Vernon v. Alabama Records and Briefs

    RECORDS

JlNtD

BRIEFS















TRANSCRIPT OF RECORD

S u p rem e  C o u r t  o f  th e  U n ite d  States

OCTOBER TERM, 1940

N o. 4 4 9

JOE VERNON, PETITIONER,

vs.

STATE OF ALABAMA

OH WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE
OF ALABAMA

PETITION FOR CERTIORARI FILED SEPTEMBER 19, 1940. 

CERTIORARI GRANTED APRIL 7, 1941.





SUPREME COURT OF THE UNITED STATES

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE

OCTOBER TERM, 1940

No. 449

JOE VERNON, PETITIONER,

vs.

STATE OP ALABAMA

OF ALABAMA

INDEX.
Original Print

Proceedings in Supreme Court of Alabama.................................  1 1
Certificate of appeal from Circuit Court....................................... 1 1
Order of continuance ......................................................................  2 1
Motion of appellant for order directing clerk of Circuit Court

to send up certain exhibits ........................................................ 3 2
Order directing transmittal of certain exhibits............................ 4 2
Record from Circuit Court of Jefferson County.......................... 7 3

Caption ....................................... (omitted in printing).. 7
Indictment ................................................................................ 7 3
Order to sheriff to serve copy of indictment.......................... 7 3
Arraignment and plea ........................................................  8 4
Certificate of sheriff as to service .................................... 8 4
Judgment entry ..............................................    9 5
Minute entry of order suspending execution of sentence. 10
Motion for new trial and orders thereon........................  10
Amendments to motion for new trial ..................................  15 12
Amendments to motion for new trial....................................  18 15
Given charges—Requested by defendant ........................  18 16
Refused charges—Requested by defendant....................... 20 18
Court’s oral charge to jury ................................................... 23 20

Judd & D etweilebs (Inc.), P rinters, W ashington , D. C., A pril 9, 1941. 
—3678



11 IN D E X

Original Print
Record from Circuit Court of Jefferson County—Continued

Bill of exceptions ................................................................ 25 22
Caption ...........................................................................  25 22
Testimony of A. C. Briglit ......................................... 25 22

Sidney Cobb .........................................  26 23
A. B. R eese...........................................  27 24
J. N. Bryan .........................................  34 33
J. W. Patterson .................................... 35 34
J. T. Bullard .......................................  36 35

State’s Exhibit No. 7—Statement of Joe Ver­
non .....................................................................  39 38

Testimony of J. W. Dickinson ..................................  41 40
State’s Exhibit No. 8—Transcript of statement

made by Joe Vernon ........................................ 42 42
Testimony of Rosa Lee Collins ..................................  48 48

Defendant’s Exhibit No. 9—Letter, Rosa Lee
Collins to Vernon..............................................  50 51

Defendant’s Exhibit No. 10—Letter purported 
to have been written to Joe Vernon by Rosa
Lee Collins ........................................................  51 52

Testimony of E. Luther Hollums................................ 52 53
J. J. Bullard (recalled) ..................... 54 54
Mrs. Frances Norrell ..........................  54 55
T. F. Baughman.................................... 55 56
Joe Vernon .........................................  57 58
Dr. H. A. Harris ..................   69 72
Dr. Green Smith ................................  70 73
Joe Vernon (recalled) ......................... 72 76
W. A. Johnson ...................................... 72 76
II. H. Weir ...........................................  77 81

Defendant’s requested charges, refused (copy)
(omitted in printing) .............................................  79

Verdict and judgment ................................................. 80 83
Motion for new trial (copy) (omitted in print­

ing) ...........................................................................  81
Amendments to motion for new trial (copy) (omitted

in printing) ..............................................................  85
Orders striking from motion for new trial.................  88 84
Statements re testimony of certain witnesses:

A. Q. Johnson........................................................  89 85
Homer B. C oke....................................................... 89 85
E. W. Taggart........................................................  89 85
Charlie H i l l ............................................................  90 86
Herbert Atkinson................................................... 90 86
Ed Newman............................................................  90 86
Beatrice Porter .........................................  90 87

Order overruling motion for new trial....................... 91 87
Order settling bill of exceptions.......................................  91 87
Clerk’s certificate .......................(omitted in printing) . . 92

Assignments of error .................................................................. 93 88
Order of submission.................................................................... 99 99



IN D EX 111

Original Print
Judgment ....................................................................................  100 0®
Opinion, Brown, J......................................................................... 101 100
Application for rehearing ........................................................  HO 108
Certificate of recall .................................................................... 115 113
Order overruling application for rehearing............................  116 113
Petition of appellant for stay of execution pending appeal

to Supreme Court of United States .....................................  117 114
Order granting stay of execution and resetting date of execu­

tion ............................................................................................ 11® H5
Petition of appellant for further stay of execution...............  121 116

Letter from Cora K. Thompson to clerk of court...........  122 117
Telegram from clerk of court to Cora Thompson................... 123 117
Clerk’s certificate .............................. (omitted in printing).. 124
Order extending time within which to file petition for certi­

orari .......................................................................................... 125 118
Order allowing certiorari ..........................................................  126 118





1

[fol. 1]
IN CIRCUIT COURT OF JEFFERSON COUNTY, 

TENTH JUDICIAL CIRCUIT OF ALABAMA

Indictment for Murder First Degree 
No. 74495

T he  S tate 
vs.

J oe V ernon

Hon. J. R. McElroy, Judge Presiding 
Certificate of A ppeal

I, 0. L. Andrews, Clerk of the Circuit Court of the Tenth 
Judicial Circuit of Alabama, in and for said County and 
State, do hereby certify that the above stated cause was 
tried and determined in this Court on the 9th day of Janu- 
ary, 1939, and the defendant adjudged guilty (by a jury) 
of the offense as charged in the indictment. I  further cer­
tify that on the 12th day of January, 1939, the said defend­
ant was sentenced to Death by electrocution, and defendant 
gave notice of appeal on the 17th day of January, 1939, and 
that execution of the sentence was suspended pending an 
appeal to the Supreme Court of Alabama.

Witness my hand and the seal of this Court, this the 25th 
day of January, 1939.

0. L. Andrews, Clerk of the Circuit Court of the 
Tenth Judicial Circuit of Alabama. (Seal.)

[fo l. 2] I n S upreme Court of A labama

6 Div. 460
J oe V ernon  

vs.
T he  S tate of A labama

Jefferson Circuit Court
Order of C ontinuance— A p ril 20, 1939

It Is Ordered that this cause be and the same is hereby 
continued.

1— 449



2

[fol. 3] In S uprem e  Court of A labam a

[Title omitted]

M otion for Order D irecting  Clerk  of C ircuit  C ourt to 
S end u p  Certain  E xh ibits

To the Honorable John C. Anderson, Chief Justice of the
Supreme Court of Alabama, and Associate Justices of the
Supreme Court of Alabama :
Now comes the Appellant, Joe Vernon, by and through 

his counsel, Cora R. Thompson, and moves this Court for 
an order directed to the Clerk of the Circuit Court of Jef­
ferson County, Tenth Judicial Circuit of Alabama, directing 
and commanding that he send to the Clerk of the Supreme 
Court of Alabama the originals of certain exhibits, intro­
duced in evidence on the trial of his cause, as provided in 
Rule #47  o f the Rules of the Supreme Court of Alabama, 
and which exhibits are named and described as follows:

One pistol; and two bullets; 1 shirt; one pair pants; 
photographs of the filling station where homicide occurred; 
Bible of defendant; copy of a purported confession of de­
fendant on yellow paper; two excerpts from letters of de­
fendant’s wife sent to him while in jail awaiting trial.

These exhibits are referred to and described in the bill of 
exceptions hut for obvious reasons could not be attached 
or included, otherwise, in the bill of exceptions except by 
reference.

(Signed) CoraR. Thompson, Attorney for Appellant.

Copy t o : Office of Attorney General, Montgomery, Ala.
Copy to: Clerk of Circuit Court, Birmingham, Alabama.

[fols. 4-6] I n S upreme Court of A labama 

[Title omitted]

O rder D irecting  T ransm ittal  of Certain  E xh ibits— No­
vember 23,1939

It Is Ordered that the Clerk of the Circuit Court of Jeffer­
son County, Alabama, send up to the Supreme Court of 
Alabama, for inspection and consideration in connection



3

with, the transcript in the case of Joe Vernon, Appellant, 
vs. State of Alabama, Appellee, the originals of certain 
exhibits which are set out below and which were introduced 
in evidence by the defendant on the trial of his cause, as 
provided in Rule 47 of the Rules of the Supreme Court of 
Alabama, and which are of such nature or character that 
it is impracticable to attach or incorporate the same in the 
transcript, viz.:

One pistol; and two bullets; 1 shirt; one pair pants; 
photographs of the filling station where homicide occurred; 
Bible of defendant; copy of a purported confession of de­
fendant on yellow paper; two excerpts from letters of de­
fendant’s wife sent to him while in jail awaiting trial.

[fol. 7] [Caption omitted]

I n Circuit C ourt of T en th  J udicial C ircu it , J u ly  T erm ,
1938

I ndictm ent

T he  S tate of A labam a ,
Jefferson county:

The G-rand Jury of said county charge that, before the 
finding of this indictment, Joe Vernon unlawfully, and with 
malice aforethought, killed Bennie Montgomery by shooting 
him with a pistol, against the peace and dignity of the State 
of Alabama.

Geo. Lewis Bailes, Solicitor, Tenth Judicial Circuit 
of Alabama.

A True Bill, Hubert S. Atchison, Foreman of the Grand 
Jury. Filed in open court on the Nov. 12, 1938. 0. L.
Andrews, Clerk. No Bond Allowed. J. Q. Smith, Judge.

I n C ircuit Court of J efferson County

Order to S heriff  to S erve Copies of I ndictm ents on D e­
fendants in  Capital  Cases S et for J anuary  9t h , 1939

It appearing to the Court that C. E. Grammer, Johnny 
Mae Jones, Alex Moore, Lee Jones, Hale Sawyer, George 
Harris, Herbert Ray Benton, Willie Pugh, James Otis



4

Rodgers, Tom Anderson, L. C. Bell alias L. C. Berry (2 
cases), John Dudley, Annie Lou Floyd, Jesse Hill, Joe 
Jovings, W. P. McCombs, Clemon Russell alias Clemon 
Freeman, Arthur T. Thomas, and Joe Vernon (2 cases) 
each stand indicted for a capital felony, and that each of 
said cases are set for trial in this Court on Monday, the 9th 
day of January, 1939, it is therefore ordered by the Court 
that a copy of the indictment against each of said defend­
ants be made, and the same to be forthwith served on each 
of said defendants by the Sheriff of this County.

Done on this the 31st day of December, 1938.
J. Q. Smith (Signed), Judge of the Circuit Court of 

the 10th Judicial Circuit of Alabama.

[ fo l . 8 ] I n  C ikcuit C ourt of J efferson C ounty

[Title omitted]

A rraignm ent and P lea

This the 31st day of December, 1938, came Geo. Lewis 
Bailes, Solicitor, who prosecutes for the State of Alabama, 
and also came the defendant in his own proper person and 
by attorney, and said defendant being in open Court, and 
being duly arraigned upon the indictment in this cause for 
his plea thereto, says that he is not guilty; and it is ordered 
by the Court that Monday, the 9th day of January, 1939, be 
and that date is hereby set for the trial of this cause.

I n C ircuit  Court of J efferson C ounty  

[Title omitted]

Certificate of S h eriff

I hereby certify that I have served in the above stated 
case of the State vs. Joe Vernon, for the week of Jan. 9, 
1939, of the Circuit Court of the Tenth Judicial Circuit of 
Alabama, a copy of the indictment to Joe Vernon, the de­
fendant in person,

This the 5 day of Jan. 1939, which was one entire day 
before the day set for trial.

Fred H. McDuff, Sheriff. By S. A. Bishop, Deputy 
Sheriff.



5

f fo l. 9] I n  C ircuit  Court of J efferson C ounty

T he  S tate

vs.
J oe V ernon

Indictment for Murder 1st Degree 

Honorable J. Russell McElroy, Judge Presiding 

J udgm ent E ntry

This the 9th day of January, 1939, came Geo. Lewis 
Bailes, Solicitor, who prosecutes for the State of Alabama, 
and also came the defendant in his own proper person and 
by attorney, and said defendant being in open Court, and 
being duly arraigned upon the indictment in this cause for 
his plea thereto, says that he is not guilty, and issue being 
joined on said plea, thereupon came a jury of good and 
lawful men, to-wit, J. C. Arthur and eleven others, who 
being empanelled and sworn according- to law, before whom 
the trial of this cause was entered upon and continued from 
day to day and from time to time, said defendant being 
in open Court at each and every stage and during all of 
the proceedings in this cause, now on this the 10th day of 
January, 1939, said jurors upon their oaths do say: “ We 
the jury find the defendant guilty of Murder in the first 
degree as charged in the indictment, and fix his punishment 
at death. ’ ’

And on this the 12th day of January, 1939, said defend­
ant, Joe Vernon, being in open Court, and having been 
convicted by a jury of Murder in the First Degree, and 
his punishment fixed by said jury at death, and said de­
fendant, Joe Vernon, being asked by the Court if he had 
anything to say why the judgment of the Court and sen­
tence of the law should not now be pronounced upon him, 
says nothing. It is therefore considered by the Court, and 
it is the judgment of the Court, that said defendant, the 
said Joe Vernon, is guilty of Murder in the First Degree, 
in accordance with the verdict of the jury in this cause, and 
it is the judgment of the Court and sentence of the Law, 
that the said defendant, the said Joe Vernon, suffer death 
by electrocution on the 17th day o f March, 1939, and the 
Sheriff of Jefferson County is directed to deliver the de-



6

fendant, the said Joe Vernon, to the Warden of Kilby 
Prison at Montgomery, Alabama, and said Warden of said 
Kilby Prison, shall on the 17th day of March, 1939, before 
the hour of sunrise, in said prison, and on said day, cause 
a current of electricity of sufficient intensity to cause death 
to pass through the body of said Joe Vernon until he 
is dead.

It is further considered by the Court that the State of 
Alabama have and recover of the said defendant the costs 
in this behalf expended, including the costs of feeding the 
defendant while in jail, for which let execution issue.

[fol. 10] In  C ircuit C ourt of J efferson C ounty  

[Title omitted]

Order S uspending  E xecution  of S entence

This the 17th day of January, 1939, notice of appeal being 
given, and it appearing to the Court that upon the trial of 
this cause certain questions of Law were reserved by the 
defendant for the consideration of the Supreme Court of 
Alabama, it is ordered by the Court that the execution of 
the sentence in this cause be and the same is hereby sus­
pended, until the decision of this cause by said Supreme 
Court of Alabama.

I n C ircuit C ourt of J efferson  C ounty  

[Title omitted]

M otion for N ew  T rial—Piled February 9, 1939

To the Honorable J. Russell McElroy, one of the Judges 
of the Circuit Court of Jefferson County, Alabama, Tenth 
Judicial Circuit, at Birmingham:
Comes Joe Vernon, defendant in the above styled cause, 

and shows to the Court that on to-wit: the 10th day of 
January, 1939, he was convicted in the said Circuit Court 
of the murder of Bennie Montgomery, and was sentenced 
to death in the electric chair, by the jury, which rendered 
its verdict on to-wit: the 10th day of January, 1939, at



7

10:30 p. m., and moves the Court to set aside the said ver­
dict, and grant to the defendant a new trial, and assigns 
therefor the following grounds:

1. For that it was error to refuse the following charges, 
requested in writing by the attorney for Joe Vernon:

(a) “ I charge you gentlemen of the jury, if you believe 
the evidence you will find the defendant not guilty. ’ ’

(b) “ The court charges the jury that the clothes worn 
by the defendant at the time of his arrest and while incar­
cerated in the jail, and during the time the alleged confes­
sion was obtained, are in evidence in this case, and the jury 
may examine these clothes and see whether the spots on 
the clothes are blood spots, and if the jury believe they are 
the same clothes, and in the same condition as at the time 
he was alleged to have been beaten to enable the officers to 
obtain the alleged confession that has been introduced in 
evidence, they may look to that fact, if it be a fact, in deter­
mining what weight they will give to the state’s witnesses, 
Dullard and Reese, and what weight they will give to the 
[fol. 11] confession to have been made by this defendant.”

(c) “ The Court charges the jury that if there is one 
single fact proved to the satisfaction of the jury which is 
inconsistent with the defendant’s guilt, this is sufficient to 
raise a reasonable doubt, and the jury should acquit him.”

(d) “ The Court charges the jury that if the evidence for 
the State consists of testimony as to the truth of which 
the jury have a reasonable doubt, the jury must not con­
vict the defendant although they may not believe the tes­
timony of defendant’s witnesses.”

(e) “ The Court charges the jury that if the evidence for 
the state consists of testimony as to the truth of which the 
jury have a reasonable doubt, the jury must not convict the 
defendant, altho they may not believe the testimony of the 
defendants or his witnesses.

(f) “ The Court charges the jury that if they have a rea­
sonable doubt growing out of the evidence, as to whether 
the killing was done deliberately, or as to whether it was 
done premeditately, then they cannot find the defendant 
guilty of murder in the first degree; and if they have a rea­
sonable doubt growing out of the evidence as to whether



8

the killing was done out of malice, then they cannot find the 
defendant guilty of murder in either degree, but only of 
manslaughter at the most; and if, after considering all the 
evidence the jury have a reasonable doubt as to the defend­
ant’s guilt of manslaughter, arising out of any part of the 
evidence, they should find the defendant not guilty.”

(g) “ The Court charges the jury that a killing in sud­
den passion, excited by sufficient provocation without 
malice, is manslaughter, not because the law supposes that 
this passion made the slayer unconscious of what he was 
about to do, but because it presumes that passion disturbed 
the sway of reason and made him regardless of her ad­
monition. ’ ’

(h) “  The Court charges the jury that if the jury believe 
from the evidence, that there was a plot between Joe 
Vernon, the defendant and L. C. Berry, to rob Bennie Mont­
gomery, and if the killing was after that plot had been con- 
sum-ated, and from a cause having no connection from the 
common objective of the plot, and was by L. C. Berry alone, 
the jury cannot convict the defendant.”
_ (i) “ The Court charges the jury that if there is one 

single fact proved to the satisfaction of the jury which is 
inconsistent with the defendant’s guilt, this is sufficient to 
raise a reasonable doubt, and the jury should acquit him.”

(j) “ The Court charges the jury that if you believe from 
[fol. 12] the evidence that the defendant and L. C. Berry 
went to the filling station where Bennie Montgomery was 
employed on the night of the murder is said to have been 
done, and an offence was committed by one of them from 
causes having no connection with the common object for 
which they went there, the responsibility for such offense 
rests solely on the actual perpetrator of the crime, and the 
jury cannot find the defendant guilty simply because he 
happened to be present at the time the offense was com­
mitted.”

2. For that the court committed error in the introduc­
tion of the alleged confessions, and in allowing these docu­
ments to be read to the jury, in allowing them to be taken 
out by the jury during their deliberations, as it was ad­
mitted that at the time these documents were made, it was 
admitted in addition to other things, that the defendant



9

was in the presence and surrounded by the officers alleged 
to have been beating him to, obtain the confession, and that 
their guns were plainly visible to the defendant during the 
time the said alleged confession- were obtained, and con­
stituted such a menace as would in law be called a threat.

3. For that the corpus delicti was not proven in this : that 
without the alleged confessions there was no evidence intro­
duced showing or connecting the defendant with the offense 
as charged.

4. For that the corpus delicti was not proven i. e. that 
Bennie Montgomery was murdered, and by none other than 
Joe Vernon.

5. For that it was evidence from the testimony of wit­
nesses that the State contended that Bennie Montgomery 
was killed by a bullet fired by the gun in evidence, and it 
was clearly shown that no evidence was introduced show­
ing that a bullet from the gun put in evidence killed Joe 
Vernon, as the Government expert on guns, failed to state 
that the bullet said to have been taken from the body of 
Bennie Montgomery, came or was fired from the gun intro­
duced in evidence.

6. For that it was error to allow the State to place in 
evidence the gun exhibited, and error to allow the said gun 
to be turned over to the jury, and taken out by them dur­
ing its deliberations, as it was not shown to have been the 
gun from which the bullet which killed Bennie Montgomery 
was fired.

7. For that the alleged confessions allowed to be read 
to the jury was not as prescribed by statute.

8. For that the verdict was against the weight of the evi­
dence.

9. For that it was error to force the defendant to trial 
in a cause of this serious a nature, by trying it before its 
turn on the docket, in this: that this was practically the 
last case on the docket as set for the week it was to be 
[fol. 13] tried, and over the protests of defendant’s counsel, 
made to the Judge calling the docket, the solicitor, the trial 
solicitor, the trial judge, the defendant was forced to trial, 
as the first case on the docket, and without one witness 
other than himself.



10

10. For that, from start to finish, the actions and acts 
of one of the trial solicitors, Grey Tate, exhibited such 
prejudice, bias and undue stress as would and did bias or 
tend to bias the minds of the jury, regardless of the testi­
mony, and on which a fair consideration of the evidence 
could not be had by the jury.

11. For that the Bible of the defendant was introduced 
in evidence for the purpose of showing certain written re­
marks in the front of the said Bible; and that said book 
was allowed, to go to the jury during its deliberations 
which was error.

12. For that the argument of the solicitor Grey Tate, 
was without foundation in the testimony, and was con­
ducted solely on lines having no foundation in the testi­
mony to so prejudice the jury, and arouse its ire, that no 
fair consideration of the testimony could be obtained by 
them.

13. For that on objection by counsel for the defendant, 
to the illegal argument of the solicitor, and sustained by 
the trial Judge, the solicitor Grey Tate, persisted in re­
peating the said objectional matter for the sole purpose 
of poisoning the minds of the jury so that a fair impar­
tial consideration of the testimony could not be had by the 
jury.

14. For that it was error to allow the Solicitor Grey 
Tate to persist in his illegal argument to the jury, after 
objection sustained repeatedly to such illegal argument by 
the Court.

15. For that after such prejudice and bias had been ex­
hibited by the said Solicitor Grey Tate tliruout the entire 
trial, it was error for the Court, when his illegal argument 
was persisted in after the objection of counsel for the 
defendant, for the court not to enter a mistrial.

16. For that after the prejudice and bias as exhibited 
on numerous occasions during the trial by the Solicitor, 
Grey Tate, it was error not to enter a mistrial, as the laws 
of the State of Alabama, provide for a fair impartial trial.

17. For that it was error for the trial court to force the 
defendant, Joe Vernon, to trial on the 9th day of January,



11

1939, when the companion case had announced “ ready” , 
and it would not have deterred the court in its trial of the 
case for that defendant or Joe Vernon.

18. For that it was error to have set two capital cases 
against the defendant, Joe Vernon, for trial during the 
[fol. 14] same week before the same jurors summoned for 
that week.

19. For that the defendant Joe Vernon, being a negro, 
it was error to force the defendant to be compelled to select 
from a venire composed solely of white men.

20. For that it invaded the Constitutional rights of the 
defendant, Joe Vernon, in that he was forced to select the 
jury from men composed entirely of white men.

21. For that the defendant, Joe Vernon, was denied his 
constitutional rights or deprived of his constitutional rights 
by a trial of his peers in that the venire, from which the 
jury was selected, and the number of jurymen from which 
he was compelled to select the jury for the trial of his cause, 
was composed solely of white men.

Cora R. Thompson, Attorney for Defendant.

Order

The foregoing motion has this day been presented to me 
and it is ordered

That the same be and the same is hereby continued and 
set down for argument and submission on the 24 day of 
Feb. 1939, 9 :30 A. M. Execution of the defendant here­
tofore set on Mch. 17th, 1939, is hereby stayed pending the 
trial of this motion and appeal to the Supreme Court.

This the 9tli day of February, 1939.
J. Russell McElroy, Circuit Judge, as Trial Judge.

I hereby certify that a copy of the above and foregoing- 
motion has this day been left at the office of the Solicitor.

Cora R. Thompson, Attorney for the Defendant.

[File endorsement omitted.]



12

Orders

Feb. 24, 1939. Continued to March 10, 1939. Clark, J.
3-8-39. Continued to March 24, 1939. McElroy, J .
3- 24-39. Continued to April 3, 1939. McElroy, J.
4- 3-39. Continued to April 11, 1939. McElroy, J.
4-11-39. This motion coming on for hearing on this day,

and counsel for the defendant and the State, respectively 
being present, the State moves the court to strike from the 
motion grounds 19, 20 and 21 for the reason that said 
grounds constitute no proper grounds for a new trial, and 
for the further reason that it is too late to raise the matters 
asserted in said grounds for the first time on a motion for 
a new trial. Said motion granted, and said grounds 19, 
20 and 21 stricken, and defendant excepts. The State fur­
ther moves the court to strike the purporting amendments 
[fol. 15] to the motion for a new trial filed on April 1, 1939, 
and April 11, 1939, and also to strike from said amend­
ments all grounds predicated upon an alleged violation of 
defendant’s rights under the 14th Amendment to the Fed­
eral Constitution. Said motion is granted to the extent of 
striking all grounds in said purporting amendments alleg­
ing a violation of defendant’s rights under the 14th Amend­
ment, and said grounds are hereby stricken, andi defendant 
excepts. After hearing arguments upon the motion, the 
motion is denied and overruled, and defendant excepts.

J. Eussell McElroy, Circuit Judge.

I n C ircuit  Court or J efferson C ounty  

[Title omitted]

A m endm ents  to M otion for N ew  T rial— Filed April 1,1939

Comes the defendant and by leave of the Court first had 
and obtained and assigns the following additional grounds 
for setting aside the verdict of the jury heretofore rendered 
in the above styled cause and granting the defendant a new 
trial:

22. For that the introduction of the confession over the 
objection of defendant’s counsel was in violation of the 
14tli Amendment to the Constitution of the United States.



13

23. For that the conviction obtained as heretofore stated 
was based solely on the illegal confessions illegally obtained 
from defendant while in custody of officers by evidence 
claiming to show that these confessions were obtained after 
defendant had been beaten by said officers who were present 
at the time the confessions were made, had guns on their 
persons, and that same was known to defendant.

24. For that the introduction in evidence of the confes­
sions was error because it violated Section 7, Article 1 of 
the Constitution of the State of Alabama, to which timely 
objection was taken by defendant’s counsel.

25. For that the introduction in evidence of the confes­
sions was in error in that it violated Section 6 Article 1 of 
the Constitution of the State of Alabama.

26. For that it was error to allow the introduction of the 
gun that was produced in evidence, as evidence, and to be 
turned over to the jury during their deliberation as it was 
not shown by the evidence that the bullet taken from the 
[fol. 16] body of Bennie Montgomery came from that gun, 
or any other gun in possession of the defendant.

27. For that, outside of the confessions, it was not shown 
that Bennie Montgomery was killed by being shot by the 
defendant.

28. For that, there was no corroborating testimony show­
ing that Bennie Montgomery was killed by Joe Yernon, out­
side of the alleged confessions.

29. For that it was error to allow the introduction of 
either of the reputed confessions that Joe Vernon killed 
Bennie Montgomery after evidence was introduced showing 
or tending to show that these confessions were obtained by 
force or threats, either spoken or implied.

30. For that it was plainly shown that the confessions 
were not in the language of the defendant.

31. For that it was error to allow in evidence, and to be 
turned over to the jury during their deliberations the pic­
tures that were allowed in evidence of the service station 
where the alleged murder took place, as it was admitted at 
the time these pictures were offered as evidence, that these 
pictures were not taken at the time or near the time of the 
murder, and that the place as shown by the pictures was



14

not a true picture of the place at the time the murder was 
committed.

32. For that the corpus delicti was not proven in this: the 
evidence failed to show, outside of the confessions that Joe 
Vernon killed Bennie Montgomery by shooting him with a 
pistol.

33. For that the defendant was denied the equal protec­
tion of the law, guaranteed him by the 14th amendment to 
the Constitution of the United States in that the defendant 
being a colored man is entitled, that in the selection of 
Jurors to pass upon his life, liberty or property that there 
shall be no exclusion of his race, and no discrimination 
against them because of their color; for that in the instant 
case in the selection of the jurors to pass upon his life this 
defendant was denied the opportunity of a selection of any 
member of his race, solely on account of their race.

34. For that the number of negroes drawn on petit juries, 
and those drawn on the instant jury are not sufficient to af­
ford this defendant the equal protection of the laws guaran­
teed him by the 14th amendment to the Constitution of the 
United States.

35. For that the records relating to the grand jury, grand 
jury service, and the grandjurors who returned this indict­
ment show that there were no negroes on the grand jury 
that returned this indictment against this defendant, in 
[fol. 17] violation of the equal protection of the laws as 
guaranteed him under the 14th Amendment to the Constitu­
tion of the United States.

36. For that in excluding negroes from the grand juries 
of this County, is in fact creating a denial of the equality of 
rights and is a discrimination against this defendant, a 
negro, hence is a denial of the equal protection of the laws 
of the United States guaranteed him by the 14th Amend­
ment to the Constitution of the United States.

37. For that the number of negroes drawn on Grand 
Juries, is in fact a denial of their rights to equal protection 
of the laws guaranteed by the 14th Amendment to the Con­
stitution of the United States.

38. For that, the defendant, being a negro and indicted 
for the murder of a white man; that at least one-third of the



15

population of the County from which the Grand and Petit 
Juries were drawn were members of the negro race, and 
that the general venire contained no names of negroes when 
the Grand Jury that indicted petitioner was drawn; or that 
there were so few as to be a denial of the rights of petitioner 
when considered in conjunction with the number of negroes 
and the number of white people drawn on the venire or the 
number that ought to have been drawn to preserve a proper 
ratio to be a compliance with the 14th Amendment to the 
Constitution of the United States, and that the State of­
ficers charged by law with the duty of providing names for 
the general venire had “ deliberately excluded therefrom, or 
so small a number had been drawn as to be an exclusion, of 
any negroes qualified to serve as Grand or Petit Jurors, 
and had done so systematically, unlawfully and unconstitu­
tionally for a long period of time”  solely and only because 
of their race and color”  was denied the equal protection of 
the laws guaranteed him by the 14th Amendment of the 
Constitution of the United States.

Cora R. Thompson, Attorney for Petitioner.

I hereby certify that a copy of the above and foregoing 
amendment has this the 1st day of April, 1939, been left at 
the office of the Solicitor for Jefferson County.

C. R. Thompson, Atty. for Petitioner.

[Pile endorsement omitted.]

[fol. 18] I n C ircuit  C ourt of J efferson C ounty  

[Title omitted]

A mendm ents to M otion for N ew  T rial—Piled April 11,
1939

Comes the defendant, and by leave of the court first had 
and obtained, amends his motion for a new trial by addition 
the following grounds:

33. For that the testimony of Mrs. Charlie Norrel should 
have been excluded from the jury ex mero motu by the 
Court for this: that the gun to or about which she testified 
never having been proven to be the one used to kill Bennie



16

Montgomery, it was irrelevant, and immaterial and had no 
bearing on the case.

34. For that while the confessions might have been prima 
facie admissable the testimony adduced during the trial 
clearly showed that they had been obtained by some other 
means than being voluntary, and should for that reason have 
been excluded, particularly as there were no other corro­
borating circumstances, and the corpus delicti was not 
proven.

35. For that the Court ex mero motu should have entered 
a mistrial, as it is the duty of the Court, as an officer of the 
State to see that the 14th amendment to the Constitution of 
the United States is obeyed.

Cora R. Thompson, Atty. for Joe Vernon.

[File endorsement omitted.]

I n C ircuit  C ourt o r  J efferson C ou nty  

G iven  Charges

The following charges were requested by the defendant, 
in the presence of the jury and before the jury retired, and 
were given by the Court, said charges being in writing, and 
being endorsed separately and severally, “ Given, McElroy, 
J .”  and being in words and figures as follows, to-wit:

2. The court charges the jury that the proof as to the 
alibi is sufficient whenever taken in connection with all the 
evidence in the case it is sufficient to generate in your minds 
a reasonable doubt as to the guilt of the defendant.

Given, McElroy, J.
5. The court charges the jury that if there is a reasonable 

doubt as to whether the killing was done with malice, the de­
fendant cannot be convicted of murder at all.

Given, McElroy, J.
[fol. 19] 6. The court charges the jury that although there
may be no probability of the innocence of the defendant, yet, 
if there is in the minds of the jury a reasonable doubt of his 
guilt, it is the duty of the jury to give him the benefit of the 
doubt and acquit him.

Given, McElroy, J.



17

7. The court charges the jury that before they can convict 
the defendant the evidence must be so strong as to convince 
each juror of his guilt beyond a reasonable doubt; and if, 
after considering all the evidence, a single juror has a rea­
sonable doubt of the defendant’s guilt, arising out of any 
part of the evidence, then they cannot convict him.

Given, McElroy, J.
8. The court charges the jury that proof of contradictory 

statements or declarations on a material point made by the 
witness Eeece may be sufficient to raise a reasonable doubt 
in the minds of the jury as to the truth of the testimony of 
the witness Eeece.

Given, McElroy, J.
13. The court charges the jury that proof of contradictory 

statements or declaration on a material point, made by the 
witness Eosa Lee Callins may be sufficient to raise a reason­
able doubt in the minds of the jury as to the truth of the 
testimony of the witness Eosa Lee Callins.

Given, McElroy, J.
11. The court charges the jury that the testimony of a 

witness for the prosecution who is shown to be unworthy of 
credit, is not sufficient to justify a conviction without cor- 
porating evidence; and such corroborating evidence to avail 
anything must be a fact tending to show the guilt of the de­
fendant.

Given, McElroy, J.
12. The court charges the jury that the defendant sets up 

an alibi in this case, and, the burden of proof is not changed 
when he undertakes to prove it, and, if by reason of the evi­
dence in relation to such alibi, when considered with all other 
evidence, the jury entertain a reasonable doubt as to de­
fendant’s guilt, he should be acquitted although you may not 
find that the alibi has been fully proven.

Given, McElroy, J.
14. The court charges the jury that if there is, from the 

evidence a reasonable probability of defendant’s innocence, 
the jury should acquit the defendant.

Given, McElroy, J.
[fol. 20] 18. The court charges the jury that you may con­
sider the pecuniary interest that any witness may have in

2—449



18

the result of your verdict in weighing the testimony of such 
witness.

Given, McElroy, J.
19. The court charges the jury that if there is conflict in 

the testimony of the witnesses offered by the state, and those 
offered by the defendant, the jury must determine which of 
said witnesses they will believe; and in determining what 
weight they will attach to the testimony of any particular 
witness, they may look to the manner of such witness on 
the stand, and to his interest and feeling (if any) in the case, 
and as to whether or not he has been contradicted by other 
witnesses in the cause, or by his own previous statements.

Given, McElroy, J.
21. The court charges the jury that in determining the 

credit you will give to the testimony of a witness, you may 
consider the friendship, if any, is shown by the evidence, 
that such witness has for one of the parties to this suit.

Given, McElroy, J.
22. The court charges the jury that a reasonable doubt 

may arise when there is no probability of the defendant’s 
innocence in the testimony; and, if the jury have not an 
abiding conviction to a moral certainty of his guilt, then 
they should find him not guilty.

Given, McElroy, J.

I n  C ircu it  C ourt of J efferson C ounty  

R efused C harges

The following charges were requested by the defendant, in 
the presence of the jury and before the jury retired, and 
were refused by the Court, said charges being in writing, 
and being endorsed separately and severally “ refused, Mc­
Elroy, J ” , and being in words and figures as follows, to-wit:

1. I charge you gentlemen of the jury, if you believe the 
evidence you will find the defendant not guilty.

Refused, McElroy, J.
3. The court charges the jury that the clothes worn by the 

defendant at the time of his arrest and while incarcerated in 
the jail, and during the time the alleged confession was ob-



19

tained, are in evidence in this case, and the jury may ex­
amine these clothes and see whether the spots on the clothes 
are blood spots, and if the jury believe they are the same 
[fol. 21] clothes, and in the same condition as at the time he 
was alleged to have been beaten to enable the officers to ob­
tain the alleged confession that has been introduced in evi­
dence, they may look to that fact, if it be a fact, in determin­
ing what weight they will give to the state’s witnesses, Bul­
lard and Reese, and what weight they will give to the con­
fession to have been made by this defendant.

Refused, McElroy, J.

4. The court charges the jury that if there is one single 
fact proved to the satisfaction of the jury which is incon­
sistent with the defendant’s guilt, this is sufficient to raise a 
reasonable doubt, and the jury should acquit him.

Refused, McElroy, J.

9. The court charges the jury that if the evidence for the 
state consists of testimony as to the truth of which the jury 
have a reasonable doubt, the jury must not convict the de­
fendant although they may not believe the testimony of de­
fendant’s witnesses.

Refused, McElroy, J.

10. The court charges the jury that if the evidence for the 
state consists of testimony as to the truth of which the jury 
have a reasonable doubt, the jury must not convict the de­
fendant, altho they may not believe the testimony of the 
defendant or his witnesses.

Refused, McElroy, J.
15. The court charges the jury that if they have a reason­

able doubt growing out of the evidence, as to whether the 
killing was done deliberately, or as to whether it was done 
premediatately, then they cannot find the defendant guilty 
of murder in the first degree; and if they have a reasonable 
doubt growing out of the evidence, as to whether the killing 
was done out of malice, then they cannot find the defendant 
guilty of murder in either degree, but only of manslaughter 
at the most; and if, after considering all the evidence, the 
jury have a reasonable doubt as to the defendant’s guilt of 
manslaughter, arising out of any part of the evidence, they 
should find the defendant not guilty.

Refused, McElroy, J.



2 0

16. The court charges the jury that a killing in sudden 
passion, excited by sufficient provocation without malice, is 
manslaughter, not because the law supposes that this pas­
sion made the slayer unconscious of what he was about to 
do, but because it presumes that passion disturbed the sway 
of reason and made him regardless of her admonition.

Refused, McElroy, J.
[fol. 22] 17. The court charges the jury that if the jury
relieve from the evidence, that there was a plot between 
Joe Vernon, the defendant and L. C. Berry, to rob Bennie 
Montgomery, and if the killing was after that plot had been 
consum-ated, and from a cause having no connection from 
the common objective of the plot, and was by L. C. Berry 
alone, the jury cannot convict the defendant.

Refused— abstract in this case
McElroy, J.

20. The court charges the jury that if there is one single 
fact proved to the satisfaction of the jury which is incon­
sistent with the defendant’s guilt, this is sufficient to raise 
a reasonable doubt, and the jury should acquit him.

