Virginia v. Morris Brief and Appendix for Appellants

    BRIEF AND APPENDIX FOR APPELLANTS

In The

UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9587.

COMMONWEALTH OF VIRGINIA,
Appellee,

vs.
LEAH B. MORRIS, 

HOLLIS B. MORRIS, 
HERMAN TRENT 

and
FRANK BROWN, 

Appellants.

S. W. T u c k e r

H e n r y  L. M a r s h , I I I

214 East Clay Street 
Richmond, Virginia

Counsel for Appellants

The Press of Lawyers Printing Company, Incorporated, Richmond 7, Virginia



TABLE OF CONTENTS

Page

Statement of the Case..................... ..... ............ ...... ...... . 1
Questions Presented........................... ..... .......................  2
Statement of F acts...................................... ......... ..........  2
Argument ..................................................... ..... ........... . 5

I. The Accused Cannot Enforce In The Court of 
the State Their Right Not to Be Tried By A Jury
From Which Negroes Flave Been Systematically 
Excluded .............................      5

II. The Demonstrated Improbability Of A Fair 
Trial In The State Court Justified Removal Under 
§1443(1) .....................................      9

Conclusion ................................................................      16

TABLE OF CASES

Avery v. Georgia, 345 U.S. 559 (1952) ..............   6
Bailey v. Commonwealth, 193 Va. 814, 71 SE 2d 368 .... 6
Bailey v. Hensley, 287 F. 2d 936 (8th Cir. 1961) ___  8
Brown v. Allen, 344 U.S. 443 (1953) .......................   6
Darr v. Bunford, 339 U.S. 200 (1950) .......... ............  8
England v. Louisiana State Board of Medical Ex­

aminers, 375 U.S. 411 (1964) ................. .................  13
Eubanks v. Louisiana, 356 U.S. 584 (1953) ........... . 6



ExParte Wells, 3 Woods 128 Fed. Cas. No. 17, 386 .... 5
Fay v. Noia, 327 U. S. 391 (1963) ............      8
Gay v. Ruff, 292 U.S. 25 (1934) ...............................  10

Gibbons v. Mississippi, 162 U.S. 565 (1896) .............. 5
Hill v. Texas, 316 U.S. 400 (1942) ...............................6, 8
Kentucky v. Powers, 201 U.S. 1 (1906) ............... .......  5
Monroe v. Pape, 365 U.S. 167 (1961) ........................... 14
NAACP v. Button, 371 U.S. 415 (1963) ...................  15
NAACP v. Committee, 204 Va. 693 (1963) ..... ......   15
Nashville C & St.L.Ry v. Browning, 310 U.S. 362 .... 7
Neal v. Delaware, 103 U.S. 552 (1881) ....... ...............  6
Norris v. Alabama, 293 U.S. 552 (1935) ...................  6
Patton v. Mississippi, 332 U.S. 463 (1947) ...............  6
Pierre v. Louisiana, 306 U.S. 354 (1939) ...................  6
Reece v. Georgia, 350 U.S. 85 (1955) .................... ......  12
Smith v. Texas, 311 U.S. 128 (1940) ...........................  6
Speiser v. Randall, 357 U.S. 513 ..................................  13

State v. Dunlap, 65 N.C. 491, 6 Am. Rep. 746 (1871) .. 10 
Strauder v. West Virginia, 100 U.S. 303 (1880) .......  5

Page

U. S. ex rel Goldsby v. Harpole, 263 F. 2d 71 (5th 
Cir. 1959) ................................................................... 6



Page

U. S. ex rel Seals v„ Wiman, 304 F. 2d 53 (5th Cir. 
1962) ...............................................................- ......... - 6

Virginia v. Rives, 100 U.S. 313 (1880) .......... -...........  6

OTHER AUTHORITIES

Congressional Globe, 39th Cong. 1st Sess. ........... .......  14

United States Code:
Title 28, §1443(1) ..............-............-........ -............  2

APPENDIX

TABLE OF CONTENTS

Petition for Removal, filed June 3, 1964 ........ ............. - 17
Warrant issued April 18, 1964 ............. ............ ............  21
Responsive Pleading of the Commonwealth of Virginia, 

filed June 25, 1964 .................. .................. -................  22
Ruling of the District Court, July 22, 1964 -----------  23
Order filed July 22, 1964 ......................... ..... -..............  32
Notice of Appeal, filed July 29, 1964 ......... .................  33



In The

UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9587.

COMMONWEALTH OF VIRGINIA.
Appellee,

vs.
LEAH B. MORRIS, 

HOLLIS B. MORRIS, 
HERMAN TRENT 

and
FRANK BROWN, 

Appellants.

BRIEF ON BEHALF OF APPELLANTS

STATEMENT OF THE CASE

On June 3, 1964, pursuant to Title 28 U.S.C. §1443, Leah 
B. Morris, Hollis B. Mor ris, Herman Trent and Frank 
Brown filed petitions in the United States District Court 
for the Eastern District, Richmond Division, for removal 
of certain criminal prosecutions pending against them in 
Amelia County, Virginia.



2

On June 25, 1964, the Commonwealth of Virginia filed a 
motion to remand the cases to the State Court. The motion 
challenged the legal sufficiency of the facts asserted in the 
removal petitions.

On July 22, 1964, the District Court granted the motion 
to remand, but stayed the removal order pending disposition 
of this appeal. The Court adopted that part of its opinion 
in Commonwealth of Virginia v. Fred Wallace, No. 7429 
(E.D. Va.) (criminal) which pertained to 28 U.S.C. 
§1443(1) as the opinion in the case at bar. The Wallace 
case is now before this Court. Notice of Appeal was filed 
by defendants on July 29, 1964.

QUESTIONS PRESENTED

1. Can an accused Negro enforce his right to be tried by a 
jury selected without racial discrimination in a County 
where circuit judges and jury commissioners have long 
followed a policy and practice approved by the State’s 
highest court, of deliberately limiting the number of 
Negroes empaneled for jury duty?

2. Is a showing that an accused Negro cannot enforce his 
right to be tried by a jury selected without racial dis­
crimination in the Virginia State Courts sufficient ground 
for removal under 28 United States Code § 1443(1)?

STATEMENT OF FACTS

The relevant facts in this case are those stated in the 
removal Petitions. (A. p. 17)

On Sunday, April 18, 1964, Herman Trent, a Negro, was



3

driving from Powhatan to Amelia County to a wedding 
reception. The passengers in the car. also Negroes, were 
Mrs. Leah Morris, Hollis Morris, Frank Brown, Mrs. 
Brown, Mrs. Mary Jones and infant Calvin Gilliam.

