 11th of April 1941. My informa­
tion is that Gertrude Ingram saw the picture of 
the defendant prior to the time that she went 
to Washington but I don’t know whether Mrs. Sow­
ers saw the picture before she went to Washing­
ton.
Yes, Mr. Scott and myself went to Gertrude’s 

one night. Mr. Scott had obtained a picture 
of Mason Wellmon from the Prison Department and 
carried it out there. Yes, Mrs. Sowers told me 
that he (the man who assaulted her) had some­
thing like a gold tooth or a capped tooth or 
something that wasn’t a natural tooth. I got 
the description on the posters from people 
that were around the house of Mrs. Sowers on 
the afternoon of the crime. I don't know wheth­
er there were 500 or 5,000 but all them were 
the same offering a reward of $12 0 0.00.
At the CLOSE OF THE STATE’S EVIDENCE the de­

fendant made a motion for judgment as of non­suit. Motion denied.
EXCEPTION NO. 2.

DEFENDANT'S EVIDENCE
MASON WELLMON testified in his own behalf:

My name is Willi am Mason Wellmon. I am 37 years 
old; I was born in Iredell County, next to 
Stoney Point, until 1938. I am married and 
have four children. In 1940, I left North Caro­
lina, and went to Washington, D. C., and have



-23-
been living up there ever since that time. I 
have been working at Port Belvior, Va., that 
is about 13 miles from Washington. I was liv­
ing at the time in Washington in the Northeast 
section. I worked there until I was arrested.
My foreman was Mr. O’Neil and I worked for 
Charles H. Thomeson, a contractor. I was not 
in Iredell County on the 11th day of February 
and I did not commit the crime of rape upon 
Mrs. Sowers. I wasn't in the State of North 
Carolina, I was in Washington, D. C., working 
and was working oh my job at Port Belvior on 
the 11th day of February 1941. I do not know 
Gertrude Ingram and I have never seen her in 
my life before.

When Gertrude Ingram and Mrs. Sowers were 
brought to jail to identify me in the line-up 
the Superintendent of the jail was there and 
also the captain and they told Mrs. Sowers to 
look at those men and see if any man in this 
line attacked her. She came in and shook her 
head and said no it ain't none of them. Then^ 
Gertrude Ingram was brought in and she looked 
the line over good and she picked out the man 
standing beside me and said he was the man she 
met on the railroad. She identified the man 
standing beside me and said she would swear 
that he was the man she met on the railroad; 
that man's name was Eugene Young.
We lined up twice in the same rotunda room 

the same evening after we had started back to 
our cells the captain called us back and lined 
us up again and both ladies came out and looked 
us over good. Mrs. Sowers went back and said:
"It ain't none of them." Mrs. Ingram picked out 
the man standing beside me and said I would 
swear that he is the man that I met on the 
railroad. I saw Mrs. Sowers and Gertrude In­
gram when I was brought up to the Marshall's 
office for another line-up. Mrs. Sowers came 
out there and looked again and walked away^and 
Gertrude Ingram did the same thing and I^did 
not see them any more until the hearing in Wash­
ington. I am absolutely not the man that was



-24-
seen on the railroad on February 11th. The 
last time I was in North Carolina before Feb­
ruary 11th was the week before Christmas in 
1940, when I came to my mother’s house and 
stayed from Saturday until Monday. I haven't 
been back in the State of North Carolina any 
more until they brought me back on this charge. 
My teeth are now just as they were the day I 
was arrested and put in jail and they are the 
same now as they were on February 11, 1941, 
and I have never had any gold teeth in my head. 
I have never had a tooth crowned with gold. I 
have never had a peg in my teeth.

CROSS-EXAMINATION
Yes, I was in Statesville before Christmas 

and got off from my work in Fort Belvior. I 
had no trouble getting off and when I went 
back they took me back. No one had to work in 
my place because they were changing sections. 
No, I have never had any dental work only what 
you see in front where I had a silver filling 
put in, in 1938. That silver filling was in my 
front teeth on February 11, 1941. Yes, I was 
in prison at Raleigh in 1934. They claimed I 
had assaulted a girl in Catawba County but I 
didn’t assault her. I got a sentence of five years.

I did not plead guilty to the charge of rare 
on a white woman in Catawba County. She said" I 
was the man and I got the time for it. I was 
represented by Mr. Burke and they compromised 
the case at the December, 1934 Term of Superior 
Court of Catawba County. A plea of guilty of 
assault with the intent to commit rape was en­
tered and I served five years. After" I was re­
leased I came back through Iredell County and 
then left and went to Winston-Salem.
By leave of Court the defendant introduced in 

evidence testimony of the following witnesses, 
who testified at the Habeas Corpus proceeding 
in Washington, D. C., June 23rd and 24th, 1941, 
the same being read to the jury to all intents 
and purposes as if it were a deposition.



-25-
JOHN MITCHELL testified: My full name is 

John Ivli't’clieliduring February 1941, I worked 
down at Fort Belvior for Mr. Chas. Tompkins;
I was employed down there during the entire 
month of February 1941. I reached Fort Belvior 
each day by going with a boy named, James 
Casey, who had an automobile. He took us, by 
us, I mean me and that boy sitting over there 
(indicating), down in his automobile mornings 
and back in the afternoons. We all paid him 
$2.00 per week every Tuesday.

I know Wellmon, he was in the car during the 
month of February. I remember Wellmon paid 
Casey on February 11th, and that was on Tues­
day. Wellmon paid Casey on that day because 
Casey had to pay a note on his automobile each 
month. CROSS-EXAMINATION

I will not swear but I may be wrong about 
it but I do think he (Wellmon) was there at 
that time. I guess they have a record of it 
down there. I saw him borrow 50^ from Mr. 
O’Neal on that day. I am sure he was there 
that day.
THOMAS M, RIVES testified: My full name is 

Thomas M. Rives (R-i-v-e-s). I am employed at 
the District jail as Superintendent. There was 
a line-up on May 6th this year (1941) and there 
was a record made of the results of that line­
up I have the record here:

THE RECORD OF THE LINE-UP AT THE DISTRICT 
JAIL ON M Y  6, 1941, ViTAS MARKED PETITION­
ER’S EXHIBIT NO. I.
Mrs. Cora Sowers and Gertrude Ingram were 

the identifying witnesses for the line-up on 
May 6, 1941°. The record shows that no identi­
fication was made. The rotunda of the jail 
where this line-up v/as held is naturally 
lighted. There was no artificial lighting in 
the room. In our judgment there was no need 
for artificial lighting. There are four large 
windows.



-26-
ELIHU FRICK testified: My full name Is Elihu 

Prick5 I am employed by Chas. H. Tompkins Com­
pany, as Assistant Auditor, and have been there 
since 1935. I am here in response to a subpoena 
served on Chas. H. Tompkins Company asking to 
bring certain records this morning. These are 
the records I brought in response to that sub­
poena. They are the records of Chas. H. Thomp- 
kins Company.