Refused, McElroy, J.
23. The court charges the jury that if you believe from 

the evidence that the defendant and L. C. Berry went to the 
filling station where Bennie Montgomery was employ- on 
the night the murder is said to have been done, and an 
offense was committed by one of them from causes having 
no connection with the common object for which they went 
there, the responsibility for such offense rests solely on the 
actual perpetrator of the crime, and the jury cannot find the 
defendant guilty simply because he happened to be present 
at the time the offense was committed.
13 S 550 Refused—abstract—
1 S 179 McElroy, J.

[ fo l . 23] l x  C ircuit  C ourt op J efferson C ou nty  

Oral Charge of th e  C ourt

Gentlemen of the jury, the defendant is charged with mur­
der in the first degree and the indictment reads as follows:

(Reads indictment.)
The indictment also includes a general charge of murder 

in the second degree. So, the defendant has against him



2 1

those two charges, namely, murder in the first degree and 
murder in the second degree.

Now, murder in the first degree may consist of a number 
of things, but one thing that constitutes murder in the first 
degree is the killing of a human being in the perpetration, or 
the attempt to perpetrate a robbery, if in the robbery he 
kills another, even though such killing is unintentional, the 
killing is murder in the first degree.

It is also murder in the first degree for any person to 
wilfully, deliberately, maliciously and premeditatedly kill 
a human being. Wilful killing means intentional killing, 
malicious killing means when that is done from heat and 
with vicious and evil motives and purposes, and deliberate 
killing means one that is designed or contrived before­
hand, and a premeditated killing is one that is done with 
deliberation, as distinguished from accident or from heat of 
passion. If a person kills with the intention of effecting his 
escape or to accomplish his purpose, pursuant to such pur­
pose, then such a killing constitutes murder in the first 
degree.

Murder in the second degree is the unlawful and malicious 
killing of a human being in this state. The state claims that 
the defendant is guilty of murder in the first degree. The 
defendant pleads not guilty to that charge.

The burden of proof rests upon the State to satisfy your 
minds, beyond a reasonable doubt—that means a substantial 
doubt—it doesn’t mean any possible speculative doubt, it 
means a substantial doubt.

If the state has satisfied your minds beyond any reason­
able or substantial doubt that the defendant is guilty, then 
you should convict him.

If after considering all the testimony in this case you 
have a substantial doubt of his guilt, you should acquit him.

If you find him guilty of murder in the first degree it will 
be your duty to so find and the same applies to murder in 
the second degree.
[fol. 24] If you find him guilty of murder in the first de­
gree, the form of your verdict will be “ We, the jury, find 
the defendant guilty of murder in the first degree”  and fix 
his punishment at either death, or life in the penitentiary.

If you find the defendant guilty of murder in the second 
degree, the form of your verdict would be, “ We, the jury 
find the defendant guilty of murder in the second degree”



2 2

and fix his punishment at any term in the penitentiary at 
not less than ten years.

If you have a substantial doubt as to his guilt, then the 
form of your verdict would be simply “ We, the jury, find the 
defendant not guilty.”

In either event, one of your number will sign the verdict 
as foreman.

The defendant, gentlemen, has requested certain instruc­
tions in writing, which are correct statements of law, and I 
will read them to you.

(Reads written requests.)
You may retire now, gentlemen.

[fol. 25] I n C ircuit C ourt of J efferson C ounty  

Bill of Exceptions—Filed July 20, 1939

Be it Remembered that on the trial of the above styled 
cause on the 9th day of January, 1939, the following among 
other proceedings were had and done the Honorable J. Rus­
sell McElroy, Judge, present and presiding; the State being 
represented by the Honorable George Lewis Bailes, through 
and by his associates, Hon. Grey Tate and Hon. R. E. Mc- 
Adory; the defendant being represented by his attorney, 
Miss Cora R. Thompson. The trial was had before a jury.

After the selection of a jury, the case was stated to the 
jury by counsel for State, reading the indictment, charging 
the defendant with murder. The defendant through his 
counsel pleaded not guilty to the indictment and not guilty 
of shooting the deceased, Bennie Montgomery, or killing 
him or causing his death in any way, shape form or 
fashion.

Whereupon witness A. C. Bright was called by the State 
and was questioned by Asst. Solicitor Tate, and who testified 
substantially as follows :

My name is A. C. Bright. I am a florist and live at 4749 
1st Ave. North and knew the deceased, Ben Montgomery, 
during his lifetime. He is now dead, having died on Sep­
tember 20tli, 1937.1 was related to him by marriage, being a 
brother-in-law. He died in a filling station at 47th Place 1st



23

Avenue North, which was about 120 feet from my home. 
There is a brick building between my house and the filling 
station which is used by the filling station. Ben Mont­
gomery was approximately 19 years old when he died. He 
was about five feet six inches tall and weighed less than 150 
pounds. He was shot right under the left arm pit, let me 
retract that, I don’t know exactly where. Anyway, he died 
as the result of a gun shot wound. I saw him the night be­
fore he was killed, early in the evening. I heard the shots on 
the night he was killed. It was around ten o ’clock at night 
on September 20th, 1937. There was one shot. I would 
say that it was rather muffled to some extent. It is very hard 
to describe a sound like that. It sounded something in the 
order of a defective shell or cartridge. It made a sound 
just about like a firecracker that wasn’t quite dry enough, 
yet was dry enough to explode. I did not go to the filling 
station that night until after he was killed; then I went 
there about daylight. His body at that time had been 
moved. The name of the filling station was Re joy. The 
killing took place in Jefferson County. The deceased lived 
with his mother which was about two and a half blocks from 
the filling station. All of his brothers and sisters lived 
there and he had quite a few of them. His mother is a 
[fol. 26] widow.

On cross examination by Miss Thompson the witness 
testified as follows:

The pistol shot that I described made enough noise for me 
to pay some attention to it. I did not go to the station then. 
I was reasonably sure that what I heard was a shot, not a 
back-fire. The store that is between my house, this me­
chanic’s place, and the station are about even with each 
other. If anybody had been behind there talking I could 
not have heard that in my house. When I heard the pistol 
shot I did not go to investigate it. We have so many shots 
out there and so much noise and such confusion, such as con­
tinual backfiring and after investigation of these shots and 
these noises for a number of years I just quit altogether 
even going to look what it is all about.

The State then called as a witness Sidney Cobb, who 
testified substantially as follows:

My name is Sidney Cobb and I am twenty years old and 
live at 5605 1st Avenue South, Woodlawn. I am now en-



24

gaged in work for the Woodlawn Auto Parts Company. In 
September 1937 I was carrying the Age Herald. I know 
where the Re joy Filling Station is and delivered papers 
there, and on the morning of September 21st, 1937, I  at­
tempted to deliver a paper there between 3.30 and 4 :00
0 ’clock. Jim Black was with me. He is the man I was work­
ing for. I got out of the car and slid the paper under the 
door. There was a little light on the filling station then. 
When I slid the paper under the door I saw that boy, Ben 
Montgomery, lying there. He was over to one side. The 
place has single doors. He was on the side of the door where 
the hinges were. Had I opened the door all the way I would 
have opened it on to his body. I did not open the door. 
It was closed, not locked. When I saw Montgomery lying 
there I kicked on the door. I thought he was asleep. When
1 saw the blood I jumped in the car and went about three 
blocks and found a policeman and went back with him. 
When I got back and went in he was on his knees. The wit­
ness then got on the floor and demonstrated just how the 
deceased was located and lying. His head and hands were 
on the floor and knees on the floor. I don’t know how long 
I stayed there after the officers came, but I was there until 
the detectives all came. I knew Ben Montgomery a little 
bit. We went to school together. I clidn’t know him so well. 
Where we found his body was in Jefferson County. I was 
there when they moved his body. It was stiff, and when they 
moved him he still maintained that position.

On cross examination the witness testified:
[fol. 27] My name is Sidney Cobb. I did not open the door 
when I saw the body inside the door. The officers opened the 
door when they saw it was not locked.

A. B. Reese was then called as a witness for the State and 
in reoponse to questions, testified substantially as follows:

I live at 5301 6th Ave. S. and I work at a service station, 
the name of it is the Rejoy Station. I operate a service 
station on 1st Ave. and 47th St. I knew Ben Montgomery 
during his life time. He is now dead. He worked for me at 
the time he was killed. I saw his body before it was re­
moved from the station. I got to the station between 4 and 
4.30 on the morning of Sept. 21st, 1937. I had seen Ben 
Montgomery on the night of Sept. 20,1937 about nine o ’clock,



25

at the station and talked to him. We had been closing abont 
10 o ’clock at night, but when he went to school we began 
closing at 9 o ’clock. When I went by the station at 9 
O ’clock on the night of Sept. 20th, I went in and picked up all 
the money over $15.00 and left the silver, and I said “ Ben,
I------ ”  defendant objected to what the witness was starting
to tell, on the ground that it was not a part of the res gestae 
and had nothing to do with the case at issue. Solicitor 
stated “ he expected to show that he left the money there 
and it was still there,”  objection of defendant renewed, 
the Court over ruled the objection and to the ruling of the 
court the defendant duly excepted. I left Montgomery there 
in the station, and did not go back there any more that night, 
and did not go back there any more until the officers came 
to my house and told me that they wanted me to go to the 
station with them. This was right around four o ’clock. 
When I got to the station they had laid the body of Mont­
gomery on a stretcher and a sheet was over him—it was 
about half out. I then examined my place. All the lights 
had been turned off, except the one on the door burning 
after the station is closed and the rest were off under the 
shed and the racks and everything had been taken in, ready 
to close. In other words when I saw it the station was in a 
situation to be closed except locking the door. I  found my 
money there. Defendant objected to the answer that he 
found his money there—as incompetent, irrelevant and im­
material.—Had nothing to do with the case. The Court 
overruled the objection of the defendant, and defendant 
Counsel then and there duly excepted to the ruling of the 
court. Witness then went on to explain: “ The one that 
closed at night ordinarily left a small amount of change 
there so that the morning man would have it to operate on. 
There was a kind of counter there indicating how high it 
was, with a hole under the end of it, and the sack of money 
was just thrown in a past- board box which you could see 
[fol. 28] by glancing under it.

The defendant then moved the Court to exclude the state­
ment last made by the witness. The court overruled the 
motion of defendant. In response to questions asked by the 
solicitor witness stated, “ I found the keys on the floor. I 
know the defendant Joe Vernon. I just kind of glanced 
at the wound on the body of Montgomery. His arms were 
up (witness indicating how they were) and he had been shot 
under the arm and the bullet lodged between his shirt and



26

body. Yes, I knew Joe Vernon the defendant, have seen him 
several times before, and he used to play a little old Ukelele 
around Woodlawn. After this defendant was arrested I had 
a conversation with him at the City Jail. At the time I had 
this conversation and prior thereto I did not threaten him 
or abuse him or offer him any violence I did not tell him 
that it would be better for him to make a statement or worse 
for him if he didn’t. I held out no inducement or hope of 
reward. No body in my hearing or presence did either of 
those things. The defendant made a statement in front of 
all of us and when the others went outside then he made one 
to me. I asked them to go outside. I  told the officers “ if 
you believe in this case as strong as you appear to I would 
like to talk with him by himself”  and I said to him 
“ Joe * * The witness further testified that there were 
no threats, promises or offers of any sort made to the de­
fendant or violence inflicted on him by the witness or any­
body in witness’ presence. The defendant objected to what 
the witness was saying and to what he indicated what he 
would say. At this point, the direct examination was inter­
rupted for cross examination on witness voir dire and on 
such cross examination the witness testified: The defend­
ant was in his shirt sleeves he had on a short sleeved shirt 
I don’t know that it was knitted. I am not sure about the 
kind of pants that he had on. The occasion of my going 
over to the jail was that they said they had the boy there and 
I said I would like to see him and talk to him. The officers 
were city detectives I had not been with them prior to that 
time and had not heard what they said to him before I came 
to the jail. I did not notice any blood spots on his shirt. 
The defendant then exhibited to the witness a garment, a 
shirt, and asked the witness if that was not the garment he 
had on. The witness then replied that “ no that’s not the 
one.”  The reason I think it is not the one is because the 
one he had on is a darker one. I  do not know whether the 
defendant had on on that shirt that night. Yes, I said I 
had seen him two or three times. I know they called him 
Little Joe. When they arrested these other men I talked 
to them too. The following question was asked the wit- 
[fol. 29] ness by counsel for defendant; “ Did you hear the 
confessions that they made?”  Solicitor objected to the 
question because it called for hearsay testimony. Counsel 
addressed the Court saying “ There have been two or three 
confessions written out and he said he saw them and I want



27

to see if * * * “ The court sustained the objection stat­
ing that the only question now before the Court had to do 
with improper inducements, bel non, and to the ruling of the 
court counsel for defendant then and there duly excepted. 
The witness continued to testify: I did not see any scars 
on defendant. I examined him but did not take his clothes 
off. He pulled his pants up to his knees and I asked him if 
he had been abused there and he said “ no” . I was not told 
by the officers to do that.

On resumed direct examination, the witness testified as 
follows: After the officers went out I said “ Joe, do you 
really want to say that you and L. C. killed that boy?”  and 
he said “  I do ” . And I says ‘ ‘ Have those officers abused you 
and told you they would see that you got life if you would 
plead guilty?”  and he says “ they didn’t .”  And I said 
“ you understand if you didn’t do it, if L. C. done the shoot­
ing and you put yourself there that is just the same as you 
as it is for him?”  And he says “ yes”  And I said “ do 
you realize what you are doing?”  And I says, “ I really 
dont believe you hoys done it, and if you will tell me I am 
not going to tell these officers, I wont mention it, I will step 
out and get you a lawyer”  and he says “ we are guilty”  
and they havent abused me, have treated me perfectly nice, 
as good as I have ever been during the time I have been 
here.”  The solicitor then asked the witness: “ What then 
did he say about this killing,”  and to which the witness re­
plied : He went on to say that they were both on the scene 
and L. C. done the shooting, he said he got the gun out there, 
stole it from out of the wardrobe at Mrs. Charlie Norrell’s 
house, that he knew Mrs. Norrell, and he said that Bell, 
that is L. C., did the shooting. After I had talked to the 
defendant, and on the same night I talked with L. C. Bell; 
witness being asked if the defendant said why he was there 
and what they did that night stated: he said that they came 
down the railroad to steal some coal, they just come to steal 
some coal and they checked the Central of Georgia train 
and there wasnt any coal on it, and then they went to the 
Southern and there wasnt any there and they came on back 
down the railroad past the place and Joe said “ L. C. said 
let’s get that place” . And Joe said “ I know the man, I 
can’t go there.”  And L. C. said “ My girl needs some 
money”  and Defendant said “ my wife needs some too.”

The Court inquired: “ you mean that you saw them or 
they told you?”  Witness: they told me that and defend-



28

ant said they walked back up the railroad track beyond the 
[fob 30] station where they could look between the station 
and the garage and see the boy getting ready to close up 
and L. C. went around and shot him.

After that time I talked to L. C. I talked to him alone 
and in the presence of the defendant, too— separately and in 
the presence of the defendant, and when I talked to Bell in 
the presence of the defendant. I did not threaten Bell or 
abuse him, or offer him any violence. Nor did I tell him 
it would be better for him, if he did make a statement or 
worse for him if he did not. Nor did I hold out any induce­
ment or hope of reward, nor did any body in my hearing or 
presence do that. For awhile the officers were in there 
and then they went out and I had a conversation with them 
after they went out. This was on the same day. I talked 
to them two different times. At the time I talked to L. C. 
Bell, in the presence of this defendant, L. C. Bell made a 
statement to me about the crime. And that statement was 
just this: While sitting there in the jail L. C. would say: 
“ Joe done the shooting.”  And he told me that he and Joe 
walked up in front of the station and went around behind 
and said while they were there that Joe walked in front 
by the side of the station, they were holding the door where 
they could peep thru- and Joe stepped back and thought 
the man saw him and he went around and got a drink of 
water and while he was getting a drink of water—he came 
back and Joe tied the rag over L. C.’s face and then went 
over and put his handkerchief over his, and Joe went in the 
station while he stood guard. While in the presence of this 
defendant, L. C. Bell said “ Little Joe did the shooting.”  
The witness then pointed to the defendant and said he was 
Little Joe. L. C. said when he heard the shot he ran around 
there and says “ what is the matter?”  and defendant said 
“ I have shot this man.”  And he said “ how came you to 
do that?”  and he said “ he acted like he was going to pull a 
gun and I killed him. ’ ’ And he was wiping the door knob 
off and ran up the railroad to 62nd St. He was using the 
handkerchief he had on his face to wipe off the door knob. 
After that time that is after these conversations these two 
defendants were brought to my place of business in the cus­
tody of officers. That night after supper we went back over 
there and I said “ If those boys done that let’s take them 
back out to the station and let them re-act the crime.”  And 
they got in the automobile and drove out. Nobody threat-



29

ened them or abused them—no one offered any reward, or 
told them it would be better for them if they made a state­
ment or worse for them if they did not, nor held out any 
inducement to them. At the request of the Solicitor, the 
witness was then told to tell the jury what was said and done 
[fol. 31] out there at the witness place of business by de­
fendant Joe Vernon and L. C. Bell, in his presence and hear­
ing. And the witness stated substantially stated as fol­
lows : When we got out there to the station they were hand­
cuffed together and I told Mr. Weir “ let’s un-hand cuff 
them and let them be separate and dont ask them any ques­
tions”  and we separated them and let them walk on each 
side of the officers and we started out and at first walked 
down the railroad track to First Ave. and that is where 
they had agreed on what they would d o ; and Little Joe was 
doing the talking then. And we walked on up past the sta­
tion so they could see them close up, and walked back and 
Little Joe told me he did the watching and L. C. the shoot­
ing, and out there Bell made the statement that Joe did the 
shooting, and Joe in the presence of Bell made the statement 
that Bell had done the shooting. The time that they were 
out at my place showing me how the killing was done was 
during the latter part of September 1938, either the 26th 
or 27th and was at night after dark. The interior and exte­
rior of that filling station in the latter part of Sept. 1938 
was not the same as in September 1937; after the first part 
of 1938, I had had a large cabinet and show case combined 
built together coming up under the side of the wall and had 
covered up the door where in 1937 the cracks were open. 
Those extra cases that I had had built covered up the cracks. 
L. C. and Little Joe both said that the cabinet wasnt there 
and L. C. as he was telling the story said he saw the de­
ceased thru the window and one officer said “ you couldn’t 
have seen him there on account of that big high desk,”  
and he said it wasn’t there then, that there was a flat 
top desk then with a radio on it. In September, 1937 
there was a flattopped desk there and in 1938 when these de­
fendants came out there and were making this state­
ment there was a roller top desk there. There is 
also a small stand with shelves on it so you can set quarts 
of oil on it, and some five quart cans on the bottom and 
these are taken in at night. The Solicitor asked the wit­
ness: “ Did this defendant say anything about seeing Mr. 
Montgomery taking these things in?”  Defendant objected



30

to the question on the ground that it was leading the wit­
ness. The Court overrated the objection and the witness 
answered “ yes”  The solicitor then exhibited to the witness 
a picture purported to be one of his filling stations, taken 
from the railroad track. And asked him if that was his sta­
tion, to which the witness replied “ it was” . The witness 
testified that the picture was taken from the railroad tracks 
of the Central of Georgia, and that the picture made a cor­
rect representation of the filling station as of September 
1938. The picture was then offered as evidence by the state, 
[fol. 32] Defendant objected because the killing happened in 
1937, a year earlier than at the time the picture was taken. 
The witness then for the information of the court said “ at 
that time (time of the killing) there were three posts where 
there is only one now, and there were two pumps, one on 
each of these posts, here (indicating) we have taken off 
about six feet of each end, there was oil cans sitting on the 
ends. Other than those conditions it is the same as when 
Montgomery was killed. The court overruled the objections 
of the defendant and to the ruling of the court the defend­
ant then and there duly excepted.

The solicitor then exhibited to the witness another photo­
graph asking the witness to tell the jury what it repre­
sented, to which the witness replied. “ This is the back 
of the station, and the back of the garage adjoining it.”  
“ which is a correct representation of the situation back of 
my place as it was in Sept. 1938,”  also in Sept. 1937.”  The 
picture is taken from the railroad, where they were stand­
ing at the time it was taken. A man standing at a desig­
nated place indicated by the solicitor is in the approximate 
vicinity of the water-hydrant perhaps within three feet— 
and you can see the water hydrant there. Counsel for de­
fendant interposed objection and it was understood that the 
same objection is made to it separately and severally, which 
objections the court overruled; at this time the two photo­
graphs one and two were introduced in evidence. The so­
licitor then exhibited to the witness another picture, taken 
from the back of witnesses place, and the witness testified 
that said picture was a correct representation from a little 
further up the railroad track and that it was a correct rep­
resentation of the rear of his place as it was at the time the 
crime was committed. At this time the photograph was 
introduced and received in evidence as State’s exhibit #3. 
The colicitor then exhibited another photograph which the



31

witness identified as being a correct representation of the 
back of his place taken from 1st Ave. and stated that it was 
in the same condition as it was in 1937, when the crime was 
committed. This picture was offered and received in evi­
dence as State’s exhibit #4 . The solicitor then exhibited 
to witness another picture which purported the front of the 
station and also 47th Place, leading up to First Avenue, 
which the witness identified as being correct, which was 
offered and received as exhibit #5 . The solicitor then 
exhibited to witness another picture which the witness iden­
tified as a picture of the front of the station at a close up 
view, from 47th Place, and that it was a correct represen­
tation with the alterations mentioned and was a true repre­
sentation of the place. This photograph was received in 
[fol. 33] evidence as State’s exhibit #6. Witness further 
stated that the built up place which was about six inches 
high and twelve feet long was the elevated where the pumps 
set and that place was called an island and had been shor­
tened at the time the picture was taken and the only change 
that had been made at the time the picture was taken, was 
that about six feet was its length now and it was about 14 
feet before. On cross examination the witness testified: 
The occasion of my going over to the jail was that I oper­
ated the place where the crime was committed and naturally 
I was interested. Counsel for Defendant then referred to a 
negro that was arrested by counsel for Deft arrested from 
Mississippi, and said “ The county got that negro.”  I  came 
up there to look him over and took a fellow with me to also 
look him over and I was present when he made a confes­
sion he did not make practically the same confession. There 
was a negro arrested that came from Nashville; there never 
was but one; I went and talked to him—he changed his story 
right quick—he was at the station and you could tell the 
negro was scared to death he was rubbing his legs. I got 
with these officers and this boy (indicating defendant) a 
couple of different times; was over there in the morning, 
went over with the officers to the jail after him and when 
they left the jail they went straight to the station—they did 
not go down town in that railroad cut; Mr. Jones was not 
present, but Mr. Johnson and Mr. Weir were along as well 
as Mr. Bullard, but we did not go to the railroad cut first. 
They did not beat these two boys up first (referring to the 
two boys (Defendant and Bell) they had with them) I dont 
know how long they stayed out at my place, as I did not



32

keep any time. I had known these officers before that, just 
knew them when I saw them. I had offered a reward of $25 
for the capture and conviction of the men that killed Mont­
gomery. The amount of the reward did not make $2,500, it 
was never over $1,500 or that was what I heard them say 
it was. I do not know how many nights these officers had 
taken these boys out before I saw them—or since either. 
He did not show me the places on his legs where he had 
been beat up. Q: by defendant’s attorney: “ And dont
you know that until they went out to the filling station that 
he and L. C. Bell, neither one had seen the other?”  A : 
“ Yes, at the jail.”  When I saw L. C. Bell and Joe here 
at the jail they were brought down in the waiting room and 
I do not know whether they had been together or not.

On Redirect Examination by the State witness testified 
substantially as follows:

Q. She asked you about a negro from Mississippi, that 
negro’s nick-name was Mississippi, wasn’t it?
[fol. 34] A. Yes. His real name was Willie Myers.

In the conversation I had with this defendant, Joe Ver­
non, he told me that he was the one that reported Mississippi 
and told those officers that Mississippi did it. He said he 
was trying to keep the officers off his trail. As to the other 
confessions will say there was a “ dope head”  in Baton 
Rouge, Louisiana, that staggered into headquarters and 
admitted that he was the one that killed Ben, he wanted to 
give up, somebody had identified him as being drunk on the 
docks at Baton Rouge, and we stayed there and investigated 
it and found he was a maria juana smoker. He sent his 
brother a telegram in Baltimore stating that he was out on 
strike and wanted to get out of Baton Rouge and his brother 
wired him money and he received it on the next night. That 
was the night of the killing. He sent the telegram about 
nine-twenty on the night that Ben was killed, and at the 
time I talked to Joe Vernon and L. C. Bell I had already 
listened to this Willie Myers and had already listened to 
this mariajuana addict. I did not say anything to these 
negroes with reference to confessions in this case. I told 
them that if they were not guilty I would hire them a lawyer 
myself, told both of them, and I was the one that came here 
when they turned the other negro loose. As a matter of fact 
I investigated the innocence of Willie Myers and conferred



33

with Mr. McAdory about it and recommended that he be 
turned loose.

On re-cross examination the witness testified:
I got in touch with the white people from Chattanooga 

that called up about him. I heard that he was working at 
the National Lunch here and talked to the Managers and 
bosses, and they told me that they had been hunting the 
negro to send him to Nashville, and the manager in Nash­
ville could work him and liked him, and they sent him there. 
I did all of that for a negro that I had never heard of be­
fore. I want’d to get the right one. I have never been a 
detective for anybody. This boy here did not tell me or 
anybody that I know of that he had pawned that gun to 
somebody, to another negro named Manny Green, and that 
Manny Green had at the time. He did not ask me or some­
body else to get Manny Green and make him tell the truth. 
I testified in the lower court and when I testified there they 
didn’t ask me all that I have told here. They did not ask 
me if I knew anything else to tell. I  told them all they 
asked me. I had told whatever they asked me.

J. N. Bryan, was called as a witness for the State, and 
testified substantially as follows:

My name is J. N. Bryan and I am a City Detective of the 
[fol. 35] City of of Birmingham and have been an officer 
for seventeen years. I answered a call to the Rejoy Filling 
Station out on 47th Place and First Avenue, in the City of 
Birmingham, on tbe morning of September 21st, 1937, and 
to the best of my recollection it was about three or four 
o ’clock when I got there. At that time I lived in that neigh­
borhood, in Woodlawn Highlands. When I got to the filling 
station I saw the body there of Ben Montgomery. In de­
scribing the location of the body the witness stated: The 
filling station faces First Avenue, to door toward the north, 
opened to the inside, and just about from two feet, maybe 
a little more, to the left of the door, as you go into the 
filling station, and the door opened backward, the southeast, 
and the door would kind of catch him, about the shoulder. 
When I opened the door all the way it caught his body.

Q. What was his position?
Defendant objected to the question because it had been 

gone through with three times before, and we offer to show
3—449



34

it is being done for nothing but to prejudice the minds of 
the jury.

The Court overruled the objection and to the ruling of 
the Court the defendant then and there duly excepted.

Witness then answered: He was down on his knees, his 
head thrown forward, and to the best of my recollection, 
resting on the left side of his forehead. There was blood 
all in his hair and his face and I judge he was bleeding 
from the mouth. He had a pistol shot wound under his 
left arm pit and showed an exit on his right side under 
his arm pit, or a little lower. I was present when the 
Coroner got there, and saw the Coroner search his person 
and found a ball that came out that was hung in his shirt,— 
the bullet out of the cartridge. I obtained possession of 
that ball, kept it for a while and I think I turned it over to 
Chief Hollums. There were some keys near his head just 
to his left.

J. W. Patterson was then called as a witness by the State 
and testified substantially as follows:

My name is J. W. Patterson and I am in the second-hand 
furniture business and knew Ben Montgomery. On the 
night that he was killed I passed his filling station where 
he worked and it was about ten minutes to ten o ’clock. My 
wife was with me. I noticed the clock when I went back 
there. There is a clock on a sign, and when I passed there 
it was ten minutes to ten. The only person I saw at the 
station was bending over there near the washing pit. I 
was going into First Avenue on Forty-Seventh Street, going 
straight to the station. My lights were pointed right at 
the station. The Solicitor then offered to show the witness 
one of the State exhibit ’s No. — which was a picture. De- 
[fol. 36] fendant objected to the picture being show- because 
it had been admitted that the places when the picture was 
taken was not in the same condition as it was the night of 
the killing. The court overruled defendant’s objection.

The solicitor then exhibited Exhibit # 5  and the witness 
stated that he recognized it as being 47th Place, and recog­
nized the street that he was coming out on and pointed out 
the street on the picture on which he was traveling and 
said it was Forty-Seventh Place, and stated after he came 
out of Forty-Seventh Place on First Avenue he went East. 
The direction on the picture, however, is back to the left. 
When I came out of there I saw a negro (indicating on the



35

picture where he saw him). I know where the water hydrant 
is and it is about three feet away and the negro was bending 
over. I could not recognize him. I have some judgment 
about the size of the negro and am positive that he was 
a taller negro than the one that works there. I just couldn’t 
recognize the negro but knew that it was not the one that 
works there. I have seen the negro L. C. Bell.

Q. I will ask you to tell the court, whether or not, in your 
judgment, the negro you saw near the water hydrant, was 
the same size and general stature of the negro Bell?

Defendant objected to the question because it was lead­
ing. The court overruled the objection and to the ruling of 
the court defendant then and there duly excepted. The 
witness then answered:

A. I would say he was about his size in the position I 
saw him.

Cross-examination:
There was a light there. The whole station was lit up. 

I stopped at the intersection of First Avenue and looked 
both ways. I can indicate the distance I was from this man 
that was bending over; I can show from the picture. He 
was about as far as from here to that wall (indicating). 
I do not know what he was doing. I didn’t testify in the 
preliminary trial of this case. I don’t remember when was 
the first time I got in touch with anybody about this case. 
Mr. Reese came by and asked me to go over to the jail and 
look at him. I did not talk to him about seeing anybody 
there. He just wanted me to go with him over to the jail. 
I had just been ta-king about it to him, nothing about any­
body being caught; but told him I saw somebody there. 
That was ten minutes to ten o ’clock.

J. T. Bullard was then called by the State as a witness 
and who testified substantially as follows:

I am J. T. Bullard and I am police officer for the South­
ern Railway. I was present in the Solicitor’s office Sep- 
[fol. 37] tember 27th, 1938, when this defendant, Joe Ver­
non, made a statement. Prior to the time he made that 
statement and at the time he made a statement I did not 
and had not threatened him or abused him or told him 
that it would be better if he made a statement or worse



36

for him if he didn’t, nor did I hold out any inducement 
or any hope of reward. Nor had anybody in my presence 
done so. I  did not arrest this defendant. There was a 
court reporter present when this statement was made in 
the Solicitor’s office.

On Cross-examination the witness testified substantially 
as follows:

I was not present on the occasion when this boy was taken 
down into the woods before he was taken to the filling sta­
tion. I know this boy’s father when I see him. I did not 
meet him down in the jail one day—not that I recall. I did 
see him there when he was coming to see his son one Thurs­
day. I did not make the statement that I was not present 
when the boy was beat up, or when the others did it. Charlie 
Norrell was my cousin. This boy worked for him but I do 
not know how long. I was not one of the men who took him 
to Lovick’s. I was present on two or three occasions when 
he was taken out at night from the City Jail. I was not 
out at Lovick’s, nor out by the waterworks. The occasions 
of him being taken out of the City Jail was to pick up some 
watches and stuff he had taken. He said he knew where 
they were and told us where he had put them. He was not 
beaten up by the officers to my knowledge. I was present 
when the other confessions were made. I was not present 
when the negro named Mississippi confessed, nor was I 
present when the one from Chattanooga made a confession. 
I  do not know how many confessions have been made in 
this case. This boy stated that he and Manny Green and 
several others had used the gun in hold-ups. He did not 
tell me that Manny Green and another boy had the gun at 
the time Mr. Montgomery was killed. And did not tell me 
that the gun was given back to him afterwards. I do not 
know that there are two or three charges out against Manny 
Green now. He was arrested on the 15th and brought to 
the Solicitor’s office on the 27th, and had been at the City 
Jail all that time. I know what was said or done to him 
before he was brought here as I was over there and worked 
with the officers. I didn’t stay there day and night, but 
I was with the officers that were working on the case.

Q. That confession was dictated to him and written down 
by the stenographer?

A. He made it in his own words.



37

Mr. McAdory was there and asked questions. I was not 
present at the preliminary as I was out of town. I was 
[fol. 38] present when they took him to the station.

In answer to a question asking whether they took him in 
the railroad fill, witness stated, that he had never been 
taken anywhere to his knowledge, that he was not present 
when they took him to the railroad fill before they took 
him to the filling station. I was not at Lovick’s or at the 
water-works, nor was I out at the Artesian Wells. There 
was one night I wasn’t with him. They carried him out 
and picked up some watches. I was never there with him 
at the Artesian Wells between here and Irondale and I 
was never out in the woods beyond the water works.

On redirect examination the witness testified:
I was present at the jail at a time when this defendant 

wrote a statement in his own handwriting about this case. 
Prior to the time that he wrote this statement I did not 
threaten him or abuse him or offer him any violence or 
hold out any hope or reward or hold out any inducement, 
nor did anybody do so in my hearing or my presence or 
knowledge.

The witness was then handed a paper and requested to 
tell the court and jury whether it is the statement the de­
fendant made in his own handwriting.

Counsel for defendant then asked this question:
Q. Were you present when Mr. Johnson handed him a 

piece of paper and told him to copy it on that?
A. No, Mr. Johnson gave him this paper and asked him 

if he would write it out.
(Question by defendant’s counsel.)
Q. Don’t you know he copied it?
A. No.
Q. How long had you been there before he was told to 

do it?
A. Approximately an hour, I guess.
(Question by defendant’s counsel.)
Q. You were there all the time Mr. Johnson was there?
A. On this particular day.
Q. How many did you get him to sign all together ?



38

A. He admitted to about twelve pages of highway rob­
bery.

Q. This one here?
A. He only made this one statement in his own hand­

writing, and he made a statement in the Solicitor’s office.
Q. You haven’t seen the typewritten one?
A. Yes, the one he made in the Solicitor’s office.
(Questioning resumed by the Solicitor) to which witness 

[fol. 39] testified substantially as follows:
That statement there, which you were examining me 

about, was the statement he made in the jail at that time, 
and that statement is in his own handwriting. Mr. John­
son and myself were present and I believe we were the 
only ones present.

The Solicitor then offered this statement referred to by 
the officer, as being in the defendant’s own handwriting, 
as evidence.

Defendant’s counsel objected because he was given a 
piece of paper and told to copy it on there and the other 
was written out by Officer Johnson.

By the Court:
Q. You testified that at no time, so far as you know, 

neither you nor anyone else ever threatened him, or abused 
him, or made him any offers or promises?

Witness answered: A. Yes, sir; that is my testimony.
The court overruled the objection and the above document 

described was introduced and received in evidence as State’s 
Exhibit No. 7 and the said exhibit was read to the jury by 
the Solicitor.

The witness further testified that Deft wrote said exhibit 
in his own handwriting and signed it. Said statement and 
exhibit was and is in words and figures as follows:

S t a t e ’s E x h ib it  N o. 7

Birmingham, Ala.
Sept. 27-1938.

Cf. City Southside
Jail.

I Joe Vernon am telling the truth about the killing of 
Bend Montgomery. L. C. Berry and me one night thought



39

we would go and get some coal and we went on down to 
the station and we waited until the Central run and it did 
not have no coal and we decided to get some money some 
where. Jabo said let us get that filling station and he taken 
the gun and walk on the far side of the street to see was 
there any one in it. Mr. Ben came out to moved the things 
in jabo run behind to the rail road I came up behind the 
station with him. I stook to left and as he turn out the 
lights jabo runs to the right side. I came to left side he 
went in. I heard a scuffle and run to the front before I 
could in front I heard some sound like a cap buster and 
jabo came out running I run and look through the glass 
and saw Mr. Ben bending over jabo said let us go and 
we run and run until we came to the house where my sister 
lived Jabo hand me the gun sister came to door and said 
who is that running I said jabo I didn’t tell her nothing 
[fol. 40] but went home on the street car and put the gun 
up the next morning. I did tell no one nothing about it so 
after then me and jabo said nothing to each other did not 
run together no more the gun used in the stick up was 
Mrs. Frinces gun and I slep it out one morning It was a 
brake down 32 caliber I stole it out when I clean up Mrs. 
Frinces house keep it all that day until that night when 
we planding the holding the filling station I told him to take 
the gun and I would looked out on the out side while he 
took the money from Mr. Montgomery and at that time I 
was standing at the left side behind the filling station this 
gun had 4 loaded shells in it when I gave it to L. C. Berry 
and when he gave it back to me it had three shells in it 
and one empty shell I taken this empty shell out betwing 
fist Ave So and first Ave No on 64 St near Mr Jones coal 
yard I threw it to the right side of the street I went on home 
to Mr. Charlie Norrell where I lived

Joe Vernon.

End of Exhibit No. 7
On cross-examination the witness testified substantially 

as follows:
I first learned about this boy being arrested the afternoon 

after he was arrested on the same day. I had nothing to do 
with the arrest. I was not present when Mr. Johnson took 
him out to Lovick and I was not out there. Dft had not 
frequently looked up people for me. I have seen him at



40

Mr. Norrell’s house. Mr. Morrell was my first cousin. I 
have no interest in this case because of his arrest by Mr. 
Johnson or because Mr. Johnson took him out to Lovick, nor 
because Mr. Johnson is being accused of beating him up. 
The interest I had in it from the beginning was the fact 
that we were having trouble out there with hoboes being 
held up on the trains. I don’t know that the main thing 
was that of being beat up by a railroad officer. I cannot 
tell you how he was dressed when I saw him over to the 
jail,—I don’t remember. He had on a kind of light short- 
sleeved knitted shirt, kind of faded out blue—white shirt, 
with real short sleeves.

Counsel for defendant pointed out a shirt to the witness 
and witness stated: I never saw that shirt before. That is 
not the one because the one I saw was faded out blue. I 
don’t know that he has never had any other than that shirt 
at any one time. He didn’t have any other clothes over at 
the City Jail, other than the ones that he had on that I 
know of.

On redirect examination the witness in response to ques­
tions testified:
[fol. 41] When I spoke of taking him out and finding some 
watches and other stuff that was in connection with other 
robberies and the property recovered has no connection 
with this ease at all.