Trent was forced to bring the car to an abrupt stop in 
Amelia County because the road over which he was driving 
was partially blocked by a car owned and operated by Lewis 
Easter who was then engaged in conversation with Thomas 
Jackson. Jackson and Easter are white persons.

Hollis Morris, assuming that Easter was having car 
trouble, made an inquiry intended as an offer of assistance 
and received an uncivil and belligerent reply. Without 
cause or provocation, Jackson went to the car which Trent 
had been driving, taking with him the hoe on which he had 
been leaning while talking to Easter , and then, while address­
ing vile and belligerent language to the persons then re­
maining in the car, opened the door and violently struck 
Mrs. Leah Morris on her right forearm with the corner of 
the blade of the hoe, thus cutting and breaking her arm. 
This blow constituted the only act of violence which 
occurred.

Appellants were arrested the next day, April 19, and on 
April 28, 1964, were convicted by the Amelia County- 
Court on charges of assault and battery. They immediately 
appealed from said convictions to the Circuit Court of the 
County of Amelia in which they are entitled to trial de novo. 
On June 3, 1964, they removed their cases from said Circuit 
Court to the United States District Court for the Eastern 
District of Virginia because “Petitioner [s] cannot enforce 
in the Courts of the State of Virginia [their] right to the 
full and equal benefit of all laws and proceedings for the



4

security of persons and property as is enjoyed by white 
citizens and to be subject to like punishment . . . and to no 
other.”

Appellants cannot enforce their due process and equal 
protection rights guaranteed to them under the Fourteenth 
Amendment in the Courts of Virginia.

Since 1950 slightly more than half of the adult residents 
of the County of Amelia have been white and the remainder 
Negroes* Since 1950, the Amelia County Circuit Court 
officials have deliberately limited the number of Negroes 
who have been summoned either for grand or petit jury 
service. Never has the percentage of Negroes on any venire 
in Amelia County approximated their percentage of the 
total population of the county.

This systematic and deliberate limitation of Negroes 
serving on juries has produced these results in Amelia 
County:

(1) The concurrence of a Negro grand juror has never 
been essential to an indictment ;

(2) The prosecutor has always been in position to 
peremptorily strike all Negroes from any panel solely be­
cause of their race or color. [Each side may peremptorily 
strike four persons from a panel of 20 in felony cases to 
secure a jury of 12 persons; in misdemeanor cases each 
side may peremptorily strike three persons from a pane! of 
eleven to secure a jury of five persons.]

* The 1950 Census shows that the Amelia County adult (age 21 and over) 
population was 4,389. Of this number 2,390 were white persons, and 1,999 were 
Negro persons. In I960, there were 4,185 adults in Amelia County; 2,261 of 
them were white; 1,924 of them were Negroes.



5

This custom, usage and practice has been approved by 
Virginia’s highest court in Bailey v. Commonwealth, 193 
Va. 814 (1952). Appellants cannot realistically enforce, in 
the state courts, their right to be tried by a jury which has 
been non-discriminatorily chosen.

Finally, Amelia County has a total white adult popula­
tion of less than 2,500. It is extremely unlikely that a jury 
for the trial of petitioner’s case drawn from that county 
would be composed of persons all or most of whom will be 
unacquainted with the witnesses for the Commonwealth. 
It is even more unlikely that any member of such jury will 
vote for a verdict indicating his giving more credence to 
testimony of Negroes whom he does not know than to 
testimony of white persons who are residents of Amelia 
County.

ARGUMENT
I

The Accused Cannot Enforce In The Courts Of The 
State Their Right Not To Be Tried By A Jury From 

Which Negroes Have Been Systematically Excluded

Removal under subsection (1) of 28 USC Section 1443 
is allowed where a state statute or constitution (Strauder 
v. West Virginia, 100 U. S. 303 (1880)) as interpreted by 
the highest state court (Gibbons v. Mississippi, 162 U.S. 
565 (1896)) or a state regulation or custom {Ex parte 
Wells, 3 Woods 128, Fed. cas. No. 17,386, cited with ap­
proval in Kentucky v. Powers, 201 U. S. 1 (1906)) denies 
to the accused or makes him unable to enforce his “equal 
civil rights” in the court of the State. The rationale behind 
this line of cases is a presumption that absent an inhibiting



6

statute, the state courts will correct the actions of adminis­
trative officers which threaten deprivation of the civil rights 
of the accused. Virginia v. Rives, 100 U. S. 313, 321-2 
(1880). This doctrine has its roots in that period of our his­
tory when many states by statute prohibited the service of 
Negroes as jurors. Cf. Strauder, supra, Neal v. Delaware, 
103 U. S. 370 (1881). Those statutes have long since been 
repealed; but the total exclusion of Negroes from juries con­
tinues. See, e.g., Norris v. Alabama, 293 U. S. 552 (1935), 
Pierre v. Louisiana, 306 U. S. 354 (1939), Smith v. Texas, 
311 U. S. 128 (1940), Hilly. Texas, 316U. S. 400 (1942), 
Avery v. Georgia, 345 U. S. 559 (1952), Eubanks v. 
Louisiana, 356 U. S. 584 (1953), Patton v. Mississippi, 
332 U.S. 463 (1947), Brown v. Allen, 344 U. S. 443 
(1953).

The failure of state courts for nearly one hundred years 
to have required the elimination of racially discriminatory 
jury selection would seem to invalidate the presumption that 
they will insure regard for this aspect of the due process 
and equal protection requirements of the Fourteenth Amend­
ment. Cf. United States ex rel Goldsby v. Harp ole, 263 
F. 2d 71 (5th Cir. 1959), United States ex rel Seals v. 
Wiman, 304 F. 2d 53 (5th Cir. 1962). While these con­
siderations would call for a reexamination of the presump­
tion on which the doctrine of Virginia v. Rives has de­
veloped, such does not seem to be essential here.