There is a letter on top from the manager of 
the payroll department certifying that these 
are the records, social security and employment 
cards, that the man has signed, social security 
records, time sheets and the payroll itself. 
These records were kept at the Port Belvior. 
This paper is our social security record kept 
by Chas. H. Thompkins Company for all employees 
on the Port Belvoir project and kept in the 
regular course of business.

PETITIONER’S EXHIBIT NO. 2 offered and
received in evidence.
This card is for William M. V/ellmon, it 

shows the date of his employment; that he was 
hired on December 30, 1940, at 9 o’clock A.M., 
and he finally separated from that employment 
on February 19, 1941. The card is signed and 
the signature purports to be the signature of 
Wellmon. The card has a number which is assign­
ed to the particular employee and that number is 13736.

PETITIONER’S EXHIBIT NO. 3 offered and
received in evidence.
These are the daily time sheets for the Port 

Belvior job kept by the Chas. H. Thompkins Com­
pany in the regular course of business. This 
first sheet is for February 8th and there ap­
pears some time for (employee) No. 13736, the 
time shows 4 l/2 hours - 7:30 A. M. to 12:00 
o ’clock. I also have a sheet for the next day 
February 10th, that sheet also shows work rec­
ord of William M. Wellmon, No. 13736 from 7:30 
A. M. to 4 o ’clock. The next day after is Feb­
ruary 11th, which shows work from 7:30 A. M. 
to 4 o’clock for number 13736, Pour checks



-27-
are made each day to show whether the man is 
working or not. The checks show the starting 
time, a check in the morning, a check in the 
afternoon and at quitting time. The sheet bears 
the signature of approval of Chas. H. Tompkins 
Company’s timekeeper and that of the U. S. 
Government timekeeper.

PETITIONER'S EXHIBIT NO. 4 offered and 
received in evidence.
This paper is the payroll for the Fort Bel- 

vior job kept by Chas. H. Thompkins Company 
in the regular course of business, the No.
13736 appears thereon for the week that would 
include February 11, 1941. It shows that No. 
13736 did receive his pay on that day. It shows 
the number of hours he worked during the entire week to be 44 l/2 hours from Saturday, the 8th, 
4 1/2 hours; Monday, the 10th, 8 hours; Tuesday 
the 11th, 8 hours; Wednesday the 12th, 8 hours; 
Thursday the 13th, 8 hours; Friday the 14th, 8 
hours. He was paid $35.60 less social security 
or a net of $35.24. He (Wellmon) signed his 
receipt on the envelope. The name William M. 
Wellman appears opposite the No. 13736 on the
P0Q0 9

PETITIONER’S EXHIBIT NO. 5 offered and 
received in evidence.
This document is a social security record 

and it shows that it is the record of William
M. Wellmon, the number on it is 13736. It shows 
number of weeks William M, Wellmon was employed 
and paid by the Company, the dates are as fol­
lows: Beginning with the week-end January 3, 
1941, and ending with the week which ended on 
February 21, 1941, It shows that Wellmon was 
employed for the week Including February 11th, 
1941. It shows that he received a total for 
that week the sum of $35.66. This card is kept 
by Thompkins Company in the regular course of 
business.

WILLIAM ROBERTS O’NEIL testified: My full 
name is William Roberts O’Neil; during the 
month of February 1941, I was employed by the



-28-
Chas, H. Thompkins Company at Port Belvior as 
Labor Foreman. 1 had around 200 men working for 
me. I was employed in that capacity on February 
11, 1941. I know William Mason Wellmon. He work­
ed for me during the month of February from the 
first on through, I don’t know exactly the date 
he left there, but I know he worked the whole 
month of February. He worked there until Thomp­
kins Company closed down.

The last job I did was to build a bridge 
across the highway and this man was a member 
of my crew during that month. During the month 
of February while the petitioner (Wellmon) un­
der my supervision as labor foreman we had 
quite a few bathrooms to fill in with dirt and 
I picked this darky out of several hundred to 
act as kind of a leader you know with some oth­
er darkies to go down and fill these bath rooms. 
He was very good and I picked him out for that 
purpose. There were bathrooms to be filled all 
through February. I picked him out sometime 
along in January, the latter part of January 
and he acted in that capacity through the month 
of February until the latter part of February 
when I left there when we got through. We were 
not through on February 15th. I placed him in 
charge of a small crew anywhere from 5 to 12.
If Wellmon failed to put In his appearance on 
the job any day I would know because I had to 
look to him, and if he was not there I would 
have to get someone else in charge of the men. I

I personally supervised each one of these 
crews and I made periodic inspections of the 
crews throughout the work, going from one bath­
room to the other about 20 to 50, I imagine. I 
know that he was not absent any day during the 
month of February because if he had not been 
there to have taken care of the job I would 
have had to put somebody else In his place on 
that particular day but he was there to take 
care of the work until we got through all the 
bathrooms. To the best of my remembrance Feb­
ruary 11, 1941, was pay day down there. Men 
were paid sometime around 10:30 A. M., and some



- 2 9 -

times around 12:30 P. M. I didn't see Wellmon 
get his pay on the 11th of February, but there 
was an incident which occurred with respect to 
Wellmon on that particular day - The darky had 
borrowed 50 ^ from me the week before and paid 
me on this day which was February 11th. Yes, I 
am sure he paid me on February 11th, the money 
he owed me.

CROSS-EXAMINATIONIt is true that I was arrested by the Police 
Department in Birmingham, Alabama. It is also 
true that I was arrested on May 26, 1929, by 
the Police in Columbus, Ohio, convicted and 
fined $100.00 and sentenced to 60 days but I 
don't remember whether I served 60 days or not. 
I will say this, Judge, right out in open 
Court, that that darky worked for me out there 
and if you will give me three days to get the 
record I will show that that nigger is innocent 
whether I was convicted or whether I was not, 
he was working for me on that day.

CAPT. R. B. WRIGHT testified: My full'name 
is R. B. Wright. T am employed at the District 
of Columbia jail as Captain of the guard. I was 
in charge of the line-up which was held at the 
jail on April 6, 1941. William Wellmon, peti­
tioner was in that line-up. There were six men 
besides him, making seven altogether. Two per­
sons, one white and one colored woman came in 
for the purpose of identifying the prisoner.
The light was daylight and the witnesses viewed 
the persons to be identified through an iron 
grill door of wire mesh; the size of the mesh is 
about 3 inches long and about 2 inches wide and 
maybe larger; it was not a screen such as is 
used to keep out flies but it was heavy wire 
and the mesh is much larger. Neither of the 
identifying witnesses identified the prisoner, 
they stated that they could not identify any 
person. CROSS-EXAMINATION
Yes, Mrs, Sowers, the alleged victim, went 

behind the grill. I do not remember hearing 
her say that this man, the prisoner Wellmon,



-30-
was the man or appeared to be the man. I do 
recall what she said when she went behind the 
grill. She said she "could not Identify him". 
I don’t remember her telling me that he looked 
like the man.