Defendant’s counsel moved the court to exclude the last 
answer of the testimony of this witness. The court over­
ruled the objection and to the ruling of the court the de­
fendant then and there duly excepted and added as addi­
tional grounds for excluding said testimony that it was 
incompetent, irrelevant and immaterial and was being done 
to prejudice the jury. The Court overruled the objection 
and to this ruling the defendant duly excepted.

J. W. Dickinson, a witness for the State, testified sub­
stantially as follows:

My occupation is that of Court Reporter and has been 
for about twenty-five years. I was present in the Solicitor’s 
office on September 27, 1938, when this defendant Joe Ver­
non made a statement there in the presence of Mr. R. E. 
McAdory, H. N. Weir, J. J. Bullard, and W. A. Johnson 
all of whom were special officers, and I took down the con-



41

versation that was had there at the time in that office, in 
short hand. Prior to the time the defendant made this state­
ment I did not threaten him or abuse him, or offer him any 
inducement or hold out any hope of reward, nor did any­
body in my hearing, presence, or knowledge, do any of the 
things that I have mentioned. It was admitted here by 
defendant’s counsel that Mr. Dickinson was a properly qual­
ified reporter.

The witness further testified: I took down in short hand 
correctly the conversation had with this defendant, Joe 
Vernon, in the Solicitor’s office, when Mr. McAdory and 
the others were present, and after I took it down I cor­
rectly transcribed it.

The witness was then handed a paper and requested to 
tell the court and jury whether the first ten pages of that 
statement, was a transcript of the statement made by Joe 
Vernon, and made by others in his presence on that occa­
sion, and to which the witness replied “ Yes.”

The Solicitor offered the first ten pages of this statement 
as evidence in the case. Counsel for defendant objected to 
the introduction of the paper of the first ten pages thereof 
because it is not in the language of the defendant; because 
questioning by the solicitor at the time it shows it was 
clearly written out from questions and answers in the so­
licitor’s office. The court overruled the objection and to 
the ruling of the court the defendant then and there duly 
excepted.

Counsel for defendant then asked this question:
[fol. 42] Q. You don’t know what had been said------ ?

At this time the Court said:
Q. That place Mr. Tate referred to in the transcript as 

ending on the tenth page, that’s the place—that is the end 
of the statement made by the defendant, is that correct? 
Let me see it a minute. The last word there as stated by 
the defendant is “ Yes.”  That is on page ten. Counsel for 
defendant objected to the introduction of said paper be­
cause it is not in the language of the defendant and was 
prompted by questions by the solicitor. The court over­
ruled the objection and to the ruling of the court the defend­
ant then and there duly excepted.

The statement referred to and the subject of inquiry was 
then read to the jury and offered as evidence as State’s



42

Exhibit No. 8, and after being read to the jury was intro­
duced and received in evidence as such exhibit.

Said transcript— Statement (Exhibit No. 8) was and is 
in words and figures as follows :

S t a t e ’s E x h ib it  No. 8 

J oe V ernon  ( c ) .

By Mr. M cAdory:

Q. Is your name Vernon or Varner?
A. Vernon.
Q. Joe Vernon?
A. Yes, sir.
Q. Did you know Mr. Ben Montgomery?
A. Yes, sir.
Q. Where did he work?
A. Worked at the filling station on 48th Street and 1st 

Avenue.
Q. When was he killed, do you remember?
A. No, sir; I don’t know what date.
Q. What month do you know?
A. In September.
Q. Of what year?
A. Last year.
Q. Last Year?
A. Yes, sir.
Q. Daytime or night time?
A. Night time.
Q. About what time of night?
A. It was around nine o ’clock, as near as possible.
Q. Around nine o ’clock?
A. Yes, sir.

[fol. 43] Q. Do you know who killed him?
A. Yes, sir.
Q. Who killed him?
A. Jabo.
Q. What is Jabo’s name?
A. L. C. Berry.
Q. How long had you known Jabo?
A. I had been knowing him about four or five years.
Q. Had you and Jabo been working together or running 

together?



43

A. No, sir; we had just been knowing each other, and 
we stole coal together, all points on the railroad, stole coal 
together.

Q. Stole coal together?
A. Yes, sir.
Q. Did you and Jabo decide you would go and rob Mr. 

Montgomery ?
A. We made the plan after we got down there. We went 

down there with the intention of getting coal.
Q. When you got down there you say you made the plan 

there ?
A. Yes, sir.
Q. Did you know Mr. Montgomery?
A. Yes, sir.
Q. Did he know you?
A. Yes, sir; he knowed me, because we used to play the 

ukelele for him down there at the Woodlawn show, and he 
used to go to school.

Q. Did L. C. know him, Jabo ?
A. I don’t know, sir, whether he did or not.
Q. Well, what did you all say about robbing him?
A. Well, when we got down there we was in the back of 

the filling station, waiting on a coal train to come. When 
the Central of Georgia run they didn’t have no coal on it, 
and Jabo said, “ What about us getting in the filling sta­
tion,”  and I said, “ Yes, you take the gun and I will watch. ”  
I had been watching, and he went in, and I was behind, 
standing on the left of the railroad looking into the filling- 
station where I could see any cars stopping in there. So I 
heard a scuffle—you know about how you scuffle—and before 
I could get back around there I heard something say “ Bow”  
like a firecracker, and Jabo was coming out the door, com­
ing out this way, and when I looked over I seen Mr. Ben 
Montgomery bending down, and Jabo said, “ Let’s go.”  So 
we run all the way to Woodlawn on the Central of Georgia 
railroad track.

Q. Where did you get the gun that you had there?
[fob 44] A. I slipped it out of Mrs. Norrell’s chest.

Q. That was Norrell’s gun?
A. Yes, sir.
Q. When did you get the gun out of Mrs. Norrell’s chest?
A. I got the gun out of Mrs. Norrell’s chest that morning 

when I was cleaning up the house.
Q. Where did you give the gun to Jabo?



44
A. Down at the filling station.
Q. Just before he went in to rob him?
A. Yes, sir.
Q. And after the robbery what did Jabo do with the gun?
A. He kept it plumb until we got to the house where my 

sister stays.
Q. What is her name ?
A. Savella, my sister, and my sister was in the house 

sleeping.
We got there about 9:10 or 9:15, and when I got on the 

porch my sister said, “ Who was that?”  and I told her Jabo. 
And as I was going on home I pitched it down in Mr. 
Thomas’ coal yard and throwed out the hulls and put the 
gun down in my breeches leg and put a rubber around it, 
and went down to Mrs. Norrell’s house the next morning to 
make a fire, and I put it back in.

Q. What became of Jabo?
A. Me and him never did—I didn’t know anything about 

him because he was suspicious. He was still around some­
where.

Q. Somewhere around Woodlawn?
A. Yes, sir. He was supposed not to tell and I was sup­

posed not to tell. We didn’t figure around any other way 
because we figured folks would be suspicious.

t Q. Did you tell Mr. Jones, Deputy Sheriff and Mr. Charlie 
Norrell that this Willie Meyers did that killing?

A. Yes, sir.
Q. Gave them information that he was the one?
A. Yes, sir.
Q. Why did you do that?
A. To put them off, you know, to make them think that 

the man that did it was not around here nowhere, you see.
Q. Now, had you and Willie Meyers and this Jabo, in­

stead of stealing coal had you been robbing hoboes out in 
that yard?
r„4" °̂> }  hadn’t never done no robbing with Jabo and
I o. oj Millie at all. We hustled coal together all the 
tune.

Q. Anything else you want to tell us about Mr. Mont­
gomery’s killing?

A. That is ail I know.
,9: .How vas the door shut when you went there to look



45

A. Jabo was coming out the door and bad hold of the 
door knob when I came in front of the door running, he 
was coming out.

Q. Did the door stay shut, or did it bounce back open, or 
how was the door?

A. Well, when he came out the door he still had hold of 
the knob, and that is when I peeped in and seen Mr. Ben.

Q. What sort of door knob did he have hold of?
A. The knob that you shut the door to with.
Q. Was the knob on that door something like that over 

there (indicating) ?
A. Yes, sir; something like that.
Q. Did he lock it with a lock and a hasp ?
A. I didn’t see him.
Q. You know what a hasp is, don’t you?
A. I didn’t see him look it, Captain.
Q. Well, when you went to the door and looked in did you 

see Mr. Montgomery kneeling down?
A. Yes, sir.
Q. Did you look through the glass part of the door?
A. No, sir; I just peeped in. All of that is glass in front 

of it.
Q. And you haven’t been running with Jabo lately since 

this killing?
A. No, sir.
Q. Have no- seen him lately?
A. Yes, sir.
Q. How long ago?
A. I seen him the other night.
Q. Does he work anywhere?
A. No, sir. He worked at the City ice house a little while 

during the summer.
Q. What calibre gun was that?
A. .32.
Q. What is the make of it?

[fol. 46] A. An owlhead is what they said it was. I didn’t 
look at the gun, but they said it was an owlhead.

Q. A .32 owlhead?
A. Yes, sir.
Q. Joe, when you were down there at that filling station 

that night how long did you watch the station before Jabo 
went in to rob Mr. Montgomery?



46

A. We watched it a pretty good while. Jabo went in the 
other side. We even walked on the other side to look to 
see that there was nobody in there but him.

Q. Did you see anybody leave there!
A. That colored boy that worked there.
Q. What did Mr. Montgomery do while you were watch­

ing?
A. He come out and taken these filling station things, 

such as oil, sitting in front of it. Well, when he taken the 
oil and things we knew it was about time for him to close 
up.

Q. Were the lights on or off?
A. Were the lights on or off when Jabo------
Q. Yes.
A. He turned some kind of light, but some of the lights 

went out.
Q. Some of the lights went out, but there were lights in 

the filling station?
A. That big light got kind of dark, but there was other 

lights.
Q. Other lights outside the station?
A. Yes, sir.
Q. When did they arrest you on this, Joe?
A. They arrested me on the 15th day of September.
Q. This month?
A. Yes, sir.
Q. Been over at the city jail all the time?
A. Yes, sir.
Q. How have they been treating you?
A. Nice.
Q. Have they whipped you?
A. They haven’t talked about it.
Q. Haven’t threatened you in any way?
A. No, sir.
Q. Haven’t promised you anything?

[fol. 47] A. Nothing at all.
Q. Haven’t got any sore or any scars on you?
A. Nothing on me; just like I always was, just Joe.
Q. Who arrested you?
A. Mr. Maynor and Captain Weir, and Mr.—that is all. 

Them two arrested me.
Q. Whereabouts were you when they arrested you?



47

A. I was standing in front of my sister’s door, just had 
got out of the car with two special agents, Mr. Johnson and 
Mr. Gorman.

Q. These two?
A. Yes, sir; Mr. Johnson and Mr. Gorman.

By Mr. Johnson:
Q. What had you been doing with us?
A. I had been out there to Lovick, to try to locate a fellow 

we called Mr. Tom Tyson.

By Mr. McAdory:
Q. You are telling us the truth now, are you, Joe?
A. Yes, sir.
Q. Not lying to us ?
A. No, sir; the truth, so help me G od!
Q. Everything you have told us is the truth ?
A. Yes, sir.
Q. You have seen this gun since you were arrested?
A. The .32 calibre?
Q. Yes.
A. Yes, sir; the same gun that he used.
Q. The one they showed you?
A. Yes, sir.
Q. You knew it was Mrs. Norrell’s gun?
A. Yes, sir.
Q. How many shells were in that gun, do you know?
A. There was four shells in it, and after shooting it, it 

left three in it.
Q. You threw the empty away, did you?
A. Yes, sir.
Q. And left the loads in there?
A. Yes, sir.
Q. Nickel-plated or blue steel gun?
A. Nickel-plated.
Q. Revolver or automatic?

[fol. 48] A. Revolver.
Q. Did it break at the top or side ?
A. Breaks down.
Q. Breaks down?
A. Yes, sir.



48

End of Exhibit No. 8
Said exhibit No. 8 was not signed by the defendant.
On Cross Examination said witness testified substantially 

as follows:
When the statement referred to was taken down it was 

day time. As I recall it it was in the afternoon. It prob­
ably shows there. I didn’t notice how this darky was 
dressed. His clothes looked about like they do now, I guess, 
kind of seedy looking. At that time officers Bullard, Weir, 
Johnson and possibly another, was present. It is shown 
there in the transcript. I didn’t hear Mr. McAdory ask 
him if Mr. Johnson beat him up. Nothing was said about it. 
I  can’t recall whether Mr. McAdory asked all the questions. 
The transcript will show who asked the questions. I don’t 
think Mr. McAdory was referring to some paper when he 
was asking the questions. I don’t know if he had a piece 
of yellow paper in his hands at the time.

Defendant’s counsel then exhibited to the witness a piece 
of yellow writing paper and asked if the paper exhibited 
to the witness was like that paper to which the witness 
replied: ‘ ‘ My recollection is I would say he did not, I dont 
recall seeing it.”

Rosa Lee Collins, colored, was then called by the State 
as a witness and who testified substantially as follows:

My name is Rosa Lee Collins and I live at 6308 South 3rd 
Court, and I know the defendant Joe Vernon and lived with 
him in September 1937. We lived at Mr. Charlie Norrell’s. 
Mr. Norrell was a city detective, and Joe worked there for 
him. I remember when Ben Montgomery was killed at a 
filling station. On the night he was killed I saw the defend­
ant, Joe Vernon. It was at my sister’s. Her name is 
Earnsie Collins. To my judgment it was right around ten 
thirty or eleven o ’clock when I saw Joe at her house. No­
body was with him. I had no conversation with him except 
he just asked me to go home with him and I went. I bor­
rowed fifteen cents from my sister for car fare but we did 
not ride the street car. Some boys passed us and took us 
as far as 77th Street. They were in an automobile and 
when we got to that street we got out of the automobile and 
walked the balance of the way. I saw the defendant with 
a gun that night.



49

[fol. 49] The solicitor then asked the following question:
Q. Where did you first see the gun?
Counsel for defendant objected to the solicitor leading 

the witness and putting the words in her mouth. The Court 
overruled the objection and to the ruling of the court the 
defendant then and there duly excepted.

The witness then answered:
A. The first I saw it at all?
To which the Solicitor replied:
A. Yes, where did you first the see the gun that night?
To which witness replied:
A. Joe had it.
When I saw it that night we were going from there to 

Mrs. Norrell’s. He took the gun out of his pocket some­
where and took an empty shell out of it and threw the shell 
on the ground. I saw the gun again that night after we got 
home up in the servant’s house. He took the gun and stuck 
it in a pan of water up there in the servant’s house at Mrs. 
Charles Norrell’s, and the gun stayed there in the pan of 
water all night and I saw the gun again next morning. 
Then he took the gun out of the water and dried it off and 
cleaned out the barrel. He put the cartridges back in it 
and said he was going to slip it back in the chest before 
Mrs. Norrell missed it.

On Cross Examination the witness testified as follows:
My real name is not Eosa Vernon, but I am the wife of 

Joe Vernon and have been living with him ever since 1936. 
I am now living with another man named Dickey. I am 
not staying with him; don’t stay with anybody. “ I am just 
telling the truth” —was the answer given to the question, 
“ You dont want Joe to get out of this because you want to 
stay with Dickey?”  I have written Joe Vernon some letters 
since he has been in jail telling him how much I cared for 
him and that I “ wanted to tell the truth” , “ was in answer 
to the question “ Didn’t you tell him in those letters that 
you were scared?”

Q. And you were told before you came here, if you came 
up here and helped him out, they would put you in jail, too?

4—449



50

A. They said that I knew that Joe had did it, they would 
get me messed up too.

It is not a fact that me and Joe were there at Mrs. Mor­
rell’s house where Mr. Norrell left Joe there to watch his 
house.

Witness then stated: (Referring to Mr. Norrell): “ He 
[fol. 50] always called him (referring to Joe) when he came 
in, but it wasn’t a quarter to ten” . This was in answer to 
the following question: “ And didn’t Mr. Norrell come home 
about nine-thirty or a quarter to ten and call Joe at that 
time when he put up the car ? ’ ’

“ He, referring to Norrell, called him, referring to Joe, 
that night too.”

Q. And it was after ten when you all went to his sister’s?
A. I was already at my sister’s.

I was there at the house that night and it was long about 
ten-thirty or eleven o ’clock. My sister lives on 64th Street 
and 2nd Avenue South. That is in Avondale. I cook for Mrs. 
Norrell some times. It was not about seven o ’clock that 
night when Joe called me. I did not come home because of 
Joe ’s telling me he had to stay there that night for Mr. 
Norrell. I know where the ice-house is in Woodlawn and 
it is not very far from where I was living. I did not go 
there to get J oe one night when there were a lot of boys in 
a gambling game. I know Manny Green. I did not see Joe 
pawn this gun to him before this occurred. He did not use 
the dollar and thirty-five cents he got to take me to the 
picture show. I did not see Manny Green the following 
Sunday after Montgomery was killed. He did not come to 
my house where me and Joe were in the yard and where 
there was a dice game. I have not been told to deny that 
or I would be put here with Joe. I have not been told what 
to say today or threatened I would be put in with Joe if I 
did not.

The witness was then handed a paper purporting to be a 
letter and was asked if that was her handwriting to which 
she replied yes and that she wrote that letter to Joe when 
he was in jail and was then living at 6308 3rd Court South 
and wrote the letter.

Counsel for defendant then read to the court and to the 
jury what was on that paper with reference to this case and



51

then asked the witness; “ Is that right?”  to which the wit­
ness replied, “ yes” .

Defendant’s counsel then asked permission to introduce 
that paper as defendant’s exhibit No. 9 and the document 
was received in evidence as defendant’s exhibit No. 9, and 
read to the jury.

Said Exhibit No. 9 was in words and figures as follows : 

D ek exd an t ’s E x h ib it  No. 9
“ the Montgomery case you know Joe I dont know any 

thank about it they come to my house Wednesday was a 
week ago I was afride because I was then all along they 
let me read your confession and then they ask me what did 
I know about it I told them I  didn’t know any thank about 
it they say I was lieing because you had told them I did 
[fol. 51] and Earsie told them she heard you and I talking 
about it But I told then I dint know any thank about it and 
then they took me down town and was going to put me in 
jail if I didn’t say that you told me and I dint want to go 
to jail so I told them and your sister told them to because 
they was going to do the same to her”

End of Exhibit No. 9.
Counsel for defendant then exhibited to the witness 

another paper purporting to be a letter and asked the wit­
ness if said handwriting in said paper was witness’ hand 
writing to which question the witness replied “ Part of 
it is” .

Question by counsel to witness :
Q. What part is not, this? (pointing to a particular place 

in the purported letter).
A. This has been erased out.
Q. You didn’t erase that?
A. No.
Q. You wrote this up here? (indicating the upper part of 

the letter).
A. Yes.
Q. And you wrote this down here ?
A. No.
Q. You didn’t write this up here?
A. I didn’t write that in the center.
Thereupon counsel for defendant offered the said pur­

ported letter last referred to in evidence and the same was



52

received in evidence and marked defendant’s exhibit No. 10.
Said exhibit No. 10 is in words and figures as follows :

D efe n d a n t ’s E x h ib it  No. 10
“ will telling you so dear I dint want to say what I said But 
I had to and your sister did to they took me down town and 
were going to put me in jail and your sister to and we had 
to tell them But you know nothing bout it you was with me 
that night at home God ant going to let you take the blond 
I going to bring your clothes thursday I am working 
from 7 30 to 6 30 did you get my lettle friday write and let 
me know it is eight 30 know I am going to bed But before 
I go I am going to ask the lord to help you to over”

(End of exhibit No. 10).
In said exhibit No. 10 at about the center of it the words 

“ you know nothing bout it you was with me that night at 
home”  are written over a previous erasure; that is to say 
[fol. 52] in said exhibit; No. 10 the words last quoted above 
from said exhibit are written at a place in which apparently 
some matter had previously been written and erased. The 
word “ God”  in said exhibit No. 10 is written in said ex­
hibit above the word “ ant” , so that the relation between 
the words “ God”  and “ ant”  is substantially as follows: 

“ God”
1‘ ant ’ ’

I wrote the letter (referring to exhibit No. 9) to him and 
that is the truth what I told them, And this is what you 
wrote him (referring to exhibit No. 9) and to which the 
witness replied, “ Yes, it is the truth” . Yes, I have lived 
with Joe, as his wife, since 1936. I do not know Manny 
Green’s address. I do not live with the girl that writes to 
him all the time. The girl named Ella lived with her 
mother, but I do not live with her. Yes, we are big friends. 
I have read letters from him to her and have refused to 
give that man’s address, as it is none of my business.

On redirect examination the witness testified substan­
tially as follows:

What I have told the officers was true. Yes, it was, and 
what I have told the jury is true.

On re-cross examination the witness testified as follows:
The reason I wrote the defendant that letter I didn’t want 

to tell off on him. I have not talked to any one about the



53

case. I did talk to Mr. Weir and them. When Mr. Weir 
came out there he asked me things. He would come out 
there and get me and take me to see Joe. He didn’t take 
me to another place. I cannot say how many times he has 
been out to my house. He hasn’t been out there any more 
since I went before the Grand Jury. He has been out there 
to the white folk ’s house twice to see me. The last time he 
came he brought me a subpoena. He didn’t say what would 
happen to me if I didn’t come. He was not back here this 
morning. I was not there either. I saw him in the other 
building in the other room, the court room. He was not 
talking to me about the case. I just saw him when he came 
in the door. I have not talked to him about the case. Yes 
I was back this morning with the other witnesses. The 
other witnesses did not say to me what they were going to 
testify. They just asked me a few questions. He (refer­
ring to Weir) did not tell me anything. Nobody but Mr. 
Weir told me that they would take me to jail if I didn’t 
testify. Mr. Johnson did not say so nor anybody else.

E. Luther Hollums, was then called as a witness for the 
State, who testified substantially as follows:

I am chief of detectives and know a city detective by the 
name of J. N. Bryan, and he turned over to me a bullet on 
[fol. 53] September 20th, 1937 shortly after the time Ben 
Montgomery was killed. I have this bullet in my possession 
now and the bullet that you hold in your hand (referring 
to the solicitor) is the bullet turned over to me by Mr. 
Bryan. I marked it at the time it was turned over to me 
and it now has got my mark on it at this time. I forwarded 
that bullet to the P. B. I. at Washington and received it 
back from them by air express. I have a pistol alleged to 
have belonged to Mr. Charlie Norrell or Mrs. Francis Nor- 
rell. It was brought to me by Detective Weir, Bullard and 
Johnson and I have got the pistol too with me. This pistol 
has been in my possession all that time except when it was 
on its way to Washington and back, when I forwarded it to 
the F. B. I. at Washington, and it is in the same condition 
now as it was when I forwarded it and received it back by 
Air Express.

At this time the Solicitor offered the pistol and bullet in 
evidence as State’s Exhibit 11. The defendant objected 
to the introduction of the pistol until it was further identi­
fied.



54

The witness was further questioned and testified as fol­
lows :

I stated that the bullet is in the same condition as when 
I received it and it is.

The court asked this question:
Where did you say you got the bullet from !
The witness answered: “ Detective Bryan” .
The Court: Did he testify here this morning?
Solicitor Tate answered: “ Y es”
The Court: He testified he delivered it to Mr. Dolinins'?
Solicitor Tate answered “ Yes.”

The Court then overruled the objection of the defendant 
to the introduction of the pistol and to the ruling of the 
court the defendant then and there duly excepted. This 
pistol is the same pistol later testified to by Mrs. Frances 
Norrell.

On cross-examination the witness testified substantially 
as follows:

When I got the bullet I put it in an envelope and put 
on it “ Ben Montgomery case,”  and put the envelope in 
my desk and that desk is locked. Nobody else has a key to 
it. It is locked all the time. I took it out when I shipped 
it to Washington. I sent it either by express or sent it 
air mail parcel post. The receipt given for it was by the 
officials that accepted the packages insured. I  am sure 
that I sent the bullet the way I described. I don’t recollect 
getting a receipt. I very seldom have occasion to send 
away anything like this. I sent this away last year. It 
[fol. 54] has been lying in my desk ever since, marked.

Witness J. J. Bullard was then recalled by the State 
as a witness and he testified substantially as follows: I am 
the Bullard that testified before lunch—I obtained a pistol 
from Mrs. Francis Norrell.

The Solicitor then exhibited and handed the witness a 
pistol and requested that she tell the court and jury whether 
that was the pistol he obtained from Mrs. Norrell and the 
witness replied that it was and further testified as follows: 
I turned the gun over to Chief Hollums and it is in the same 
condition now as it was when I got it. I got it at the home 
of Mrs. Norrell. On Cross-examination the witness tes­



55

tified: At the time I got the gun Joe Vernon had been 
arrested and was in jail.

Mrs. Frances Norrell was then called as a witness for 
the State and testified substantially as follows: my name is 
Mrs. Charles Norrell and I am the widow of Officer Charles 
Norrell of the Birmingham Police Department. Mr. Nor­
rell died Dec. 30th, 1937. I know the defendant Joe Vernon. 
He formerly lived at my place and worked at my house. 
I remember the occasion of some officers coming to my 
house and getting this pistol. The officers were Mr. Bullard, 
Johnson and Wier.

The witness was then handed a pistol and was requested 
to tell the court and the jury whether in her judgment that 
this was the pistol these officers obtained from her, to which 
the witness replied “ yes, in my judgment” . The witness 
then testified as follows: The pistol was mine and it was 
kept in a cedar chest, and in the chifferobe it was not kept 
under lock and key all the time, it could have been gotten 
out any time. Joe Vernon had access to my house in 
September, 1937.

On cross examination the witness testified substantially 
as follows: Yes, Joe Vernon, worked for me at my house. 
I don’t know that he assisted my husband in looking for 
people. He and Rosa Lee lived at the servants house— 
Rosa Lee and Joe lived together and in so far as I know 
claimed to be man and w ife; lots of times when Mr. Norrell 
and myself went out we left Joe at the house.

When asked if she didn’t remember the very night the 
killing happened she and Mr. Charles Norrell didn’t come 
home and didn’t he get out of the car and call Joe and 
ask if he was there, to which the witness responded “ we 
were very seldom together at night”  and further testified: 
that it was not always customary when he did go out and 
leave Joe there when he returned to call him. He did not 
do this as a general rule. I have told Joe when I have 
missed my gun that if he didn’t get my gun back I would 
have the red car after him. I have done this only once, 
[fol. 55] I did get after Joe about a gun but it was not this 
gun. He had taken several guns. He didn’t tell me that 
about this gun.

On re-direct examination by the Solicitor, the witness 
testified substantially as follows: During the month of



56

September, 1937, Mr. Norrell was working at the Hillman 
Hospital, some nights he got home before midnight, but 
as a rule he was late, I couldn’t say that as a rule it was 
after midnight.

T. F. Baughman was then called as a witness for the 
State, and he testified substantially as follows: I live 
in Arlington County, Virginia, and am special agent of 
the F B I at Washington, and have had that position for 
a little less than 20 years, and I am assigned to the tech­
nical laboratory, and am consulting specialist in fire arms 
identification. I have made a special study, that is of the 
science of identifying fire-arms. I have had occasions to 
inspect the makings of pistols and firearms and cartridges 
I have been in the factories where they were made and 
have seen them made. I have been assigned to that work 
steadily for five or six years, and studied it for a good 
many years prior to that time, and have studied under the 
recognized ballistics engineers and instructors and have 
testified a great many times as an expert witness on the 
subject of fire-arms, identification heretofore. I have 
testified in both State and Federal Courts and enumerate 
states if you wish: Delaware, Pennsylvania, Maryland, Vir­
ginia, North Carolina, Kentucky, Tennessee, Georgia, Flor­
ida, Mississippi, Kansas, Missouri, California, Idaho, Ne­
vada, Colorado. Have also testified in the Federal Courts 
as an expert on fire arms identification. In September 1938, 
is my recollection I received a bullet which came from 
Birmingham Police Department on September 21st:

The Solicitor then exhibited to the witness a bullet and 
was asked to tell the jury and the court whether or not 
it was the bullet he had examined, to which the witness 
replied, “ yes” . And the witness further testified “ and 
there was a .32 caliber Iver-Johnson Revolver also re­
ceived.”  This (indicating) is the revolver I received.

The Solicitor then exhibited to him a pistol and asked 
him to tell the jury and the court whether that pistol was 
the one he received. To which he replied “ yes” . The wit­
ness then further testified: That he made this examination 
in the technical lab-ratory of the Federal Bureau of Inves­
tigation at Washington.

The Solicitor then stated to the witness if he had exam­
ined the bullet and if he had reached any conclusion from 
the bullet and the examination of the fire-arm and if he



57

had just to tell the court and jury what he did by way 
[fol. 56] of examining the bullet and the fire-arm. To 
which the witness responded substantially as follows: I 
first examined this bullet which has just been identified, 
to determine whether from its class-characteristics from 
the lands and grooves on that bullet, whether it could have 
been fired in a revolver similar to that which was sub­
mitted for examination, that is, this Iver-Johnson Re­
volver. I found that the land and grooves impressions on 
the bullet indicated that it was fired from a revolver of 
this type, I then fired test cartridges and recovered those 
test bullets, they were fired into cotton waste, I recovered 
them and examined them from markings of the weapon 
from which they were fired; I placed the bullet under one 
side of a comparison microscope, I placed the test bullets 
under one side, the other side of the comparison micro­
scope and compared those two bullets for the purpose of 
determining, if possible, whether they were fired from 
the same weapon. I found that on the evidence bullet, 
this bullet which you exhibited to me, that there too few 
individual markings, individual characteristics, to deter­
mine whether it was fired from this particular weapon. It 
was fired from a weapon of this type with rifles similar 
to this.

The Solicitor then asked the following questions: Did you 
find anything on the evidence bullet, the bullet that I ex­
hibited to you to indicate that it was not fired in the 
weapon you examined? To which the witness replied: 
“ nothing.”  Question by the Solicitor: And your conclu­
sion was it was fired from a similar fire arm to the arm 
you examined? Answer “ yes, a weapon of similar rifling.”  
Question by the Solicitor: And you found nothing to indi­
cate that it was not fired from this particular weapon? 
Answer: “ I was unable to reach a conclusion or decide 
whether it was fired in this particular weapon or not.”  
Question by the Solicitor: Now, Mr. Baughman, The indi­
cation left by the bullet passing thru the barrel of the 
revolver, would alter more or less as time went on and 
as the fire arm was discharged? Answer, “ yes sir.”  Ques­
tion by Solicitor: and the care that the Are arm has had 
in the meantime would also affect that situation? answer 
“ yes sir.”  Question by Solicitor: The fact that this fire­
arm had been immersed in water and left over night in 
water would more or less tend to change the markings on



58

the bullet, would it not? Answer: “ it might change them 
and it might not” , it would depend entirely on the condi­
tion of the weapon prior to its immersion into water, and 
how much it rusted at the time and immediately there­
after, if a weapon has rust or corrosion in it and is left in 
water, some of that corrosion may become softened and 
be carried out with the next shot or two that goes thru; 
[fol. 57] “ additional rust may form in there which will so 
change the markings left upon bullets that a definite con­
clusion cannot be reached.”

Question by Solicitor: And I believe that you stated that 
the indications on the evidence bullet which is State’s ex­
hibit 11, that I submitted to you, that they were insufficient 
for you to make a definite conclusion as to what particular 
fire arm the bullet came out of? The witness answered: 
“ That’s true.”  Question by the Solicitor: But they were 
sufficient to indicate that they came out of an Iver-Johnson 
of this type? Witness answered “ yes sir” ,—they were yes 
sir.

On Cross-examination the witness testified substantially 
as follows: Question by counsel for defendant: Mr. Baugh­
man, would soaking a gun overnight in water change the 
rifling inside? The witness answered: That would have to 
be amplified. I can’t make a yes or no answer to that. The 
rifling marks, or what we term class characteristics—or 
other words, all weapons of a given caliber may have the 
same rifling marks, they are not what is used for identifica­
tion.

Question: Would it change it if it was done 12 hours! 
Answer I have seen weapons that have been immersed for 
less that have. Question: When you got this bullet, how 
did you identify this bullet here today as the one you exam­
ined? do you make records? Answer, “ yes” . Question: 
And you consulted your records before you came here? 
Answer, Yes.

The State then closed its case and so announced to the 
Court whereupon defendant’s counsel called to the stand as 
a witness, the defendant Joe Vernon, and who testified sub­
stantially as follows:

My name is Joe Vernon, and they call me little Joe some­
times. I have lived in Birmingham about eight years, 1 
have worked for Mr. Norrell, a detective. I worked for him 
at his house, did house work for him, and other things too.



59

I remember in September about a year ago about the kill­
ing of Ben Montgomery. I heard about it first one morn­
ing about 9 o ’clock, the paper boy came around hollering 
‘ ‘ extra, ’ ’ that was the first time I had heard about it. When 
I was out at Mrs. Norrell’s house, I saw her gun and took 
it and carried the gun to town, to Woodlawn, one Saturday 
about one o ’clock, I got off work every Saturday about 12 
o ’clock. I got in a crap game on 62nd St. and 1st Ave., 
about from five to seven o ’clock, just about dark and I 
pawned the gun to Mannie Green. Mannie Green is not 
here now, and I have not been able to find him. I saw that 
gun again a week after I pawned it. I pawned it on Satur­
day and saw it the following Sunday week. I saw that gun 
again when this boy came to my sister’s house where we 
were playing cards and he came in to the back and knocked 
[fol. 58] on the door, I don’t know who opened it but he 
came in, I was on the ice box. He called me and he says: 
“ Are you ready to take that gun back?”  and I says : “ Yes” . 
I have been waiting on it, I have been scared she would get 
after me for it.”  So he gave me the gun back. He had a 
big roll of money in his hand. He says “ I am hot, I have 
got to leave here.”  There was another boy with him, a tall 
brown-skin boy. I took the gun back. Just previous to that 
Sunday Mrs. Norrell found out that the gun was gone that 
Saturday evening and said if I didn’t get it back she would 
put the red car on me. I have lived here in Birmingham 
since that time. I can’t say just how long after that Mr. 
Norrell died but he died in January. It might have been 
around December 1937. I was living with Rosa Lee—had 
“ commissary”  license. Had been living with her since 
1936. I heard her testify yesterday about going over to her 
sister’s. I was at Mr. Norrell’s house the night before Mr. 
Montgomery was killed. Mr. Norrell worked at the Hill­
man Hospital all the time. He generally came home between 
ten and eleven-thirty. My duties at his place was to be 
there when he came back. I stayed at his house every night 
and was there the night before I heard of the extra. I do 
not remember exactly what I did the night before the extra 
was out, that is too far back. I couldn’t remember. I know 
I was at home. I know I went after Rosa that night, the 
night before the killing and the night of the killing. I went 
and got her. Mr. Norrell always carried Miss Frances by 
his mother’s home and he came in about five to get his 
supper and carried me and Miss Frances by his mother’s



60

house and she got out of the car and I goes to Rosa’s sister’s 
house where she was lying on the bed and from there we 
went on back to 64th Street and caught the car back home. 
I went on back to Mr. Norrell’s house around nine or nine- 
thirty or ten o ’clock and was there a long time before he 
came and I had the key to his back door and he always had 
to come to me to get it, and it was the next day that I read 
the extra. I saw this gun here yesterday and looked at it 
good. I couldn’t say that it is Mrs. Norrell’s gun, but it 
looks like one just like it. I  couldn’t say positively so. I 
didn’t have Mrs. Norrell’s gun in my possession any time 
after I pawned it to Manny Green on the Saturday before 
the shooting, until it was brought back to me. I never 
bought any bullets for it. I was accused the first time of 
killing Mr. Mon.^fornery when some special agents carried 
me out to Lovick’s to find a man for them named Mr. Tom 
Tyson. They carried me out there one day. That was the 
day that I was arrested, the 15th of September, I won’t 
ever forget that day. That was a little more than a year 
after the shooting. I have lived here in Birmingham all 
during that year and have been around headquarters and 
[fol. 59] the officers. The officers that came out and got me 
were Mr. Johnson and Mr. Gorman and they wanted me to 
find a man out at Lovick. Now when we got out there they 
put me out by the bridge, by a store, and they said they had 
some business in Leeds. I came to my Aunt’s house, that 
is when I came back by and went down and waited on them. 
There was a boy they called “ poor B oy”  there and I got 
in and they left and went to a place where there was a 
Roccola and they brought me a drink in the car and they 
left and went to the left there, and that is when they carried 
me to Sapperville—this means “ Whip-You” . In going 
there we turned off the Bankhead Highway to the left. No, 
in coming back you turn to the left about two miles after 
you get off the road, the mines were there. I do not know 
what mines they were. They did not take me into the mines, 
they took me in the woods, and then they accused me of 
robbery. They had a man in the back of the car, and old 
man with a suit case, and this man kept looking at me. They 
kept talking to me about boxing and when we got there in 
the wood, Mr. Johnson asked me did I ever rob anybody 
and that is when they started beating on me. This man I 
was talking about was in the car. I couldn’t tell you -how 
many men identified me. They did not mention the Mont­



61

gomery case out there at Sapperville. They whipped me 
and beat me. I got scars on my legs and got scars all over 
me. The defendant was then asked to show the jury the 
scars on his legs, which he did. The defendant further testi­
fied: They did not take my clothes off but laid me down 
across a log. I don’t know if there are any scars on my 
back, but they beat on my back and on my legs. At that 
time I had on this shirt, holding up and exhibiting a shirt 
to the jury. This shirt is in the same condition now as 
when they got through whipping me and that is the shirt 
they took me to jail in. I had on the pants I have on now. 
They have never been cleaned. I went to jail with these 
pants on and I have had them on ever since. They whipped 
me trying to get me to say that I robbed this man. We 
stayed there about an hour. They whipped me with 
switches. They cut the switches there. Then they brought 
me to my sister’s house and told me that if I said anything 
what would happen. Just as I went to get out of the car 
Mr. Weir and Mr. Wagner rolled up. They were City 
Officers. When I got ready to get out of the car Mr. Weir 
came around to the back door and he says “ Hello, Joe,”  
and I says “ Hello, Captain W eir,”  and he wasn’t smiling 
at all, and I went to laughing and he said “ I want to talk 
to you,”  and I says “ All right”  and he says “ Get in that 
car” . I got in and Mr. Gorman says “ what has this negro 
done ’ ’ ? and we went to town. When they got to this filling 
station where they said this killing took place, they said: 
“ Do you know what took place there?”  and I said “ I read 
about it”  and they says “ You will know.”  I did not stop 
there then. They carried me to the City Jail and they put 
me in a little room and a lot of them came in there and says 
“ this is the negro.”  When they carried me in for these 
men to identify me they brought a hat, what I wear on Sun­
days and some checked wash-pants and let me try them on 
and brought me down in the light where there was nothing 
but negroes with overalls on. The rest of them had overalls 
on and Mr. Weir stood in front of me and when this man 
came down the line he didn’t even look at the others, and 
he looked at me, and says, “ that’s him.”  They took me out 
lots of times. They took me to the City Hall and then they 
transferred me in one of those black trucks, a truck with 
the iron bars on it, and then they took me to the city Jail. 
They did not have those clothes there for me. They went 
to my house and got them. They left me at the City Jail.