In Bailey v. Commonwealth, 193 Va. 814, 71 SE 2d 368 
(1952), Virginia’s highest court interpreted the law as 
permitting exclusion of Negroes from juries by the simple 
device of always limiting their selection to a number which 
either side might eliminate through exercise of peremp­
tory challenges, even in a county where Negroes constitute



/

almost half the population. Such practice, as invariably fol­
lowed in Amelia County, accords with the law of the 
State. As was noted in Nashville C. & St. L. Ry. v. 
Browing, 310 U.S. 362, “Here . . . all the organs of the 
state are conforming to a practice, systematic, unbroken 
for more than forty years. . . .  It would be a narrow con­
ception of jurisprudence to confine the notion of ‘laws’ 
to what is found written on the statute books and to disre­
gard the gloss which life has written upon it. Settled state 
practice . . . can establish what is state law.”

In Kentucky v. Powers, supra, removal was refused 
because it was not contended, and could not be, that the 
Constitution and laws of Kentucky deny to the accused 
any rights secured to him by the Constitution of the 
United States or by any act of Congress. In the instant 
case the contention is made that the law of Virginia as in­
terpreted by its highest court and as followed in Amelia 
County precludes selection of a jury from which members 
of his race have not been intentionally and systematically 
excluded. In Kentucky v. Powers, supra, the state’s highest 
court was committed to protecting the rights of the ac­
cused. Here, quite to the contrary, Virginia’s highest court 
is committed to condone the systematic exclusion of 
Negroes from juries. “Deeply imbedded traditional ways 
of carrying out state policy . . . are often tougher and 
true law than the dead words of the written text.” Nashville 
C. & St. L. Ry. v. Browning, supra.

In Neal v. Delaware, supra, removal was denied on the 
ground that the Fourteenth Amendment would presumably 
bind state officers and courts and supersede contrary state 
laws antedating the amendment; and the court noted that 
in Delaware the state’s constitutional inhibition to citizen­



8

ship rights of Negroes had become mere dead letter texts. 
The reasoning of Neal would seem to supersede the in­
ference in the earlier rationale of Strander v. West Vir­
ginia that, absent the restrictive state statutory provisions, 
removal of the trial of the Negro would not be allowed 
when sought on grounds of racial discrimination in jury 
selection. In the final analysis we return to the language 
of the statute and inquire if the “equal” civil right can be 
enforced in the courts of the state. Virginia’s answer in 
Bailey is negative. That negative answer would now appear 
to be the final word when we consider the recent abandon­
ment of the holding of Darr v. Burford, 339 U.S. 200 
(1950) under which it was thought that in habeas corpus 
proceedings, application to the Supreme Court for writ of 
certiorari or for an appeal was one of the state court 
remedies. See Fay v. Noia, 327 U.S. 391, 435-6 (1963).

The negative character of Virginia’s answer is not 
altered by the suggestion in Bailey v. Commonwealth, supra, 
that there the accused failed to prove that the jury commis­
sioners consciously discriminated or failed to impeach the 
jury commissioner’s testimony that they tried to follow the 
law. By rejecting the conclusion that men are presumed to 
intend that which through the years they have accomplished 
and by requiring the accused to prove the undisclosed con­
scious intent of current jury commissioners, Virginia’s 
highest court conditioned a Negro accused’s enjoyment of a 
federal right upon his performance of the impossible. Cf. 
Hilly. Texas, 316 U.S. 400 (1942), Bailey v. Henslee, 287 
F. 2d 936 (8th Cir. 1961).

In the face of the long continued practices resulting al­
ways in virtually all-white juries in Amelia County, which 
“chance and accident alone could hardly have brought



9

about” (Smith v. Texas, 311 U.S. 128, 131 (1940)), and 
the condonation of that practice by Virginia’s highest 
court, the instant defendants cannot enforce their right to a 
jury fairly selected unless the cases against them be tried in 
the federal court.

II

The Demonstrated Improbability Of A Fair Trial In The 
State Court Justifies Removal Under §1443(1)

The second section (II) of the Petitions for Removal 
show a type of local prejudice rendering improbable a 
fair trial which is without parallel.

The question of pertinence here is whether the Con­
gress which enacted the progenitor of 28 USC §1443(1) 
intended that the peculiar circumstances which the accused 
faces in Amelia County would be a ground for removal.

Sub-paragraph (1) was first enacted in 1866 in sub­
stantially the same language in which it exists today. This 
statute was enacted to supplement the Thirteenth Amend­
ment and to guarantee the Negro his newly acquired free­
dom. Congress, with reason, feared that the emancipated 
slaves would be unable to enforce their rights in the courts 
of the slave states and regarded this legislation as necessary. 
As Senator Henry S. Lane of Indiana remarked during 
debate on this measure:

“We should not legislate at all if we believed the 
state courts could or would honestly carry out the 
provisions of the constitutional amendment, but be­



10

cause we do believe that they will not do that, we give 
the federal officers (courts) jurisdiction.”1

The Statute was first construed in State v. Dunlap, 
65 N. C. 491, 6 Am. Rep. 746, (1871) to give a right 
of removal to the federal court because of local prejudice. 
In that case a Negro was charged in the state court with a 
capital offense. He filed an affidavit that he would not have 
the full and equal benefit of all laws and proceedings for 
the security of person and property as is enjoyed by white 
citizens, and that his rights could not be enforced in the 
state courts. This case was decided while the circumstances 
and conditions which caused Congress to enact the removal 
statute2 still prevailed. The Court’s reasoning was as fol­
lows :

“So issue is joined upon the construction of the act 
of congress, and the court is to arrive at the object in 
view by a consideration of the words of the act, taken 
in connection with the evil which was to be met, arising 
out ctf the surrounding circumstances, and the known 
condition of things. Had the object been merely to 
prevent discrimination by the laws of the State, very 
few words would have answered the purpose, and there 
would have been no occasion for affidavit in regard 
to matter which must appear on the face of the public 
law ; but the act under consideration goes into details,

1 Congressional Globe, 19th Cong., 1st Sess. (1866) 603.

2 Gay v. Ruff, 292 U.S. 25, (1934), holds that the removal statute must be 
read in the light of conditions existing at the time of its passage, and that 
where doubt exists as to the meaning of the language of the act, when read 
in the light of conditions then existing, the history of the act may properly 
be examined.



11

and, among other things, guarantees to citizens of 
color ‘as full and equal benefit of all laws and proceed­
ings for the security of person and property as is en­
joyed by white citizens’, and provides for the removal 
of all causes, civil and criminal, when such persons 
are denied, or cannot enforce in the State court the 
rights secured to them, upon the affidavit of the party 
that such is the fact.