JAMBS CASEY testified: My full name is James 
Casey and I live at 5311 Hayes Street, N. W. , 
on February 11, 1941, I was employed at Fort 
Belvior, Virginia, working for Chas. H. Thomp- 
kins, my foreman’s name was Mr. O ’Neil. Yes, I 
know Mason Wellmon; I first met him in Septem­
ber 1940; he worked with me at Fort Belvior.
I went to work in my car each day and about 
three or four men went with me, Wellmon, Mit­
chell, King and Billy G-reene, they went every 
day with me; they paid me $2 .0 0 per week every 
Tuesday.

Wellmon went with me to Fort Belvior every 
day during February 1941. He paid me every 
Tuesday; he paid me on February 11, 1941, which 
was on Tuesday. He would pay me before he left 
the job. I drove him home every day. I left my 
employment at Fort Belvior after February after 
the job was completed it was sometime in March.

DEFENDANT CLOSES.
STATE IN REBUTTAL

SERGEANT C, C. CARVER (recalled) for rebuttal 
by the State, testified: Sheriff Moore and I 
saw John Mitchell about 9 o'clock on the night 
of April 24th.
Q. He testified in his deposition that he 

was with the prisoner and rode with him 
to and from his home to work at Thompsons Com­
pany - what statement did John Mitchell make 
to you in the presence of Sheriff Moore with 
reference to his knowledge of the whereabouts of the prisoner?

Defendant objects.
Court intervenes: "Gentlemen of the Jury, 

this testimony of Sergeant Carver, as to what 
John Mitchell said is admitted for the purpose



-31-
of contradicting the testimony of the deposi­
tion of Mitchell. It is not substantive evi­
dence but is admitted for the purpose of show­
ing that he made dissimilar statements, it be­
ing offered with that idea in view; and you 
will consider it only as it may tend to weaken 
or contradict the testimony of Mitchell and not 
as substantive evidence."

Objection overruled - defendant excepts.
EXCEPTION NO. 3.
A. He stated that he had not seen Mace Well- 

mon since December, around Christmas.
Mason Wellmon stated to Captain Little in 

my presence with reference to where he was 
working on February 11, 1941, that he didn't 
know exactly where he was but he knew he was 
in Washington but he didn't give us any defin­
ite place where we could check.

SHERIFF J. W. MOORE (recalled by the Solici­
tor! testified: I know John Mitchell; he is a 
colored man; I also know James Casey, he is 
also colored.
Q. What statement did John Mitchell make to 

you or in your presence with reference to his 
knowledge of the whereabouts of the prisoner 
on or about the 11th day of February 1941?
Defendant objects - objection overruled -
Defendant excepts.
EXCEPTION NO. 4.
THE COURT: Gentlemen of the jury,^this is 

admitted for the purpose of contradicting the 
evidence of John Mitchell, if it does, and for 
no other purpose.
A. He said: "He didn't know where Mace Well­

mon was that he left there around the latter 
part of January when he was laid off at Fort 
Belvior and that he hadn't seen him since.

Q. When the prisoner, Mace Wellmon, was ar­
rested by Sergeant Carver, in your presence,



-32-
what statement did he make with reference to 
what his name was?

A. Sergeant Carver walked up on the driver’s 
side and after Mason parked the car into the 
curb in front of his boarding house, I sat in 
the car while he was talking to him. I walked 
up on the opposite side from the driver’s side, 
and Mr. Carver repeated that he said his name 
is William Williams. He told him he would have 
to take him to police headquarters for inves­
tigation. I got in the back seat with him and 
he repeated his name was William Williams.

I was present in Police headquarters when 
the prisoner was questioned by Sergeant Carver 
and Captain Little with reference to where he 
was working on or about the 11th of February 
1941.

I told him that he was charged with the 
crime of rape in Iredell County and it was a 
pretty serious crime, and that it was on the 
11th day of February, and I’d like to know 
Yihere he worked on that day so I could make 
an investigation - that he wanted to be fair 
to him and if he was working up there he could 
not be in the State of North Carolina and 
Washington too. He said he didn’t know where 
he was working, and couldn't tell us anything 
as to where he was working.

STATE CLOSES.
At the close of all the evidence the defen­

dant renewed his motion for judgment as of non­
suit. Motion denied - defendant excepts. 
EXCEPTION NO. 5.

Upon the coming in of the verdict of guilty 
of rape, the defendant moved to set aside the 
verdict as being contrary to and inconsistent 
with the evidence. Motion overruled. Defendant 
excepts.
EXCEPTION NO. 6.

The defendant made a motion in arrest of



-33-
judgment. Motion overruled. Defendant excepts.EXCEPTION NO. 7.
The Court erred in pronouncing judgment of 

death upon the defendant. Defendant excepts. 
EXCEPTION NO. 8.

ASSIGNMENTS OF ERROR
1. The Court erred in overruling the defend­

ant’s objection to allowing the witness to tes­
tify In violation of the hearsay rule, as fol­
lows:Q. Who is that man?
A. Well, they say --
Q. Do you know him by name?
A. They say it is Mace Wellman. (R. p. 13).
2. The Court erred in refusing to grant^de­

fendant 1s motion for judgment as of nonsuit at 
the close of the State’s evidence. (R. p. 22).

3. The Court erred in overruling defendant's 
objection to certain evidence introduced by Ser­
geant C. C. Carver, the same being contrary to 
the rules of evidence as established by the 
decisions of this Court, as follows:
Q. He testified in his deposition that he 

was with the prisoner and rode with him to and 
from his home to work at Thompsons Company --_ 
What statement did John Mitchell make to you in 
the presence of Sheriff Moore with reference to 
his knowledge of the whereabouts of the prison­
er?

Defendant objects.
COURT INTERVENES: "Gentlemen of the Jury, 

this testimony of Sergeant Carver's as to what 
John Mitchell said is admitted for the purpose 
of contradicting the testimony of the deposi­
tion of Mitchell. It is not substantive evidence 
but is admitted for the purpose of showing that 
he made dissimilar statements, it being offered 
with that idea in view; and you will consider 
it only as it may tend to weaken or contradict 
the testimony of Mitchell and not as substan­
tive evidence."



-34-
Objection - overruled - defendant excepts.
EXCEPT I Oil NO. 3.
A. He stated that he had not seen Mace Well- 

mon since December, around Christmas. (R.p.31).
4. The Court erred in overruling defendant’s 

objection to certain evidence introduced by 
Sheriff J. W. Moore, the same being contrary 
to the rules of evidence as established by the 
decisions of this Court, as follows:
Q. What statement did John Mitchell make to 

you or in your presence with reference to his 
knowledge of the whereabouts of the prisoner 
on or about the 11th day of February 1941.

Defendant objects - objection overruled -
Defendant excepts.
EXCEPTION NO. 4.
THE COURT: Gentlemen of the Jury, this is 

admitted for the purpose of contradicting the 
evidence of John Mitchell, if it does, and 
for no other purpose.
A. He said: "He didn’t know where Mace Well- 

mon was, that he left there around the latter 
part of January when he was laid off at Fort 
Belvior, and that he hadn’t seen him since."
(R. p. 31).
5. The Court erred in refusing to grant the 

defendant’s motion for a judgment as of non­
suit at the close of all the evidence. 
EXCEPTION NO. 5 (R. p. 32).