62

I was at the City Hall a good while before I was taken to 
the City Jail. The next time I saw Mr. Weir and Mr. 
Wagner was that night. It was night. I had had no supper. 
They didn’t take me anywhere that night. They questioned 
me there, they couldn’t beat me there. Captain Jack came 
in, he wouldn’t let them whip me. The next night they came 
and got me about eight-thirty and they kept me out prac­
tically all night long. They took me to a place where there 
was a lot of water. They said it was the Birmingham Water 
Works. It is across Bed Mountain. They carried me in a 
little place. There was a little brick house, there was a 
kind of works going on there. Then they asked me was I 
going to talk and I says “ I don’t know nothing to talk 
about” , and that is where Mr. Johnson broke this tooth out 
there. I had good teeth, all except one. It was broke off.

The defendant was then asked to show to the jury where 
his tooth was broken off.

Mr. Johnson broke this off with his fist. Mr. Weir, Gor­
man, Johnson and Jones, all took me to the City Jail. He 
is the one I saw in the court room yesterday. It was the 
one sitting back here (indicating). They whipped me — 
switches and one had something what the police carry. He 
hit me there right in the head. Mr. Johnson hit me. I 
couldn’t tell how many times, I was crazy. They did not 
put me over anything, they just laid me down on a cushion 
from the car. I did not tell them anything. They kept me 
out until around two and then took me to the City Jail. I 
saw them again next day, naw it was the same day, around 
ten. I saw all of them. They had a tablet with a whole lot 
of paper and Mr. Johnson was writing. I don’t know what 
he was writing. That and then was where I got the yellow 
paper. I didn’t see Mr. Reese until we were over there a 
[fol. 61] long time. I don’t know how many days we were 
over there, but we were they- a long time. I don’t know 
how many days we stayed there, but it was over a week 
before I saw him. I did not know him personally; I didn’t 
know him when I saw him. I heard him say yesterday that 
he went over there and told me that if I was not guilty that 
he would hire me a lawyer, but I had no conversation with 
him like that. The only time I saw him was with the officers. 
I  don’t know whether he was there when the writing was 
done or not. Mr. Johnson gave me something that he had 
done wrote. I don’t remember nothing about it, only he 
told me to write it down, there was some mistakes I made



63

in there. He made me write it over again. He made me 
write it the second time before I could get it right. He said 
there was some mistake. I knew what I was writing. I did 
not know what use he was going to put it to. When I 
objected to the writing is when he told me he would carry 
me out and I wouldn’t come back any more. They said 
“ we aint going to worry him now, he is about sick.”  Mr. 
Bullard brought me some asperin tablets and some pills 
and says: “ That negro is about sick, we wen’t worry him 
now, we will get him later though, ’ ’ and they came out and 
got me two days later in the day time. Mr. Weir, Johnson 
and Bullard came after me. They took me down stairs and 
questioned me there, in that little front room and that is 
where they made me sign those papers. They had already 
told me what would happen if I didn’t sign it and I knew 
they would. I was scared of them. They said my wife was 
worrying about me and they were going to take me out to 
see her and they carried me from there and says “ we aint 
got Joe for nothing, he will be back in twenty-five or thirty 
days.”  And she says “ I ’ve been worrying about him.”  
And then they took me to the Artesian Wells. There was 
no house, but we went into a field and it was night time. At 
that times Mr. Jones, Bullard and Weir were with me. Then 
they whipped me, wanted me to sign those papers, and I 
wouldn’t sign them. I hadn’t signed them then. I had 
written the paper out, but hadn’t put my name on it. They 
kept me out there at that time from about nine until eleven, 
or something like that. I don’t know who all did the beat­
ing, but I think all of them. They used switches to beat me 
and I still hadn’t signed the paper, but I promised them 
that night to sign it and when I came back to town I did 
sign it. I saw them again next day and they said “ Now, we 
are getting somewhere, all we want is to clear up our rec­
ord. ’ ’ Then they wanted me to sign some more and I signed 
them. I did not know what they were. I remember going 
to the Solicitor’s office. It was a couple of days after they 
took me to the Artesfian Wells before I came up to the 
Solicitor’s office. They had not beaten me any more in the 
meantime. Before they brought me over to the Solicitor’s 
office they said they were going to carry me to a man who 
[fol. 62] would straighten out everything for me.

In answer to question of defendant’s counsel:
Q. Did you tell him that you killed this boy?”
A. I wrote confessions.



64

He asked me questions and I answered them and I signed 
it afterwards. It was written down by a stenographer and 
that was after I had been beaten up all these times. The 
last threat they made to me was when they were bringing 
me over here. Mr. Bullard, Mr. Johnson and Mr. Weir 
said: “ You are going to a place and this man is going to 
help you. This is the last chance. If you don’t sign these 
papers and do what we say, you won’t get back, you know 
Mr. Charlie told you about carrying negroes riding and they 
didn’t come back.”  Mr. Reese was not with me then. I 
don’t remember whether he was there when I finally signed 
the paper, there was so many of them there. I had been 
at the City Jail about two weeks before they took me to 
this filling station and made me go through with it. I was 
in the City Jail before they carried me to the County Jail 
fifteen or sixteen days. It was Friday night at that filling 
station I signed that yellow statement, or before. I think 
I had signed that yellow paper, before. I had not been up 
to the Solicitor’s office. That was afterwards. Mr. Reese 
took us in a Pontiac out to the filling station, in a new car. 
Him and Mr. Johnson, Mr. Bullard and Mr. Weir and Mr. 
Reese, and it was about eight-thirty o ’clock at night. We 
went straight from the City Jail out to the filling station. 
Mr. Johnson and Mr. Weir had me handcuffed in the car, 
me and L. C. when they took us to another place. That is 
where the railroad comes up beside the filling station. They 
carried me down in a deep cut where some cross-ties and 
rails w-re at. Then Mr. Johnson slapped me and had his 
pistol in his hand and said ‘ ‘ All right, are you going to do 
like I said,”  and I said “ Yes” . Then he wanted me to go 
through a motion. He brought me back up there to the 
filling station and he started me to walking. Every light 
was turned out except one light, the street light. All the 
filling station lights were turned out, he said he didn’t want 
the public to see us, so they started me to walking and had 
me in front. He had his gun in his hand. I walked where 
he told me and he sa /̂d ‘ ‘ Come on, go and twist that water 
something there. ’ ’ He told me to twist that, he told me—I 
don’t know what all he told me. I did nothing out there of 
my own volition, just done what he told me. They had 
L. C. there in the handcuffs by himself. He had his gun 
out. I didn’t here what they told him to say. They carried 
him down the railroad and made him go through the same 
motions. I  did not see them put a gun on L. C. I did not



65

ffol. 63] hear them tell him about what he was to do. No 
Ma’am, I did not kill Mr. Montgomery—No ma’am. I did 
not go with L. C.,Bell that night to kill Mr. Montgomery; 
nor to rob him, no ma’am. I was not with L. C. the night 
Mr. Montgomery was killed. I aint never run with him and 
I don’t know who killed him. I knowed Mr. Montgomery 
last September when I would see him. I did not know where 
he lived at that time. No ma’am, I was not at that filling 
station that night, or any other night, or any time when he 
was killed. I know nothing in the world about the killing. 
I did not give L. C. a gun that night. I  did not stand watch 
outside that filling station that night. I  did not go down 
to the coal yard and pick up coal that night. The coal I got 
and used was Mrs. Norrell’s. I lived there in her yard. 
Yes, I said I was there at Mr. Norrell’s house that night 
and the first thing I knew of the killing was the next day 
and that Manny Green then had the gun I got from Mrs. 
Norrell at the time, and I didn’t see the gun until the next 
day, the following Saturday. The first time I seen Mr. 
Resse, he came with those officers and he didn’t say nothing. 
He looked and he whispered and talked. And the next time 
he came with a whole lot of men; that’s the time they taken 
our pictures, and Mr. Weir and Mr. Wagner was standing 
up there talking and they took our pictures. I seen him 
only twice. Our pictures were taken at the City Hall before 
my teeth were knocked'out by Mr. Johnson. I don’t know 
the date of it. Our pictures were taken twice after we were 
arrested. These clothes I have on now have not been washed 
since I have been in jail. I have never talked to Mr. Reese 
at all.

On cross examination the witness testified substantially 
as follows:

I have played a ukelele, but I don’t now. I am, a prize 
fighter and they just calle me Little Joe. Some call me 
Little Joe Lewis. I know L. C. Bell or L. C. Berry when 
I see him. I am in the same cell with him now. I don’t 
know if he has a bloody shirt. He has never shown it to 
me. I have a Bible in the cell with me, Mr. Johnson and 
Mr. Bullard gave it to me. Yes, they are the people who 
beat me up. They gave me the Bible when they said “ you 
did the killing,”  and when I said I did the killing. I have 
the Bible now. It is in my cell. It is in the same condition

5—449



6 6

that it was in at the time they gave it to me. No pages are 
gone out of it. None of the pages are torn out. That is, 
I  aint seen none torn out.

Question by Solicitor:
Q. All right, tell the jury what is on the front page page 

of that Bible written in your own handwriting?
Defendant’s counsel objected to the question as being in- 

[fol. 64] competent and immaterial; had nothing to do with 
the case. There is better and higher evidence, the writing 
itself in the Bible.

Witness further testified:
I aint got no doctor; never had a doctor. I do not know 

Dr. Will Farrow at Woodlawn. I do not know Dr. J. H. 
Stephens. I don’t know that I ever been waited on by these 
doctors. I dont know them. I have been to a doctor during 
my life time. It was at the Hillman Hospital. I don’t know 
Dr. Herbert Harris, nor Dr. Green Smith. The Solicitor 
then held a shirt up in view of the witness and witness 
stated that the shirt was his, and that he got it at home and 
that he had bought it himself. Yes, sir, I said, that these 
officers never whipped me with anything but a switch, and 
they whipped me on the legs, and on my buttocks, and on 
the face too, and they knocked my teeth out. The blood 
there came from my nose; that shirt has not been wiped 
in somebody’s blood, only one negro in the cell with me, 
it is Bell. I  tell the jury that this blood is my own blood 
and came from me as a result of these men whipping me. 
As to the doctors I remember somebody bringing us down 
there and pulling off our clothes' and they examined me but 
they did not pull everything off they dropped our britches 
down, they stayed there long enough to take my tempera­
ture, something they put on my arm. Yes, it was blood 
pressure, they did not take pulse, and temperature or ex­
amine us over; yes, I  talked to those doctors when they 
were over there; they asked me if I had been beat u p ; yes, 
I told them I had not; I had on the same shirt then that 
I have had on since I had been put in the city jail it was 
the bloody shirt and the jacket too—yes they made us pull 
off our clothes—when I pulled off the jacket I did not leave 
the bloody shirt on—I pulled off everything—the blood was 
there where they could see it.



67

The Solicitor then exhibited a Bible and the witness made 
the following answers: Yes, that is the Bible—I don’t know 
that there is a place from which a blank page was torn.
I dont think I tore it out—I dont think so. Question by 
Solicitor: You wrote this here? (po-nting to a place in the 
Bible) Answer “ yes, sir” . The writing referred to was 
as follows: Presented to Joe Vernon by the following offi­
cers” —giving their names. I didn’t know whether there 
was a page torn out or not. Question by Solicitor: Did you 
have on there that “ This Bible has satisfied my conscience 
about this case ’ ’ ? Answer by witness : I dont know. The 
witness continued: I know Willie Myers alias Mississippi 
when I see him, but I dont know how long I have known 
him—I dont know where he works; I have; seen him around 
a couple of time—around Woodlawn. I did not tell Mr. 
[fol. 65] Norrell before he died that Mississippi was the 
man that killed that white man and how he was killed etc., 
I did not get Mr. Morrell or officers to go to Nashville to 
get this man Mississippi—but I saw him while here. I 
remember being in the Solicitor’s office on the 6th floor of 
this building (court house) this last September; I remem­
ber when they had me up there for that confession—I dont 
know and dont remember telling these men that I put them 
onto Mississippi and sent them after Mississippi so as to 
make them think that the man that had done the killing 
had left town. Yes this man (referring to Asst. Sol. Mc- 
Adory) asked me about how many times I had been beaten 
and I told him I liad not been beaten. Mr. Reese did not 
whip me. I do not remember being over in the jail and 
Mr. Reese coming over there and I did not hear him tell 
the officers if they believed in this thing to get out of there 
and let him talk to me alone. He did not talk to me in the 
presence of L. C. Bell—I did not talk to him and Bell to­
gether—I heard Bell make a statement about this case when 
they brought him down in front of me. I  dont remember 
what he said. I dont remember that he said that I was the 
man that did the shooting. I dont remember if there was 
a man that stood there in the presence of the other people 
and said I was the man that did the shooting—I remember 
going out there to Mr. Reese’s filling station—I dont know 
and dont remember the desk out there or what sort of a 
desk they had in front of the office. I didnt tell them that 
the desk that they had there now was not the same desk 
that they had when I was there before. I didnt tell them



6 8

nothing. I  said Mr. Johnson took me1 up the railroad track 
and beat me and when he came back he made me go thru 
the motions he told me what to do. I know Mrs. Norrell— 
never had any trouble with her—I didn’t steal this gun— 
out of Mrs. Norrell’s chest. I didn’t borrow it—I just got 
it out I got tothers out of there—I got Mr. Charlie’s once— 
it was not a .38 special. I did get a .38 caliber gun and 
pawned it to a fellow named Jim Lindsey—I pawned the 
.38 to Mannie Green—that’s the only time that I slipped 
pistols out of Mrs. Norrell’s place—yes, I talked about the 
officers taking me out to a place where they got some 
switches I dont come how come to go there and get the 
switches—I dont know that they went out there to the 
artesian wells and found the watch I dont know where they 
got the watch from—it was on 62nd Street I did not know 
the place—I dont know whose house it was—they found the 
watch out there but not the one I had bought—I didnt have 
no watch I had never been there before—I dont remember 
that they ever took me to any place else and found a pawn 
ticket for a watch. They took me ever-where. When these 
officers, Mr. Gorman and Mr. Johnson, came to take me to 
[fol. 66] see if I could help them find a man named Tom 
Tyson up at Lovick’s, they came in the morning soon. I 
had lived at Lovick’s years ago and I knew the territory 
up there pretty well and I was going up there to find this 
man Tyson. They had a man in the back of that automo­
bile with them. I could not say he wras a sort of trampy- 
looking fellow. When I first saw this man I had just got 
through exercising and I came to the car. He asked me if 
I  was ready to go and I told him as soon as I changed. This 
man that was in the back of the automobile went to where 
I got out, and they went on in the direction of Leeds, and 
when they came back they didn’t have this man. I had 
never seen the man before. He had not kicked me on the 
shins in a holdup, and he never said a word to me except 
that he asked two or three questions about how come I was 
out boxing. Yes, I told the jury a while ago that he looked 
at me all of the time. Now, when they come back from 
Leeds they cut over to one side and I got in the car with 
them, but I did not come back to my sister’s house, but to 
a stand. I don’t know if they had a phone at that stand. 
When I got back to my sister’s house in the city Mr. Weir 
and Mr. Wagner came down behind this car. I don’t know 
where Mr. Johnson and Mr. Gorman had called them. The



69

first thing that I confessed to was robbing that hobo in the 
back of that automobile. Mr. Johnson had been beating 
me. I don’t remember that I told them that this man had 
kicked me in the shins while I was holding him, or that he 
kicked with his heels. I stayed in jail before anybody 
ever mentioned this Montgomery killing to me1 until it was 
about the last day before they brought me over here. I 
didnt know anything about the Montgomery case until I 
had been in jail ten or twelve days. I did not confess the 
shooting of a man on the railroad in the buttocks. Yes, I 
do see that man standing up there (referring to a man 
standing in the courtroom) I think I saw him in the City 
Jail. I did not confess to shooting this man. I don’t re­
member to confessing to holding up a crap game he was 
in. It was something like ten or twelve days after I had 
been in jail that I first mentioned the Montgomery case. 
L. C. Bell was not in jail during these ten or twelve days 
that I was confessing these hobo robberies. I disremember 
whether they arrested L. C. Bell until after I confessed this 
Montgomery murder. I dont know how many times I have 
been convicted of stealing; but I know I have been to the 
pen for stealing. I was not snitching for Mr. Norrell all 
of the time when I was living with him. He would get me 
to go out with him sometimes. He had plenty more for 
that.

On redirect examination the witness testified substan­
tially as follows:

[fol. 67] I do not remember anything very distinctly that 
happened over there at the City Jail. When I was put in 
jail over there L. C. Bell was not put in] the cell with me. 
When I was over there I only saw him once and that was 
when they brought him down stairs. He made a statement 
in front of me that I did the shooting at the filling station. 
I told them that I did not do it. Then I told them that he 
did it. This idea was put in my head by Mr. Weir. He 
told me to put it on him and to say that he did it. L. C. 
Bell was not present when I wrote out my piece of yellow 
paper. L. C. Bell was not present when I wTas up there in 
the Solicitor’s office with those officers. Yes, I said I was 
over there in the City Jail before anything was said to 
me about the Montgomery case, but the officers took me by 
the filling station and as they were driving by asked me



70

if I ever saw that place before. All these beatings occurred 
before I signed that confession. I dont remember that there 
was another page in the Bible. In all my talkings with 
these officers they never asked me about this gun they have 
out here. They asked me if I ever had it when they came 
over to the city jail. I couldn’t say that that was the gun, 
the same gun they have exhibited here, that they showed 
me after I was arrested. They showed me that gun or a 
similar gun over at the city jail the day before they brought 
us over here. They did not ask me if that was the gun that 
killed that man. They asked me nothing. Yes, they asked 
me if I had that gun. I told them what I did with i t ; that 
I had pawned it. I told them what I got for it. I don’t 
know that that is the same gun they have here now or not, 
but the gun I got from Mrs. Norrell is the one that I told 
them what I did with it, and that was the only gun I had 
in my hands about the time this man was killed. I didn’t 
have one in the house. I don’t know that they ever searched 
my house for one. Yes, I had a jacket at the time I was at 
the City Jail. I don’t know that they noticed the shirt I 
had on. Nothing was said to me about it. I  don’t know 
what they examined me for. I thought maybe they ex­
amined me—I had been sick—I thought Mr. Gorman might 
have them see if I  was getting—they brought me medicine. 
There was some finger prints taken after I was put in the 
city jail. This was right after they put me in the City 
Jail. A  second set of finger prints were taken some where 
but it was after I was brought over here, but I don’t re­
member where. There were two sets taken at the jail. 
I didn’t see the pictures afterwards. I have never seen 
them.

Counsel for D ef’t then offered in evidence certain pic­
tures.

There were so many doctors who examined me; I dont 
know how many. One man put something in my arm. It 
looked like it swelled up my arm. It was almost busting, 
[fol. 68] There was one tall man asked me questions about 
being beat up. The officers were there with me then. I told 
the Doctor that I hadn’t been beaten up. I was afraid to 
tell them that I had been beat up.

On re-cross examination by the Solicitor the witness tes­
tified substantially as follows:



71

No, sir, this woman Eosa Lee is not my wife. I have been 
married and my wife is dead and my mother is dead. I said 
awhile ago that this gun that I got from Mrs. Norrell was 
the only gun I had in my possession at the time Mr. Mont­
gomery was killed, but I did not have it in my possession 
at the time Mr. Montgomery was killed. I had pawned it. 
One of my teeth was knocked out while I was living at Mrs. 
Norrell’s house. I donti see where but one tooth is knocked 
out in this picture. I dont see but one tooth that is shown 
knocked out on this picture.

Q. And that one has been knocked out ever since you 
have been prize-fighting?

A. This one here.
Q. Yes.
A. Yes, sir.
Q. That’s right, isnt it?
A. Yes, sir.

Counsel for defendant stated: Let’s see those others on 
the side there; let the jury see them; the two broken ones 
there. Then the following question was asked by the 
Solicitor.

Q. That picture dont show the tooth that has been broken 
off, but the one that has been knocked out?

A. Yes, sir.
Q. That one was knocked out prize fighting ?
A. Knocked out in Nashville.
Q. You wrote something else in the Bible, too, didn’t 

you?
A. I don’t know; I ’ve got a whole lot names and things 

in there.
The solicitor, pointing, asked the defendant this ques­

tion: “ Is that your writing there?”  Witness answered: 
“ Yes, sir.”

Witness further testified that he wrote the following in 
the Bible: “ I was arrested on the 15th of September.”  
“ I was born in Easonville, Alabama, 1907, August 26th,”  
and “ on the 13th day of September, 1938, it was the end 
of a long, long trail, I entered the end. I am trusting in 
God who will help me meet my wife and mother.”

Q. September 13th was the end of a long long trail?



72

[fol. 69] A. Yes, sir.
Q. And your wife and mother are dead?
A. Yes, sir.
On re-direct examination the witness testified substan­

tially as follows:
Q. Would that have any connection with this case ?
A. N o’m, I just wrote that in there, sitting there thinking, 

I got a whole lot more in there.
Q. That has no connection with this case?
A. No, M a’am.
The solicitor then ordered the Bible in evidence as State’s 

Exhibit #13, and the Bible with various markings and 
handwriting therein was received in evidence as such ex­
hibit.

At this time Dr. Harris entered the room and the Solicitor 
asked the privilege of placing Dr. Harris on the stand im­
mediately which request was granted by the court. Where­
upon Dr. H. A. Harris was placed upon the stand as a wit­
ness for the State, after having been duly sworn, and testi­
fied substantially as follows:

I am a practicing physician in Birmingham and have been 
for twenty-four years. I  am now city physician and sur­
geon. I was called to the city ja-1 some time ago in the 
month of September 1938 to examine this defendant, Joe 
Yernon, along with another negro by the name of L. C. Bell. 
I was asked to examine these two negro boys and had this 
boy (referring to deft) strip and examined him thoroughly, 
head, chest, abdomen, legs, he showed no evidence of abuse, 
no bruises, and no cut places, and I asked him what kind of 
treatment he had received, and he said that he had had good 
treatment, and I asked him if he had been asked any ques­
tions and he said ‘ ‘ yes’ ’. I asked him if he gave the answers 
to these questions because he wanted to and he said he did. 
At the time this took place there were three other doctors 
present, Dr. Green Smith, Dr. Enslen, Dr. Stephens and Dr. 
Will Farrar. I did not notice any evidence on him or on his 
clothes of any blood.

On cross examination said witness testified substantially 
as follows:

I examined him closely. I  stripped him. There were no 
blood externally on his clothes. I  do not remember what



73

kind of shirt he had on at that time. I dont remember if he 
had on prisoner’s clothes that they give them over there. 
Commissioner Conner asked me to go over there. I  was 
asked to go over there and examine these two prisoners be- 
[fol. 70] canse they thought the case would be coming up in 
court and they wanted me to examine them to see if there 
were any injuries. I have been practicing medicine twenty- 
four years. If a man or any person, had been whipped Avith 
switches, from three to ten days later there would have been 
no marks on them, nor would there have been seven or five 
days later, Not unless the skin had been broken. If the skin 
had been broken it would have shown. This is the first and 
only time I have been called over there to the jail in the last 
six months to examine different prisoners. I was just asked 
to examine this man. I examined his head, his body and 
arms and legs ; I was not told to examine his teeth. I do not 
recall noticing the two teeth being broken off. They did not 
tell me that they had had this man out several nights. That 
was not discussed with me. I was there in the day time, and 
I was there for the sole purpose to see whether he showed 
any external marks of violence, and he showed no marks of 
violence on his legs nor as say anything a about them.

On re-direct examination the witness testified:
He made no complaint about any teeth being knocked out. 

In response to a question by the court the witness said he 
did not see any blood on his clothes.

On re-cross examination the witness testified substantially 
as follows:

I don’t know of any reason why I should remember the 
clothes that he had on. He stripped in front of me. I saw no 
evidence of blood. I wouldn’t recall now the trousers that 
he had on then. I am sorry but I just cant recall the shirt. 
There Avas no evidence of any blood on him when I saw him.

Dr. ‘Green Smith was then called as witness for the State 
and testified substantially as follows:

I am a practicing physicia? and surgeon here in Birming­
ham and have been for twenty-two years. I  am Jail Physi­
cian for the City of Birmingham and part of my duties are to 
visit the jail daily. In September 1938 I had occasion to be 
present at an examination of this defendant, Joe Vernon, 
and another negro named L. C. Bell, in the City Jail. There



74

were other doctors present also. They were Dr. Harris, Dr. 
Stephens; there were four there; there may have been oth­
ers. At the time this defendant was stripped, or when he 
took his clothes off, he didn’t have any evidence of any in­
jury or bruises or cuts on him; nor did he make any com­
plaint about any bruises or cuts or injury. Deft asked if he 
had any complaint to make and he said he had none and that 
he had not been beaten. I found no evidence of blood on his 
[fol. 71] person or clothes at the time I examined him.

On cross examination the witness testified substantially 
as follows:

When I was there I was making my regular sick call; 
somebody else had called the other doctors. I didn’t know 
anything about the case until Dr. Farrar came in and said he 
wanted to see this boy and I inquired about who he was. He 
had not been reported to me as being sick. And he didn’t 
come in of his own accord and say he was sick. They brought 
him in. I presume it was the Warden that brought him in. 
I  know all of the wardens. It was day time about ten in the 
morning. I dont know that some city detective brought him 
in. I dont know that they stayed there the entire time. My 
understanding was that they were confined as prisoners at 
the time. The office was full of people when I examined him. 
I just mean by saying ‘ ‘ full ’ ’ it was full of people that knew 
about it. I dont know Mr. Eeese. I know Mr. Weir and he 
was there. I  dont know a Mr. Johnson. I met Mr. Bullard 
out there but I dont know about his being there at the time of 
the examination. I did not know Mr. Gorman then and I do 
not know whether or not he was in the room. Dr. Harris did 
the examining, and he did most of the questioning, I meant 
to say. They were stripped, pulled off their clothes. I dont 
remember whether this boy had on a coat or not but he was 
sti-pped down to his waist and lower too. I wouldn’t try to 
describe the clothes. I don’t know whether they are the 
same clothes he had on during the entire time he was in jail. 
Sometimes I examine twenty-five or thirty a day over there 
at a time. I do not make a very good record of these ex­
aminations. We try to but it is such a big job, the clerical 
work is too much. I did not make a record of this examina­
tion, but remember it very definitely because of the fact that 
Commissioner Conner and Dan Dannenberg with the news­
paper and Dr. Farrar and Dr. Stephens came in and I was 
making my sick call and they brought the boys into my office



75

to make the examination. I had never seen the boys before. 
What I had on mind was to see whether or not he had been 
beaten. If this man had been beaten with switches or rub­
ber straps I dont know whether there would have been 
marks on him for three or six to ten days later. I figure 
that would depend on how hard he had been beaten. I can 
say there was no evidence of having any stripes on him. I 
have a faint recollection of having been called on a time or 
two, once or twice, in the last two or three years to see 
prisoners and find out how many marks they had on them. 
I didn’t know when he was beaten or anything about it, all I 
did was to see that if there was any evidence that he had 
been beaten.
[fol. 72] Q. They just wanted to be sure there were no 
scars ?

The State objected to the question and the court sustained 
the objection.

Q. Mr. Conner wanted to be sure------ -
The Solicitor objected saying, Your Honor, we object to 

that. The court sustained the objection.
On re-direct examination the witness testified substan­

tially as follows:
I presume I wouldn’t have seen the examination if I had 

finished my regular calls, because I hadn’t been called for it.
At this instance, counsel for defendant asked permission 

of the court to recall Joe Vernon, the defendant, and in 
answer to questions testified substantially as follows:

The pants that I have on are the ones that I had on when I 
was arrested and taken to the City Jail. Yes, ma’am, I have 
had other pants over there to put on. They were checked 
pants. The pants I have on were not shown to the doctors 
when they were over there. This shirt that I have on now I 
had on the day they examined me, the doctors did not look 
at this shirt—I had a corduroy zipper jacket on over the 
shirt—they did not look at the pants— I stripped off myself 
—this was the only shirt that I had at the time they ex­
amined me over at the city jail. It was the only shirt I ever 
had at the time the whole time I was in the city jail. When I 
was transferred from the City Jail to the County Jail, I 
brought this shirt with me. And I wore the pants that I 
have got on now to the County Jail. The pants and the shirt



76

have been in the cell ever since I have been in jail, with me. 
And they are in the same condition they were when I was 
first arrested, and during the time I was beat up.

Counsel/ for defendant then stated I want you to show the 
jury here the pants and I want to introduce these pants as 
evidence and the pants were introduced as evidence as de­
fendant’s exhibit #14.

On further cross examination by the Solicitor the witness 
testified substantially as follows: I have heard them talk 
about Mr. Owen a special agent of the railroad that was 
killed. He did not knock out my teeth: Question by Soli­
citor : Didn’t he knock your teeth out when he caught you 
stealing coal? Answer by witness : “ no sir”  Question: You 
swear that? Answer “ yes sir” . And witness further tes­
tified : I did not tell Mr. Bullard that that was the way I got 
my teeth knocked out.

In rebuttal W. A. Johnson was called as a witness for the 
state and who testified substantially as follows:
[fol. 73] My occupation is that of Special Agent of the 
Central of Georgia Railroad. I remember the occasion 
which this defendant Joe Vernon was arrested. He was 
with me. He was arrested by officers Weir and Wagner. 
I had preciously been with him out to Lovick. When I first 
saw him that day I had with me a Mr. Liles, Jos. H. Liles. 
From the time this man was arrested and at no subsequent 
time have I ever whipped him with a switch or hose or hit 
him with a blackjack, slapped him, or abused him or offered 
him any violence whatever, or offered him any threats or 
any inducements or held out any hope of reward to him, nor 
has anybody in my presence or hearing done so. I have not 
had any physical contact with this defendant at all.

On cross examination the witness testified substantially 
as follows: I knew this boy, the defendant, when Mr. Mor­
rell was living. I don’t know just how good he was at finding 
people. I  have been out to his house on numerous occasions 
trying to get him to go out and look for people and he went 
out to Lovick with me the first time he went out. I never 
heard of Sapperville; was never there with the defendant 
and I never beat him with switches. I think Mr. Weir and 
myself had him out of jail four times to the best of my 
knowledge. I know Mr. Reese. He was not along at those 
times. I have known Mr. Reese about a year. I haven’t



77

the slightest idea how much reward was offered for the 
killer of Mr. Montgomery. I know of no reward. I live here 
in Birmingham and I read the papers. I read at the time 
that there was a reward, hut the exact amount I dont know. 
I do not know that it was $1500.00. I  had it made up with 
Mr. Weir and Mr. Wagner that when we let him out at his 
house that they were to grab him and I called Mr. Weir on 
the phone and told him that Joe would be at his home. We 
had not been discussing arresting him for the Montgomery 
killing. We were after him for highway robberies on the 
railroad. I called Mr. Weir about ten-fifteen A. M. in the 
morning and told him to be in at eleven-fifteen. When we 
turned off at the place you spoke of Mr. Gorman was also 
with us. Mr. Gorman and myself did not beat this boy, nor 
talk to him about a man in the back of the car. The man in 
the back of the car was a Mr. Liles. I didn’t attempt to get 
this boy to admit to attempting to hold him up. He was the 
hobo we were talking about and he claimed that he had been 
robbed. He had been riding the trains. I  didnt arrest him. 
I put him (the Deft) off there and came back for him at 
Lovick and I went on to Leeds and I called the City Officers 
and brought him back and didnt stop and beat him then. I 
brought him on back to where the officers could get him. I 
knew what they wanted him for. They drove on off and they 
[fol. 74] knew me and if Mr. Weir stated that he didn’t know 
me or know who I was at the time then he was mistaken. I 
saw Joe again that night over at the City Jail. A  number 
of people were with him. There was with me that time Mr. 
Gorman, Weir, Bullard, Wagner and the Jail Wardens. I 
have never been over to the waterworks or took him over 
there on that or any other occasion. Was not out there and 
had no switches and did not beat him up, nor did anybody 
in my presence.

Q. How long did you keep him over there?
A. Over where.
Solicitor objected to the question because it assumes that 

the witness was over there, after the witness has said he was 
not over there. Solicitor for Defendant stated that she was 
cross examining the witness. The court sustained the ob­
jection and to the ruling of the court defendant then and 
there duly excepted.

Witness then testified: We didn’t take him out the next 
night. I dont have the exact dates, but he was in jail some



78

three or four days. The occasion of our taking him out was 
to recover some stolen watches that he had taken off some 
hoboes and the hoboes had made complaint to me. I imagine 
we kept him out an hour and a half or two hours. We had 
him out another time trying to locate a watch that belonged 
to Mr. Norrell and one day we carried him out to see his 
wife, or what he calls his wife. That was not for the purpose 
of inducing her to talk but was done at his request, and we 
did not induce her to talk. I have seen his wife several times 
and have been out there to where she works and have been 
talking to her about the case and I have also been out to her 
home to where she lives. In fact I have been to see her sev­
eral times. In talking with the defendant he did not tell me 
that the only gun he had in his possession around that time 
was the gun of Mrs. Norrell that he had borrowed and 
pawned to Manny Green. He mentioned something about 
Manny Green connected with holdups on the trains, but not 
at this time that I know of. There was something said about 
our finding Manny Green. I made some effort to get Manny 
Green. I tried to locate him. I wouldn’t say that I have 
ever asked his wife to give me his address. I  have never 
asked a girl named Ella that stays with her to give me his 
address. She has not told me anything about receiving 
letters from Manny Green and I do not know that she has 
been receiving letters from him. I say that I have never 
touched this darky to abuse him. I did not take my fist and 
knock him in the jaw and break off two of his teeth. Those 
teeth have not been broken off since I have known him. (Here 
the defendant was requested by counsel to go around and 
show the witness his teeth which was done). The front ones 
[fol. 75] have been broken out. That was the first thing I 
learned about him. The interest that I have in this case is 
from the standpoint of the trouble we had on the trains. I 
am an agent of the railroad.

Q. You dont want it known that he was beaten up.
A. He wasn’t.
I was present when Mr. Reese and all of them went out to 

the filling station where Mr. Montgomery was killed. I 
don’t remember any specific thing that I told him to do. He 
was around the filling station re-enacting the crime and be 
was not told by me what to do. There were four or five of us 
together all of the time. I would not say that I went down 
in the cut with him. I accompanied him to the position he 
claimed he stood. I did not go with him into that fill close to



79

the station. We did not take him down there. Question: 
Don’t you know you did and beat him up again? Answer: 
No. The witness continued: I did not tell him that if he did 
not stick to that confession that he had made and sign it 
that I would take him out and he wouldn’t come back. On 
one occasion I asked him to go out with me and look up some 
people. Just on one occasion. I went out several times to 
his house but for the same purpose. I also went out to get 
his father, maybe more than a dozen times. I know where 
the Artesian Wells are, out between here and Gate City. 
They didn’t take Joe over there. They took him to Ham­
mond Mine Quarters. That is this side of the Artesian 
Wells. Our object was to try and recover a wrist watch that 
was taken from a hobo. Yes, I am spending my time re­
covering property for hoboes. I was out that night some 
thirty or forty minutes. Joe was sitting in the car during 
that time. I have seen that yellow paper before. Question: 
In fact you wrote out the piece he copied that from? An­
swer : No. I saw him write part of it. I did not write it 
over at the City Jail. I never signed it as a witness. I was 
present part of the time. I had no objection that it be known 
or shown on record that I was there and present, but I 
didn’t sign it as a witness. I did not set down there and 
write on another piece of paper what I wanted this man to 
write. He did not make a mistake in writing and I did not 
have him write it over. He signed it the day it was written 
and it was not two or three days later. Question: Had he 
signed this before you took him out to Hammond’s Quar­
ters ? Answer: I guess that was four or five days prior to 
the time he wrote that. I am sure he signed it the same day 
it was written. I was present when he was brought over 
here to the Solicitor’s office. Mr. Weir had that paper. I 
was present in the court room yesterday morning when 
they were talking to the witnesses at a time when Mr. Weir 
[fol. 76] had all the witness- back there and I was talking to 
them. I did not instruct them as to what to say, or the other 
people. Mr. Eeese was at the City Jail on this case at the 
time when I was present over there off and on for two dif­
ferent days. I know of no interest he had in this case other 
than just a good citizen. I know he spoke to Joe privately 
over there. I was not present when he spoke to him and I 
don’t know what he said. I did not hear him make an offer 
to Joe to hire him a lawyer, not in Joe’s presence. I never 
heard him make the offer to Joe. I do not know on how



80

many different occasions lie talked to Joe. Mr. Reese was 
over there off and on for two different days. I was present 
both days. He was there a considerable time each time, the 
best that I can remember. I did not take him over there and 
leave him there. I  don’t know if it is nsual for citizens to go 
over there and stay for a day or two at a time. I  was not 
instrumental in having the doctors examine these two hoys 
and had nothing to do with it. I  had no agreement with Mr. 
Weir to have the doctors examine them for bruises or scars. 
I was at the city jail when the doctors were there to examine 
him hut had not been told to be there. I know how Joe was 
dressed that morning. He had on a little faded blue polo 
shirt and a pair of light wash trousers with a little pin stripe 
on them. They might have been checked. I was not with 
the officers when they went out to Joe ’s house and got his 
hat and check clothes and brought them in to him. I was not 
present when he was told to put them on at the City Jail. I 
was there at the line up, but not present when he dressed, 
if he did any dressing. I  did not go out to his house and 
get those things. I was there when he came in the line-np 
several times. The day that the doctors examined him I am 
reasonably sure he had on those stripped pants. I do know 
that he had those striped pants. I remember the stripes. I 
remember when we went to Lovick’s that day he had on the 
same clothes, and he did not have on that shirt there in front 
of me, and it is not the only shirt he had at the city jail when 
he was over there.

Q. Because when he sent out and got his hat and checked 
pants, you didn’t get a shirt because he didn’t have any, 
isn’t that the only shirt?