“This I consider, after mature reflection, conclusive, 
as to the intention to extend the operation of the act 
of congress so as to make it include cases where, by 
reason of prejudice in the community, a fair trial 
cannot be had in the State courts.”

It may be argued that the views of the North Caro­
lina Court were rejected by the Supreme Court in Kentucky 
v. Powers, supra. The Powers case, however, seems to be the 
product of a development which misconceives what was 
held in Virginia v. Rives, 100 U.S. 313, (1879). In 
Rives, the Court held that removal was improperly al­
lowed on a petition which alleged that petitioners were 
Negroes charged with murder of a white man; that there 
was strong race prejudice against them in the community; 
that the grand jury which indicted them and the jurors 
summoned to try them were all white; that the judge and 
prosecutor had refused petitioners’ request that a portion 
of the trial jury be composed of Negroes; that, notwith­
standing the state laws required jury service of males 
Avithout discrimination of race, Negroes had never been 
allowed to serve as jurors in the county, in any case in 
which their race was interested. The Court found that 
these allegations “fall short” of showing that any civil right 
\vas denied, or that there had been any discrimination against



12

the defendants because of their color or race. What was 
wanting (in those early days before experience in the trial 
of jury discrimination claims bred the “prima facie” show­
ing doctrine of, e.g., Reece v. Georgia, 350 U.S. 85 (1955) ) 
was an allegation of purposeful or intentional discrimina­
tion, and the Court said that this might have been supplied 
by averment that a law of the State barred Negroes from 
jury service. “When a statute of the State denies his right, 
or interposes a bar to his enforcing it, in the judicial 
tribunals, the presumption is fair that they will be controlled 
by it in their decisions; and in such a case a defendant may 
affirm on oath what is necessary for a removal.” 100 U. S. 
at 321. Thus, by reason of the requirement of factual show­
ing under the removal statute that a defendant could not en­
force his federal rights in the state court, the Court thought 
that the inability to enforce federal rights of which the 
removal statute spoke “is primarily, if not exclusively, a 
denial of such rights, or an inability to enforce them, re­
sulting from the Constitution or laws of the State, rather 
than a denial first made manifest at the trial of the case.” 
Id. at 319. But the Court did not suggest as an inflexible 
prerequisite to removal that the state-court bar to effective 
enforcement of federal rights be statutory.

Nor could it reasonably have done so. A statute may 
provide particularly clear evidence of state-court obstruc­
tion, but it is not the only admissible evidence. When Con­
gress subsequently, for example, authorized removal by 
the act of 1887 on grounds of diversity and “prejudice or 
local influence,” it provided for verified allegation and 
trial of the issue on demand of the opposing party. 
Ibid. Moreover, the case in which there exists a state 
statutory or constitutional provision barring enforce­
ment of a federal right is the case in which removal to a



13

federal trial court is least needed. The existence and effect 
of such an ostensible, written obstruction of federal law 
are relatively easily seen and coped with on direct review 
by this Court of the state court judgment. Where removal 
is most needed is the case in which the impingement on fed­
eral rights is more subtle, more impervious to appellate 
correction, as where state-court hostility and bias warp the 
process by which the facts underlying the federal claim are 
found. “How the facts are found will often dictate the de­
cision of federal claims. Tt is the typical, not the rare, 
case in which constitutional claims turn upon the resolu­
tion of contested factual issues.’ Townsend v. Sain, 372 
U. S. 293, 312. ‘There is always in litigation a margin of 
error, representing error in factfinding. . . .’ Speiser v. 
Randall, 357 U. S. 513, 525.” England v. Louisiana State 
Board of Medical Examiners, 375 U. S. 411, 416-417 
(1964). The case in which local prejudice, local resistance, 
pitch this risk of error strongly against federal contentions 
presents the clearest justification for a federal trial jurisdic­
tion, and it is in situations supposed to present such a case 
that Congress has traditionally utilized removal.

The language and statutory history, as well as the pur­
pose, of the 1866 statute which, without change of sub­
stance, is present 28 U. S. C. §1443 (1958), refute any 
rigid requirement that civil rights removal be predicated 
on a state statute or constitution. The 1866 act provided in 
§ 3, that removal might be had by persons “who are 
denied or cannot enforce in the courts or judicial tribunals 
of the State or locality where they may he any of 
the rights secured to them by the first section of this act.” 
(Emphasis added.) The reference to locality suggests that 
something less than statutory obstruction to the enforce-



14

merit of rights was thought to be sufficient.3 The rights 
enumerated in § 1, included “full and equal benefit of 
all laws and proceedings for the security of person
and property, as is enjoyed by white citizens . . . , any 
law, statute, ordinance, regulation, or custom, to the con­
trary notwithstanding.” (Emphasis added.)4 “Proceed­
ings” was certainly intended to add something to “laws,” 
and the inclusion of reference to “custom” was not inad­
vertent. Senator Trumbull, who introduced, reported and 
managed the bill which became the act5 twice told the Sen­
ate that it was intended to allow removal “in all cases where 
a custom prevails in a State, or where there is a statute-law 
of the State discriminating against [the freedman].”6 Cf. 
Monroe v. Pape, 365 U. S. 167 (1961). Indeed, the Senator 
expressly said that it was not the existence of a statute, any

3 The “locality” provision was rephrased in Rev. Stat. §641, which turned 
removal on the inability to enforce federal rights “in the judicial tribunals of 
the State, or in the part of the State where such suit or prosecution is pending.” 
This wording was carried forward in §31 of the Judicial Code of 1911, and 
appears in 28 U.S.C. §74 (1940). In the 1948 revision they were “omitted 
as unnecessary,” presumably on the theory that one who may remove from “a 
State court” may thereby remove from the court of any locality in the State. The 
omission tokens no substantive change in the statute.

4 Secion 1 of the Act of 1866 was reenacted by §§16 and 18 of the Enforce­
ment Act of 1870. It appeared in Rev. Stat. §1977 now 42 U. S. C. §1981 
(1958), without the “notwithstanding” clause. A similar clause was omitted by 
the revisors in carrying forward section 1 of the Act of April 20, 1871, ch. 
22, 17 Stat. 13, as Rev. Stat. §1979, now 42 U.S.C. §1983 (1958). In neither 
case does any intention appear to effect a substantive change. The “notwith­
standing” clauses, although indicative of legislative purpose in respect of some 
application of the statutes—as here—never were effective provisions, since the 
Supremacy Clause of the Constitution made them unnecessary.