6. The Court erred in refusing to set aside 
the verdict as being contrary to and inconsis­
tent with the evidence. EXCEPTION NO. 6 (R. p. 32) .

7. The Court erred in pronouncing judgment 
of death upon the defendant as appears of rec­
ord. EXCEPTIONS 7 and 8 (R. p. 33).

HOSEA V. PRICE, Winston-Salem, N.C., 
_____________ Attorney for Defendant.
(TRANSCRIPT CERTIFIED BY CLERK SUPERIOR COURT)



SUPREME COURT OF NORTH CAROLINA 
Fall Term, 1942

No. 363 FIFTEENTH DISTRICT

S T A T E  )
)v.

MASON WELLMON )
) From Iredell 
)

, <V /> A . v i*"  r o r  /  v / \ > \ t  c  i  w  r  < v /  w  w  ?  ~ » / » /  c ~ » #  w  » <>

DEFENDANT APPELLANT * S BRIEF





No. 365 FIFTEENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA 

Fall Term, 1942

S T A T E  )
)v. ) From Iredell
)MASON WELLMON )

/V A A /» /V t\ >* A A A A ✓ » A A /» /V A A /» A A /V /V A /V /* A *V A *> A

DEFENDANT APPELLANT’S BRIEF

QUESTIONS INVOLVED
1, Where counsel has been appointed by the 

Court to represent the defendant charged with 
a capital offense and the defendant, as early 
as practical, employed private counsel, is^it 
error for the Court to refuse the motion of 
defendant's private counsel to continue the 
case, where private counsel only had five days 
to prepare for trial, the Court relying upon 
statement of counsel appointed by the Court 
that defendant is ready for trial?

2. On the trial of the defendant for rape is 
it error for the Court t6 permit the prosecu­
trix to give hearsay testimony?



STATEMENT OF FACTS
This is a criminal action tried at the re­

gular August Term 1942, of the Superior Court 
of Iredell County, before His Honor, J. Will 
Pless, Jr., and jury, upon a bill of indict­
ment which was found against the defendant at 
the August Term 1941, charging the defendant 
with the crime of rape.

The defendant, having been arrested and held 
in jail in Washington, D. C., for more than a 
year, was returned to North Carolina from the 
District of Columbia on August 4, 1942, and 
was lodged in the common jail of Mecklenburg 
County at Charlotte, N. C, The Court appointed 
an attorney, Mr. J. C. Rudisill of Catawba, N.C. 
on August 5th and gave the attorney six days 
(till August 11, 1942) to prepare the case for 
trial. No member of the family was allowed to 
communicate with the defendant and hence the 
defendant was unable to employ private counsel 
until Sunday, August 9, 1942, at nearly mid­
night .

The relatives and friends of the defendant 
employed Hon. John D. Slawter, an able and 
eminent member of the Bar of Winston-Salem, 
North Carolina. But Mr. Slawter did not have 
an opportunity to adequately prepare for the 
defense of the defendant before the morning 
of the trial. The defendant's private counsel, 
Hon. John D. Slawter, realizing the gravity of 
the offense charged, made a motion to continue 
the case until the November Term and filed 
certain affidavits stating, in substance, that 
there were certain witnesses and other evi­
dence in Washington, D. C., which he should 
like to obtain on behalf of the defendant in 
order to properly prepare the defense relied 
upon by the defendant.

There are certain vital pieces of documen­
tary evidence In Washington, D. C., including 
exhibits in the form of:

a. - Defendant's employment cardj



-3-
b. - Defendant's daily time sheet; defend­

ant's social security record, etc., all of 
which were introduced at the habeas corpus and 
extradition hearing in Washington, D. C., but 
were not made available to the trial court in 
Iredell County.

ARGUMENT
It does not appear of record, and counsel 

cannot argue whether or not an exception was 
taken to the court's refusal to grant a motion 
for continuance. Counsel who now represents 
the defendant Is not the same counsel who re­
presented the defendant at the trial. And, 
therefore, it is hoped that the Court will in­
dulge the defendant in this argument with re­
spect to what is regarded as reversible error 
on the part of the Court in refusing to con­
tinue this case under the circumstances, of 
which the Court was fully aware. The defend­
ant respectfully begs leave to be permitted to 
cite at least one or two authorities in support 
of his contention:
This Court has repeatedly held that where 

the defendant is convicted of a capital offense 
an appeals to the Supreme Court, this Court will 
review the whole record and the contentions of 
the defendant irrespective of exceptions and 
assignments of error.STATE v. BROWN, 218 N. C. 415.

In STATE v. ROSS, 193 N. C. 25, it is held: 
"While ordinarily the continuance of the case 
to allow alleged defenders against the crim­
inal lav; opportunity to prepare their defense, 
is a matter addressed to the sound discretion 
of the trial judge, the exercise of this dis­
cretion must not violate the provisions of 
Article 1, Section 17 of our constitution 
stating: 'That no person shall be deprived 
of life and liberty, etc., but by the law 
of the land*."
In STATE v. WHITFIELD, 206 N. C. 696, our 

Court held:



-4-
"That a reasonable time for preparation of 
a defendant’s case should be allowed counsel 
- - - - to defend him commends itself, not 
only as a rule of reason but also as a rule of law.5'
However, this case is clearly distinguishable 

from the case at bar for in the Whitfield case 
no error was found due to the fact that the 
evidence was simple and consisted of the tes­
timony of only two witnesses, the prosecutrix and the defendant.

It is urged on behalf of the defendant that 
the trial court, upon the face of the whole 
record, committed reversible error in refusing 
the defendant's motion for continuance; not­
withstanding the fact that no exception was 
taken to the court's refusal to continue the 
case upon defendant's motion. It is readily 
conceded by the defendant that ordinarily such 
motions are addressed to the discretion of the 
court and that its decision thereon is not re- 
viewable except in cases where it is clearly 
shown that there has been an arbitrary abuse of said discretion.
But, the argument is most vigorously, yet 

respectfully advanced here, that the above 
rule is considerably qualified in capital 
cases; since the Supreme Court may, and of­
ten does, review the whole record. And in the 
light of such review, if error appears there­
in, the court will grant such relief as to the 
court may seem just and proper; and this with­
out regard to the presence or absence of excep­tions and assignments of error.
The defendant was arrested more than a year 

ago and held in jail in Washington, D. C., 
where all the time the defendant was trying 
to_gain his freedom through the medium of a 
writ of habeas corpus and by his efforts to 
prevail in extradition proceedings. Having 
been unsuccessful in his efforts to gain his 
freedom, the defendant was returned to the 
State of North Carolina on August 4, 1942,



-5-
and immediately transferred to the common jail 
of Mecklenburg County in Charlotte, N. C.