A. He didn’t have that on.

Witness further testified: I do not know that at any time I 
had him to put on any of the jail clothes there. I dont know 
whether they usually do or not, I  could not say about that. 
I will say this: they usually have on white overalls after 
they have been convicted and while they are serving a city 
sentence, but not before they are convicted to my knowledge. 
I  could not say as to the women. He was arrested on Sep- 
[fol. 77] tember 15th and the last day I was over there was 
September 30th and I think he was transferred from there 
to the county jail about October 1st. I was not notified that 
the doctors would be over there to examine the defendant. 
I happened to be there as I had been there nearly every day.



81

Ordinarily I did not stay at the city jail every day, but do 
stay there when I have a case now.

On re-direct examination the witness testified as follows:
This boy did say something about Manny Green when I 

was there while I was talking to him, but not about the 
Montgomery case—he said he and Manny Green were part­
ners in holding up hoboes.

On re-cross examination the witness said:
As a matter of fact I had been looking for Manny Green. 

I had asked him if he ever knew anybody by the name of 
Manny Green. I did not ask L. C. Bell if he had the ad­
dress of Manny Green or if he knew anybody by that name, 
nor did I ever ask Rosa or her sister. I never talked to a 
girl named Ella.

H. H. Weir was then called as a witness on rebuttal for 
the State and he testified substantially as follows:

I am a city detective and have been for about 7 years and 
I know the defendant, Joe Vernon, and I arrested him in this 
case. At nor since his arrest have I ever hit him, abused 
him, struck him or offered any violence of any kind what­
ever. I have never beat him with a switch or hose or with 
any other sort of an instrument, nor have I slapped him or 
kicked him or offered him any violence at all.

On cross examination the witness testified:
I testified on the preliminary trial. I did not say as a 

witness on that trial that somebody else arrested the de­
fendant and turned him over to me nor that I came up as the 
car was was driving away and that I did not know the other 
two men in the car. I don’t know that I denied knowing 
Mr. Johnson and Mr. Gorman with him until you were 
pinned down and had to finally admit it. I remember there 
was some one there, but I did not make that statement—I 
said as we came up he left with his car. I was not asked 
if I knew who those men were nor did I say I did not know. 
I said in the preliminary trial that we had been after him. I 
knew where he lived, and had been out there several times 
and tried to get him, we sat in our car to see whether he was 
going to come home or not, was the efforts we made. He 
did not stay there, he did not stay with Rosa. I don’t know

6—449



82

if that was when he switched to Dickey, he was staying at 
his father’s home, I presume, just first one place and then 
[fol. 78] another. He was as liable to be one place as 
another. He has not helped me out in some case nor have 
I asked him, but he has asked me to help him. I did not get 
him to help me look up some people. He never did a min­
ute’s work for me. I never refused to pay him, he never 
asked me to pay him. At the times I went to his father’s 
house I was not looking for him to hunt up somebody for me. 
On our way back to the city jail I  did not point out this 
filling station where Montgomery was killed and ask him 
“ do you know anything about that?”  I talked to Mr. Con­
nor about this case after the arrest was made. I never sug­
gested to Mr. Conner to get the doctors to go over there. 
I never knew anything about them until I went over there 
that morning and I saw the doctors and asked who they 
were and I was in the hall and they came out of the door. 
I don’t know that I was present during the examination I 
don’t know what he had on at that time and did not know 
that the doctors had been examining him. I did not sug­
gest to Mr. Connor that he be examined.

Q- What do you ordinarily use when you use a little per­
suasion over there?

Solicitor objected to the question. Court sustained the 
objection. Defendant excepted to the ruling of the Court. 
I think we took this boy out may be four or five times. We 
were not gone one night nearly all night. He never went to 
the Water Works. I  went to his home at his request to get 
some clothes for him. He picked out the clothes himself and 
stated what hobo he had taken them off. We had him put 
on his regular clothes. Those were all the clothes he had 
over there that was his own. He was put in a line up with 
many others; 15 at one time; 11 at another time and the 
— at anoth- time 13. I did not stand in front of this man to 
have him identified. I  have never touched a prisoner at all, 
I don’t have to whip them.

The State then announced that it closed its case.
The defendant announced that it closed.
This was all the testimony in the case offered by the State 

and the defendant in the trial of the case, except as affirma­
tively appears to the contrary in this bill of exceptions.

During the argument of Assistant Solicitor McAdory 
before the Jury the following objection was made by coun­
sel for defendant: The defendant objected to the testimony



83

about zipper jacket as there was no testimony as to what 
be bad on, if anything, on top of that shirt out in the woods, 
it was in jail. The Court overruled the objection and the 
defendant duly excepted.

After the court’s oral charge to the jury the defendant 
requested in writing certain written charges, the following 
[fol. 79] of which were refused by the Judge trying the case 
and marked each of said charges “ Refused”  and signed his 
name. The refused charges are as follows :

Refused Charges omitted. Printed side page. 20 ante.
# # # # # # #

[fol. 80] The Court gave to and read to the jury a number 
of written charges requested by Deft which appear in the 
record proper.

V erdict and  J udgm ent

The case was then submitted to the jury and the jury 
retired and later returned their verdict convicting the de­
fendant of murder in the first degree and fixing his punish­
ment at death. Judgment was rendered and sentence im­
posed as otherwise appears of record in this cause.

Whereupon the defendant did on the 9th day of February, 
1939, file his motion for a new trial which motion was in 
[fols. 81-84] words and figures as follows:

Motion for new trial omitted. Printed side page. 10 ante.
 ̂  ̂  ̂  ̂ ^

[fols. 85-87] After said motion was filed the court made an 
order on same continuing the hearing of said motion to 
February 24th, 1939.

On February 24th, 1939, said motion was again continued 
by the Court to March 10th, 1939.

On March 8th, 1939, said motion was again continued by 
the court to March 24th, 1939.

On March 24th, 1939, said motion was again continued by 
the court until April 3rd, 1939.

On April 1, 1939, the defendant filed a document in the 
office of the Circuit Clerk reading as follows, but no leave of 
court w7as asked for nor obtained to amend the original mo-



84

tion for a new trial or to add additional grounds as is alleged 
in said document filed in the office of the Circuit Clerk on 
April 1, 1939. Said document is in words and figures as 
follows:

Amendments to motion for new trial omitted. Printed 
side page. 15 ante.

# # # # * # *

[fol. 88] On April 3, 1939, the original motion for a new 
trial was again continued to April 11, 1939.

On April 11, 1939, the Defendant filed in open Court 
another document purporting to further amend the motion 
for a new trial, but deft neither requested nor was granted 
leave to amend the motion for a new trial.

O rders S trik in g  prom  M otion for N ew  T rial

On April 11th, 1939, at which time, the motion for a new 
trial came on for hearing and counsel for the State and 
the Defendant being present, counsel for the State moved 
the Court (orally) to strike from the motion Grounds 19, 
20 and 21 for the reason that said grounds constituted no 
proper grounds for a new trial and for the further reason 
that it is too late to raise the matters asserted in said 
grounds for the first time on a motion for a new trial. The 
court granted said motion and said grounds 19, 20 and 21 
were stricken from the motion, and to the ruling of the 
court in striking said grounds the defendant then and there 
duly excepted.

The State then further moved the court to strike the 
amendments to the motion for a new trial, purporting to 
have been filed April 1st, 1939, and April 11th, 1939, and also 
to strike from said amendments all grounds predicated 
upon an alleged violation of the defendant’s rights under 
the 14th Amendment to the Federal Constitution. The court 
granted said motion to the extent of striking all grounds 
in said purported amendments alleging a violation of the 
defendant’s rights under the 14th Amendment, and said 
grounds were stricken from said motion and the defendant 
then and there duly excepted to the action of the court.



85

[fol. 89] S tatements be T estim ony  of C ektain W itnesses

Defendant’s counsel then stated that if A. Q. Johnson 
who was then present in court were allowed to testify he 
would testify that he was a resident citizen of Jefferson 
County, Alabama and had been such resident citizen since 
1905 and was an organizer for the CIO Labor Organization; 
that he works out of Birmingham and in his business con­
stantly comes in contact with hundreds of the negro race 
and knows that there were about three thousand negro 
veterans in Jefferson County who were eligible for jury 
duty and that there are about 1000 negroes in Jefferson 
County who are eligible for jury duty and that he knew 
that the last Federal Census of 1930 listed over eighty 
thousand negro males and that there are more than that 
number here now and that he knew that there are at least 
fifteen thousand male negroes eligible to serve on the jury 
in addition to the veterans and voters.

Defendant’s counsel further stated that if Homer B. Coke 
a negro then present in court were allowed to testify he 
would testify that he was the Editor of a negro paper. That 
he had been an editor of newspapers for approximately ten 
years. That negro newspapers in Jefferson County have 
a circulation of over ten thousand. That he has lived in 
Birmingham, Jefferson County Alabama, and has been the 
editor of a newspaper and has had occasion to study the 
question of negro jurymen, that in his business he has con­
stantly come in contact with members of his own race and 
that basing his figures on the last Federal Census and his 
contact with his own race there were, at the last Federal 
Census, more than eighty thousand male negroes in Jef­
ferson County and that there are more than ninety thou­
sand here now and that there are at least between fifteen 
and twenty thousand negroes eligible for jury duty; that 
the illiteracy among negroes is about sixteen per cent of 
the entire population including women and children; that 
he knew the qualifications for jury service and know that 
this number would be eligible for jury service.

Defendant’s counsel further stated that if E. W. Taggart 
a negro then present in court, were allowed to testify he 
would testify that he is a dentist with offices in the negro 
Masonic Temple Building in the City of Birmingham; that 
he had been a resident of Birmingham, Jefferson County, 
Alabama, for more than twenty years; that he had had oc­



8 6

casion to go into the question of negroes for jury service 
in Jefferson County in the various organizations to which 
he belonged, and that about the time of the trial of Joe 
Vernon when it came up he knew that only one negro per 
week was ever selected for jury service; that there are about 
eighty-five thousand negro males in Jefferson County and 
[fol. 90] that with the ex-service men negro voters here 
should be at least ten thousand negroes in Jefferson County 
eligible for jury duty; that he is familiar with the qualifica­
tions for jury service and that there have been since this 
trial about an average of three negroes per week to a total 
of one hundred to one hundred-twenty five jurors called for 
jury duty each week; that a copy of the last Federal Census 
shows that the total male population for white men in 1930 
was one hundred twenty seven thousand, six sixty four; 
that the negro male population was eighty thousand seven 
hundred eighty-five; that the percentage of illiteracy among 
the whites was approximately ten per cent and among the 
negroes was sixteen per cent.

Defendant’s counsel further stated to the court that if 
Charlie Hill, who was then present in court, were allowed 
to testify he would testify that he was reporter for the 
Grand Jury, that he had been the grand jury reporter for 
a number of years, and that previous to that time he had 
been in and around the court house for at least fifteen years 
and that in all his experience in and about the court house 
he has never known a negro to be on the grand jury.

Defendant’s counsel further stated that if Herbert At­
kinson, who was then present in court, were allowed to 
testify he would testify that he was Foreman of the Grand 
Jury at the time the indictment in this case against Joe 
Vernon was returned and that there were no negroes on 
the grand jury that returned the indictment against Joe 
Vernon, the defendant in this case.

Defendant’s counsel further stated that if Ed Newman, 
who was present in court, were allowed to testify he would 
testify that he is the deputy charged with the duty of seeing 
after the juries after they had been empaneled, that he 
had been so connected with and around the court house for 
more than twenty five years continuously and knows that 
during that time no negro has ever been on a grand jury 
in Jefferson County, Alabama, and that only one negro was 
on the entire venire at the time the case of the State vs. 
Joe Vernon was set and tried and he was not called to the



87

court room from the jury room in the venire from which to 
select the jury that tried Joe Vernon.

Defendant’s counsel further stated that Beatrice Porter, 
who was then present in court, were allowed to testify, she 
would testify that she is a clerk of the Clerk of the Circuit 
Court of Jefferson County, at Birmingham, and whose duty 
it is to send out the notices to the jurors of their selection as 
jurors for any specified time; that there is from one hun­
dred to one hundred twenty-five jurors summoned every 
[fol. 91] week and out of that number there are about one 
to three negroes among the entire number over a hundred 
every week being white; that it is her recollection that at 
the time of the trial of Joe Vernon there was summoned but 
one negro a week for the jury venire.

Ordek Overruling M otion for N ew  T rial

The Court overruled defendant’s motion to set aside the 
verdict of the jury and to grant him a new trial and to the 
ruling of the Court the defendant then and there duly ex­
cepted; On the hearing of the motion for a new trial the 
defendant was not present in court and was not present in 
Court for said hearing and during said hearing, and the 
attention of the Court was called to the fact of his absence, 
and the court ruled that it was not necessary that he be 
present and to the ruling of the Court, defendant’s counsel 
excepted.

The defendant Joe Vernon, through his counsel, now pre­
sents to the Court the foregoing bill of exceptions and prays 
that the same be taken as his legal bill of exceptions when 
the same is signed by the Hon. J. Bussell McElroy, the 
Judge who presided at the trial of this cause.

Order S ettling  B ill  of E xceptions

And the said Judge J. Bussell McElroy, does now on this 
the 19 day of July, 1939, sign the bill as defendant’s true 
and correct and legal bill of exceptions in said cause, and 
which is within 60 days after the date on which said bill 
of exceptions was presented to the undersigned for en­
dorsement.

J. Bussell McElroy, Judge Presiding.



88

I hereby certify that the foregoing bill of exceptions was 
on this the 10th day of July, 1939, presented to me, the 
Judge who presided at the above styled cause, and that 
the same is hereby duly endorsed as the presentation of 
the said bill of exceptions on said day and date, and which 
is within 90 days after the motion for new trial was over­
ruled in said cause.

This the 10th day of July, 1939.
J. Russell McElroy, Judge Presiding.

Presented to and received by me this the 10th day of July, 
1939, at 3.45 p. m. in absence of Judge J. Russell McElroy.

0. L. Andrews, Clerk.

[Pile endorsement omitted.]

[fol. 92] Clerk’s certificate to foregoing transcript omitted 
in printing.

[fol. 93] In S upreme Court op A labama 

A ssignments op E rror

Now comes appellant and says there is manifest error 
in the record and in the rulings of the trial court as follows:

1. The court erred in overruling defendant’s objection to 
the statement of witness A. B. Reese, when, in answer to 
a question propounded by the solicitor attempted to make 
a statement as follows: “ and I said, Ben * * * ”  when 
defendant interposed the objection as to what the witness 
was starting to say on the ground that it was not a part 
of the res gestae and had nothing to do with the case. The 
court overruled the defendant’s objection and defendant 
duly excepted. (Rec. p. 21.)

2. The court erred in overruling defendant’s objection to 
the words of the witness, A. B. Reese, which words were as 
follows: “  In other words when I saw it the station was in 
a situation to be closed except locking the door. I found 
my money there.”  Defendant objected to said words, that 
they were incompetent, irrelevant and immaterial and had 
nothing to do with the case. The court overruled the ob­
jection and defendant duly excepted. (Rec. p. 21.)



89

3. The court erred in overruling defendant’s motion to 
exclude the words quoted from witness’s testimony in As­
signment of error numbered “ 2 ” . The court overruled said 
motion to which defendant duly excepted. (Eec. p. 22.)

4. The court erred in sustaining objection to the follow­
ing question propounded by defendant’s counsel: “ Did you 
hear the confessions that they made?”  and to the ruling of 
the court defendant then and there duly excepted. (Eec. 
p. 23.)

5. The court erred in overruling defendant’s objection to 
the following question asked by the solicitor: “ Did this 
defendant say anything about seeing Mr. Montgomery tak­
ing these things in?”  and to the ruling of the court defend­
ant duly excepted. (Eec. p. 25.)

6. The court erred in overruling defendant’s objection to 
the following question propounded to witness, J. N. Bryan: 
“ What was his position?”  and assigned as grounds for 
objection that it had been gone thru with three times before 
and defendant offered to show that it is being done for 
nothing but to prejudice the minds of the jury, and to the 
ruling of the court defendant duly excepted. (Eec. p. 29.)

7. The court erred in overruling defendant’s objection, 
when witness, J. W. Patterson, was being examined, the 
solicitor exhibited to the witness one of the State’s exhibits, 
which was a picture, the objection being on the ground be­
cause it had been admitted that the places when the picture 
was taken was not in the same condition as it was the night 
of the killing, and to the ruling of the court defendant duly 
excepted. (Eec, p. 30.)

8. The court erred in overruling defendant’s objection to 
a question propounded to witness Patterson which question 
was as follows : “ I will ask you to tell the court, whether or 
not, in your judgment, the negro you saw near the water 
hydrant, was the same size and general stature of the negro 
Bell?”  Defendant objected to the question because it was 
leading. The court overruled the objection and defendant 
excepted. (Eec. p. 30.)

9. The court erred in overruling defendant’s objection to 
the solicitor offering in evidence a confession referred to 
by said witness known as State Exhibit #7 , which was 
claimed was made at the jail and which was purported to be



90

in the handwriting of the defendant. Defendant objected 
to said alleged confession, the court overruled said objec­
tion and defendant duly excepted. (Rec. pp. 32 and 33.)

10. The court erred in overruling defendant’s motion to 
exclude the following testimony in answer to question pro­
pounded by the Solicitor on redirect examination: “ When 
I spoke of taking him out and finding some watches and 
other stuff that was in connection with other robberies and 
the property recovered has no connection with this case 
whatsoever.”  To the ruling of the court defendant then 
and there duly excepted. (Rec. p. 35.)

11. The court erred in overruling defendant’s objection 
to the introduction of the first ten pages of a statement as 
[fol. 94] evidence, offered by the Solicitor known as exhibit 
8, on the ground that it is not in the language of the defend­
ant and because the questioning by the Solicitor at the time 
shows it was clearly written out from questions and answers 
made in the Solicitor’s office, and to the ruling of the Court 
the defendant duly excepted. (Rec. pp. 35 and 36.)

12. The court erred in overruling defendant’s objection 
to the Solicitor asking leading questions of the witness Rosa 
Lee Collins, and to the ruling of the court defendant duly 
excepted. (Rec. p. 43.)

13. The court erred in overruling defendant’s objection 
to the Solicitor offering in evidence a pistol and bullet, as 
State’s exhibit 11, and to the ruling of the court defendant 
duly excepted. (Rec. p. 47.)

14. The court erred in sustaining objection of the Solici­
tor to the following question propounded to witness, W. A. 
Johnson: “ How long did you keep him over there?”  and 
to the ruling of the court defendant duly excepted. (Rec.
p . 68.)

15. The court erred in sustaining the Solicitor’s objection 
to question propounded to witness Weir by defendant’s 
counsel: “ What do you ordinarily use when you use a little 
persuasion over there?”  To such ruling of the court de­
fendant duly excepted. (Rec. p. 72.)

16. The court erred in overruling defendant’s objection 
to the argument of the solicitor in referring to a zipper 
jacket, on the ground that there was no testimony as to



91

what he had on, if anything, on top of that shirt, out in the 
woods. It was in jail. And to the ruling of the court de­
fendant duly excepted. (Rec. p. 72.)

After the oral charge of the court to the jury, counsel for 
defendant requested, in writing, certain written charges 
which were refused by the court, and so marked “ refused”  
and the court endorsing his name on each refused charge; 
said refused charges are as follows:

17. The court erred in refusing, at the request of the de­
fendant the following charge which was requested in writ­
ing and which charge is as follows:

“ 1. I charge you gentlemen of the jury, if you believe 
the evidence you will find the defendant not guilty. Re­
fused, McElroy, J. ”  (Rec. p. 73.)

18. The court erred in refusing, at the requesting of the 
defendant, the following charge which was requested in 
writing and which charge is as follows:

“ 3. The court charges the jury that the clothes worn by 
the defendant at the time of his arrest and while incarcer­
ated in the jail, and during the time the alleged confession 
was obtained, are in evidence in this case, and the jury may 
examine these cloths and see whether the spots on the 
clothes are blood spots, and if the jury believe they are 
the same clothes, and in the same condition as at the time 
he was alleged to have been beaten to enable the officers to 
obtain the alleged confession that has been introduced in 
evidence, they may look to the fact, if it be a fact, in deter­
mining what weight they will give to the State’s witnesses, 
Bullard and Reese, and what weight they will give to the 
confession to have been made by this defendant. Refused, 
McElroy, J .”  (Rec. p. 73.)

19. The court erred in refusing to give, at the request of 
the defendant the following charge which was requested in 
writing and which charge is as follows:

“ 4. The court charges the jury that if there is one single 
fact proved to the satisfaction of the jury which is incon­
sistent with the defendant’s guilt, this is sufficient to raise 
a reasonable doubt, and the jury should acquit him. Re­
fused, McElroy, J. ”  (Rec. p. 73.)



92

20. The court erred in refusing to give, at the request 
of the defendant, the following charge which was requested 
in writing and which charge is as follows:

“ 9. The court charges the jury that if the evidence for the 
State consists of testimony as to the truth of which the jury 
have a reasonable doubt, the jury must not convict the de­
fendant although they may not believe the testimony of 
defendant’s witnesses. Refused, McElroy, J .”  (Rec. p. 73.)

21. The court erred in refusing to give, at the request of 
the defendant, the following charge which was requested in 
writing, and which charge is as follows:
[fob 95] “ 10. The court charges the jury that if the evi­
dence for the state consists of testimony as to the truth of 
which the jury have a reasonable doubt, the jury must not 
convict the defendant, although they may not believe the 
testimony of the defendant or his witnesses. (Rec. p. 73.)

22. The court erred in refusing to give, at the request of 
the defendant the following charge which was requested in 
writing, and which charge is as follows:

“ 15. The court charges the jury that if they have a rea­
sonable doubt growing out of the evidence, as to whether 
the killing was done deliberately, or as to whether it was 
done premeditate-ly, then they can not find the defendant 
guilty of murder in the first degree; and if they have a rea­
sonable doubt growing out of the evidence, as to whether 
the killing was done out of malice, then they cannot find 
the defendant guilty of murder in either degree, but only of 
manslaughter at the most; and if, after considering all of 
the evidence, the jury have a reasonable doubt as to the 
defendant’s guilt of manslaughter arising out of any part 
of the evidence, they should find the defendant not guilty. 
Refused McElroy, J .”  (Rec. pp. 73 and 74.)

23. The court erred in refusing to give, at the request 
of the defendant, the following charge which was requested 
in writing, and which charge is as follows:

“ 16. The court charges the jury that a killing in sudden 
passion excited by sufficient provocation without malice is 
manslaughter, not because the law supposes that his pas­
sion made the slayer unconscious of what he was about to 
do, but because it presumes that passion disturbed the sway



93

of reason and made him regardless of her admonition. Re­
fused, McElroy, J .”  (Rec. p. 74.)

24. The court erred in refusing to give, at the request of 
the defendant the following charge which was requested in 
writing, and which charge is as follows:

“ 17. The court charges the jury that if the jury believe 
from the evidence, that there was a plot between Joe Ver­
non, the defendant, and L. C. Berry, to rob Bennie Mont­
gomery, and if the killing was after that plot had been con- 
sum-ated, and from a cause having no connection from the 
common objective of the plot, and was by L. C. Berry alone, 
the jury cannot convict the defendant. Refused—abstract 
in this case. McElroy, J .”  (Rec. p. 74.)

25. The court erred in refusing to give, at the request of 
defendant, the following charge which was requested in 
writing, and which charge is as follows:

“ 20. The court charges the jury that if there is one single 
fact proved to the satisfaction of the jury which is incon­
sistent with the defendant’s guilt, this is sufficient to raise 
a reasonable doubt, and the jury should acquit him. Re­
fused, McElroy, J .’ ’ (Rec. p. 74.)

26. The court erred in refusing to give, at the request of 
the defendant, the following charge which was requested 
in writing, and which charge is as follows:

“ 23. The court charges the jury that if you believe from 
the evidence that the defendant and L. C. Berry went to the 
filling station where Bennie Montgomery was employed on 
the night the murder is said to have been done, and an 
offense was committed by one of them from causes having 
no connection with the common object for which they went 
there, the responsibility for such offense rests solely on the 
actual perpetrator of the crime, and the jury cannot find 
the defendant guilty simply because he happened to be 
present at the time the offense was committed. Refused, 
McElroy, J. Abstract.’ ’ (Rec. p. 74.)

27. The court erred in not ordering and having the de­
fendant in person in court at the time of the arguing of 
the motion for a new trial. (Rec. p. 85.)



94

28. The court erred in overruling defendant’s motion for 
a new trial which motion was in writing. (Rec. pp. 75 to 
85) and (pp. 4 to 12.)
[fol. 96] 29. For that the court erred in overruling that
portion of defendant’s motion for a new trial embraced in 
ground 1-A. (Rec. pp. 4 and 75.)

30. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 1-B. 
(Rec. pp. 4 and 75.)

31. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in Ground 1
(c )  . (Rec. pp. 5 and 75).

32. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 1
(d ) . (Rec. p. 5 & 75.)

33. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 1
(e ) . (Rec. p. 5 & 75.)

34. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 1
( f )  . (Rec. p. 5 & 76.)

35. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 1
(g ) . (Rec. p. 5 & 76.)

36. For that the court erred in overruling that portion 
of defendant’s motion for a new trial embraced in ground 
1 (li). (Rec. pp. 5 & 76.)

37. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 1
(i)  . (Rec. p. 5 & 76.)

38. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 1
( j )  . (Rec. p. 5 & 76.)

39. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 2. 
(Rec. 6, 76 & 77.)

40. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 3. 
(Rec. p. 6&77.)



95

41. For that the. court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 4. 
(Eec. p. 6 & 77.)

42. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 5. 
(Rec. p. 6 & 77.)

43. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 6. 
(Rec. p. 6 & 77.)

44. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 7. 
(Rec. p. 6 & 77.)

45. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 8. 
(Rec. p. 6 & 77.)

46. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 9. 
(Rec. p. 6 & 77.)

47. For that the court erred in overruling that portion 
of defendant’s motion for a new trial embraced in ground 
10. (Rec. p. 7 & 77.)

48. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 11. 
(Rec. p. 7 & 77.)

49. For that the court erred in overruling that portion 
of defendant’s motion for a new trial embraced in ground 
12. (Rec. p. 7 & 78.)

50. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 13. 
(Rec. p. 7 & 78.)

51. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 14. 
(Rec. p. 7&78.)

52. For that the court erred in overruling that portion of 
defendant’s motion for a new trial embraced in ground 15. 
(Rec. p. 7&78.)
[fol. 97] 53. For that the court erred in overruling that
portion of defendant’s motion for a new trial as embraced 
in ground 16. (Rec. p. 7 & 78.)



96

54. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as embraced in ground
17. (Rec. p. 7 &78.)

55. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as embraced in ground
18. (Rec. p. 7, 8 & 78.)

56. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as embraced in ground
19. (Rec. p. 8 & 78.)

57. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as embraced in ground
20. (Rec. p. 8 & 78.)

58. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as embraced in ground
21. (Rec. p. 8 & 78.)

59. For that the court erred in overruling defendant’s 
motion for a new trial as amended. (Rec. pp. 9, 10, 11, 
79, 80, 81 and 82.)

60. For that the court erred in overruling that portion 
of defendant’s motion for new trial as first amended as 
embraced in ground 22. (Rec. p. 9, 79 & 80.)

61. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 23. (Rec. p. 9 and 80.)

62. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 24. (Rec. p. 9 and 80.)

63. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 25. (Rec. p. 9 and 80.)

64. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 26. (Rec. p. 9 and 80.)

65. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 27. (Rec. p. 10 and 80.)

66. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 28. (Rec. p. 10 and 80.)



97

67. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 29. (Rec. p. 10 and 80.)

68. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 30. (Rec. p. 10 and 80.)

69. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 31. (Rec. p. 10 and 80.)

70. For that the court erred in overruling defendant’s 
motion or that portion of same as embraced in ground 32. 
(Rec. p. 10 and 80.)

71. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 33. (Rec. pp. 10 and 81.)

72. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 34. (Rec. pp. 10 and 81.)

73. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 35. (Rec. pp. 10, 11 and 81.)

[fol. 98] 74. For that the court erred in overruling that
portion of defendant’s motion for a new trial as first 
amended as embraced in ground 36. (Rec. pp. 11 and 81.)

75. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 37. (Rec. pp. 11 and 81.)

76. For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended as 
embraced in ground 38. (Rec. pp. 11 and 81 and 82.)

77. For that the court erred in overruling the amend­
ment to defendant’s motion for a new trial as amended. 
(Rec. p. 12.)

78. For that the court erred in overruling that portion 
of the amendment to defendant’s motion as amended for a 
new trial as embraced in ground 33. (Rec. p. 12.)

7 -4 4 9



98

79. For that the court erred in overruling that portion 
of the amendment to defendant’s motion as amended for 
a new trial as embraced in ground 34. (Rec. p. 12.)

80. For that the court erred in overruling that portion 
of the amendment to defendant’s motion as amended for 
a new trial as embraced in ground 35. (Rec. p. 12.)

81. For that the court erred in granting the State’s 
oral motion to strike ground 19 of defendant’s original 
motion for a new trial. (Rec. p. 78 and 82.)

82. For that the court erred in granting the State’s oral 
motion to strike defendant’s amendments to said original 
motion for a new trial, or rather striking therefrom all 
grounds having reference to and pertaining to defendant’s 
rights under the 14th Amendment to the Federal Consti­
tution. (Rec. p. 82.)

83. For that the court erred in granting the State’s oral 
motion to strike ground 20 of the defendant’s original mo­
tion for a new trial. (Rec. p. 78 and 82.)

84. For that the Court erred in granting the State’s oral 
motion to strike ground 21 of the defendant’s original 
motion for a new trial. (Rec. p. 78 and 82.)

85. For that the court erred in overruling the defendant’s 
objection to the introduction of State’s exhibit 3. (Rec. 
p. 26 and 27.)

86. For that the court erred in overruling the defendant’s 
objection to the introduction of State’s exhibit #  4. (Rec.
p. 26.)

87. For that the court erred in overruling the defendant’s 
objection to the introduction of State’s exhibit #  5. (Rec.
p . 26.)

88. For that the court erred in overruling the defendant’s 
objection to the introduction of State’s exhibit #  6. (Rec. 
p. 26 & 27.)

89. For that the court erred in overruling the objection 
to the Solicitor showing a certain picture to witness Pat­
terson. (Rec. pgs. 29 and 30.)

(Sgd.) Cora R. Thompson, Attorney for Appel­
lant.



99

[fol. 99] In S upreme C ourt of A labama 

[Title omitted]

Order of S ubmission— December 21, 1939
Come the parties by attorneys, and argue and submit 

this cause for decision.

[fol. 100] I n S upreme Court of A labama

Present: Chief Justice Anderson and Associate Justices 
Gardner, Thomas, Bouldin, Brown, Foster and Knight.

J efferson C ircuit C ourt

6 Div. 460

J oe V ernon

vs.
T h e  S tate 'of A labama 

J udgment— March 28, 1940
Come the parties by attorneys, and the record and mat­

ters therein assigned for errors, being argued and sub­
mitted and duly examined and understood by the Court, 
it is considered that in the record and proceedings of the 
Circuit Court there is no error. It is therefore considered 
that the judgment of the Circuit Court be in all things 
affirmed.

The time fixed by the judgment and sentence of the Cir­
cuit Court for the execution of the prisoner Joe Vernon 
having expired pending this appeal, it is now ordered that 
Friday, May 31st, 1940, be fixed as the date for the execu­
tion of the Defendant, Joe Vernon. It is therefore ordered 
that the Sheriff of Jefferson County deliver the Defendant 
Joe Vernon to the Warden of Kilby Prison at Montgomery, 
Alabama, and that the said Warden of Kilby Prison at 
Montgomery, Alabama, execute the judgment and sentence 
of the law on Friday, May 31st, 1940, before the hour of 
sunrise on said day in said prison, by causing a current of 
electricity of sufficient intensity to cause death to pass 
through the body of the said Joe Vernon until he is dead,



100

and in so doing he will follow the rules prescribed by the 
Statutes.

It is also considered that the Appellant pay the costs of 
appeal of this Court and of the Circuit Court.

[fol. 101] In S upreme C ourt of A labam a, October T erm ,
1939-40

6 Div. 460

J oe V ernon 
v.

T he  S tate op A labama 

Appeal from Jefferson Circuit Court 

Opin ion
B row n , Justice:

The appellant, Joe Vernon, of the negro race, was prima 
facie regularly indicted in the Circuit Court of Jefferson 
County, and on his arraignment and trial was represented 
by able and experienced counsel of his own selection and 
employment, and on said trial was convicted as particeps 
criminis in the murder of Bennie Montgomery.

On said trial numerous and sundry questions were raised 
and reserved for review on this appeal, but no objection 
was made and no question was raised on or before the trial 
as to the formation of the grand jury that presented the 
indictment or its legality. Nor was there any objection 
to the venire for his trial or the formation of the petit jury 
selected and empanelled for this trial. The indictment, as 
[fol. 102] the record shows, was returned and filed in open 
court November 12, 1938; the defendant was arraigned 
and entered a plea of not guilty, December 31, 1938, and 
the case was set specially to be tried on January 9, 1939. 
The trial was entered upon on the day set therefor without 
objection or motion for continuance, or motion for post­
ponement ; the verdict of guilty was rendered on the 10th 
of January, and the judgment entered and sentence pro­
nounced on the 12th of January, 1939.

On the 9th of February, 1939, the defendant filed a motion 
for new trial, cataloguing 21 grounds, mostly for alleged



101

errors in refusing special instructions, ruling on evidence 
and alleged misconduct of the solicitor in argument.

The 8th ground: “ For that the verdict was against the 
weight of the evidence.”

9. “ For that it was error to force the defendant to trial 
in a cause of this serious a nature, by trying it before it [its] 
turn on the docket. ’ ’

19. “ For that the defendant, Joe Vernon, being a negro, 
it was error to force the defendant to be compelled to select 
from a venire composed solely of white men. ’ ’

20. “ For that it invaded the Constitutional rights of the 
defendant, Joe Vernon, in that he was forced to select the 
jury from men composed entirely of white men.”

21. The same as 20.

The motion was regularly continued from time to time 
until the 1st of April, 1939, when the defendant filed addi­
tional grounds numbered from 22 to 38, some of which go 
to the question stated more fully in ground 38, than any 
other.

“ For that, the defendant, being a negro and indicted for 
the murder of a white man; that at least one-third of the 
population of the County from which the Grand and Petit 
Juries were drawn were members of the negro race, and 
that the general venire contained no names of negroes when 
the Grand Jury that indicted petitioner was drawn; or that 
there were so few as to be a denial of the rights of petitioner 
when considered in conjunction with the number of negroes 
and the number of white people drawn on the venire or 
the number that ought to have been drawn to preserve a 
[fob 103] proper ration [ratio] to be a compliance with the 
14th Amendment to the Constitution of the United States, 
and that the State officers charged by law with the duty of 
providing names for the general venire had ‘ deliberately 
excluded therefrom, or so small a number had been drawn 
as to be an exclusion, of any negroes qualified to serve as 
Grand or Petit Jurors, and had done so systematically, un­
lawfully and unconstitutionally for a long period of time’ 
solely and only because of their race and color ’ was denied 
the equal protection of the laws guaranteed him by the 14th 
Amendment of the Constitution of the United States.”

The motion for new trial was then continued until the 11th 
of April, and on that date, on motion of the solicitor the



102

circuit court expunged or struck from the original motion 
said grounds 19, 20 and 21, and struck from the files said 
paper containing grounds 22 to 38 included, and to these 
rulings the defendant reserved separate exceptions. The 
motion for new trial was then overruled.

It is well settled that objections going to the formation 
of the grand jury which presented the defendant must he 
made by plea in abatement before pleading not guilty, and 
after so pleading, any such objection is addressed to the 
irreversible discretion of the trial court.—Nixon v. The 
State, 68 Ala. 535; Jackson v. The State, 74 Ala. 26; Hub­
bard v. The State, 72 Ala. 164.

So, also,, that objections going to the venire of the petit 
jury or any member thereof, must be made before entering 
upon the trial of the case on its merits under the defend­
ant’s plea of not guilty, and a failure to make such objec­
tions constitutes a waiver.—Peterson v. State, 227 Ala. 361, 
150 So. 156. This rule has its exceptions as when the de­
fendant is misled by the false oath and fraud of a venire­
man, and thereby induced to accept such venire-man on the 
jury.—20 R. C. L. 242, § 27.

It is not permissible for the defendant, who has not been 
so misled, to participate in the selection of the jury without 
objections, speculate on winning a favorable verdict, and 
failing to do so, allow him, to raise such questions on a mo­
tion for new trial.—Simpson v. Golden, 114 Ala. 336, 21 So. 
990; Hoskins v. Hight, 95 Ala. 284, 11 So. 253; Barron v. 
[fol. 104] Robinson, et al., 98 Ala. 351, 13 So. 476; Fulwider 
v. Jacob, 221 Ala. 124, 127 So. 818.

We observe that there is nothing in the record going to 
show that defendant and his counsel were not fully informed 
and had knowledge of the facts averred in said several 
grounds when he entered his plea and entered upon the 
trial.— See, Fulwider v. Jacob, supra.

Applying these well settled rules of law, we are not of 
opinion that error was committed by the circuit court in 
striking from the motion for new trial the grounds that 
sought to question the formation of the grand jury that 
returned the indictment, and the petit jury selected and 
empanelled for the defendant’s trial.

As for the ground of the motion for new trial “ For that 
the verdict was against the weight of the evidence,’ ’ the 
rule applicable is: “ Unless after allowing all reasonable 
presumption of its [the verdict’s] correctness, the Pre'



103

ponderance of the evidence against the verdict is so decided 
as to clearly convince the court that it is wrong and unjust,”  
the trial court will not he held to have erred in overruling 
the motion.—Caldwell v. State, 203 Ala. 412, 84 So. 272; 
Jordan v. State, 225 Ala. 350, 142 So. 665.

After full consideration of the evidence we are of opinion 
that the evidence is sufficient to support the verdict, and 
as for this ground, the motion was overruled without error.

The other questions argued, so far as they merit treat­
ment, were raised during the trial and appear in the bill of 
exceptions outside of the motion for new trial, and will be 
so considered.

One of the defendant’s major contentions is that there is 
an absence of evidence in proof of the corpus delicti, inde­
pendent of the evidence of the defendant’s confessions, and 
therefore the confessions were not admissible.