5 Introduced, Cong. Globe, 39th Cong., 1st Sess. 129 (1/5/1866). Reported 
id. at 184 (1/11/1866). Taken up, id. at 211 (1/12/1866).

6 Id. at 1759 ( 4/4/1866). See id. at 475 (1/29/1866).



15

more than of a custom, that constituted such a failure of 
state process as to authorize removal; but in each case, cus­
tom or statute, it was the probability that the state court 
would fail adequately to enforce federal guarantees.7 Such 
an issue of probability is a matter of proof by any com­
petent means, and allegations raising the issue should, if 
controverted, call for hearing.

In the recent case of N.A.A.C.P. vs. Committee, 204 Va. 
693, 698, 133 S.E. 2d 540 (1963), Virginia’s highest 
court said:

“One would have to be deeply insensible to the af­
fairs of present day life, or a modern Rip Van Winkle, 
to fail to observe the opposition in Virginia and in 
many parts of the Nation to the activities of the 
NAACP and its affiliates in the field of racial relations. 
So tense and widespread has been the resentment that 
judicial cognizance has been taken of the situation.

7 Cong. Globe, 39th Cong., 1st Sess. 17S9 (4/4/66) :
So in reference to this third section, the jurisdiction is given to the Federal 

courts of a case affecting the person that is discriminated against. Now, he is 
not necessarily discriminated against, because there may be a custom in the 
community discriminating against him, nor because a Legislature may have 
passed a statute discriminating against him; that statute is of no validity if 
it comes in conflict with a statute of the United States; and it is not to be 
presumed that any judge of a State court would hold that a statute of a State 
discriminating against a person on account of color.was valid when there was 
a statute of the United States with which it was in direct conflict, and the 
case would not therefore rise in which a party was discriminated against until 
it was tested, and then if the discrimination was held valid he would have a 
right to remove it to a Federal court—or, if undertaking to enforce his right 
in a State court he was denied that right, then he could go into the Federal 
court; but it by no means follows that every person would have a right in the 
first instance to go to the Federal court because there was on the statue book 
of the State a law discriminating against him, the presumption being that 
the judge of the court, when he came to act upon the case, would, in 
obedience to the paramount law of the United States, hold the State statute to 
be invalid.



16

“In N.A.A.C.P. v. Button, (1963) 371 U. S. 415, 
435, 83 S. Ct. 328, 339, 9 L. ed. 2d 405, 419, the court 
said . . . tha t:

“ ‘We cannot close our eyes to the fact that the 
militant Negro civil rights movement has engendered 
the intense resentment and opposition of the politically 
dominant white community of Virginia; litigation 
assisted by the NAACP has been bitterly fought.’ ”

With respect to removals under §1443(1), the Supreme 
Court has never inquired whether impartial and sufficient 
laws can function in a community where both public and 
private infringements of the defendant’s rights by prej­
udice or otherwise are such as to preclude a fair trial. 
Such is the situation in Amelia County as shown in this case.

CONCLUSION

WHEREFORE, It is respectfully submitted that the 
judgment of the District Court remanding these prosecu­
tions should be reversed.

S. W. T u c k e r  
H e n r y  L. M a r s h , III 

214 East Clay Street 
Richmond, Virginia 23219

Counsel for Appellants



APPENDIX

COMMONWEALTH OF VIRGINIA,
Plaintiff,

vs.
LEAH B. MORRIS,1 

Defendant.

PETITION FOR REMOVAL 
[Filed June 3, 1964]

The above-captioned defendant petitions the Court that 
certain criminal prosecutions pending in the Circuit Court 
of the County of Amelia, in the State of Virginia be re­
moved from said state court to the United States District 
Court for the Eastern District of Virginia, Richmond 
Division, the said criminal prosecution being the proceed­
ings upon a warrant which, as amended, charg-es that the 
said defendant did on the 18th day of April, 1964, commit 
an assault and battery on one Roy T. Jackson.

The incident which gave rise to said charges is, briefly 
stated, as follows:

In company with five other adults and one infant, all of 
whom are Negroes and residents of the County of Pow­
hatan, Virginia, petitioner, on the 18th day of April, 1964,

1 The petitions of Leah Morris, Herman Trent, Hollis Morris and Frank 
Brown are identical except that in the first paragraph of Brown’s petition the 
charge of assault and battery is on Thomas Wayne Jackson and on Henry 
Jennings, rather than on Roy T. Jackson.



18

in the County of Amelia, Virginia, was riding in an auto­
mobile from Powhatan County. This automobile was caused 
to be stopped because one Lewis Easter had unlawfully 
stopped an approaching automobile on the highway in such 
a way as to impede the progress of the automobile in which 
petitioner was riding. Said Lewis Easter was then ap­
parently engaged in conversation with one Roy T. Jackson. 
Both Easter and Jackson are white persons and residents 
of the County of Amelia.

An inquiry by one of the male occupants of the auto­
mobile in which petitioner was riding, intended as an offer 
of assistance, was answered by less civil remarks which 
soon became belligerent in nature. Without any provoca­
tion, said Roy T. Lewis struck, with a hoe, the right 
forearm of Leah B. Morris, one of the female occupants 
of the automobile from Powhatan County, with such 
violence that her arm was thereby broken and the flesh 
thereof was severely cut. Shortly thereafter, Thomas 
Wayne Jackson and Henry Jennings arrived on the scene. 
However, the only battery consummated by any person 
during the entire incident was that committed by Roy T. 
Jackson upon the person of Leah B. Morris as foresaid.

Petitioner cannot enforce in the courts of the State of 
Virginia her right to the full and equal benefit of all laws 
and proceedings for the security of persons and property 
as is enjoyed by white citizens and to be subject to like 
punishment, pains, penalties and exactions of every kind 
and to no other.

I

Petitioner cannot enforce in the courts of the State of 
Virginia her right under the Due Process and Equal Pro­



19

tection Clauses of the Fourteenth Amendment to the con­
stitution of the United States that there be no systematic 
discrimination against, or limitation of the number of, 
persons of her race in the selection of the petit jury by 
which she would be tried.

Petitioner is a Negro and a resident of Powhatan County, 
Virginia.

In 1950, according to the United States Census of Popu­
lation for that year, there were 4,389 persons twenty-one 
years of age and over residing in Amelia County of which 
number 2,390 were white persons and 1,999 were non­
white persons or Negroes. In 1960, according to the United 
States Census of Population for that year, there were 4,185 
persons twenty-one years of age and over residing in the 
County of Amelia of which number 2,261 were white per­
sons and 1,924 were non-white persons or Negroes.