It should be borne in mind that the Superior 
Court of Iredell County was in session at the 
time the defendant was returned to the State 
of North Carolina. Therefore, the friends and 
relatives of the defendant had no opportunity 
to be notified that the defendant was to be 
tried at the then present term of court since 
the calendar for that term had already been 
publicized. The defendant was unable to com­
municate with his relatives and, therefore,^was 
unable to provide himself with counsel In time 
to prepare adequately for the trial which was 
set for only seven days from the time the de­
fendant was brought to the State of North Caro­
lina. The Court appointed counsel to represent 
the defendant on August 5th. But upon learning 
that the defendant had been returned to the 
State and that the case against him was to be 
tried on August 11th, the relatives and friends 
of the defendant, in the evening of August 9th 
retained the services of Attorney John D. Slaw- 
ter of Winston-Salem, N. C., and paid him_a fee 
to represent the defendant. Mr. Slawter imme­
diately entered upon the task of preparing the 
case for trial and pursuant to such preliminary 
preparation before the call of the calendar on 
Tuesday morning, August 11th, affidavits and 
motion for continuance were presented.

The defendant contends that the case ought 
to have been continued in order that his pri­
vate counsel might have an opportunity to 
properly prepare his defense. The defendant 
further contends that it is a violation of his 
inalienable rights to deny him the benefit of 
counsel of his own choosing when he is on tri­
al for his life; that private counsel=haying 
been employed as soon as practicable it is con­
tended and" urged that defendant's counsel should 
have been allowed a reasonable opportunity to 
prepare the defense.

It is also argued and contended on behalf of 
the defendant that the court's refusal to con­



- 6 -

tinue the case under the circumstances was 
contrary to the spirit of the law of the mother 
country, where it is provided in the Statute 
which preserves to the defendant charged with 
treason (a capital crime), the right of coun­
sel; that such counsel must be assigned "ten 
days before arraignment on indictment for trea­
son," etc.
In the case at bar the defendant’s counsel 

had only five days in which to prepare and pre­
sent his defense; and while the Statutes of 
North Carolina do not specify any special time 
between the assignment of counsel and the ar­
raignment of the defendant in a capital case 
it would seem that the spirit as well as the 
letter of the law requires that the defendant 
be given a reasonable opportunity to prepare 
and defend his case in substance as well as in form.

STATE v. WHITFIELD, 206 N. C. 696.
ASSIGNMENT NO. 3 (R. p. 33) and ASSIGNMENT 

NO. 4 (R. p. 34) are based upon EXCEPTIONS NOS. 
3 and 4 (R. p. 31), and these exceptions and 
assignments of error are considered together.
It is argued that prejudicial error was com­
mitted in that an examination of the record 
containing a transcript of the testimony of 
John Mitchell does not disclose any question 
propounded by anyone tending to put him on his 
guard as to the now contended prior inconsis­
tent statement. John Mitchell was not in court 
at the time the defendant was tried in the Su­
perior Court of Iredell County; but his testi­
mony given at the habeas corpus hearing in 
Washington was introduced at the trial in Ire­
dell County and received in evidence as if it 
were a deposition. Therefore, the testimony 
of Sergeant C. C. Carver, recalled by the 
State for rebuttal, which was offered for the 
purpose of contradicting and impeaching the 
witness, John Mitchell, was clearly a viola­
tion of the salutary rules of evidence; for 
indeed, John Mitchell was not present, was not 
available, and of course, he was not put upon



-7-
the stand and given an opportunity to explain 
the purported inconsistent statements.

See WIGMORE ON EVIDENCE, Third Edition,
Volume 3, Section 1025.

It would seem that before a witness may be 
impeached on account of a prior inconsistent 
statement he must first be asked to some de­
gree of particularity as to whether or not he 
made such statements; and thus given an oppor­
tunity to explain.

If the previous statements were as to col­
lateral matters not relevant to the issue, 
they cannot be proved except by the impeached 
witness himself, and his answers are conclus­
ive .i!LOCKHART’S HAND BOOK OF EVIDENCE, Section 

285, page 338.
Quite obviously, since the purported incon­

sistent statement to the Sheriff was made prior 
to the habeas corpus hearing in Washington, 
this case does not present the situation where 
the necessity for the preliminary questions, 
putting the witness sought to be impeached on 
his guard, are dispensed with on the ground of 
the availability of the witness.

The court allowed Sergeant C. C. Carver (R.p. 
30) and Sheriff J. W, Moore (R.p.31) to contra­
dict a witness who was not in court and had not 
testified At the trial. The testimonies of the 
two witnesses above referred to relate to a 
statement made by John Mitchell which is in 
fact an extra-judicial statement in that John 
Mitchell’s purported statement was made before 
the habeas corpus hearing which was at a time 
when he was not in court and certainly has 
never since been given an opportunity to ex­
plain any inconsistency between that statement 
and the testimony given by him at the habeas 
corpus hearing.
It is strongly contended on behalf of the 

defendant that prejudicial error was committed



- 8 -

when the court allowed the rebuttal evidence 
of Sergeant C. G. Carver and Sheriff J. W. 
Moore, over the objection of counsel for the 
defendant.
This 8th day of October 1942.

Respectfully submitted,
HOSEA V. PRICE,

Counsel for Defendant.



Wo. 363 FIFTEENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA 

Fall Term, 1942

S T

WILLIAM

A T E  )
)

v .  )
)MASON WELLMON )

From Iredell

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BRIEF FOR THE STATE





No. 363 FIFTEENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA 

Fall Term, 1942
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S T A T E  )
)v. ) From Iredell
)WILLIAM M S  ON WELLMON )

BRIEF FOR THE STATE

S T A T E M E N T
This was a criminal action tried before His 

Honor J. Will Pless, Jr., Judge Presiding, and 
a jury, at the August Term, 1942 of Iredell 
Superior Court. The bill of indictment against 
the defendant charged rape. From a verdict of 
guilty of rape in the manner and form as charg­
ed in the bill of indictment and the judgment 
of the Court pronounced thereon, the defendant 
appealed to this Court.

F A C T S

It appears from the record in this case that 
on the 11th day of February, 1941 Mrs. Cora 
Sowers, a lady 67 years of age, who lived on a 
farm about two miles East of Statesville, was 
ravished by the defendant, William Mason Well- 
mon. The defendant was thereafter located in 
the District of Columbia, and upon extradition 
proceedings being instituted to return him to 
the State of North Carolina, he undertook by 
means of habeas corpus to prevent his return 
to this State. A bill of indictment was re-



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turned against the defendant in the Superior 
Court of Iredell County during the August, 1941 
Term, but on account of the fact that the de­
fendant carried his resistance to the extradi­
tion proceedings through the various courts in 
the District of Columbia, he was not returned 
to the State of North Carolina until on or 
about the 4th day of August, 1942. The defend­
ant was tried at the August Term, 1942 of the 
Superior Court of Iredell County. He was 
positively identified by Mrs. Sowers as being 
the person who ravished her and was identified 
by the witness, Gertrude Ingram, as being in̂  
the vicinity of Mrs. Sowers’ home near the time 
when the crime was committed. The defendant re­
lied on an alibi for his defense, contending 
that he was not even in the State of North 
Carolina at the time the crime was committed.
On all the evidence, the jury convicted the de­
fendant and he appealed to the Supreme Court, 
alleging error.

A R G U M E N T
I.