The evidence shows that the deceased, Bennie Mont­
gomery, was a school boy living with his wodowed mother 
in the community of the tilling station where he worked, 
part time; that on the night he- was killed he was left alone 
in charge of the station where motor fuels were sold until 
the usual closing hour, from 9 to 10 o ’clock, with cash suffi­
cient to make change as purchases were made. About 9 
o ’clock what sounded like a muffled shot was heard at or 
near the filling station; that such occurrence was not un- 
[fol. 105] usual and the witness who testified to hearing the 
shot made no investigation at the time. Between 3 and 4 
o ’clock next morning Montgomery’s body was discovered 
by the morning news boy while delivering the paper at the 
filling station, and reported the fact to the police.

The evidence shows that all merchandise kept on the out­
side for display during business hours had been moved in­
side, all lights, except the light at the front door, had been 
extinguished indicating that Montgomery was in the act of 
closing the station for the night. Deceased’s body, in rigor 
mortis, was just inside and back of the door resting on the 
knees with face and hands resting on the floor in a pool of 
blood. The physical facts show that deceased had been 
shot, the bullet entering under the arm, passed through the 
body and lodged inside of deceased’s shirt. No weapon was 
found near the body or on the premises.

The appellant’s contention is that these facts are not suf­
ficient in proof of the corpus delicti to permit the introduc­
tion in evidence of the defendant’s confession, though it be



104

shown to be voluntary; that the evidence must go further 
and tend to identify the accused as the guilty agent apply­
ing unlawful force causing death. This is not the law. 
Proof of the identity of the accused is not an essential part 
of the corpus delicti. Proof of death resulting from force 
unlawfully applied is all that the law requires, as a predi­
cate for the introduction of a confession voluntarily made. 
— Simmons v. State, 16 Ala. App. 645, 81 So. 137; Shelton v. 
State, 217 Ala. 465,117 So. 8; Jordan v. State, 225 Ala. 350, 
142 So. 665.

Extra judicial confessions of guilt by an accused on 
trial for crime are prima facie involuntary, and the burden 
rests upon the state to overcome this prima facie infirmity 
by evidence satisfactory to the court trying the case that 
the confession was voluntarily made, before such confes­
sion can be received in evidence. It is the right of the 
accused to controvert evidence offered in laying such predi­
cate by cross-examination, or by evidence aliunde, but such 
countervailing evidence impeaching the predicate to be suc­
cessful must be offered on the voir dire, before the confes­
sion is admitted.—Lockett v. State, 218 Ala. 40,117 So. 457; 
Cook v. State, 16 Ala. App. 390, 78 So. 306; Pope v. The 
[fol. 106] State, 183 Ala. 61, 63 So. 71; Jackson v. The State, 
83 Ala. 76.

If such countervailing evidence is not offered until after 
the preliminary question of the admissibility of the confes­
sion is passed on by the court it goes to the jury on the 
credibility of the confession only.—Lockett v. State, supra; 
Cook v. State, supra.

When the evidence going to show that such confession 
was voluntary is conflicting and the trial court holds that 
it was voluntary, such holding is entitled to great weight 
on appeal, not to be disturbed unless such holding is pal­
pably contrary to the weight of the evidence.—Pope v. 
State, supra; Harwell v. The State, 12 Ala. App. 265, 68 
So. 500; Cook v. State, supra.

No attempt was made to impeach the predicate made by 
the state’s evidence except by slight cross-examination of 
the state’s witness. The evidence developed on the cross- 
examination did not even produce a conflict in' such testi­
mony, which, after due consideration, clearly justified the 
holding of the court that the confessions were voluntarily 
made, and they were properly received in evidence.



105

It was permissible for the state to show that money was 
kept at the filling station. While motive is not an element 
of the burden of proof resting on the state it is always a 
legitimate subject of inquiry on a trial of one charged with 
crime.—Jones v. The State, 13 Ala. App. 10, 68 So. 690; 
Brunson v. The State, 124 Ala. 37, 27 So. 410.

The only objection made by the defendant to the photo­
graphs of the filling station, where the crime was com­
mitted, was “ because the killing happened in 1937.”  The 
photographs were made in 1938, about a year later. After 
the objection was made, to quote from the bill of exceptions: 
“ The witness then for the information of the court said ‘ at 
the time (time of the killing) there were three posts where 
there is only one now, and there were two pumps, one on 
each of these posts, here (indicating) we have taken off 
about six feet of each end, there was oil cans sitting on 
the ends. Other than those conditions it is the same as 
when Montgomery was killed.”  The court then overruled 
the objection without error.

Whether or not witness Reese heard the confession of 
[fol. 107] “ these other men”  one referred to as “ Missis­
sippi”  and the other as from “ Chattanooga”  after their 
arrest, was immaterial, as such confessions were purely 
hearsay as related to this defendant’s trial.—Wesson v. 
State, 191 So. 249.

On cross-examination by defendant’s counsel the state’s 
witness Bullard testified: “ I was present on two or three 
occasions when he [defendant] was taken out at night from 
the City Jail. I was not out at Lovick’s, nor out by the 
waterworks. The occasions of him being taken out of the 
City Jail was to pick up some watches and stuff he had 
taken. He said he knew where they were and told us where 
he had put them. ’ ’

On redirect examination by the solicitor it was permis­
sible for the witness to be allowed to state: “ When I spoke 
of taking him out and finding some articles and other stuff 
— was in connection with other robberies and the property 
received had no connection with this case at all.” —Wesson 
v. State, supra.

The defendant also brought out on the cross-examination 
of the witness Bullard that: “ This boy [defendant] stated 
that he and Manny Green and several others had used the 
gun in hold-ups. He did not tell me that Manny Green and 
another boy had the gun at the time Mr, Montgomery was



106

killed. And did not tell me that the gun was given back 
to him afterwards.”

The defendant’s confession, according to the state’s tes­
timony, in his own handwriting is as follows:

“ I Joe Vernon am telling the truth about the killing of 
Bend Montgomery. L. C. Berry and me one night thought 
we would go and get some coal and we went on down to 
the station and we waited until the Central run and it did 
not have no coal and we decided to get some money some 
where. Jabo said let us get that filling station and he taken 
the gun and walk on the far side of the street to see was 
there any one in it. Mr. Ben came out to moved the things 
in Jabo run behind to the rail road I came up behind the sta­
tion with him. I stook to left and as he turn out the lights 
Jabo runs to the right side. I came to left side he went in. 
I heard a scuffle and run to the front before I could — 
in front I heard some sound like a cap buster and Jabo come 
out running I run and look through the glass and saw Mr. 
Ben bending over Jabo said let us go and we run and run 
[fol. 108] until we came to the house where my sister lived 
Jabo hand me the gun sister came to door and said who is 
that running I said Jabo I didn’t tell her nothing but went 
home on the street car and put the gun up the next morn­
ing. I  did tell no one nothing about it so after then me 
and Jabo said nothing to each other did not run together 
no more the gun used in the stick up was Mrs. Frinces 
gun and I slep it out one morning. It was a brake down 
32 caliber I stole it out when I clean up Mrs. Frinces house 
keep it all that day until that night when we planding the 
holding the filling station I told him to take the gun and 
I would looked out on the out side while he took the money 
from Mr. Montgomery and at that time I was standing at 
the left side behind the filling station this gun had 4 loaded 
shells in it when I gave it to L. C. Berry and when he gave 
it back to me it had three shells in it and one empty shell 
I taken this empty shell out betwing fist Ave. So. and first 
Ave. No. on 64 St. near Mr. Jones coal yard I threw it to 
the right side of the street I went on home to Mr. Charlie 
Norrell where I lived.”

This “ gun”  which the evidence shows was a 32 Iver- 
Johnson Revolver, and the bullet found inside deceased’s 
shirt was properly admitted in evidence in connection with



107

the testimony of the witness Baughman, who qualified as 
a ballistic expert, and identified the bullet and the revolver. 
After stating in detail the test made to determine whether 
the “ evidence bullet”  was fired from the revolver, one of 
the tests being the firing of a bullet from said revolver into 
lint cotton, testified:

“ I found that on the evidence bullet, this bullet which 
you exhibited to me, that there [are] too few individual 
markings, individual characteristics, to determine whether 
it was fired from this particular weapon. It was fired from 
a weapon of this type with rifles similar to this.”

The question asked the state’s witness, Rosa Lee Collins, 
who had previously testified: “ I saw the defendant with 
a gun that night,”  the night Montgomery was killed. 
“ Where did you first see the gun?”  was not objectionable 
as “ leading”  and “ putting the words in her mouth.”

The several refused special charges, were properly re­
fused, for reasons stated below:

No. 1, the general affirmative charge, was invasive of the 
[fol. 109] province of the jury. No. 3, is argumentative.— 
Mizell v. The State, 184 Ala.' 16, 63 So. 1000. Charges 4 
and 20 are in a class that has been repeatedly condemned.— 
Ex Parte Davis, et al. 184 Ala. 26, 63 So. 1010. Charges 
9 and 10, under the evidence in this case are misleading.— 
Baxley v. State, 18 Ala. App. 277, 90 So. 434.

There is no basis in the evidence for a verdict of man­
slaughter or self defense. This justified the refusal of 
charges 15 and 16.

The evidence goes to show that the killing was by Berry 
with a weapon furnished by the defendant to accomplish 
the robbery of deceased, and that defendant was present 
aiding and abetting the commission of the offense. This 
phase of the evidence justified the refusal of charges 17 
and 23.

The record and proceedings of the circuit court appear 
to be free of reversible errors.

The date for the execution of the sentence of the law 
having passed, it is ordered that Friday, the 31st day of 
May, 1940, be and is set for the execution of such sentence.

Affirmed.
All the Justices concur.



108

[fol. 110] In S upreme Court of A labama 

[Title omitted]

A pplication  for R ehearing

N ow comes Joe Vernon, the Appellant in this cause and 
moves the Court to set aside the opinion in this cause, ren­
dered on March 28th, 1940, and to grant Appellant a re­
hearing, and Appellant assigns the following grounds and 
reasons therefor:

1st. The reasoning of the Court as expressed in said 
opinion on questions brought before the Court as having 
been prejudicial to him, are at variance and contra to the 
well defined law and decisions of this Honorable Court as 
well as the Supreme Court of the United States; and Appel­
lant more particularly set out said apparent inconsistency, 
more fully and in detail as hereinafter stated.

2nd. It is mandatory of this Court that this Court must 
follow the law as expounded by the Supreme Court of the 
United States where the question of whether or not the Fed­
eral rights guaranteed each and every citizen under the 
14th amendment to the Constitution of the United States 
is in question.

Mooney vs. Holahan 79 Fed. 791;
Ruble vs. Connolly 28 Fed. 542;
Woco Pep Company vs. City of Montgomery 105 S. 

219 •
City of Troy vs. W. W. T. Co. 51 S. 523;
Quaetelbaum vs. State 78 Ala. 1;
Phoenix Carpet Co. vs. State 22 S. 627 (see other 

citations in this case) ;
16 C. J. S. 203, citing State vs. First National Bank 

of Jud 202 N. W. 391.

3rd. This court holding in said opinion in the instanter 
case that the defendant in the Court below had waived his 
right by failing to bring to the attention of the lower court 
the constitutional rights of the defendant under the 14th 
Amendment to the Constitution of the United States and 
that said holding in the Powell case (77 Law ed. 158) is at 
variance and contradictory to well settled principles of



109

law as expounded by the Supreme Court of the United 
[fol. 111] States in the following cases:

Powell vs. State of Alabama 77 Law Ed. 158;
Mooney vs. Holahan 28 Fed. 542;
Isiali Chambers, Jack Williamson, Charlie Davis, 

Walter Woodward vs. The State of Florida (this 
case has no citation none being available at the 
present time, but copy of opinion is attached to 
brief) ;

Norris vs. State of Alabama 79 Law Ed. 1074;
Patterson vs. State of Alabama 79 Law Ed. 1076;

and the following Alabama cases:
Boulo vs. State, 51 Ala. 18 (see also A. L. R. 52 pg. 

927 on this case);
Wade vs. State of Alabama, 93 S. 97.

4th. This Court holding in the instant case that the ad­
mission by the trial court of the alleged confessions of this 
Appellant was without error is in direct contradiction and 
at variance to the well defined law construing the Consti­
tutional Amendments to the Constitution of the United 
States with respect to the 14th Amendment and as outlined 
and defined in the following cases :

Isiah Chambers, Jack Williamson, Charlie Davis and 
Walter Woodward vs. State of Florida (supra);

Pierre vs. Louisiana 306 U. S. 354;
Brown vs. Mississippi 297 U. S. 278;
Norris vs. Alabama 294 U. S. 587, 590;
Twining vs. New Dekota 29 Sup. Ct. 14;
Powell vs. State of Ala. 77 Law ed. 158.

5th. For that the holding of this court in the instant case 
that objection to the formation of the grand jury must be 
made by plea in abatement before pleading to the merits 
of the indictment is at variance with the Statutes of the 
State of Alabama.

Code of Alabama, Sec. 8630.

6th. For that the holding of this Court in the instant case 
that objection to the formation of the petit jury must be 
made by plea in abatement before pleading to the merits 
of the indictment is at variance with the Statutes of the 
State of Alabama.

Code of Alabama, Sec. 8631-5202.



110

7th. The holding of this court that the Appellant’s failure 
to make objection to the formation of either grand or petit 
jury before pleading to the indictment constitutes a waiver 
of his constitutional rights is contra to the statutory laws 
of Alabama as well as the Constitution of the United States 
and the amendments thereto.

[fol. 112] Powell vs. State of Alabama 79 Law ed. 
158;

Johnson vs. Zerbst 82 Law ed. 1461;
Norris vs. State of Alabama 79 Law ed. 1074;
Patterson vs. State' of Alabama 79 Law ed. 1086;
Boulo vs. State 51 Ala. 18;
Wade vs. State 93 S. 97.

8th. For that the holding of this Court that the raising 
of constitutional questions cannot be done for the first time 
in the motion for a new trial or the amendments thereto is 
in direct contravention and variance with the ruling of the 
Supreme Court of the United States, and is in violation of 
the 14th Amendment to the Constitution of the United States 
and of the State of Alabama, as shown in the following 
cases:

Powell vs. State of Alabama 77 Law ed. 158;
Norris vs. State of Alabama 79 Law ed. 1076;
Patterson vs. State of Alabama 79 Law ed. 1086;
Isiah Chambers, Jack Williamson, Charlie Davis, 

Walter Woodward vs. State of Florida (See copy 
attached) ;

Boulo vs. State 51 Ala. 18 (52 A. L. R. 927);
Wade vs. State 93 S. 97.

9th. For that it is mandatory that this court under Code 
of Alabama Section 3258 consider all questions apparent 
on the record or reserved by bill of exceptions and must 
render such judgment on same as the law demands.

There appears on the record (page 12) in the amended 
motion for a new trial, as ground' #35, the following: “ for 
that the Court ex mero motu should have entered a mistrial, 
as it is the duty of the Court, as an officer of the State to see 
that the 14th Amendment to the Constitution of the United 
States is obeyed.”  This ground is also set up in the as­
signments of error as Assignment #73. And while it does 
not seem to have been argued separately there were refer­
ences to it in other assignments.



I l l

This ground seems to have been overlooked by this Court 
in its recent holding in the instant case and we respectfully 
insist that it be reviewed by them under this statutes, or 
on the re-hearing, for the mandatory provisions of the Fed­
eral Constitution are binding on trial judges, and, when a 
violation of the 14th Amendment to the Constitution is 
known to such trial Judge, it becomes his duty, under his 
oath of office, to support the State and Federal Constitu­
tions, he is bound ex mero motu to see that they are obeyed; 
and failure to do so is reversible error.

16 Corpus Juris Secundus (Constitutional Law) 203;
[fol. 113] State vs. 1st Natl. Bank of Jud 202 N. W.

391;
16 Corpus Juris Secundas—Constitutional Law Art.

92 p. 201;
16 Corpus Juris Secundas—Constitutional Law p.

203;
(Note 4)—Citing Johnson vs. Craft 87 S. 375;
16 Corpus Juris Secundas—Constitutional Law p.

385;
Harrison vs. Erickson 90 Mont. 259;
Assoc, for Protection of Adirondacks vs. McDonals,

239 N. Y. S. 31, affirmed 170 N. E. 902;
Martin’s executors vs. Commonwealth 126 Va. 603;
Consolidated Motors Freight vs. Bedford 93 Colo.

440;
Walker vs. Bedford 93 Colo. 400 (180 S. 695).

10th. For that the cases cited by this Court in the instant 
case are, without exception, all state cases, and have all been 
superceded by the more recent decisions of the Supreme 
Court of the United States, on the constitutional questions 
set up by the grounds of the motion for a new trial and the 
amendments thereto; and that these recent cases are contra 
to the law as set out by the Court in its decision in the in­
stant case.

Pierre vs. Louisiana 306 U. S. 354, 358;
Brown vs. Mississippi 297 U. S. 278;
Norris vs. State of Alabama 79 Law ed. 1074;
Powell vs. State of Alabama 77 Law ed. 158;
Johnson vs. Zerbst 82 Law ed. 1461;
Mooney vs. Holohan 79 Fed. 791.

11th. For that the arrest and detention of this defendant, 
without warrant or other legal arrest, constant question­



112

ing as shown by the evidence to obtain the alleged confes­
sions, and the admission of these alleged confessions in evi­
dence, is a violation of the “ proceedural due process rights”  
guaranteed by the 14th Amendment to the Constitution of 
the United States as set out in the following cases:

Isiah Chambers, Jack Williamson, Charlie Davis and 
Walter Woodward, vs. State of Florida (citation 
unobtainable but copy herewith attached);

Brown vs. Mississippi 297 U. S. 278 ;
Pierre vs. Louisiana 306 U. S. 354, 358;
Norris vs. Alabama 294 U. S. 587, 590.

12th. For that the holding of this Court, that the corpus 
delicti is that a homicide has been committed by some one, 
is contra to the previous decisions of this court as set out in 
the following cases:

Hand vs. State 159 S. 275;
Slayton vs. State 39 S. 715;
Oldacre vs. State 39 S. 715;
Randolph vs. State 14 S. 792;
McElroy vs. State 25 S. 247;
McConnell’s case 41 S. 419.
[fol. 114] Estes vs. State 93 S. 217 
Gilbert vs. State 104 S. 45 
Bones vs. State 23 S. 138 
Kilgore vs. State 95 S. 138 
Griffin vs. State 43 S. 197 
Buford vs. State 101 S. 287.

13. For that the ruling of this court that failure to file 
plea in abatement, as to the formation of the grand jury or 
petit jury before pleading to the merits of the indictment 
is a waiver of the constitutional rights of the Appellant, 
is in direct contravention of the rights guaranteed to the 
Appellant in the 14th Amendment to the Constitution of 
the United States, and the Code of Alabama.

Code of Alabama Sec. 8360-8361-5202.

Wherefore, Appellant submits that the opinion so ren­
dered should be set aside and recalled and Appellant 
granted a new hearing.

Cora R. Thompson, Attorney for Appellant.



113

[fo l. 115] I n S upreme C ourt op A labama 

O ctober T erm , 1939-40

Certificate  op R ecall  P en d in g  C onsideration  op A p p lic a ­
tio n  por R e h e arin g

To the Clerk of the Circuit Court of Jefferson County—
Greeting:
Whereas, in the matter of Joe Vernon, Appellant, vs. The 

State of Alabama, Appellee, recently pending the Supreme 
Court of Alabama, on appeal from the said Circuit Court 
of Jefferson County, our Supreme Court did on the 28th 
day of March, 1940, render a Judgment of Affirmance, set­
ting the date of Execution for Friday, May 31st, 1940, in 
said cause; and,

Whereas, a certificate of such action of the Supreme Court 
was duly issued to you, and thereafter an application for 
a rehearing of said cause was filed in this Court on the 12th 
day of April, 1940:

Now, it is hereby certified, that our Supreme Court, or 
one of the Justices thereof, did, on the 20th day of May, 
1940, order that the said certificate be recalled. And you 
will accordingly return the same to this office at once, to­
gether with copy of the opinion in said cause issued to you.

Witness, J. Render Thomas, Clerk of the Supreme Court 
of Alabama, at the Capitol, this the 20th day of May, 1940.

J. Render Thomas, Clerk of the Supreme Court of 
Alabama.

[fol. 116] In S upreme Court of A labama 

Present: All the Justices.

[Title omitted]

Order Overruling A pplication  for R ehearing— May 21,
1940

It is Ordered that the application for rehearing filed by 
the Appellant in this cause on April 12th, 1940, after being 
duly examined and considered by the Court, be and is over­
ruled.

8 -449



114

[fol. 117] In S upreme Court of A labama 

[Title omitted]

P etition  for S tay of E xecution

To the Honorable Lucian Gardner, Chief Justice of the 
Supreme Court of Alabama, and the Associate Justices 
of Said Court:
Now comes Joe Vernon, Appellant, and shows to the 

Court that the above styled case was affirmed in this Court 
on May 21st, 1940, and which affirmance carried with it 
the death penalty, and the date of execution having been 
heretofore set by this Court in rendering the original opin­
ions as of May 31st, 1940.

This appellant now makes known to this Court that he is 
desirous of having his case, involving certain principles of 
law and Federal Eights presented to the Supreme Court of 
the United States and as the time for execution is so near 
at hand, it necessarily follows that it will be impossible to 
take the case to the Supreme Court of the United States 
before the date of execution to-wit: Friday, May 31st, 1940;

Wherefore your petitioner prays the Court that the time 
and date of execution be stayed for such reasonable length 
of time to-wit: 90 days, for the purpose of giving your peti­
tioner the necessary time and opportunity to present his 
case to the Supreme Court of the United States, and,

Petitioner prays for such other and further and general 
orders in relief as will be necessary that the matters per­
taining to his case, may, in due form and time, be prepared 
and presented to the Supreme Court of the United States 
for its consideration, which preparation is now being made 
to present the same to the Supreme Court of the United 
States.

Cora E. Thompson, Attorney for Joe Vernon, Appel­
lant.

[fol. 118] Duly sworn to by Cora R. Thompson. Jurat 
omitted in printing.



115

[fo l. 119] I n S upreme C ourt op A labama 

Present: All the Justices.

[Title omitted]

Order Granting  S tay of E xecution  etc.— May 25, 1940
Whereas, the judgment of the Circuit Court of Jefferson 

County, Alabama, in the case of Joe Vernon, Appellant, vs. 
The State of Alabama, Appellee, 6 Div. 460, was affirmed 
by this Court on the 28th day of March, 1940, and the date 
of the execution of the sentence of the Circuit Court was 
reset and fixed by this Court and the said Joe Vernon was 
ordered to be electrocuted on Friday, May 31st, 1940; and, 

Whereas, the said Joe Vernon, thereafter filed an appli­
cation for rehearing on the 12th day of April, 1940, which 
said application for a rehearing was overruled by this 
Court on the 21st day of May, 1940; and,

Whereas, the said Joe Vernon, by his attorney, has peti­
tioned this Court for a suspension and stay of the execution 
of said sentence, in order to give sufficient time to petition 
the Supreme Court of the United States for a Writ of Cer­
tiorari to be directed to this Court for a hearing of said 
cause in the Supreme Court of the United States, or to per­
fect an appeal of said cause to the Supreme Court of the 
United States.
[fol. 120] Now, Therefore, It Is Ordered on petition of the 
defendant, Joe Vernon, that the date of the execution of 
the death sentence heretofore entered in this cause for Fri­
day, May 31st, 1940, be and the same is hereby reset and 
fixed for Friday, the 30th day of August, 1940, and the 
sentence of the Court will, on said date, be carried out in 
all respects according to the law of this State.

It Is Further Ordered that until final execution of the 
sentence of the Court, jurisdiction is hereby retained over 
said cause.

It Is Further Ordered that the Sheriff of Jefferson 
County, Alabama, deliver the defendant (appellant) Joe 
Vernon, to the Warden of Kilby Prison at Montgomery, 
Alabama, and that the said Warden of said Kilby Prison 
at Montgomery, Alabama, execute the judgment and sen­
tence of the law on Friday, August 30th, 1940, before the 
hour of sunrise on said day in said prison by causing a 
current of electricity of sufficient intensity to cause death



116

to pass through the body of the said Joe Vernon until he 
is dead, and in so doing he will follow the rules prescribed 
by the Statutes.

It Is Also Considered that the Appellant pay the costs 
of appeal of this Court and of the Circuit Court.

[ fo l . 121] I n S upreme Court op A labama 

[Title omitted]

P etition  for F u rther  S tay of E xecution

To the Honorable Lucien D. Gardner, Chief Justice of
the Supreme Court of Alabama or Any Associate Justice:

The case of the above defendant was affirmed by this 
Court on March 28th, 1940, and the execution thereof of the 
defendant was set for Friday, May 31st, 1940; and,

Thereafter, a stay of said execution of the defendant was 
stayed until August 30th, 1940, on account of an appeal 
or certiorari of the case to the Supreme Court of the United 
States; and,

The perfection of said appeal for consideration of the 
Supreme Court of the United States, not having been com­
pleted and cannot be completed on or before the date set 
for the execution of said defendant on August 30th, 1940;

Wherefore, petitioner most respectfully prays the Court 
for a further stay of said execution for such period of time 
as to the Court would seem sufficient to complete the appeal 
to the Supreme Court of the United States, and for the 
action of said Court thereon.

(Signed) Cora R. Thompson, Attorney for Appel­
lant.

Duly sworn to by Cora B. Thompson. Jurat omitted in 
printing.



117

[fol. 122] Birmingham, Alabama.
August 20th, 1940.

Mr. J. Render Thomas, Clerk of the Supreme Court of Ala­
bama, Montgomery, Alabama.

6th Division 460

In re: Joe Vernon vs. State of Alabama 

D eab S ib :

I am enclosing herewith application addressed to the Chief 
Justice or any Associate Justice of the Supreme Court, 
asking that the date of execution of August 30th, 1940, be 
stayed for another period or such time as in the judgment 
of the Court would seem proper, for the reasons named in 
the petition and affidavit attached thereto.

Will you please present this to the Chief Justice or any 
Associate Justice1? I assume that it affirmatively appears 
sufficient for the order to be granted, but if, in the opinion 
of the Chief Justice or any Associate Justice, think it in­
sufficient, would you please let me know at once so that the 
petition can be amended to meet his demands?

Please accept my apology for not promptly answering 
your communications in the case in regard to the record. 
Circumstances have been such that it has been impossible 
for me to comply with your request at the present time, but 
will do so at the earliest possible moment.

Thanking you in advance for your usual attention and 
promptness, I am,

Yours very truly, (Signed) Cora R. Thompson, Ad­
dress : 412% N. 21st Street, Birmingham, Alabama.

Copy to Attorney General

[fol. 123] Miss Cora Thompson 
412% North 21st Street 
Birmingham Alabama

Have Record Joe Vernon Case Ready Stop Can Bind Cer­
tify and Deliver on Request Stop Supreme Court Alabama 
in Vacation Chief Justice Out of State Stop Only Two



118

Justices Here Stop They Decline to Act on the Petition 
Stop Necessary to Apply for Stay of Execution to One of 
Justices Supreme Court United States or Governor of 
Alabama Stop Advise Me

J R Thomas 
Clerk Supreme Court

[fol. 124] Clerk’s Certificate to foregoing transcript 
omitted in printing.

[fol. 125] S uprem e  C ourt op th e  U nited S tates

Order E xtending T im e  W it h in  W h ic h  to F ile P etition 
for Certiorari—Filed August 21, 1940

On consideration of the application of counsel for the 
Petitioner,

It is ordered that the time for filing petition for certiorari 
in the above entitled cause be extended for a period of thirty 
days from August 21, 1940.

Hugo L. Black, Associate Justice of the Supreme 
Court of the United States.

Dated this 21 day of August, 1940.

[fol. 1251/2] [File endorsement omitted]

[fol. 126] S upreme Court of the  U nited S tates 

Order A llow ing  C ertiorari—April 7, 1941

On Petition for Writ of Certiorari to the Supreme Court 
of the State of Alabama.

It is ordered by this Court that the order entered No­
vember 12, 1940, denying certiorari in this case be, and 
the same is hereby, vacated; and that the petition for cer­
tiorari herein be, and the same is hereby, granted.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­



119

panied the petition shall be treated as though filed in re­
sponse to such writ.

Endorsed on cover: In forma pauperis. Enter Walter 
S. Smith. File No. 44,798. Alabama Supreme Court. Term 
No. 449. Joe Yernon, Petitioner, vs. State of Alabama. 
Petition for a writ of certiorari and exhibit thereto. Filed 
September 19, 1940. Term No. 449, 0. T., 1940.

(3678)





mm% elms ie cwrti
SUPREME COURT OF THE U N IT E T ’ STSTES

C ffic i -  Su|. ;sin)e Court, li. $,

SEP 19 1940

OCTOBER TERM, 1940

No. 449

JOE VERNON,

vs.
Petitioner,

STATE OF ALABAMA.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF ALABAMA 
AND BRIEF IN SUPPORT THEREOF.

W alter S. S m it h , 
Counsel for Petitioner.

Cora R. T hom pson ,
Of Counsel.





S ubject  I ndex.
Page

Petition for writ of certiorari..........................................  1
Jurisdictional statement ............................................ 1

Proceedings in Trial Court ..............................  2
Proceedings in Appellate Court ....................... 3

Statement of facts .....................................................  8
Questions .................................................................... U
Reasons relied on for allowance of writ.................. 14
Prayer for r e lie f ......................................................... 17
Appendix— Code of Alabama, 1923:

Section 3258 ........................................................  18
Section 5202 ........................................................  18
Section 8630 ........................................................  18
Section 8637 ........................................................  18
Section 8952 (14) ............................................... 19

Appendix— City Code of Birmingham:
Section 4901 ........................................................  19
Section 4902 ........................................................  19

Brief in support of petition............................................... 21
Opinions below ..........................................................  21
Jurisdiction ................................................................  22
Statement of the case ..........................................  24
Assignments of e r r o r ............................................. 27
Specification of e rro rs ..........................................  34
Propositions of law ..............................................  36
Argument ....................................................................  41

T able oe Cases C ited.

Assn, for Prot. of Adirondacks v. McDonals, 231
X. V. S. 31.................................................................... 8, 44

Brown v. Mississippi, 297 U. S. 587..........................  7, 26, 33
Bunca v. United States of America, 77 L. Ed. 2 6 6 .... 5, 37
Carpenter v. Pennsylvania, 17 Ho. 456, 15 L. Ed.

127 ............................................................................  4, 40, 48
Carter v. Texas, 177 U. S. 442......................................  7, 39

IN D E X .

—3787



11 INDEX

Page

Chambers v. Florida, 84 L. Ed. 419.............  26, 33, 37, 44, 47
Chicago, 1. R. & P. Co. v. Burns, 294 U. S. 648.........  37
Cincinnati, P. B. St. P. P. Co. v. Bay, 50 Fed. 428-

433 ...............................................................................  6,40
Citizens Bank v. Owensboro, 173 U. 8. 636..........  4, 5, 40, 48
Consol. M. Freight v. Bedford, 93 Colo. 440...............  8
Continental Natl. Bk. v. Chicago, 79 L. Ed. 1110, 55

Sup. Ct. Eep. 595........................................................  37
Ex parte Royal, 117 U. S. 241, 25 L. Ed. 868.............  38
Frank v. Mangum, 237 U. 8. 309-335........................... 38,47
Farmers & Marine v. Dobney, 189 U. S. 301..........  6, 36, 40
First Natl. Bk. v. Kentucky, 19 L. Ed. 701......... 4, 38, 40, 48
Foster v. United States, 82 L. Ed. 700.......................  37
Gibson v. Mississippi, 162 U. S. 565..........................  6, 39, 48
Gulf, C. <& F. v. Dennis, 56 Fed. 860-862, 22 IT. S.

503 ...............................................................................  36
Hale v. Kentucky, 303 U. S. 613.....................................  7, 39
Hamilton Mfg. Co. v. Mass., 18 L. Ed. 904....................  4, 40
Harrison v. Erickson, 90 Mont. 259............................. 7, 44
Hebert v. Louisiana, 272 IT. S. 316............................. 38,47
Hiawassee River Power Co. v. Carolina Tenn. Co.,

252 IT. S. 341, 393 .............................................. 5
Johnson v. Craft, 87 So. 375...........................................  7, 46
Johnson v. Zerbst, 82 L. Ed. 1461..................................  26, 38
Martins, Extrs., v. Commonwealth, 126 Va. 603...........  8, 44
Langnes v. Green, 282 IT. 8. 531-541...........................  37
Martin v. Texas, 200 IT. S. 316-319............................... 7, 39
Moore v. Dempsey, 261 IT. S. 89................................... 38,47
Neal v. Delaware, 103 IT. S. 370-397, 40 L. Ed. 567-

574 ....................................................................... 6, 38, 39,48
New' York ex rel. Rosevale Rlty. Co. v. Kleinert,

268 IT. S. 646......................    4
Re Neilson, 131 C. 8. 176 ........................................ 38, 39, 47
Norris v. Alabama, 294 IT. S. 587-590 ....... 6, 7, 33, 36, 39, 49
Patterson v. Alabama, 294 IT. S. 600, 79 L. Ed. 1076,

55 Sup. Ct. Eep. 575 ..................................................  36, 37
People v. Prestige, 148 N. W. 347............................... 39
People v. Rogers, 136 N. W. 479................................... 39
Pierre v. Louisiana, 306 U. S. 354............. 6, 7, 26, 33, 49, 51



INDEX 111

Page
Powell v. Alabama, 77 L. Ed. 158, 83 Fed. 757, 53

Sup. Ct. Rep. 55 ................................ 5, 7, 26, 33, 36, 37, 40
Rep. River Pr. Co. v. Kansas Pr., 92 U. S. 315, 23 L.

Ed. 515 .................................................................... 5, 38, 48
Rogers v. Alabama, 912 U. S. 226-231; 48 L. Ed. 417-

419, 24 Sup. Ct. Rep. 257 .....................................  6, 39, 48
Re Siebold, 100 U. S. 371, 25 L. Ed. 717.......................  38
Sterns v. Minnesota, 179 U. S. 223, 45 L. Ed. 162, 21

Sup. Ct. Rep. 73 ........................................................ 5, 48
Strauder v. West Virginia, 100 U. S. 303-308-309, 25

L. Ed. 664 ................................................................. 6, 39, 48
Sugarman v. United States, 249 U. S. 182.................  37
The Styrias v. Morgan, 186 U. S. 1-9, 46 L. Ed.

1027 .............................................................................  5,38
Ttvinning v. N. Jersey, 29 Sup. Ct. Rep. 14; 211 U. S.

78, 53 L. Ed. 97 ......................................................  7,39,49
Vamdalia R. R. v. Indiana, 53 L. Ed. 97, 207 U. S.

359 ...............................................................................  38
Virginia v. Rives, 100 U. S. 313-319........................... 7, 37
Wade v. Alabama, 93 So. 97................................ 7, 36, 40, 44
Whitney v. California, 71 Fed. 1 095, 274 U. S. 356-7,

4, 5, 6, 40, 48
Ziang Sun W anv. United States, 266 U. S. 1, 16. . .. 39

Constitution:

Constitution of United States, 14th Amendment.
7,11,13,14,15

Ordinances:

City Code of Birmingham, Sec. 4901-4902.................  24

Statutes:

Code of Alabama, 1923, Statute 3258.........................  34,45
Code of Alabama, 1923, Statute 5202..... 13, 22, 34, 51
Code of Alabama, 1923, Statute 8630.....  13, 22, 34, 51
Code of Alabama, 1923, Sec. 8637...........  13, 22, 34, 51
Code of Alabama, 1923, Sec. 8592(14).......................  19



IV INDEX

Page
Federal Statutes:

U. S. C. A., Title 8, Sec. 44............................................  39
Act of March 8, 1934......................................................  2, 22
Judicial Code, Sec. 237 (a and b ) ................................. 2, 22
Judicial Code, Sec. 240(a) ..........................................  2,22

T e x t  B o ok s .

16 Corpus Juris Secundus Const. Law, Art. 92, pg.
201 ...............................................................................  7

16 Corpus Juris Secundus Const. Law, Art. 95.......... 7
17 Corpus Juris Secundus Const. Law, p. 203,

note 4 ............................................................................ 7, 44
45 L. R. A. 577 (notes)..................................................  38



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1940

No. 449

JOE VERNON,

vs.
Petitioner,

STATE OF ALABAMA.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable, the Chief Justice and Associate Justices 
of the Supreme Court of the United States:

Your petitioner, Joe Vernon, respectfully shows unto 
the Court the following:

I.

Jurisdictional Statement.

Petition for writ of certiorari to the Supreme Court of 
the United States to review a judgment and sentence by 
the Supreme Court of Alabama, affirming a judgment and 
sentence of a Circuit Court for the Tenth Judicial Circuit 
of Alabama, at Birmingham, wherein petitioner, Joe Ver­
non, a negro, was sentenced to death by electrocution for

le



2

the unlawful shooting of Bennie Montgomery, a white man, 
and to reverse such judgment and sentence, or to obtain 
a new trial.

Petitioner, Joe Vernon, prays that a writ of certiorari 
issue to review the decree entered on March 28th, 1940 
(R. 99), in the Supreme Court of Alabama, which is the 
highest court of said State, in the cause in that court 
entitled, 6 Div. 460, Joe Vernon, Appellant, v. State of 
Alabama, Appellee. Petitioner’s application for rehear­
ing having been duly filed in the Supreme Court of Ala­
bama, was overruled and rehearing denied on May 21st, 
1940 (R. 113); thereafter, on petition duly filed by appel­
lant, stay of execution was granted by the Supreme Court 
of Alabama, in order to allow appellant to appeal to the 
United States Supreme Court (R. 115-116); and thereafter, 
within said time, on August 20th, 1940, a second petition 
for a further stay was denied by the Supreme Court of 
Alabama (R. 117-118). Thereafter, within said time, on 
the 21st day of August, 1940, a further stay was granted 
to September 20th, 1940, within which to file a petition 
for writ of certiorari by Mr. Justice Black, Associate 
Justice of the Supreme Court of the United States.

Joe Vernon, a negro, presents this petition for a writ 
of certiorari to the Supreme Court of the United States, 
under Section 237 (a and b), Section 8 (a), and Section 
240 (a), of the Judicial Code of the United States, as 
amended by the Acts of February 13th, 1925; also Act of 
March 8th, 1934, and Rules of Practice and Procedure of 
the Supreme Court of the United States, after verdict or 
finding of guilt, in criminal cases.