It is and for many years has been the custom, usage and 
practice of the officials of the Circuit Court of the County 
of Amelia charged with duties pertaining to jury selection 
to deliberately limit the number of Negroes who may be 
summoned for jury duty so that never has the concurrence 
of a Negro member of a grand jury been essential to an 
indictment, and seldom, if ever, have more than four 
Negroes been included in a panel of twenty from which 
each side strikes four to leave a jury of twelve for the trial 
of a felony charge, and seldom, if ever, have more than 
three Negroes been included in a panel of eleven from 
which each side strikes three to leave a panel of five for 
the trial of a misdemeanor charge. Such custom, usage and 
practice of deliberate limitation would enable the prosecutor 
peremptorily to exclude all Negroes from the jury by which 
petitioner would be tried in said Circuit Court.



20

In the case of Bailey v. Commonwealth, 193 Va. 814 
(1952), the Supreme Court of Appeals of Virginia ap­
proved such custom, usage and practice of consistently 
limiting the number of Negroes who may be called for 
jury service so that either side may peremptorily eliminate 
all Negroes from actual jury service. Under the law of 
the State of Virginia as thus ascertained and declared by 
its highest court, petitioner cannot enforce in the courts of 
the State her right to be tried by a jury in the selection 
of which there has been no discrimination against persons 
of his race.

II

Amelia County has a total white adult population of less 
than 2,500. It is extremely unlikely that a jury for the 
trial of petitioner’s case drawn from that county would be 
composed of persons all or most of whom will be un­
acquainted with the witnesses for the Commonwealth. It is 
even more unlikely that any member of such jury will 
vote for a verdict indicating his giving more credence to 
testimony of Negroes whom he does not know than to 
testimony of white persons who are residents of Amelia 
County. A conviction of petitioner by such a jury would 
constitute deprivation of liberty and property without due 
process of law and a denial of equal protection of the laws 
contrary to the Fourteenth Amendent to the Constitution of 
the United States.

I l l

Over the petitioner’s objection the Judge of the Circuit 
Court of the County of Amelia at the calling of the docket 
on June 2, 1964, set petitioner’s case for trial on June 4, 
1964. In such limited time petitioner is unable to secure the



21

attendance of witnesses to prove facts essential to a success­
ful defense, e. g., testimony of physicians located in Notto­
way County and in the City of Richmond to support other 
evidence to be offered by the petitioner that the arm of 
Leah B. Morris was or could have been broken in the 
manner in which petitioner claims it was broken and, also, 
testimony of citizens of Powhatan County showing the 
good character of the occupants of the automobile in which 
petitioner was riding. Under such circumstances, the 
scheduling of petitioner’s case for such an early trial is a 
denial of due process of law contrary to the Fourteenth 
Amendment to the Constitution of the United States.

WHEREFORE, petitioner prays the removal of the 
above mentioned criminal proceedings from the Circuit 
Court of the County of Amelia to the United States District 
Court for the Eastern District of Virginia, Richmond 
Division, and prays that said proceedings stand so removed.

L e a h  B. M o r r is  
Petitioner

S. W. T u c k e r  
H e n r y  L. M a r s h , III 

214 East Clay Street 
Richmond, Virginia 

Counsel for Petitioner

STATE OF VIRGINIA \ No
COUNTY OF AMELIA \ .....................

TO ANY SHERIFF OR POLICE OFFICER:

Whereas, Roy T. Jackson has this day made complaint 
and information on oath before me, Reginald E. Flippin,



22

Justice of the Peace of the said County, that Leah B. 
Morris in the said County did on the 18th day of April, 
1964: Unlawfully did on this day commit an assault and 
battery on Roy T. Jackson.

These are, therefore, to command you, in the name of 
the Commonwealth, to apprehend and bring before the 
County Court of the said County, the body (bodies) of the 
above accused, to answer the said complaint and to be 
further dealt with according to law. And you are also 
directed to summon:

.. color .... .... Address.............. ..............□

.. color .... .... Address_______ ..............□

.. color .... .... Address.............. - ......

.. color .... .... Address___ ___ ..............□

.. color .... .... Address.............. - ............. □
as witnesses.

Given under my hand and seal, this 18th day of April, 
1964.

R e g i n a l d  E. F l i p p e n  (Seal) 
(Title of Issuing Officer) 

Justice of the Peace

RESPONSIVE PLEADING OF 
THE COMMONWEALTH OF VIRGINIA

Filed June 25, 1964 

[CAPTION OMITTED]

The Commonwealth of Virginia by Thomas Stark, III, 
Commonwealth’s Attorney of Amelia County, Virginia,



23

moves the court to consolidate the four above entitled crim­
inal warrants and to treat this pleading as the responsive 
pleadings of the Commonwealth of Virginia to the petition 
for removal filed in each of the above styled cases.

MOTION TO REMAND

The Commonwealth of Virginia by Thomas Stark, III, 
Commonwealth’s Attorney of Amelia County, Virginia, 
moves the court for an order remanding to the Circuit 
Court of Amelia County the above styled criminal warrants 
which were pending on appeal in the Circuit Court of 
Amelia County when the petition herein was filed upon the 
ground that the allegations contained in the petition are 
not sufficient in law to sustain the motion for removal of 
the said criminal warrants or to support the jurisdiction 
of this court to try the said warrants.

5  ̂ s{£

[Answer Omitted j

RULING OF THE DISTRICT COURT 
July 22, 1964

THE COURT: Gentlemen, it appears that the issue 
in this case present the same questions raised in Common­
wealth of Virginia v. Fred Wallace, Criminal No. 7429, 
Eastern District of Virginia, April 10, 1964. That opinion 
has not been published. However, of course is on file with 
the papers in the Wallace case.

I believe it is more accurate to state, is it not, Mr.



24

Marsh, that this case raises the questions decided only in 
the part of that opinion pertaining to Section (1) of the 
Act?

* *  *

THE COURT: The appellate rules require that the 
memorandum of the Court be printed. For that reason, the 
Court adopts as its decision in this case the Wallace 
opinion, or at least that part of it which deals with Section 
( 1).