The defendant’s first contention, as set out 
in his brief, is that the court erred in deny­
ing the defendant's motion for a continuance.
It appears from the record and is admitted by 
the defendant in his brief that no exception 
was taken to the court's action In denying his 
motion for a continuance. It has long been the 
rule with this Court that only exceptive assign­
ments of error will be considered on appeal.

In re WILL OF BEARD, 202 N. C. 661 
STATE v. OLIVER, 213 N. C. 386 
STATE v. BROWN, 218 N. C. 415.
But in the BROWN case this Court held that 

where a defendant has been convicted of a cap­
ital felony, the defendant's contentions as to 
error at the trial will be reviewed and that 
the Court will review the record for error ap­
pearing upon its face. In the case of STATE v. 
PARNELL, 214 N. C. 467, it was held that the



- 3 -

failure to have a "case on appeal" or proper 
assignments of error does not per force work 
dismissal of the appeal, and that notwithstand­
ing the insufficiency of the assignments of 
error to raise the questions sought to be pre­
sented, where the defendant’s life is at stake, 
the matters pointed out will be considered. In 
the instant case, there is neither exception 
nor assignment of error on the question of the 
refusal of the trial Judge to allow the defend­
ant's motion for a continuance. The defendant’s 
life being at stake, the State's position on 
the question of continuance will be presented 
to this Court. This Court has wisely left the 
matter of the granting or refusal of a motion 
for a continuance to the sound discretion of 
the trial Judge unless there is palpable abuse 
or gross abuse of this discretion.

STATE v. HENDERSON, 216 N. C. 99, 106.
The defendant insists that his constitutional 

rights under Article I, Section 17, of the Con­
stitution of North Carolina, were denied by the 
refusal of the trial Judge to grant his motion.

In the case of STATE v. SAULS, 190 N. C. 810, 
812, Justice Adams, speaking for the Court, 
said:

"It is earnestly insisted by the defendant 
that he was denied his constitutional rights 
(Article I, Sections 11, 17) and in any 
event that the refusal to grant his motion 
was such an abuse of discretion as entitles 
him to a new trial.
"We are unable to see in what respect the 
defendant’s constitutional rights were de­
nied him unless by the Judge's refusal to 
grant the continuance. The exception, then, 
finally depends on the question whether 
there was an abuse of discretion, and that 
is really the position that was taken on 
the argument.
"In ARMSTRONG v. WRIGHT, 8 N. C. 93, Hender­



-4-
son, J., said: ’The very act of vesting a dis­
cretionary power proves that the subject-mat­
ter depends on such a variety of circumstances, 
where each shade may make a difference, that 
it is impossible to prescribe any fixed rules 
or laws by which the subject can be regulated. 
And, although it be said that a sound discre­
tion means a legal discretion, yet when we ask 
what the legal discretion is, we are as much at 
a loss as we were before the definition to de­
clare the rules or laws by which the discre­
tion shall be regulated. To prescribe fixed 
rules for discretion is at once to destroy it. 
This opinion is very much supported by the 
practice in England. I do not know a single 
case where any decision depending on discre­
tionary power has been the subject of a writ 
of error, and I think that the power of this 
Court to correct errors in law extends not to 
those errors which may be committed in the ex­
ercise of a discretion, but only to those where 
the fixed and certain rules, emphatically call­
ed laws, are mistaken.*
"It was subsequently held in a number of de­
cisions that the refusal to continue a case 
rests in the judge’s discretion upon matters 
of fact which this Court has no power to re­
view. S. v. DUNCAN, 28 IT. C. 98; S. v. COLLINS, 
70 N. C. 242; AUSTIN v. CLARKE, 70 N. C. 458; 
MOORE v. DICKSON, 74 N. C. 425; S. v. LINDSEY, 
78 N. C. 499; S. v. SCOTT, 80 N. C. 366; HENRY 
v. CANNON, 86 N. C. 24; DUPREE v. INS. CO., 92
N. C. 418; S. v. PANKEY, 104 N. C. 841; BAMS 
v. MFG. CO., 108 N. C. 282; S. v. HUNTER, 143
N. C. 607.
"In other cases it is held that while the ex­
ercise of discretion must be judicial and not 
arbitrary, It is not subject to review unless 
’the circumstances prove beyond doubt hard­
ship and injustice’ (MOORE v. DICKSON, supra); 
or ’palpable abuse’ (McCURRY v. McCURRY, 82 
N. C. 296; SLINGLUFF v. HALL, 124 N. C. 397); 
or ’gross abuse’ (S. v. BLACKLEY, 138 N. C.
620; S. v. DEWEY, 139 N. C. 557; S. v. R. R.



- 5 -

145 N. C. 495; S. v. BURNEY, 162 N. C. 614),
In HENSLEY v. FURNITURE CO., 164 N. C. 149,
Mr. Justice Walker expressed the Court's con­
clusion in this language: 'Judicial discre­
tion, said Coke, is never exercised to give 
effect to the mere will of the judge, but to 
the will of the law. The judge's proper func­
tion, when using it, is to discern according 
to law what is just in the premises. ’Dis- 
cernere per legem quid sit justum.' OSBORN v. 
BANK, 9 Wheat. 738. Mien applied to a court 
of justice, said Lord Mansfield, discretion 
means sound, discretion guided by law. It must 
be governed by rule, not by humor; it must 
not be arbitrary, vague, and fanciful, but 
legal and regular. 4 BURROWS, 2539. While 
the necessity for exercising this discretion, 
in any given case, is not to be determined by 
the mere inclination of the judge, but by a 
sound and enlightened judgment, in an effort 
to attain the end of all law, namely, the do­
ing of even and exact justice, we will yet 
not supervise it, except, perhaps, in extreme 
circumstances, not at all likely to arise; 
and it is therefore, practically unlimited.
We do not Interfere unless the discretion is 
abused. JARRET v. TRUNK CO., 142 N. C. 466'.
And in S. v. RILEY, 188 N. C. 72, Chief Justice 
Hoke said: 'Defendants excepted, first, that 
they were ruled to a trial of the cause at the 
same term the bill of indictment was found and 
so soon after the alleged theft that they were, 
in effect, denied the right to obtain necessary 
evidence; but our decisions are to the effect 
that this is a matter within the discretion of 
the trial Judge and not the basis of a valid 
exception, unless there has been manifest abuse 
and, on the facts presented, we are of opinion 
that no such abuse has been made to appear.
S. v. BURNETT, 184 N. C. 783; S. v. SULTAN,
142 N. C. 569.' See also S. v. ENGLISH, 164 
N. C. 498.
"One reason for Mr. Justice Walker’s statement 
that the trial judge's discretion is 'practical 
ly unlimited’ may be found in the following