T he  P roceedings of th e  T rial C ourt.

The Federal questions which this Court is asked to re­
view by certiorari, were first brought up in the motion for 
a new trial and the amendments thereto. The violation of



3

these Federal rights are set up in the original motion, as 
grounds 19, 20 and 21 (R. 11), and in the amendments to 
the original motion (R. 12-15), as grounds 22, 24, 25, 33, 
34, 35, 36, 37 and 38.

On the hearing of the motion for a new trial, counsel 
for the State made two oral motions to strike from the 
original motion and the amendments thereto, all grounds 
relating to defendant’s constitutional rights as coming 
too late (grounds of original motion, 19, 20, 21, bill of 
exceptions) and grounds 22, 24, 25 (E. 12-13), grounds 
33, 34, 35, 36, 37 and 38 of first amendment (E. 14-15), 
and ground 35 of last amendment to motion (R. 16). 
Petitioner then offered a showing in behalf of the matters 
contained in said grounds, and same is set out in full in 
the bill of exceptions (E. 85-87). To the ruling of the 
court on both oral motions, and to the overruling of the 
entire motion for a new trial, defendant excepted (E. 84, 
87), separately and severally, and each ruling was assigned 
as assignments of error. (Record pages and numbers of 
assignments are given in next paragraph.) Appeal was 
then taken to the Supreme Court of Alabama.

P roceedings in  th e  A ppellate C ourt.

All of the above matters were placed in the bill of ex­
ceptions, and grounds of the original motion, Nos. 19, 20 
and 21, involving the Federal question, were assigned as 
assignments of errors, Nos. 56, 57 and 58 respectively; 
ground No. 22 of first amendment to Motion (R. 12) as­
signed as assignment of error No. 60 (R. 96); ground 24, 
as assignment of error No. 62 (R. 96); ground 25, as as­
signment of error No. 63 (R. 96); ground 33, as assign­
ment of error No. 71 (R. 97); ground 34 (R. 14) as as­
signment of error No. 72 (R. 97); ground 35 (R. 14), as 
assignment of error No. 73 (R. 97); ground 36 (R. 14),

2c



4

as assignment of error No. 74 (R. 97) ; ground 37, as as­
signment of error No. 75 (R. 97); ground 38, as assign­
ment of error No. 76 (R. 97); and ground 35, of the second 
amendment to motion for new trial (R. 16) as assignment 
of error No. 80 (R. 98).

Exceptions to the striking of these grounds were assigned, 
separately and severally, as assignments of error Nos. 81, 
82, 83 and 84, respectively (R. 98) ; and to the overruling 
of the entire motion for new trial as assignment of error 
No. 77 (R. 97).

All of these matters were argued orally and by brief in 
the Supreme Court of Alabama.

On affirmation of conviction by the Supreme Court of 
Alabama a petition for rehearing was filed (R. 108-112), 
grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13 (of petition) 
pointing out specifically that the decision of that court was 
contra to that of the Supreme Court of the United States 
of these Federal questions and which the record affirma­
tively shows was set up and considered by both the trial 
court and the Supreme Court of Alabama.

1. The rulings of the Supreme Court of Alabama, on 
Federal constitutional questions, shown on the face of the 
record as considered and passed on, are reviewable by 
this Court, when such holdings are in conflict with the 
rulings of this Court.

Carpenter v. Pa., 17 Howard 455, 15 L. Ed. 127;
First Natl. Bcmk v. Ky., 9 Wall. 353, 19 L. Ed. 701, 

45 L. R. A. p. 577 (notes) ;
Hamilton Mfg. Co. v. Mass., 6 Wall. 632; 18 L. Ed. 904;
Citizens Bank v. Owensboro, 173 U. S. 636, 43 L. Ed. 

840, 18 Sup. Ct. Rep. 571;
Whitney v. California, 71 Fed. 1095, 274 U. S. 356-357;
New York ex rel. Rosevale Rlty. Co. v. Kleinert, 268 

U. S. 646, 650, 69 L. Ed. 1155, 1137, 45 Sup. Ct. 
Rep. 618;



5

Eiawassee River Pr. Co. v. Carolina-Tennessee Pr., 
252 U. S. 341, 393;

Republican River Co. v. Kansas P. R. Co., 92 U. S. 
315, 23 L. Ed. 515.

2. The Supreme Court of the United States can review 
the judgment of a State court in which a waiver of his 
constitutional rights is involved, and can determine for 
itself the existence, construction and validity of the ques­
tion as well as the further question whether the impair­
ment has been affected by State legislation.

Sterns v. Minn., 179 U. S. 223, 45 L. Ed. 162, 21 Sup. 
Ct. Rep. 73;

Citizens S. Bank v. Owensboro, 173 U. S. 636, 43 L. Ed. 
840, 19 Sup. Ct. Rep. 571;

Whitney v. California, 71 Fed. 1095, 274 U. S. 356-357;
Powell v. Alabama, 77 L. Ed. 158.

3. While the grounds set up in the motion for a new trial 
are discretional, whether there has been an abuse of dis­
cretion and whether such abuse has been a denial of the 
equal protection and due process of law clauses of the 
14th Amendment to the Federal Constitution, this question 
is reviewable by this Court when shown on the face of 
the record.

James Bnunca v. United States of America, 77 L. Ed. 
266;

The Styria v. Morgan, 186 U. S. 1, 9, 46 L. Ed. 1027, 
s. c, 731.

4. The holding of the State court under Alabama statutes 
Nos. 8630, 8637 and 5202, that the objections to the forma­
tion of both Grand and Petit juries came too late, is a 
denial to this petitioner of the Federal rights under the 
14th Amendment to the Federal Constitution, and are 
appropriate grounds for review by this Court, as they were



6

presented in the record, and expressly or necessarily de­
cided by such court.

Whitney v. California, 71 Fed. 1095, 274 U. S. 356, 357.

5. Petitioner contends that the ratio between white and 
negro citizens summoned for both grand and petit jury 
service in the trial of his case, was a virtual denial of due 
process and equal protection clauses of the 14th Amendment 
to the Federal Constitution, and that this practice has long 
been continued by the executive and judicial officers of the 
State charged by law with the duty of providing proper 
jurors for jury service, and that this claim showing on the 
face of the record, he is entitled to a review by this Court 
as a denial of equal protection under the 14th Amendment 
to the Federal Constitution.

Pierre v. Louisiana, 306 U. S. 354;
Norris v. Alabama, 294 U. S. 587-590.

6. The unconstitutional exercise of authority under City 
Ordinances Nos. 4901 and 4902, of the Code of City of Bir­
mingham, Statutes 8630, 8637 and 5202, of the Code of Ala­
bama of 1923, valid on their face, are a denial of equal pro­
tection and due process of law when set up in motions for a 
new trial, assignments of error, when the record shows they 
were considered and passed on by the Supreme Court of 
Alabama, and reviewable by this Court.

Cincinnati P. B. St. P. P. Co. v. Bay, 50 Fed. 428-433;
Farmers & Marine Ins. v. Dobney, 189 U. S. 301, 47 

L. Ed. 821, 23 Sup. Ct. Rep. 565;
Strauder v. W. Virginia, 100 IT. S. 303, 25 L. Ed. 664;
Neal v. Delaware, 103 U. S. 370, 40 L. Ed. 567-574;
Gibson v. Mississippi, 162 U. S. 565, 40 L. Ed. 1075, 16 

Sup. Ct. Rep. 904;
Rogers v. Alabama, 912 U. S. 226-231, 48 L. Ed. 417-419, 

24 Sup. Ct. Rep. 257;



7

Garter v. Texas, 177 U. S. 442, 447, 44 L. Ed. 839, 841, 
20 Sup. Ct. Rep. 687;

Pierre v. Louisiana, 306 U. S. 354;
Wade v. Alabama, 93 So. 97;
Powell v. Alabama, 77 L. Ed. 158;
Virginia v. Rives, 100 U. S. 313, 3l9;
Norris v. Alabama, 294 U. S. 587;
Hake v. Kentucky, 303 U. S. 613, 616;
Martin v. Texas, 200 U. S. 316, 319.

7. Use by a State of an improperly obtained confession, 
is a denial of due process of law as guaranteed in the 14th 
Amendment to the Federal Constitution; and the record 
showing affirmatively that such question was duly con­
sidered by the Supreme Court of Alabama, is reviewable by 
this Court as to whether the admitting of such testimony is 
a denial of due process of law.

Isiah Chambers v. State of Florida, 84 L. Ed. 419-476;
Brown v. Mississippi, 297 U. S. 278;
Norris v. Alabama, 294 U. S. 587, 590;
Twining v. N. Dakota, 29 Sup. Ct. Rep. 14.

8. The failure by the trial court, ex mero motu, to quash 
the indictment, the affirmance by the Supreme Court of Ala­
bama, when, through common knowledge, the trial court is 
well aware of the violation of the 14th Amendment to the 
Federal Constitution, such action is reviewable by this 
Court as an abuse of discretion.

16 C. J. S. Const. Law, Art. 95;
17 C. J. S. Const. Law, p. 203, Note 4;
State v. First Natl. Bank, 202 N. W. 391, 16 C. J. S. 

Const. Law, Art. 92, p. 201;
Johnsons. Craft, 87 So. 375;
16 C. J. S. Const. Law, p. 385;
Harrison v. Erickson, 90 Mont. 259;



8

Assn, for Prot. of Adirondacks v. McDonals, 239 N. Y.
S. 31;

Martins Exectrs. v. Commonwealth, 126 Va. 603;
Consol. M. Fredight v. Bedford, 93 Colo. 440;
Walker v. Bedford, 93 Colo. 440.

The Supreme Court of Alabama rendered its decision on 
May 21st, 1940; additional time within which to file this 
petition for certiorari was extended by the Honorable Hugo 
L. Black, Associate Justice of the United States Supreme 
Court, on August 21st, 1940, until September 20th, 1940.

II .

Statement of Facts.

On September 15th, 1939, petitioner, Joe Vernon, a negro, 
was arrested for the shooting of Bennie Montgomery, a 
white man, at the Rejoy Pilling Station located in Birming­
ham ; which shooting occurred more than a year before his 
arrest; he was placed in the City Jail under City Ordinances 
4901-4902, kept in absolute seclusion for about two weeks; 
during which time he was not even allowed to see another 
prisoner, and was forced to make three confessions, by 
actual violence to his person; one confession was claimed 
to have been made to A. B. Reece; another copied from a 
statement written by one of the officers (R. 64, statement of 
Joe Vernon); the other written out (but not signed) and 
introduced in evidence from questions and answers in the 
Solicitor’s office of Jefferson County; these were made 
when he was at all times surrounded by officers; the record 
does not disclose that he was allowed the advice of an at­
torney at the time or before these confessions were made 
(R. 42, as Exhibit # 8 ). After being transferred to the 
Jefferson County Jail an indictment was returned against 
him. This Grand Jury which returned the indictment was



9

composed solely of white men (R. 86, testimony of Herbert 
Atkinson). On the trial of the case in the Circuit Court the 
petit jury from which he was forced to select a jury was 
composed solely of white men, only one negro being on the 
entire venire of 125 men called (R. 86-87, testimony of Ed. 
Newman and Beatrice Porter). Defendant denied shoot­
ing deceased, denied having the gun with which he was 
claimed to have been killed. Witness Baughman stated that 
the shot recovered from the shirt of deceased came from a 
gun similar in make to the gun admitted in evidence, but 
could not say it came from that gun (R. 57). Mrs. Norrell 
testified that defendant took her gun about this time; de­
fendant says that he pawned it to another negro by the name 
of Mannie Green; officers denied abusing him to obtain con­
fessions ; but testified to any number of so-called claimed 
confessions he made on numerous other charges, enumerat­
ing them over the objections of defendant’s counsel; officers 
stated that they took him out of the City Jail time and 
again, day and night, to hunt for property stolen from 
hoboes. Defendant was the only witness for himself. Out­
side of these confessions, and some claimed by the Solicitor, 
from the fact that his Bible would open at certain places, 
showing that he had read certain passages, there was no 
testimony connecting defendant with the crime charged.

Defendant claims that the commission of the crime, plus 
the agency of the defendant, must be shown to prove the 
corpus delicti. If the confessions were wrongfully intro­
duced then the corpus delicti was not shown. Pictures of 
the scene of the killing were introduced which defendant 
claims and which is admitted in the testimony of officers, 
does not show the filling station as at the time of the homi­
cide. A. B. Reece stated that no money was missing from 
the station; the body was found in a kneeling position facing 
the door, one bullet had hit deceased; which bullet was 
claimed to have been found inside the shirt of deceased; no



10

testimony as to any powder burns, though confessions claim 
the shot was fired while deceased and defendant were 
clinched in a struggle. Defendant claims that there would 
have been powder burns if such had been the case; and that 
bullet fired at that close range would not have stopped 
within shirt of deceased; Doctors testified that they went 
to the jail to examine defendant and companion in com­
panion case, so that they could swear there were no signs 
of violence on bodies of defendants, but admitted that if 
there had been, at that late date, they would not have shown.

On motion for new trial, constitutional questions were 
presented for first tim ethese grounds were stricken from 
motion on motion of Solicitor; exception reserved and also 
on the overruling of motion for new trial.

Defendant offered a showing of certain testimony regard­
ing the exclusion of negroes from grand and petit juries; 
that it was intentionally and done solely as a discrimina­
tion against negroes; that under the last Census the ratio 
of one negro to one hundred twenty-five white jurors did 
not comply with the 14th Amendment to the Federal Con­
stitution ; that the court, knowing that negroes were inten­
tionally excluded from grand and petit juries, should have 
quashed the indictment of his own motion; that under our 
system, and certain statutes, as no inquiry can be made into 
the formation of the grand or petit juries, defendant is 
denied equal protection of the law, and that also through 
these statutes he cannot waive his constitutional rights. On 
appeal, these grounds were included in the bill of exceptions 
and as grounds of assignments of error (record pages set 
out in jurisdictional statement). After affirmance by the 
Supreme Court of Alabama, on motion for re-hearing, it was 
pointed out to the Supreme Court of Alabama that their 
citations in the opinion rendered had been superseded by 
later decisions of the Supreme Court of the United States, 
and that even on State questions that their latest decisions



11

were contra to the ones cited in the opinion on what is the 
corpus delicti (R. 108-112). The petition for re-hearing was 
overruled by the Supreme Court of Alabama and defendant 
re-sentenced.

III.

Questions.

Petitioner was detained in City Jail under City Ordi­
nances 4901 and 4902, in virtual seclusion; while there he 
made three confessions, which, on his trial, were introduced 
in evidence over objections; the record fails to show he 
was allowed counsel before at the time he made them.

1. “ Whether a conviction obtained by use by a State of 
illegally obtained confessions is a denial of due process of 
law as guaranteed in the 14th Amendment to the Federal 
Constitution under equal protection clause ! ’ ’

Under Alabama Statutes, Nos. 8630, 8637 and 5202, there 
can be no inquiry into the formation of grand and petit 
juries, except for the exceptions set out in these statutes, 
and for fraud; these exceptions are not relevant to the in­
stant case; in ninety-nine per cent of all cases in Alabama on 
this subject, motions to strike and pleas in abatement have 
been overruled by both trial courts and the appellate courts 
because of these statutes.

2. “ Whether or not, in Alabama, with these Statutes in 
effect, there can be a waiver of constitutional rights under 
the 14th Amendment to the Federal Constitution, in respect 
to the formation of grand and petit juries!”

3. “ Whether constitutional rights, claimed under the 14th 
Amendment to the Federal Constitution, set up for the first 
time in motion for a new trial (and amendments thereto); 
exceptions to rulings of court to strike all grounds relating 
to constitutional questions; exceptions taken to overruling

3c



12

of motion for new trial; all of which were assigned as assign­
ments of error, separately and severally, and as grounds in 
petition for rehearing in the Supreme Court of Alabama, 
all of which shows on the record were duly considered by the 
State Supreme Court, were properly preserved for the 
consideration of this Court?

On the hearing on the motion for a new trial, on motion 
of State, the trial court struck all grounds concerning viola­
tion of the 14th Amendment to the Federal Constitution; 
after refusal to hear testimony on these grounds, a showing 
was admitted, stating in substance that no negroes, solely 
because of their race and color had ever served on grand 
juries in Jefferson County; that for the past 30 years none 
had ever served on grand juries in Jefferson County; that 
none were on the grand jury that indicted this petitioner, 
and only one negro was summoned each week for petit jury 
service in Jefferson County, while one hundred to one hun­
dred twenty-five white men were summoned. That there 
were about 80,000 negroes of age for jury service according 
to the last Federal Census of 1930; the trial judge also had 
common knowledge of these facts, all of which were incorpo­
rated in the bill of exceptions.

4. “ Whether or not the overruling of the 35th ground,of 
the last amendment of the motion for a new trial, the affirm­
ance of such ruling by the State Supreme Court, is not a 
denial of the constitutional rights of petitioner under due 
process and equal protection clauses of the 14th Amendment 
to the Federal Constitution?”

On motion for a new trial, a showing was offered, stating 
in substance that no negro had ever served on a Grand jury 
in Jefferson County, Alabama; that such exclusion was 
solely because of race, and none were on the Grand jury 
that returned the indictment against petitioner; at time of 
petitioner’s trial, 100 white jurors had been summoned and



13

only 1 negro; that there were over 80,000 negroes of age 
to serve as jurors; about 140,000 whites; that out of this 
number ten per cent of the whites were illiterate, and six­
teen per cent of the negroes were illiterate; there were in 
Jefferson County, Alabama, about 3,000 negro veterans, 
1,000 negro voters.

5. “ Considering these facts and figures, whether or not, 
petitioner, because of his race, has been denied equal protec­
tion of the laws guaranteed to all races in all states by 
the 14th Amendment to the Federal Constitution in respect 
to the ratio shown as to number of whites and negro jurors 
summoned for jury service on the trial of this cause ! ”

The trial court granted the State’s motion to strike from 
the original motion for a new trial (R. 84) grounds Nos. 19, 
20 and 21; for the reason that they were not proper grounds 
for a new trial; and to strike from the amendments all 
grounds predicated upon an alleged violation of defend­
ant’s constitutional rights under the 14th Amendment to the 
Federal Constitution. This action of the trial court was 
affirmed by the State Supreme Court on appeal, and con­
sidered by them in its opinion.

6. “  (a) Did this act by the trial court operate to deprive 
the trial court of jurisdiction to proceed to judgment and 
sentence of conviction, being in violation of the 14th Amend­
ment to the Federal Constitution!”

“ (b) If the trial court did not have jurisdiction to 
proceed to judgment of conviction, was not the affirmance by 
the Supreme Court of the sentence of death also without 
jurisdiction and void, as being violative of the 14th Amend­
ment to the Federal Constitution!”

7. “ Whether or not, Statutes Nos. 8637, 8630 and 5202, 
when used by the administrative officers of this State, to 
deny to this negro petitioner in his trial for his life, the right



14

to inquire into the formation of both grand and petit juries, 
as to the exclusion of negroes from both of these juries, 
solely because of their race, is unconstitutional and re­
pugnant to the 14th Amendment to the Federal Consti­
tution1?”

IV.

Reasons Relied On for Allowance of Writ.

Petitioner submits that the judgment of the Supreme 
Court of Alabama ought to be reviewed by the granting of 
the prayer of this petitioner for the issuance of the writ of 
certiorari to that end, for the following reasons :

1. For that the State of Alabama, acting through its 
agencies, the officers who arrested petitioner, while he was 
incarcerated in the City Jail of Birmingham, under City 
Ordinances 4901 and 4902, obtained from him confessions 
admitted in the trial of his cause over his objections, without 
allowing him benefit of counsel at the time of or before such 
alleged confessions were made; that such procedure while 
petitioner was unable to secure counsel for himself while in 
such enforced seclusion, is a violation of his rights under 
“ procedural due process”  as guaranteed by the 14th Amend­
ment to the Federal Constitution.

2. For that the administrative officers of the State of 
Alabama, acting under Statutes 8630, 8637 and 5202, ex­
cluded all negroes from the grand jury which returned the 
indictment on which he was tried, in violation of his constitu­
tional rights under the 14th Amendment.

3. For that the administrative officers of the State of Ala­
bama, acting under Statutes 8630, 8637 and 5202, sum­
moned so small a number of negroes for the petit jury on 
the trial of petitioner, a negro, as to be a virtual exclusion



15

of negroes from Petit Jury service, in violation of the 14th 
Amendment to the Federal Constitution.

4. For that the ratio of 1 negro to 100-125 white men, sum­
moned for jury service on the trial of this defendant, a 
negro, is not a compliance with the 14th Amendment to the 
Federal Constitution, when considered with all the facts 
shown in the evidence as to the number of negroes and 
whites eligible for jury service.

5. For that the Supreme Court of Alabama, affirming the 
judgment and sentence of the trial court, in striking from 
the amended motion for a new trial all grounds relating to 
the 14th Amendment as coming too late, is in direct conflict 
with the holdings of this Court as being a violation of the 
constitutional rights of petitioner under the 14th Amend­
ment.

6. For that the Supreme Court of Alabama, in holding 
that petitioner had waived his constitutional rights, acted 
in complete disregard of the decisions of this Court, whose 
holding is decisive of questions regarding the violation of 
constitutional rights under the 14th Amendment.

7. For that the holding of the Supreme Court of Alabama, 
that constitutional rights set up for the first time in an 
amended motion for a new trial, comes too late, is in direct 
conflict with the decisions of this Court.

8. For that if the State, applying no corrective process as 
to the violation complained of of the constitutional rights of 
petitioner, carries into execution the judgment of death 
based upon a verdict thus produced by a verdict in conflict 
with the 14th Amendment, the State deprives the accused of 
his life and liberty without due process of law.

9. For that the purpose of the constitutional guarantee 
of petitioner’s right to counsel, at all stages of prosecution,



16

from time of arrest until time of conviction, is to protect an 
accused from conviction resulting from his own ignorance 
of his legal and constitutional rights, the guarantee will be 
nullified by a determination that an accused’s ignorant fail­
ure to claim his rights removes the protection of the Con­
stitution.

10. For that the trial, conviction and sentence of pe­
titioner, under the circumstances here disclosed, will de­
prive him of his life and liberty without due process of law, 
in violation of the 14th Amendment.

11. Statutes 8530, 8637 and 5202, though valid on their 
face, when used by the administrative officers of the State, 
as a subterfuge to deny to this petitioner his constitutional 
rights under the 14th Amendment, by the virtual exclusion 
from both grand and petit juries of negroes, solely because 
of their race, denies to him due process and equal protection 
of the law under the 14th Amendment to the Federal Con­
stitution.

12. For that the Court’s jurisdiction in the beginning was 
lost “ in the course of proceedings”  due to failure of both 
the trial court and the Supreme Court of Alabama, to com­
ply with all the requirements of the 14th Amendment to the 
Federal Constitution.

13. For that the action of the trial court, in its failure to 
quash the indictment and give to defendant a new trial, was 
an abuse of the discretion reposed in him by law, in this: 
that the court well knew from common knowledge, and the 
showing of the witnesses produced on motion for new trial 
and placed in the bill of exceptions, that there is an almost 
continual violation of the 14th Amendment to the Federal 
Constitution in the exclusion of negroes from the grand 
jury, and a virtual exclusion of them from petit juries in 
cases in which negroes are defendant, and denied to this



17

petitioner the equal protection of the law and due process 
of law under the 14th Amendment.

14. For that the procedure in Alabama, under Code Sec­
tions enumerated in Reason No. 3, prohibits objections to be 
made to the formation of both grand and petit juries, ex­
cept for reasons not germane to the instant case, the holding 
of the Supreme Court, that by failure to plead in abatement, 
such objection to both grand and petit juries was a waiver 
of his constitutional rights under the 14th Amendment to 
the Federal Constitution, is a denial to petitioner of due 
process and equal protection of the law under the 14th 
Amendment.

Prayer for Relief.

Wherefore, your petitioner prays the allowance of the 
Writ of Certiorari to the Supreme Court of Alabama, to 
the end that the judgment of that Court, affirming the judg­
ment of the Circuit Court for the Tenth Judicial Circuit of 
Alabama, in this cause, may be reviewed by this Court, and 
that upon such review the same may be reversed and that 
such other proceedings may be had and taken in this cause 
as shall give relief to petitioner in the premises.

Respectfully submitted,
W alter S. S m it h , 
Counsel for Petitioner.

Cora R. T hompson-,
Of Counsel.



18

APPENDIX.

Sections of Code of Alabama of 1923.

Sec. #3258. Assignment or joinder of error unneces­
sary; duty of court.—In cases taken to the Supreme Court 
or Court of Appeals under the provisions of this chapter, 
no assignment of errors or joinder in errors is necessary; 
but the court must consider all questions apparent on the 
record or reversed by bill of exceptions, and must render 
such judgment as the law demands. But the judgment of 
conviction must not be reversed because of error in the 
record, when the court is satisfied that no injury resulted 
therefrom to the defendant.

Sec. #5202. Objections to indictment for defect in grand 
jury; when not available; exceptions.—No objection can be 
taken to an indictment, by plea in abatement or otherwise, 
on the ground that any member of the grand jury was not 
legally qualified, or that the grand jurors were not legally 
drawn or summoned or on any other ground going to the 
formation of the grand jury, except that the jurors were 
not drawn in the presence of the officers designated by law; 
and neither this objection nor any other can be taken to the 
formation of a special grand jury summoned by the direc­
tion of the court.

Sec. 8630. Objections to indictments; how taken.—No ob­
jection to an indictment on any ground going to the forma­
tion of the grand jury which found the same can be taken to 
the indictment, except by plea in abatement to the indict­
ment ; and no objection can be taken to an indictment by plea 
in abatement except upon the ground that the grand jurors 
who found the indictment were not drawn by the officer des­
ignated by law to draw the same; and neither this objection, 
nor any other, can be taken to the formation of a special 
grand jury summoned by the direction of the court.

Sec. 8637. No objection except for fraud in drawing.— 
No objection can be taken to any venire of jurors except for 
fraud in drawing or summoning the jurors.



19

Code of the City of Birmingham.

(Arrest without warrant.)
Section 4901. Arrest by police officers for offenses 

against law of State. The Chief of Police or any policeman 
of the City has authority and it is his duty to make arrest, 
for offenses against the laws of the State in all cases where 
such authority is now or shall hereafter be conferred on 
such officers by the law of the State, and in making such ar­
rests, whether with or without a warrant, they shall have all 
the authority conferred and be subject to all the duties im­
posed upon such officer, by the laws of Alabama, in existence 
now or that may hereafter be enacted.

Sec. 4902. It is the duty of the Chief of Police and of 
every policeman, to arrest without warrant any person 
whom he has probable cause to believe guilty of the viola­
tion of any law or ordinance of the City of Birmingham; any 
person found drunk on the public streets or in any public 
place in the city; and any person found under suspicious 
circumstances who fails to give a satisfactory account of 
himself. Said officers have authority to enter any house, 
enclosure, or other place in which they have reason to be­
lieve that any person is committing, or about to commit a 
violation of the City laws.

Section 8952 (14) Code of Alabama 1923.
Persons eligible for jury roll. The Jury board shall place 

on the jury roll and in the jury box the names of all male 
citizens of the county who are generally reputed to be honest 
and intelligent men and are esteemed in the community for 
their integrity, good character and sound judgment; but no 
person must be selected who is under twenty-one or over 
sixty-five years of age or who is an habitual drunkard, or 
who, being afflicted with a permanent disease or physical 
weakness is unfit to discharge the duties of a juror; or can­
not read English or who has ever been convicted of any of­
fense involving moral turpitude. If a person cannot read 
English and has all the other qualifications prescribed here­
in and is a free holder or householder his name may be 
placed on the jury roll and in the jury box. (1931, p. 59)

4c





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1940

No. 449

JOE VERNON,

vs.
Petitioner,

THE STATE OF ALABAMA.

BRIEF AND ARGUMENT IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI.

I.

Opinions of the Courts Below.

There was no opinion rendered by the trial court re­
lating to petitioner other than sentence according to law. 
A copy of the opinion rendered by the Supreme Court of 
Alabama has been placed in the appendix to the petition 
for writ of certiorari. No opinion was rendered by the 
Supreme Court of Alabama on the petition for re-hearing 
other than that it was overruled (R. 113). This opinion 
has been reported in Southern Reporter Advance Sheets.



2 2

II.

Jurisdiction.

A. The Supreme Court of Alabama made its order deny­
ing the petition for a re-hearing on the 21st day of May, 
1940 (R. 113), and made its order for execution of peti­
tioner. Thereafter, on petition of counsel for petitioner, 
a stay was granted for a period of 90 days (R. 114) to 
file this petition for writ of certiorari to this Court; the 
date of execution being set August 30th, 1940. That on 
August 21st, 1940, a stay of 30 days was granted to peti­
tioner by Mr. Justice Black, to file this petition.

B. The jurisdiction of this Court is invoked pursuant 
to the provisions of Chap. 229, 43 Stat. 936, Sec. 237 (a) 
and (b), and Sec. 240 (a), of the Judicial Code of the 
United States, as amended by the Act of February 13th, 
1925, also Act of March 8th, 1934, and rules of Practice 
and Procedure of the Supreme Court of the United States 
(Rules 12, 27 and 38), after verdict of finding of guilt, in 
criminal cases.

C. That the holding of the Supreme Court of Alabama, 
and the trial court, is contra to the holding of this Court 
on the following Federal question, guaranteed under the 
14th Amendment to the Federal Constitution:

1. Violations of procedural due process of law.

2. Violations of equal protection of the law.

3. That under construction of certain State statutes, 
Nos. 8630, 8637 and 5202, defining the qualifications of 
jurors, which statutes though valid on their face, through 
the administrative officers of the State, negroes are being 
denied their constitutional rights, guaranteed under due



23

process and equal protection clauses of the 14th Amend­
ment to the Federal Constitution.

4. There was no fair impartial trial in the lower court 
in this: that the striking of the grounds of the amended 
motion for a new trial relating to constitutional questions, 
was an abuse of the discretion vested in the trial court by 
law, and such judgment was an arbitrary action and in the 
face of the recent decisions of this Court on these same 
Federal questions, a denial of due process, which this Court 
has the power to review.

5. The State courts misconceived the principles that 
underlie the claims of the Federal Constitutional rights; 
its rulings, affirming of the admission of illegally obtained 
confessions, striking the grounds of the amended motion 
for a new trial, holding that petitioner had waived his 
constitutional rights, that same should have been set up 
by plea in abatement; and denying the petition for a re­
hearing, pointing out to the Supreme Court of Alabama its 
errors insofar as they were in conflict with the decisions of 
this Court on Federal questions, and denying that certain 
statutes (set out by number in Paragraph 3 of Section C 
of this brief) are used by the administrative officers of this 
State to continuously avoid the prohibitions of the 14th 
Amendment to the Federal Constitution; such errors are 
reviewable by this Court, and it is the duty of this Court 
to see not only that petitioner’s constitutional rights were 
not denied in express terms, but also whether they were 
denied in substance and effect.

6. That the trial court and subsequently the State Su­
preme Court lost jurisdiction “ in the course of proceed­
ings”  due to failure to comply with all the requirements 
of the 14th Amendment to the Federal Constitution; and 
the illegal conviction and sentence of petitioner under such



24

circumstances, deprives him of his liberty and life without 
due process of law, which circumstances it is the duty of 
this Court to examine and correct.

7. That this Court, under its power of review, must see 
that State action, whether through one agency or another, 
shall be consistent with the fundamental principles of lib­
erty and justice which lie at the base of all our civil laws 
and institutions and which are infrequently designated as 
“ law of the land.”

I I I .

Statement of the Case.

On September 15th, 1938, petitioner went with two rail­
road detectives to Alton, Alabama, to hunt for a negro. 
On their return petitioner was handed over to two city 
officers, who placed him in the Birmingham City jail under 
Ordinances No. 4901 and No. 4902 (See Appendix to petition 
for writ of certiorari for full text) without a warrant. He 
was held there, in absolute seclusion, for about two weeks. 
During which time he was taken in and out of the jail, by 
day and by night, by officers, questioned repeatedly (R. 
35-37, witness Bullard), abused by violence, and threatened 
from day to day. During which time he was said to have 
confessed to many crimes.

The State claims he made three confessions to the un­
lawful homicide of Bennie Montgomery, a white man. The 
first being made to A. B. Reece which petitioner denies. 
Petitioner states that he was forced to copy from a state­
ment written by an officer, which he at first refused to sign, 
but after being taken in and out of the jail several times, 
did finally sign, to avoid further violence. The third was 
given in answer to questions at the Solicitor’s office, which 
was not signed, surrounded by six officers (B. 48, cross- 
examination witness Dickinson). That he and one L. C.



25

Bell, accused also of same crime, were taken to the place 
of the homicide and forced to go through what the officers 
termed the “ commission of the crime.”  That this was not 
of his own volition, but was forced on him (R. 60-61, 
testimony of Joe Vernon), through fear from threats and 
violence. Detectives admitted taking him in and out of 
jail, day and night, questioning him repeatedly, and claimed 
that they were hunting some jewelry which had been stolen 
from hoboes, but denied violence. However, three doctors 
were hired by the Police Commissioner of the City of 
Birmingham to go to the City Jail and see these men so 
that they could testify that there were no marks of violence 
on them (R. 72-75). They testified that Mr. Connor (Police 
Commissioner) wanted to be sure of this (R. 74). These 
doctors admitted on cross-examination that at the time 
they examined petitioner, that if there had been any marks 
on him, they would have been gone by the time they exam­
ined him (R. 73, witness Dr. Harris). The clothes that 
he was arrested in were exhibited to the jury and court, 
showing blood stains; petitioner claims that he was whipped 
with green switches, some teeth broken off, and other in­
juries (R. 60-64). Several other persons, before the arrest 
of this petitioner, had been arrested for, and confessed also, 
to the killing of this same person. One of the confessions 
of petitioner alleges that the gun was discharged during 
a scuffle. The testimony fails to mention any powder burns 
either on body of deceased or his clothes. After these con­
fessions were made, petitioner was transferred to the Jef­
ferson County Jail; an indictment was returned against him 
charging him with the unlawful killing of one Bennie Mont­
gomery, a white man, by shooting him with a pistol. The 
grand jury that returned this indictment was composed 
solely of white men (R. 86) showing offered of testimony 
of Herbert Atkinson, Foreman of Grand Jury returning 
indictment, Ed Newman, Bailiff in charge of juries, and



26

Charlie Hill, Grand Jury Reporter. On the trial objection 
was made to admission of confessions which was overruled; 
defendant was the only witness in his behalf; he denied the 
charges. The Solicitor also claimed that because the Bible 
of petitioner showed that it had been read at certain pas­
sages that those certain passages on those pages indicated 
confession of his guilt; after conviction, motion was made 
for a new trial, in which were set up specific violations of 
the 14th Amendment (R. 11-16); two amendments were 
made to the motion, enlarging these charges: on motion of 
the State, all of the grounds of the amended motion were 
stricken regarding violations of the 14th Amendment to 
the Federal Constitution, because it was claimed Federal 
constitutional questions were not the proper grounds of 
a motion for a new trial, and the question of violation of 
certain constitutional questions came too late; these mo­
tions of the Solicitor were sustained (R. 85), proper ex­
ceptions were taken separately and severally, and later 
assigned as assignments of error to the State Supreme 
Court. (See jurisdictional statement of petition for cer­
tiorari.) Petitioner also excepted to the overruling of 
the motion for new trial (R. 87) which also was assigned 
as an assignment of error. (See jurisdictional statement of 
petition for writ of certiorari). All the grounds of the 
motion for a new trial were placed in the bill of exceptions 
and assigned as grounds of error, separately and severally; 
the judgment and sentence of the trial court was affirmed 
by the Supreme Court of Alabama (R. 99) ; petition for 
rehearing filed (R. 108-112) pointed out specifically that the 
holding of the Supreme Court was in direct conflict with 
the cases of Chambers, et al. v. Florida, 84 L. Ed. 419; 
Pierre v. Louisiana, 306 U. S. 354; Brown v. Mississippi, 
297 U. S. 587; Johnson v. Zerbst, 82 L. Ed. 1461; Powell 
v. Alabama, 77 L. Ed. 158; and that the reversal in each 
of these cases was identical with assignments of error in



27

the instant case. Petition for rehearing was overruled 
May 21st, 1940 (R. 108, 3rd ground); (R. 109-110, grounds 
4, 5, 6, 7 ); (R. 110, ground 4, 8 and 9 ); (R. 111-112, 
grounds 10, 11 and 13).

IV.

Assignments of Error.

1. The State Supreme Court erred in holding that the 
trial court was correct in its action in striking grounds 19, 
20 and 21 of the original motion for a new trial (R. 11), 
“ for the reason that said grounds constitute no proper 
grounds for a new trial, and for the further reason that it 
is too late to raise the matters asserted in said grounds for 
the first time in a motion for a new trial. Said action being 
made the basis of assignments of error Nos. 81, 83 and 84 
respectively (R. 98) the assignments of error reading as 
follows:

81. For that the court erred in granting the State’s 
oral motion to strike ground 19 of defendant’s original 
motion for a new trial.

83. For that the court erred in granting the State’s 
oral motion to strike ground 20 of defendant’s original 
motion for a new trial.

84. For that the court erred in granting the State’s 
oral motion to strike ground 21 of the defendant’s 
original motion for a new trial.

2. The State Supreme Court erred in holding that the 
trial court was correct in its action in granting the State’s 
oral motion in striking ‘ ‘ all grounds in the amendments to 
the original motion for a new trial, having reference to 
and pertaining to defendant’s right under the 14th Amend­
ment to the Federal Constitution”  (R. 98), said ruling being 
made the basis of assignment of error No. 82 (R. 98). The 
assignment of error is as follows:



2 8

82. For that the Court erred in granting the State’s 
oral motion to strike defendant’s amendments to said 
original motion for a new trial, or rather striking there­
from all grounds having reference to and pertaining to 
defendant’s rights under the 14th Amendment to the 
Federal Constitution.

3. The State Supreme Court erred in affirming the action 
of the trial court in overruling ground No. 22 of the 1st 
amendment to the motion for a new trial (R. 12-13) which 
ground is in substance that the admission in evidence of the 
confessions, over the timely objections of defendant, were 
in violation of the 14th Amendment to the Federal Consti­
tution ; this action of the court was made the basis of assign­
ment of error No. 60 (R. 98), the assignment of error read­
ing as follows:

For that the court erred in overruling that portion 
of defendant’s motion for new trial as first amended as 
embraced in ground 22.