[That part of the Ruling of the Court in Commonwealth 
of Virginia v. Fred Wallace, Crim. No. 7429, E.D. Va. 
April 10, 1964 which pertains to point (1) is reprinted 
below] :

sfc H* *

Turning now to the motion before the Court to remand 
the case of Commonwealth v. Fred Wallace to the Circuit 
Court of Prince Edward County, the Court points out that 
its jurisdiction to entertain the case is entirely dependent 
upon the statutes passed by the Congress conferring juris­
diction upon the United States Court.

In Tennessee v. Davis, 100 U.S. 257, 271 (1879), the 
Court said:

“It ought, therefore, to be considered as settled 
that the constitutional powers of Congress to authorize 
the removal of criminal cases for alleged offences 
against State laws from State courts to the circuit 
(tr. 3) courts of the United States, when there arises 
a federal question in them, is as ample as its power to 
authorize the removal of a civil case.”



25

Many of the cases to which reference has been made set 
out with great force the indispensability of such a power 
to the enforcement of federal law. We are not concerned 
with the constitutional power of Congress with respect to 
the motion which we are considering. The statement in 
7 ennessee v. Davis is not to be doubted, but it is not the 
guide which we must follow today. The question is not 
ascertaining the power of the Congress, but what the 
Congress has done in exercising that power. It may or may 
not have gone to the limit of its powers. That is not the 
issue before the Court today.

The question before the Court today is one of statutory 
interpretation of 28 United States Code, Section 1443, 
which provides:

“Any of the following civil actions or criminal prose­
cutions, commenced in a State court may be removed 
by the defendant to the district court of the United 
States for the district and division embracing the 
place wherein it is pending:

“ (1) against any person who is denied or cannot 
enforce in the courts of such State a right under any 
(tr. 4) law providing for the equal civil rights of 
citizens of the United States, or of all persons within 
the jurisdiction thereof;

“ (2) for any act under color of authority derived 
from any law providing for equal rights, or for re­
fusing to do any act on the ground that it would be 
inconsistent with such law.”

The procedure which we are following today has been 
sanctioned by two cases decided by the United States Su­



26

preme Court. The first of those is Virginia v. Rives, 100 
U.S. 313 (1879). There, the defendants had been indicted 
for murder and challenged the venire on the ground of its 
racial composition and prejudice.

Turning to the procedure upon which Virginia v. Rives, 
supra, reached the Supreme Court, it is interesting to 
notice that the petition for removal was made and the 
Circuit Court of the United States issued a writ of habeas 
corpus cum causa.

“No motion—” the Court said at page 316—-“has 
been made in the Circuit Court to remand the prose­
cutions to the State court, but the Commonwealth of 
Virginia has applied to this court for a rule to show 
cause why a mandamus should not issue commanding 
the judge of the District Court of the Western District 
(tr. 5) of Virginia, the Honorable Alexander Rives, 
to cause to be redelivered by the marshal of the said 
district to the jailer of Patrick County the bodies of 
the said Lee and Burkwell Reynolds, to be dealt with 
according to the laws of the Commonwealth. The rule 
has been granted, and Judge Rives has returned an 
answer * *

The Court goes on to say, page 317:

“It is, therefore, a material inquiry whether the pe­
tition of the defendants set forth such facts as made 
a case for removal, and consequently arrested the 
jurisdiction of the State court and transferred it to 
the Federal Court—” and then cites Section 641,

which is the genesis of the law which we are considering.



27

The case, as you can see, came up on mandamus without 
the Supreme Court hearing evidence, but considering only 
the allegations of the petition.

In Kentucky v. Powers, a similar situation existed. The 
Court pointed out, page 33:

‘‘The Commonwealth of Kentucky has not tiled a 
reply to said petition for removal, or in any way taken 
issue with the defendant as to any of the allegations 
thereof.”—

The Court realizes that in this case there has been an 
(tr. 6) answer filed denying some of the allegations, but 
that answer is not before us at this time. The issue of fact 
is not before us. And the Court said:

—“Said allegations must, therefore, be accepted as 
true, save in so far as they may be contradicted by 
the transcript on file herein.”

And they went on to show that there was no contra­
diction.

On page 35, the Court said:

“Taking then the facts to be as represented in the 
petition for removal, still the remedy of the accused 
was not to have the prosecution removed into the Fed­
eral court—that court not being authorized to take 
cognizance of the case upon removal from the State 
court.”

In the present case the Court, without at this time recit­



28

ing the facts set forth in the petition and amended petition, 
takes all well pleaded facts as established.

We turn now to the Act, Section 1443 of Title 28, United 
States Code. The Court understands from the argument 
and from the briefs that it is not seriously contended that 
prejudice alone is cause for removal even though that 
prejudice results from racial differences. There are many 
cases which support that proposition. The serious question 
(tr. 7) under section (1) is the allegation in the petition 
that the defendant in Prince Edward County cannot secure 
a jury constituted according to the requirements of the 
United States Constitution. That is, that the jury is se­
lected in a discriminatory manner, and does not provide 
him with the nondiscriminatory jury to which he is entitled.

There are a number of cases which consider this subject. 
Possibly, the leading case—certainly one that reviews 
many of the others—is Kentucky v. Powers, 201 U.S. 1 
(1905). There, the Court pointed out that the mischief 
which section (1) sought to remedy was that which might 
be provided by state law, or state constitutional provision. 
The Court said, at page 29:

“When a statute of the state denies his right, or 
interposes a bar to his enforcing it, in the judicial 
tribunals, the presumption is fair that they will be 
controlled by it in their decisions; and in such a case 
a defendant may affirm on oath what is necessary for 
a removal. Such a case is clearly within the provisions 
of Section 641. But when a subordinate officer of the 
State, in violation of state law, undertakes to deprive 
an accused party of a right which the statute law 
accords to him, as in the case at bar, it can hardly be 
said that he is denied, or cannot enforce, ‘in the judicial



29

(tr. 8) tribunals of the State’ the rights which belong 
to him. In such a case it ought to be presumed the 
court will redress the wrong. If the accused is deprived 
of the right, the final and practical denial will be in 
the judicial tribunal which tries the case, after the 
trial has commenced. If, as in this case, the subordinate 
officer, whose duty it is to select jurors, fails to dis­
charge that duty in the true spirit of the law; if he 
excludes all colored men solely because they are col­
ored; or if the sheriff to whom a venire is given, 
composed of both white and colored citizens, neglects 
to summon the colored jurors only because they are 
colored; or if a clerk whose duty it is to take the 
twelve names from the box rejects all the colored 
jurors for the same reason—it can with no propriety 
be said the defendant’s right is denied by the State 
and cannot be enforced in the judicial tribunals. The 
court will correct the wrong, will quash the indictment 
or the panel, or, if not, the error will be corrected in a 
superior court. We cannot think such cases are within 
the provisions of Section 641. Denials of equal rights 
in the action of the judicial tribunals of the State are 
left to the revisory powers of this court.”