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language of Chief Justice Ruffin: ’It is the 
province of the court in which the trial 
takes place to judge of the truth or suffi­
ciency of the causes assigned for a motion 
for a continuance or removal of a trial. It 
must be so; else It would be in the power of 
a prisoner to postpone a conviction indefin­
itely, however clear his guilt, by making 
affidavits with the requisite matter on the face of them.’
"The modern application of the rule has thus 
been summarized: When the discretion of the 
trial judge Is exercised with a reasonable 
degree of judicial acumen and fairness, it 
is one which the higher courts are both to 
review or to disturb. The mere fact that the 
case was disposed of with unusual dispatch 
is not an ear-mark of error. The presiding 
judge must be to a certain extent free to 
secure a speedy and expeditious trial, when 
such speed and expedition are not inconsis­
tent with fairness. While it is not necessary 
to constitute abuse, that the court shall act 
wickedly or with Intentional unfairness, it 
is essential to show the commission of a 
clear or palpable error, without the correc­
tion of which manifest injustice will be done 
Familiar with all the attendant circumstances 
the judge has the best opportunity of form­
ing a correct opinion upon the case presented 
and has the benefit of a presumption in favor 
of his action. 16 C. J. 452, Sec. 822(2).
"So far as we may determine from the record 
an order of continuance would not have been 
subject to legitimate criticism, but we have 
not discovered such an abuse of discretion 
as results in a denial of the due process of law."
In the case of STATE v. ROSS, 195 N. C. 25, 

the Court said that while ordinarily the ques­
tion of a continuance is a matter resting in 
the sound discretion of the trial court, never­
theless, the defendant has a constitutional



-7-
rlght of confrontation which cannot lawfully 
be taken from him and this includes the right 
of a fair opportunity to present his case. The 
defendant was given every possible considerat­
ion in presenting his case to the court and
jury.

In the case of STATE v. WHITFIELD, 206 N. C. 
696, cited by the defendant in his brief, the 
prisoner was arraigned on October 23rd, and 
counsel appointed to represent him. His trial 
was set for October 25th and upon the call of 
the case, counsel moved for a continuance on 
the ground that they had not had time to pre­
pare the defense. The motion was overruled and 
the defendant excepted. Chief Justice Stacy, 
speaking for the Court and holding that the 
defendant's constitutional rights had not been 
denied him, said:

"The rule undoubtedly is, that the right of 
confrontation carries with it, not only the 
right to face one's 'accusers and witnesses 
with other testimony' (Sec. 11, Bill of 
Rights), but also the opportunity fairly to 
present one's defense. S. v. ROSS, 193 N.C. 
25, 136 S. E. 193; S. v. HARTSFIELD, 188 
N. C. 357, 124 S. E. 629. A right observed 
according to form, but at variance with sub­
stance, Is a right denied. S. v. GARNER,
203 N. C. 361, 166 S. E. 180; S. v. HIGH­
TOWER, 187 N. C. 300, 121 S. E. 616; S. v. 
HARDY, 189 N. C. 799, 128 S. E. 152.
”Speaking to the subject in POWELL v. ALA­
BAMA, 287 U. S. 45, it was said by the Court 
of final authority that 'in a capital case, 
where the defendant is unable to employ coun­
sel, and is incapable adequately of making 
his own defense because of ignorance, feeble­
mindedness, illiteracy, or the like, it is 
the duty of the court, whether requested or 
not, to assign counsel for him as a necessary 
requisite of due process of law; and that 
duty Is not discharged by an assignment at 
such a time or under such circumstances as



-8-
to preclude the giving of effective aid in the 
preparation and trial of the case.*
"That a reasonable time for the preparation of 
a defendant's case should be allowed counsel 
appointed by the court to defend him commends 
itself, not only as a rule of reason, but also 
as a rule of law, and is so established by the 
decisions. Annotation, 84 A. L. R., 544.
"On the other hand, it is equally well estab­
lished in this jurisdiction that a motion for 
a continuance is addressed to the sound dis­
cretion of the trial court, and its ruling 
thereon is not subject to r e v i e w on appeal, 
except in case of manifest abuse. S. v. LEA,
203 N. C. 13, 164 S. E. 737; S. v. BANKS, 204 
N. C. 233, 167 S. E. 851; S. v. GARNER, supra;
In re BANK, 202 N. C. 251, 162 S. E. 568; S. 
v. RHODES, 202 N. C. 101, 161 S. E. 722; S. v. 
SAULS, 190 N. C. 810, 130 S. E. 848; S. v.
RILEY, 188 N. 0. 72, 123 S. E. 303.
"In the instant case, the alleged crime was 
committed on 3 October; the prisoner was ap­
prehended about a week later, and duly In­
dicted at the October Term of Court; he was 
arraigned on 23 October, and counsel appoint­
ed to represent him; his trial was set for 25 
October. The facts were simple and the con­
troversy reduced itself to a question of ver­
acity between the prosecuting witness and the 
prisoner. There were no other witnesses to 
the crime. We cannot say, as a matter of law, 
that in ruling the defendant to trial, the court 
took from him his constitutional right of con­
frontation. S. v. RODMAN, 188 N. C. 720, 125 
S. E. 486; S. v. BURNETT, 184 N. C. 783, 115 
S. E. 57; S. v. HENDERSON, 180 N. C. 735, 105 
S. E. 339; S. v. SULTAN, 142 N. C. 569, 54 
S. E. 841; S. v. DEWEY, 139 N. C. 556, 51 S. E. 
937. In the absence of a clear showing of 
error, the exceptions must be overruled. S. v. GARNER, supra."
In the WHITFIELD case petition for certiorari



-9-
to the United States Supreme Court was denied. 
See GEORGE WHITFIELD, Petitioner, v. STATE OF 
NORTH CAROLINA, 293 U. S. 556; 79 Law Ed. 658.

In the instant case, can it be said that the 
defendant’s constitutional rights have been 
infringed or that the trial Judge in the Court 
below abused his discretion in denying the de­
fendant’s motion for a continuance? The crime 
was committed on the 11th day of February 1941. 
The defendant was first arrested on the 24th 
day of April, 1941. From that date, he cer­
tainly knew what crime he was charged with in 
the State of North Carolina. Through able coun­
sel, the defendant fought extradition for a per­
iod of over one year. When defendant finally 
ascertained that he could not successfully re­
sist extradition, he was returned to the State 
of North Carolina on the 4th day of August,
1942 to face a bill of indictment which had 
been found by the grand jury of Iredell County 
in August, 1941. On the 5th day of August,
1942 the defendant was arraigned in the Super­
ior Court of Iredell County and Honorable J.C. 
Rudisill, an eminent and capable attorney, was 
appointed to represent the defendant. On_the 
same date, a special venire was ordered to be 
drawn from Iredell County to appear on August 
11, 1942, on which date the trial was to be 
held. Between August 5th and August 11th, the 
defendant employed other counsel to assist in 
his defense/ On August 11th an affidavit was 
filed to the effect that the defendant was un­
able to procure certain witnesses referred to 
in the affidavit and moving for a continuance 
on this ground. It appears that the testimony 
of these witnesses was taken at a hearing in 
the habeas corpus proceeding in the District 
of Columbia, and that it was agreed that as 
the witnesses were beyond the jurisdiction of 
the Court, the transcript of the testimony 
taken during the habeas corpus proceeding 
might be used in the trial of the defendant.
The Court thereupon, being of the opinion 
that the motion for a continuance was not 
well-founded, denied same. It affirmatively



-1 0 .

appears from the record that the testimony of 
the witnesses referred to in defendant’s motion 
for a continuance was used in the trial of the 
case in accordance with the agreement entered 
into between the Solicitor and counsel for the 
defendant. The defendant was not deprived of 
his constitutional rights, either under the 
Constitution of the State of North Carolina 
or the Constitution of the United States.