(tr. 9) The Court quoted extensively from Virginia v.
Rives, supra, in reaching that conclusion.

At page 31, the Court goes on to say:

'‘Those cases, as did the prior ones, expressly held 
that there was no right of removal under Section 641, 
where the alleged discrimination against the accused, 
with respect to his equal rights, was due to the illegal, 
or corrupt acts of administrative officers, unauthor­



30

ized by the Constitution or laws of the State, as inter­
preted by its highest court. For wrongs of that char­
acter the remedy, it was held, is in the state court, 
and ultimately in the power of this court upon writ 
of error, to protect any right secured or granted to an 
accused by the Constitution or laws of the United 
States, and which has been denied to him in the highest 
court of the State in which the decision, in respect of 
that right, could be had.”

Now, undoubtedly the petitioner recognizes that the 
above-mentioned cases set forth the applicable law. They 
buttress their recognition by saying that in the case of Com­
monwealth v. Bailey, 71 S.E. 2d 368, the Supreme Court of 
Appeals countenanced or approved discriminatory practices 
in the selection of a jury, and, therefore, the Virginia 
Statutes and Constitution must be considered to permit 
such discrimination. The petitioner urges that Bailey 
(tr. 10) brings the case at bar squarely within the propo­
sition cited in Kentucky v. Powers, supra, and the cases 
upon which its reasoning is based. If Bailey can be read 
to allow such discrimination, then it follows that under 
more recent decisions of the Supreme Court the Virginia 
Constitution and Statutes do fall within the purview of 
section (1).

The Court, however, concludes that the case of Bailey 
v. Commonwealth cannot be cited to establish the propo­
sition that in Virginia improper racial discrimination in 
the selection of jurors is permitted. That case must be 
considered solely upon the facts that were presented in it 
and upon the concessions made by counsel in argument. It 
cannot be considered as precedent for the proposition that 
if the defendant establishes in Prince Edward County



31

factual racial discrimination, the Virginia courts will hold 
as a matter of law that such discrimination is permissible.

The Court reaches that conclusion not only from reading 
Bailey, but largely from the case of Bailey v. Smyth in 220 
F.2d 954 ( 4th Cir. 1955). Of course, as we all know, the 
petitioner in Bailey v. Smyth was the appellant in Bailey 
v. Commonwealth.

The Court of Appeals for the Fourth Circuit, at 220 
F.2d 955, points out that one of the grounds upon which a 
(tr. 11) writ of habeas corpus was sought was “that 
there had been discrimination on the ground of race in the 
selection of the jury by which he had been tried.” They 
found that such discrimination had not been established 
and refused to grant the writ.

They went further and held that the issues could be 
determined from the state record.

Therefore, this Court does not see how it can determine 
that the case of Bailey v. Commonwealth in 71 S.E. 2d 
368 establishes the proposition which counsel for the peti­
tioner urges upon this Court. To do so, the Court would 
have to disregard the plain holding of the Court of Appeals 
for the Fourth Circuit in Bailey v. Smyth, which was based 
not on the redetermination of the facts, but on the law. 
And this Court is not, of course, in a position to do so.

Judge Hayes pointed out in North Carolina v. Jackson, 
135 F.Supp. 682 (M. D. N. C. 1955), that there was no 
showing that the North Carolina Supreme Court had con­
sidered the constitutionality of the statute with respect to 
the Fourteenth Amendment of the Federal Constitution. 
He remanded the case to the state courts.



32

The Court cannot hold at this time that the Supreme 
Court of Appeals of Virginia would determine what con­
stituted, or did not constitute, a proper jury without giving 
(tr. 12) proper effect to the Fourteenth Amendment.

H*

Criminal Actions 
Nos. 7472, 7473, 7474, 7475.

COMMONWEALTH OF VIRGINIA
v.

LEAH B. MORRIS 
HOLLIS B. MORRIS

HERMAN TRENT 
FRANK BROWN

ORDER
[Filed July 22, 1964]

Upon consideration of the petition for removal filed by the 
defendants in each of these cases and on petition for 
remand filed by the Commonwealth of Virginia, upon 
motion of all parties, it is ADJUDGED and ORDERED 
that these cases are consolidated for disposition in this 
Court and for appeal.

For reasons stated by the Court from the bench and in 
the Memorandum of the Court in deciding the case of 
Commonwealth of Virginia v. Fred Wallace, Criminal 
#7429 (E.D. Va. April 10, 1964), it is ADJUDGED and 
ORDERED that these cases are remanded to the Circuit 
Court of Amelia County, Virginia.



33

The defendants, by counsel, having indicated their in­
tention to appeal to the United States Court of Appeals 
for the Fourth Circuit, it is ORDERED that the execution 
of this order be suspended until the United States Court of 
Appeals for the Fourth Circuit acts upon said appeal.

/S /  J o h n  D. B u t z n e r , J r . 

United States District Judge
July 22, 1964

NOTICE OF APPEAL 
[Filed July 29, 1964]

Names and addresses of appellants:
L e a h  B. M o r r i s  

Route 3, Box 115 
Powhatan, Virginia 

H o l l i s  B. M o r r i s  
Route 13, Box 115 
Powhatan, Virginia 

H e r m a n  T r e n t  

Route 13, Box 115 
Powhatan, Virginia 

F r a n k  B r o w n  

Route 3, Box 106 
Powhatan, Virginia

Names and addresses of appellants’ attorney: 
S. W. T u c k e r  
H e n r y  L. M a r s h , III 

214 East Clay Street 
Richmond, Virginia 23219



Offenses: Assault and battery.

Concise statement of judge or order, giving date and any 
sentence:

July 22, 1964: ORDERED that these cases are re­
manded to the Circuit Court of Amelia County, Virginia.

Name of institution where now confined, if not on bail: 

Defendants are on bail.

The above named appellants hereby appeal to the United 
States Court of Appeals for the Fourth Circuit from the 
above stated judgment.

Date: July 29, 1964.

S. W. T u c k e r  
Appellants’ Attorney



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