STATE v. ROSS, supra
STATE v. WHITFIELD, supra
POWELL v. ALABAMA, 287 U. S. 45, 77 L, Ed.158
AVERY v. ALABAMA, 308 U. S. 444, 84 L. Ed.377.
There is no abuse of discretion on the part 

of the trial Judge appearing in the record. On 
the other hand, it appears that the defendant 
was accorded with every privilege to which he 
was entitled. No error was committed in the 
refusal of the trial Judge to grant the defen­
dant’s motion for a continuance.

STATE V . BURNETT, 184 N. C. 783, 787STATE V . RILEY, 188 N. C. 72, 73STATE V . GANT, 201 N. C. 211, 230STATE V . RHODES, :202 N. C. 101, 102STATE V . GARNER, 203 N. C. 361STATE V . BLAKELEY 215 N. C. 61, 62STATE V . HOBBS, 216 N. C. 14STATE V . GODWIN, 216 N. C. 
II.

49, 59.

EXCEPTIONS NOS. 3 and 4 (R. p. 31):
These exceptions are based on the refusal 

of the trial Judge to sustain the defendant’s 
objections to the testimony of Sergeant C. C. 
Carver, and Sheriff J. W. Moore, offered by 
the State in rebuttal, and which would tend 
to contradict the testimony of John Mitchell, 
a witness for the defendant. Mitchell was one 
of the witnesses through whom the defendant 
hoped to establish his alibi. Mitchell tes­
tified that the defendant was working at Fort



- 1 1 -

Belvior, Virginia, at the time the defendant 
was alleged to have committed the crime in 
North Carolina. The purpose of the rebuttal 
testimony was to contradict the testimony of 
Mitchell by showing that he had made state­
ments to Sergeant Carver and Sheriff Moore 
that he didn't know exactly where the defen­
dant was on the 11th day of February, 1941.
He further stated to Sheriff Moore that the 
defendant was laid off at Fort Belvior the 
latter part of January and that he had not 
seen him since. Declarations of a witness 
out of court where they contradict his testi­
mony may be proved, not as independent evi­
dence of the fact stated, but only as affec­
ting the credibility of the witness. 22 C.J.S. 
1287. The fact that a witness has made state­
ments inconsistent with, or contradictory to, 
his testimony, is proper to be considered as 
bearing on his credibility even though the 
jury does not believe that the testimony thus 
contradicted was intentionally false. 70 C.J. 
1152.

In the case of STATE v. PATTERSON, 24 N. C. 
346, 353, the Court, in discussing the admis­
sibility of this type of testimony, said:
"It is well settled that the credit of a 
witness may be impeached by proof that he 
has made representations inconsistent with 
his present testimony, and whenever these 
representations respect the subject-matter 
in regard to which he is examined, it nev­
er has been usual with us to inquire of the 
witness, before offering the disparaging 
testimony, whether he has or has not made 
such representations. But with respect to 
the collateral parts of the witness’ evi­
dence, drawn out by cross-examination, the 
practice has been to regard the answers of 
the witness as conclusive, and the party so 
cross-examined shall not be permitted to 
contradict him. Of late, however, it is un­
derstood that this rule does not apply in 
all its rigor when the cross-examination is



-12-
as to matters v/hich, although collateral, 
tend to show the temper, disposition, or 
conduct of the witness in relation to the 
cause or the parties. His answers as to 
these matters are not to be deemed con­
clusive, and may be contradicted by the 
interrogator; . . .
In the case of STATE v. WRIGHT, 75 N. C. 439, 

it was held that a defendant might impeach the 
credit of a State's witness by proof that the 
witness had made statements out of court con­
trary to what she had testified at the trial.

In the case of STATE v. ROBERTSON, 121 N. C. 
551, 553, the Court said:

"As the third exception is also as to evi­
dence, we will consider it next. Thomas Hes­
ter testified that he had sexual intercourse 
with the prosecutrix before September, 1893, 
the alleged date of the first intercourse 
with the defendant.
"J, W. Upchurch testified in behalf of the 
State that lie had a conversation with the 
witness, Thomas Hester, at his mill, a few 
days before the trial in the civil action, 
in which he asked Thomas if it was true that 
he had sexual intercourse with Julia Hester, 
the prosecuting witness, when Thomas replied 
that it was not true; that he knew nothing 
of her, but that she was a lady.
"There was evidence that Ray Parrish, Up­
church's miller, heard this conversation. 
Parrish was introduced by the State and tes­
tified; 'I saw Thomas Hester at the mill the 
day he refers to, and heard him talking; they 
were just outside. I heard Thomas Hester men­
tion Julia Hester's name, and I went to them 
immediately and heard Thomas Hester say, 'It 
is not so; I always found her to be a lady.’ 
To this evidence the defendant objected, and 
upon it being allowed, excepted, upon the 
ground that it was fragmentary.



-13-
"We do not think so. It contained the whole 
matter in dispute, and if true, proved that 
Thomas Hester had testified falsely, and 
nothing that Thomas could have said could 
have explained it to mean anything but that 
she was a virtuous woman, so far as he knew. 
There was no error in allowing this evidence. 
DAVIS v. SMITH, 75 N. C. 115."
In the case of STATE v. EXUM, 138 N. C. 599, 

at 614, the Court said:
"The evidence was also competent for the pur­
pose of contradicting Mrs. Exum, as she was 
present when the affidavit was made and said 
the statements in it were correct. The paper 
derived no force for the purpose it was here 
used because it was signed and sworn to by 
Mrs. Walston. Mrs. Exum said it was correct, 
and that made it her declaration also, if 
the jury believed the evidence."
This Court, in the case of STATE v. CARDEN, 

209 N. C. 404, quoting from the case of STATE 
v. PATTERSON, supra, reiterates the rule laid 
down in the PATTERSON case.
The trial Judge, in admitting the testimony, 

which forms the basis for these exceptions, 
was very careful to charge the jury that it was 
admitted for the purpose of contradicting the 
testimony of the witness Mitchell and for no 
other purpose. Under the decisions of this 
Court, the trial Judge was correct in over­
ruling the defendant's objections to the tes­
timony in question.
The defendant, in this case, after using 

every possible means to prevent his extradi­
tion to the State of North Carolina, was ac­
corded a fair and impartial trial in the 
Superior Court of Iredell County. He was re­
presented by eminent counsel, one of whom was 
appointed by the Court and other chosen by 
the defendant himself. The judgment of the



-14-
lower Court should be affirmed.

Respectfully submitted,
HARRY McMULLAN,

Attorney General,
GEORGE B. PATTON,
Assistant Attorney General,
HUGHES J. RHODES,
Assistant Attorney General.