4. The Supreme Court erred in holding that the action 
of the trial court was correct in overruling ground No. 24 
(R. 13) of the first amendment to the motion for a new trial, 
and assigned as assignment of error No. 62 (R. 96). The 
assignment of error reading as follows :

For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended 
as embraced in ground No. 24.

5. The Supreme Court erred in holding that the action of 
the trial court was correct in overruling ground No. 25 
(R. 13) of the first amendment to the motion for a new trial, 
and assigned as assignment of error No. 63 (R. 96). The 
assignment of error reading as follows:

For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended 
as embraced in ground No. 25 (R. 96).



29

6. The Supreme Court erred in holding that the action of 
the trial court was correct in overruling ground No. 33 (R. 
14) of the first amendment to the motion for a new trial, 
which is as follows:

For that the defendant was denied the equal protec­
tion of the law, guaranteed him by the 14th Amendment 
to the Constitution of the United States, in that the 
defendant being a colored man is entitled, that in the 
selection of jurors to pass upon his life, liberty or prop­
erty, that there shall be no exclusion of his race, and no 
discrimination against them because of their color; for 
that in the instant case in the selection of jurors to pass 
upon his life this defendant was denied the opportunity 
of a selection of any member of his own race, solely on 
account of their race.

Said ground being made the basis of assignment of error 
No. 71 (R. 97), the assignment reading as follows:

For that the court erred in overruling that portion 
of defendant’s motion for a trial as first amended as 
embraced in ground No. 33.

7. The Supreme Court erred in holding that the trial 
court was correct in overruling ground No. 34 of the first 
amendment to the motion for a new trial (R. 14), which 
reads as follows:

For that the number of negroes drawn on petit juries 
and those drawn on the instant jury are not sufficient to 
afford this defendant the equal protection of the laws 
guaranteed him by the 14th Amendment to the Consti­
tution of the United States.

Said ground being made the basis of assignment of error 
No. 72 (R. 97), the assignment reading as follows:

For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended 
as embraced in ground No. 34.



30

8. The Supreme Court of Alabama erred in holding that 
the trial court was correct in overruling grounds No. 35 
of the first amendment to the motion for a new trial (R. 14), 
which reads as follows :

For that the records relating to the grand jury, grand 
jury service, and the grand jurors who returned the in­
dictment show that there were no negroes on the grand 
jury that returned this indictment as guaranteed him 
under the 14th Amendment to the Constitution of the 
United States.

This ground was made the basis of assignment No. 73 (R. 
97), which reads as follows:

For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended 
as embraced in ground No. 35.

9. The Supreme Court of Alabama erred in holding that 
the trial court was correct in overruling ground No. 36 of 
the first amendment to the motion for a new trial (R. 14), 
which reads as follows :

For that in excluding negroes from the grand juries 
of this county, is in fact creating a denial of the equality 
of rights and is a discrimination against this defendant, 
a negro, hence is a denial of the equal protection of the 
laws of the United States, guaranteed him by the 14th 
Amendment to the Constitution of the United States.

This ground was made the basis of assignment No. 74 (R. 
97), and reads as follows :

For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended 
as embraced in ground No. 36.

10. The Supreme Court erred in holding that the trial 
court was correct in overruling ground No. 37 of the first



31

amendment to the motion for a new trial (R. 14), which 
reads as follows:

For that the number of negroes drawn on grand 
juries, is in fact a denial of their rights to equal pro­
tection of the laws guaranteed by the 14th Amendment 
to the Constitution of the United States.

Said ground being made the basis of assignment of error 
No. 75 (R. 97) and reads as follows :

For that the court erred in overruling that portion 
of defendant’s motion for a new trial as first amended 
as embraced in ground No. 37.

11. For that the Supreme Court of Alabama erred in 
holding that the trial court was correct in overruling ground 
No. 38 (R. 14-15) of the first amendment to defendant’s 
motion for a new trial which reads as follows:

For that, the defendant, being a negro and indicted 
for the murder of a white man; that at least one-third 
of the population of the county from which the grand 
and petit juries were drawn were members of the negro 
race, and that the general venire contained no names 
of negroes when the grand jury that indicted petitioner 
was drawn; or that there were so few as to a denial of 
the rights of petitioner when considered in conjunction 
with the number of negroes and the number of white 
people drawn on the venire or the number that ought 
to have been drawn to preserve a proper ratio to be a 
compliance with the 14th Amendment of the United 
States Constitution, and that the State officers, charged 
by law with the duty of providing names for the general 
venire had ‘ had deliberately excluded therefrom, or so 
small a number had been drawn as to be an exclusion 
of any negroes qualified to serve as grand or petit 
jurors, and had done so systematically, unlawfully, and 
unconstitutionally for a long period of time, solely and 
only because of their race and color’, was denied the



32

equal protection of the law guaranteed him by the 14th 
Amendment to the Constitution of the United States.

Which ground was made the basis for assignment of error 
No. 76 (R. 97), the assignment reading as follows:

For that the court erred in overruling that portion 
of the defendant’s motion for a new trial as first 
amended as embraced in ground No. 38.

12. The Supreme Court of Alabama erred in holding that 
the trial court was correct in overruling ground No. 35, of 
the amendment to defendant’s motion as amended for a 
new trial as embraced in ground 35 (R. 14) which reads as 
follows:

For that the court ex mero motu should have entered 
a mistrial, as it is the duty of the court, as an officer of 
the State, to see that the 14th Amendment to the Con­
stitution of the United States, is obeyed.

Which ground was made the basis of assignment of error 
No. 80 (R. 98), the assignment reading* as follows:

For that the court erred in overruling that portion 
of the amendment to defendant’s motion as amended 
for a new trial as embraced in ground No. 35.

13. The State Supreme Court erred in holding that the 
trial court committed no error in admitting in evidence 
three confessions illegally obtained while petitioner was 
confined in the Birmingham city jail, in this: that it is ap­
parent on the face of the record that petitioner did not have 
benefit of counsel before or' at the time these confessions 
were obtained.

14. The State of Alabama, acting by and through its ad­
ministrative agencies, i.e., the trial court and the Jury Com­
mission, have so administered Statutes Nos. 9630, 8637 and



33

5202 (Code of Alabama of 1923) as to deny petitioner bis 
constitutional right under the 14th Amendment to the Fed­
eral Constitution, in this way: that through these statutes 
the trial court and the jury commission excluded all negroes, 
solely because of their race, from the grand jury that re­
turned this indictment and from the petit jury that tried 
this petitioner; petitioner, being a negro, was thus denied 
due process and equal protection of the law under the 14th 
Amendment; in the affirmance of the judgment and sentence 
of the trial court, the Supreme Court of Alabama committed 
error, and thus denied petitioner his rights.

15. The State Supreme Court erred in overruling the 
petition for a rehearing wherein it was specifically pointed 
out that the holding of the State Supreme Court, in respect 
to the Federal questions involved in the instant case, was 
in direct conflict with this Court, in the following cases:

Powell v. Alabama, 77 L. Ed. 158, 53 Sup. Ct. Eep. 55;
Pierre v. Louisiana, 406 U. S. 354;
Brown v. Mississippi, 297 U. S. 278;
Isiah Chambers et al. v. Florida, 84 L. Ed. 419-476;
Norris v. Alabama, 294 U. S. 587-590.

16. The State Supreme Court erred in affirming the judg­
ment and sentence of the trial court, in this: the affirmance 
of the judgment and sentence by the Supreme Court failed 
to afford the safeguard of that due process and equal pro­
tection of the law guaranteed petitioner by the 14th Amend­
ment to the Federal Constitution.

17. The State Supreme Court erred in holding that peti­
tioner had waived his constitutional rights by failing to file 
a plea in abatement in respect to the violation of his con­
stitutional rights under the 14th Amendment.



34

V.

Specification of Errors.

Petitioner hereby adopts, and makes a part of this brief, 
the assignments of errors which have been set out in the 
preceding Section IY as his Specification of Errors.

VI.

Summary of Argument.

A. The admission in evidence of three confessions in the 
instant case was a denial to petitioner of procedural due 
process of law, and in violation of the due process and equal 
protection clauses of the 14th Amendment to the Federal 
Constitution, for the reason that:

(1) It is apparent on the face of the record that neither 
before nor at the time said confessions were made was peti­
tioner allowed the advice of counsel, which is a denial of 
procedural due process of law.

(2) It is the duty of the Supreme Court, in criminal cases, 
to search the record for errors neither assigned nor argued 
(Statute No. 3258, Code of Ala. 1923); having done so, and 
knowing from the record that that is true, it was their duty 
to hold the confessions inadmissible, and the trial court in 
error in its rulings in the admission in evidence of these 
confessions; failure to do so is a denial to petitioner of due 
process and equal protection of the law under the 14th 
Amendment.

B. Whether or not violations of constitutional rights 
under the 14th Amendment can be set up for the first time 
in a motion for a new trial and the amendments thereto.

C. Whether or not statutes Nos. 8630, 8637 and 5202, Code 
of Alabama of 1923, though valid on their face, are uncon­



35

stitutional in trials of negroes, when, under these statutes, 
no objection can be taken by motion or plea in abatement 
to the formation of either grand or petit juries, and thereby 
through such unconstitutional exercise of authority the ad­
ministrative officers of the State, exclude all negroes from 
grand juries, and petit juries, or include so small a number 
on petit juries as, in comparison to the number of white 
jurors summoned, constitute a virtual exclusion of negroes 
from petit juries.

D. The judgment and sentence of the trial court is void, 
for lack of jurisdiction, for the reason that:

(1) The trial court, during the course of the trial, ad­
mitted in evidence three confessions illegally obtained from 
petitioner without allowing him benefit of counsel before or 
at the time they were given, which is in violation of the 14th 
Amendment to the Federal Constitution.

(2) The action of the trial court in striking grounds 19, 
20 and 21 of the original motion for a new trial, and in 
striking from the amendments thereto all grounds pertain­
ing to the 14th Amendment to the Federal Constitution, is 
in violation of the 14th Amendment and to the rulings of 
this Court on the identical Federal questions; therefore, it 
was without jurisdiction in the matter and the overruling 
of the motion for a new trial was void for want of jurisdic­
tion for the same reason.

(3) The judgment and sentence of the State Supreme 
Court affirming the judgment and sentence imposed by the 
trial court was void for the reason that (a) the Supreme 
Court lost jurisdiction in affirming the void actions of the 
trial court set out in Paragraphs D-l and D-2 of the sum­
mary of argument; (b) the Supreme Court lost jurisdiction 
in overruling the petition for a re-hearing wherein it was 
specifically pointed out to them that their rulings in affirm­



36

ing the action of the trial court in respect to the motion for 
new trial, the admission of the confessions, and their own 
opinions rendered in the instant case, was contra to the 
identical questions heretofore held by this Court in certain 
specific cases, which cases were pointed out to them by name, 
book and page in the petition for rehearing. (3) As these 
rulings relate to violations of the 14th Amendment in re­
spect to due process and equal protection of law the State 
Supreme Court was without jurisdiction for failure to fol­
low the holdings of this Court in respect to the identical 
questions set up in the instant case.

VII.

Propositions of Law.

1. The action of the trial court in striking from the motion 
for a new trial as amended all grounds pertaining to the 
violation of the 14tli Amendment (on motion of Solicitor) 
and the affirming of this action of the trial court by the State 
Supreme Court, as shown by the record, is a denial of due 
process and equal protection of the law under the 14th 
Amendment to the Federal Constitution and subject to re­
view by this Court on writ of certiorari. (Assignments of 
error 1 to 10 inclusive.)

Powell v. Alabama, 77 L. Ed. 158, 53 Sup. Co. Eep. 55;
Cincinnati P. B. Co. v. Bay, 50 Fed. 428-433;
Farmers Marine v. Dobney, 189 U. S. 301;
Patterson v. Alabama, 294 U. S. 600, 55 Sup. Ct. Rep.

575;
Gulf C. & F. Co. v. Dennis, 56 Fed. 860-862, 22 U. S. 503;
Norris v. Alabama, 294 U. S. 587;
Wade v. Alabama, 93 U. S. 97.

2. The trial court, by the admission of three confessions 
in evidence, and the affirmance of this holding of the trial



37

court by the State Supreme Court, failed to afford the safe­
guard of that due process and equal protection of the law, 
guaranteed by the 14th Amendment to the Federal Consti­
tution; such action is subject to review by this Court on 
writ of certiorari. (Assignments of error No. 3.)

Revised Rules of Supreme Court of U. S., Rule 38, Sec.
5 ( a )  (b);

Isiah Chambers et al. v. State of Florida, 98 L. Ed.
419-476.

3. While discretionary actions by a trial court and State 
Supreme Court are not subject, ordinarily, to interference 
by an Appellate Court; when such action is not one of con­
scientious judgment, but an arbitrary judgment and known 
by these courts to be in conflict with the well-known de­
cisions of this Court, of Federal questions; when such judg­
ments and sentences are shown on petition for writ of cer­
tiorari to be a denial of the due process and equal protec­
tion of the law under the 14th Amendment, this Court will, 
in the exercise of its sound discretion, see for itself by inde­
pendent inquiry whether or not the judgments and sentences 
so imposed are a denial of that due process of law and equal 
protection prescribed by the 14th Amendment, and will de­
termine for itself what justice requires. (Assignments of 
Errors 1 to 12 inclusive.)

Patterson v. Alabama, 294 U. S. 600;
Foster v. U. S., 82 L. Ed. 700;
Norris v. Alabama, 79 L. Ed. 1076;
James Bunca v. U. S., 77 L. Ed. 266;
Langnes v. Green, 282 U. S. 531-541;
Virginia v. Rives, 100 U. S. 313-319;
Powell v. Alabama, 77 L. Ed. 158;
Chicago I. R. & Pr. Co. v. Burns, 294 U. S. 648;
Continental Natl. Bank v. Chicago, 55 Sup. Ct. 595;
Sugarman v. U. S., 249 TJ. S. 182;



38

Neal v. Delaware, 103 U. S. 370;
Vandalin R. R. Co. v. Indiana, 207 U. S. 359;
Carpenter v. Pennsylvania, 15 L. Ed. 127;
First Natl. Rk. v. Kentucky, 45 L. Ed. 701; 45 L. R. A. 

577—Note;
The Styrias v. Morgan, 186 U. S. 1, 9.

4. The trial court, through its rulings in the course of the 
trial of this petitioner, and the State Supreme Court, 
through its affirmance of the judgment and sentence of the 
trial court, lost jurisdiction of the cause; the judgments and 
sentences so rendered by them are void. (Assignments of 
Errors 15, 16.)

Frank v. Mangum, 237 U. S. 327;
Re Neilson, 131 U. S. 176;
Johnson v. Zerbst, 304 U. S. 468;
Moore v. Dempsey, 261 U. S. 86;
Mooney v. Holohcm, 28 Fed. 542;
Re Siebold, 100 U. S. 371, 25 L. Ed. 717;
Ex Parte Royall, 117 U. S. 241.

5. It is open to the Supreme Court of the United States 
upon application for a writ of certiorari to look beyond 
forms and inquire into the very substance of the matter 
thus presented; so, where a Federal question is involved, 
the Supreme Court of the United States can review a de­
cision of a State court with respect to a question arising 
under the Constitution of the United States. (Assignment 
of Error No. 11.)

Norris v. Alabama, 79 L. Ed. 1076, 63 L. R. A. 571-682;
Hebert v. Louisiana, 272 U. S. 465;
Republican River R. Co. v. Kansas P. R. Co., 92 U. S. 

315;
Frank v. Manguy, 237 U. S. 330, 63 L. R. A. p. 576— 

notes;
Moore v. Dempsey, 261U. S. 86;



39

Mooney v. Holohan, 28 Fed. 542;
Re Neilson, 131 U. S. 176;
Carter v. Texas, 177 U. S. 442;
Rogers v. Alabama, 912 U. 8. 226, 231;
Gibson v. Mississippi, 162 U. S. 565.

6. Exclusive from grand jury or petit jury service on ac­
count of race is forbidden by the 14th Amendment to Fed­
eral Constitution. (Assignments of Errors Nos. 1, 2, 3, 4, 
5, 6, 7, 8, 9, 10,11,12 and 14).

Strauder v. West Virginia, 100 U. S. 303-8-9;
Carter v. Texas, 177 U. S. 442, 447;
Martin v. Texas, 200 U. S. 316, 319;
U. 8. C. Title 8, Sec. 44;
Hale v. Kentucky, 303 IT. S. 613;
Norris v. Alabama, U. S. 587, 689;
Neal v. Delaware, 103 U. S. 370, 397.

7. The trial, conviction and sentence of petitioner, under 
the circumstances here disclosed, will deprive him of lib­
erty, and life, without due process of law in violation of the 
14th Amendment to the Federal Constitution. (Assignment 
of Error No. 16).

Twining v. New Jersey, 211 U. 8. 78;
Johnson v. Zerbst, 304 U. S. 457;
People v. Rogers, 136 N. W. 479;
People v. Prestidge, 148 N. W. 347;
Ziang Sun Wan v. U. 8., 266 U. S. 1, 16.

8. The 14th Amendment was intended to make secure 
against State invasion of all rights, privileges and immu­
nities protected from Federal violation by the Bill of Rights 
(Amendments I to VIII.) Assignment of Error No. 14.

Strauder v. West Virginia, 100 U. S. 303-8-9;
Norris v. Alabama, 294II. 8. 587, 589;
Neal v. Delaware, 103 U. 8. 370, 397;
Hale v. Kentucky, 303 U. S. 613, 616.



40

9. Under the law of the State of Alabama there can be no 
waiver of constitutional rights in respect to the formation 
of grand or petit juries; and if this Court is reasonably sat­
isfied that this petitioner has not intentionally and intelli­
gently waived his rights to due process and equal protection 
under the 14th Amendment, the judgments and sentences 
are void as they are a denial of his rights under the 14th 
Amendment to the Federal Constitution. (Assignment of 
Error No. 17).

Johnson v. Zerhst, 304 U. S. 457.

10. Constitutional questions are seasonably preserved 
for consideration by this Court when they are set up for the 
first time in the amended motion for a new trial; passed on 
by the trial court; assigned as grounds of assignments of 
error; also placed in the bill of exceptions; shown by the 
record and the opinion of the State Supreme Court as hav­
ing been considered and decided by that Court.

Powell v. Alabama, 77 L. Ed. 158, 53 Sup. Ct. Eep. 55;
Farmers & Merchants Ins. Co., v. Dobney, 189 U. S. 301;
Cincinnati P. B. Co., v. Bay, 50 Fed. 432;
Wade v. Alabama, 93 S 75;
Whitney v. California, 71 Fed. 1095, 274 U. S. 356-7;
First Natl. Bank v. Kentucky, 19 L. Ed. 701;
Citizens Bank v. Owensboro, 173 U. S. 636;
Carpenter v. Pennsylvania, 15 L. Ed. 127;
Hamilton Mfg. Co. v. Mass., 18 L. Ed. 904, 63 L. E. A.

571-582.



41

BRIEF AND ARGUMENT.

Proposition I.

The principles of law which will be discussed under this 
proposition were presented to this Court in Assignment of 
Error No. 1.

The court by its ruling impliedly conceded that the suf­
ficiency of the grounds set up were well stated. The sole 
question being, were they proper grounds and were they 
too late.

For a proper understanding of these questions, it will 
be necessary here to make a brief summary of the jury sys­
tem and the procedure of trying capital criminal cases in 
Alabama.

One week in every month, the Clerk of the Circuit Court 
sets a certain number of capital criminal cases for a specific 
date; about two weeks before the trial is set, defendants 
are arraigned before one of the Judges of the Circuit Court; 
at this time defendants file any pleadings which they or their 
counsel may desire; then plead to the merits of the indict­
ment.

On the day of trial, usually Monday, all cases set for that 
week, are set down for a day special during the week, to be 
heard; on the calling of the case, all pleadings are heard and 
ruled on ; the court then sends the Bailiff for the jury box 
containing venire from which the jury is to be selected. In 
the instant case, the trial being had on a Monday, the pe­
titioner had no opportunity to know who had been sum­
moned on this jury, as the jury is empanelled in one room 
while the docket is being called in another. In this State, 
we have a secret jury. It is a misdemeanor for any one to 
make public who has been summoned for either petit juries 
or on the grand jury. So, at the time the defendant is re­
quired to plead to the merits, or file other pleas, he does not



42

know who has been summoned and whether or not any ne­
groes have been summoned. So then the time for pleading 
having passed, how then, and when could he set up the viola­
tion of his constitutional rights ? Shall he pre-suppose that 
the officers whose duty it is to supply juries will violate the 
law? Certainly not—the law presumes that all officers will 
do their duty. What opportunity did the defendant have to 
present this matter to the trial court before the motion for a 
new trial ? If pleadings had been filed during the trial, they 
would most assuredly have been overruled, as time for 
pleading had passed.

‘ ‘ A  waiver ’ ’ has been defined to be “  a voluntary and in­
tentional relinquishment of or abandonment of a known ex­
isting legal right, advantage, benefit, claim or privilege, 
which, except for such waiver, the party would have en­
joyed.”  Could the petitioner have been heard in court to 
say “ that he was afraid that the officers charged by law 
with the duty of providing jurors would fail in their duty ? ’ ’ 
Such an allegation would he an absurdity. Hence, we say 
there could have been no waiver by this defendant, as so far 
as it was known, there was no injury at this time that he 
knew of.

If the trial court was correct then, the State, by statutory 
procedure, has narrowed and abridged the mandates of the 
Constitution—then there need be no further argument, as 
this would be an admission of the violation of the 14th 
Amendment, hence the ruling of the trial court and State 
Supreme Court would be erroneous, and on a Federal ques­
tion, subject to review by this Court.

On questions of violation of Federal rights, the decisions 
of this Court are supreme. To this Court is given the 
solemn duty, to see to it that there are no invasions by 
States, the Federal Government, or any other legal body, 
called by whatever name they choose, the rights of the



43

people placed in the 14th Amendment to the Federal Con­
stitution.

What is meant by due process under this amendment? 
Simply that it is “ the law of the land”  or “ an opportunity 
to be heard before being condemned.”  Where was this 
petitioner given the opportunity to be heard as to whether 
or not his rights to due process had been invaded? No other 
opportunity was given him, other than in the motion for a 
new trial. This is not a new question, but has been decided 
over and over by this Court. The most outstanding and 
recent case is that of Powell v. State of Alabama, 53 Sup. Ct. 
Rep. 55; the identical question was there decided which is 
the basis of this proposition, i. e., that the question of 
whether or not constitutional rights, guaranteed under the 
14th Amendment can be set up for the first time, and 
whether or not they were seasonably set up for the first 
time, in the motion for a new trial. This Court held: that 
violations of the 14th Amendment, set up in an amended 
motion for a new trial for the first time, considered by both 
trial and Supreme Court, were properly preserved for its 
consideration. (On the question, as to what is a reasonable 
preservation, see argument on Proposition 10).

As it was held in the Powell case, supra, that the over­
ruling of the motion for a new trial, containing alleged vio­
lations of the 14th Amendment, was a denial of defendant’s 
constitutional rights under the 14th Amendment, so then 
the striking of the grounds containing averments of viola­
tions of the 14th Amendment stands on the same footing as 
that in the Powell case, and the ruling of the trial court and 
the affirmance by the Supreme Court of Alabama was in 
direct violation of the law under this amendment.

While the ruling of the trial court and the State Supreme 
Court on the motion to strike was in open violation of the 
announced decisions of this Court, which were specifically



44

pointed out to both courts by petitioner, it was also in vio­
lation of the ruling of the State Supreme Court in the case 
of Wade v. State of Alabama, 93 So. 97. In that case, the 
constitutional question was raised for the first time in the 
motion for a new trial, and by this same. Supreme Court of 
Alabama, reversed on that very ground.

Hence the conclusion is inescapable that the judgment of 
the trial court and State Supreme Court in striking these 
grounds from the motion for a new trial, in overruling the 
motion, do not coincide with the rulings of the Supreme 
Court of Alabama, nor with those of the Supreme Court of 
the United States. It is the duty of courts of every State, 
no matter how distasteful it may be, and whether wilfully 
or unintentionally done, to obey the clear mandates of the 
Supreme Court of the United States on questions regarding 
the constitutional rights of petitioners under the 14th 
Amendment. To do otherwise, would be to allow a State 
to abridge or narrow, as it would, the mandates of the 14tli 
Amendment to the Federal Constitution. “ No power or 
authority is conferred on this Court or its jduges to for­
give, condone or heal violations of the plain unambiguous 
mandates, prohibitions, or limitations of the Constitution, 
even if the violation resulted in the greatest good or pro­
motes a universal benefaction. ”  No emergency confronting 
a State warrants a court in waiving the constitutional pro­
visions.

C. J. S. 16 Const. Law, 203 Note 4;
Harrison v. Erickson, 90 Mont. 259;
Assn, for Prot. of Adirondacks v. McDonals, 239 N. Y. 

C. 31;
Martin’s Extrs. v. Commonwealth, 126 Va. 603.

2. The argument on this case can be confined to the con­
sideration of one case alone—the case of Chambers et al. v. 
Florida, 84 L. Ed. 419-476.



45

This most recent case of the Supreme Court of the United 
States on this subject holds that: since the record failed to 
show that defendants were allowed counsel, at the time or 
before the confessions were obtained, which were used in 
evidence against these defendants, the court denied to de­
fendants in that case, procedural due process of law—the 
same set of facts in that case are present in the instant case 
as shown by the record; since petitioner was not allowed 
the advice of counsel at the time or before these confessions, 
it is a violation of that due process and equal protection of 
the laws, as guaranteed under the 14th Amendment.

In this State, under Section 3258 (Code of Alabama 1923), 
on appeal, it is the duty of the Supreme Court to search the 
record to see that no errors were committed by the trial 
court that were not argued or urged, or assigned as error.

It is apparent on the face of the record, that petitioner 
confessed, and these confessions were used in the trial, 
and that at the time he had not been allowed the advice of 
counsel; hence the conclusion cannot be escaped that the 
admission in evidence of these confessions was a violation 
of procedural due process of law, and in violation of the 
14th Amendment. This, the State Supreme Court should 
have seen on appeal, and applied the remedy—a reversal.

3. Ordinarily, action by a trial court on motions for new 
trials is discretionary, and will not be disturbed by a higher 
court on appeal, yet, if that discretion is abused, and such 
abuse is predicated on facts showing a violation of the 14th 
Amendment to the Federal Constitution, such action is re- 
viewable by the appellate court, and by this Court—indeed, 
such review is mandatory, in order to see whether or not 
such action on the part of the trial court is in truth, a denial 
of the 14th Amendment.

While the Legislature and State procedure may hold that 
decisions on motions for new trials are discretionary with



46

the trial court, when such actions are predicated on viola­
tions of the 14th Amendment, no State, under its procedure 
or otherwise, has the power to say that such action being- 
discretionary, cannot be reviewed, when the questions are 
whether or not such action denied to petitioner his right 
to due process and equal protection of the laws under the 
14th Amendment. Courts have a duty to give due effect 
to constitutional limitation to which an asserted right is 
subject, and, as no power or authority is conferred on either 
the trial or the Supreme Court, to forgive, condone or heal 
violations of plain unambiguous mandates, prohibitions or 
limitations of the Constitution, even if the violation results 
in the greatest good to or promotes a universal benefaction.

Johnsons. Craft, 87 So. 259.

4. State courts derive their power to exist and operate 
through grace of the Federal Constitution—it alone can say 
what shall and what shall not be done in the State courts. 
It has prescribed that any procedure, that the people of any 
State may desire, they may do, provided such procedure 
does not in any way violate, or abridge certain provisions 
of the Federal Constitution. The 14th Amendment to the 
Constitution especially prescribes certain violations—one 
of which is the exclusion of negroes from either grand or 
petit juries, solely because of their race and color. When a 
State court, even sanctioned by State procedure does so, 
it exceeds its jurisdiction and any judgment and sentence, 
so pronounced by it, is void. This we contend was done in 
the instant case.

The trial court, well aware of the fact that all negroes 
have been excluded for at least 30 years (see showing of­
fered R. 85-87) and that there were none on the petit jury 
from which petitioner was forced to select the jury to sit 
on this trial, proceeded to the trial of his cause. All pro­
ceedings thereafter by this court in this case, are void, for



47

want of jurisdiction. Frank v. Mangum, 237 U. S. 330; 
Moore v. Dempsey, 261 U. S. 86; Re Neilson, 131 U. S. 176; 
Johnson v. Zerbst, 304 U. S. 468. And the affirmance by the 
State Supreme Court is also void for lack of jurisdiction. 
Thus, we have petitioner about to lose his life and liberty 
on a judgment and sentence absolute void.

The question of whether the court exceeded its jurisdic­
tion and such sentence is void, is one that we ask this Court 
to review by petition for certiorari.

Both the trial court and the State Supreme Court knew 
from the undisputed testimony, and the record, that the con­
fessions admitted in evidence, were made before petitioner 
was allowed counsel. Therefore, under the most recent de­
cision of this Court, Chambers v. Florida, 84 L. Ed. 419-476, 
it cannot be disputed that the admission of these confes­
sions, working grievous harm to petitioner, deprive him of 
due process and equal protection of the law, demanded by 
the 14th Amendment.

5. The Supreme Court of the United States is the sole 
arbiter as to whether or not a State, thru any of its agencies 
has permitted violations of the 14th Amendment. Where a 
Federal right is involved, this Court can review a decision of 
a State court with respect to a question arising under the 
Constitution of the United States, Hebert v. Louisiana, 272 
U. S. 316. It is open to this Court upon application for writ 
of certiorari to look beyond forms and inquire into the very 
substance of the matter. Frank v. Mangum, 237 U. S. 330; 
Moore v. Dempsey, 261 U. S. 86; Re Neilson, 131 U. S. 176.

We insist that all violations claimed and shown by the 
record to have been considered by the trial court and the 
State Supreme Court, that this Court has the right and 
power, not only to review such actions, but to decide for it­
self, through examination of the entire record, if necessary, 
whether or not these actions of the State courts result in a



48

violation of the 14th Amendment, and when these actions 
are about to deprive petitioner of his life and liberty, to do 
what justice requires in the case. Whitney v. California, 71 
Fed. 1095; First Natl. Bank v. Kentucky, 19 Law Ed. 701; 
Citizens Bank v. Owensboro, 173 U. S. 636.

And, where a right is set up in the State Courts under an 
Act of Congress, any matter of law found in the record 
decided by the State Courts, regarding a Federal question 
or right, can he reviewed by this Court on writ of certiorari. 
63 L. R. A. 571, 582; Republican River Co. v. Kansas P. Co., 
92 U. S. 315; Carpenters v. Pennsylvania, 15 L. Ed. 127; 
Sterans v. Minnesota, 179 U. S. 223.

6. This argument covers assignments of errors 1 to 12 in­
clusive and 14, for the reason that while they were assigned 
as separate assignments of errors, the same principle re­
garding their exclusion, governs all.

“ Whenever by any action of a State, whether through its 
legislature, through its courts or through its executive or 
administrative officers, all persons of the African race are 
excluded, solely because of their race or color, from serving 
as grand or petit jurors, in the criminal prosecution of a 
person of the African race, the equal protection of the laws 
is denied to him contrary to the 14th Amendment to the Con­
stitution of the United States.”  Strauder v. West Virginia, 
100 U. S. 303; Neal v. Delaware, 103 U. S. 370; Gibson v. 
Mississippi, 162 U. S. 565; Rogers v. Alabama, 48 L. Ed. 
417, 419.

And, though the State court defining the qualifications of 
jurors may be valid on its face, the Constitutional pro­
visions affords protection against action of the State, 
through its administrative officers in effecting the prohibited 
discrimination. In other words, the State cannot go in­
directly through its statutes, what it cannot do directly.



49

A consideration of the latest case considered by this Court 
on this question of law is the case of Pierre v. Louisiana, 306 
U. S. 354. In this case, this Court said: ‘ ‘ The 14th Amend­
ment intrusts those who, because of race, are denied equal 
protection of the laws in a State first ‘ ‘ to the revisory power 
of the higher courts of the State, and ultimately to the re­
view of this Court.”  So also in the case of Norris v. Ala­
bama, 294, U. S. 587.

Therefore, exclusion from the grand jury or petit jury 
service on account of race or color is forbidden by the 14th 
Amendment to the Constitution, and is subject to review by 
this Court.

7. The petitioner, having been tried and sentenced to 
death insists that he is about to lose his life and liberty, 
without due process of law. That this Court, where a right 
is set up in the State court, either under the 14th Amend­
ment, or an Act of Congress, devised to secure to him his 
rights under due process and equal protection of the law 
under the 14th Amendment,—that any matter of law found 
in the record decided by State courts, regarding a Federal 
right, can be reviewed by the Supreme Court of the United 
States to see whether or not such violation has occurred. 
(63 L. E. A. 57-582); Twinning v. New Jersey, 29 Sup. Ct. 
14; Powell v. State, 77 L. Ed. 158.

And that when the Supreme Court of the United States is 
satisfied that such questions are shown by the record to 
have been considered, Carpenter v. Pennsylvania, 15 L. Ed. 
127; First Natl. Bank v. Kentucky, 19 L. Ed. 701, this Court 
will review the actions of the State courts as the 14th 
Amendment intrusts this Court with revisory power to re­
view such questions. Pierre v. Louisiana, 306 U. S. 354.

8. In Jefferson County, Alabama, the Board of Jury Com­
missioners is charged with the duty of selecting jurors for 
both grand and petit juries; their clerk is charged with the



50

duty of visiting every precinct and getting the names of 
every man, who is not disqualified under Section 8592, par. 
14, from jury service. These names are placed in a book 
and known as the jury roll. This book is kept under lock and 
key and is not open for public inspection. From this book, 
a card for each name is made, showing the name, occupation 
and residence of each individual. These cards are placed 
in a locked box, one key to it, being kept by the President of 
the Jury Commission, the other by the Presiding Judge of 
the Circuit Court of this County. When a jury is drawn the 
box is well shaken, and then the Judge draws from this box 
enough cards to make up the juries for a certain period. 
Grand jurors are also selected from the cards so drawn. All 
jurors serve alike on civil and criminal juries. But does it 
not seem strange, though this seems a fair method of select­
ing juries, that for several years, this coincidence has hap­
pened: Each week, about 125 white jurors are drawn amd 
only one negro. If this happened once or twice, it might be 
an accident but to have it happen each and every week for 
a period of years— there cam, be no accident; and that for 
over 30 years, at least, not one single negro has been se­
lected for grand jury service. Whether there are any 
names of negroes in this box or how many, we are unable to 
say, since we do not have access to the book containing the 
jury roll. But from the fact that no negroes have ever been 
selected at least in the last 30 years (shown by R. 85-87), 
and only one negro for every 125 white jurors is selected, 
we must conclude, that there are few, if any, names of ne­
groes on this jury roll. The State does not contend or offer 
any testimony as to how this can happen. The question then 
is, is there a sufficient ratio taken in connection with the 
proportionate number of white and negro people in this 
State qualified to serve on juries, to be a compliance with the 
requirements of the 14th Amendment. This was precisely



51

the question brought before this Court in Pierre v. Louis- 
ma, 306 U. S. 354; and was by this Court decided that, upon 
the examination of the evidence, a strong prime, facie case 
was made, showing that negroes had been systematically 
excluded—because of race, from the grand jury and the 
venire from which it was selected. Such an exclusion being 
a denial of equal protection of the laws, contra to the Fed­
eral Constitution, the writ of certiorari, was granted. ‘ ‘ The 
fact that the testimony was not challenged by evidence ap­
propriately direct, cannot be brushed aside.”  Such were 
the identical circumstances in the instant case. Testimony 
was offered by the petitioner on the motion for a new trial, 
and refused by the Court. Whereupon, a showing was of­
fered the court, incorporated in the bill of exceptions (R. 
85-87), showing substantially that the ratio between white 
and colored men in Jefferson County, was about 60% ne­
groes and 40% white, these figures being taken from the 
last Federal Census. Therefore, upon this showing the 
14th Amendment is being denied, every day, in every trial; 
all of these matters were considered by the State Supreme 
Court on appeal, shown on the record. Therefore, under the 
authority of Pierre v. Louisiana, supra, negroes in Jefferson 
County, at the time of the trial of the instant case, were ex­
cluded from both grand and petit jury service.

These statutes, Nos. 8630, 8637 and 5202, while fair on 
their face, are used by the administrative officers (a fact 
which is so well known as to be a matter of common know­
ledge) charged with the duty of selecting jurors, as a dis­
crimination against negroes and are used to exclude them 
from jury service.

The test of whether a statute is unconstitutional, is not 
what is done under it, but what can be done under it.

In the instant case, the trial court and the Supreme Court 
of Alabama say that you waive your constitutional rights



52

under the 14th Amendment, when no objections are filed, 
and on the other hand, these statutes say, that no objection 
can be filed in any way to the formation of the grand or 
petit jury. In ninety-nine per cent of the cases tried in 
which this question has been raised, one way or the other, 
all courts in Alabama have overruled every objection and 
upheld these statutes; now, this petitioner, because of these 
statutes raises the question for the first time on motion for 
new trial. AND THE TRIAL COURT PROMPTLY 
RULES THAT THE OBJECTIONS COME TOO LATE. 
How then under the circumstances, if these statutes are 
constitutional, can there be an intelligent and intentional 
waiver of these rights? For unless there has been such 
waiver, petitioner is being deprived of his rights under the 
14th Amendment.

Hence, we ask this Court to review this question, as to 
whether under these statutes, the 14th Amendment can be 
and is violated as these statutes are used by the adminis­
trative officers of this State to exclude negroes from jury 
service; and whether or not, with these statutes in force, 
can there be a waiver of constitutional rights as to the 
formation of grand or petit juries?

Therefore, as the 14th Amendment was designed and in­
tended to make secure against State invasion all rights, 
privileges and immunities protected from Federal viola­
tion by the Bill of Rights, if these statutes can be and 
are used for such discriminatory purpose, is not this an 
invasion by the State of Alabama, through its administra­
tive officers of rights secured under the 14th Amendment, 
and hence in violation of such Amendment? If so, then 
this petitioner is entitled to the writ, and to have this 
Court render such judgment as justice requires.

9. Most of the discussion on this proposition has been 
discussed in proposition 8, but as the opinion of the Su­



53

preme Court is to the effect that because petitioner failed 
to file a plea in abatement to the formation of both grand 
and petit juries, he had waived his rights under the 14th 
Amendment.

How can this be, when, under the State statutes just 
mentioned in Proposition 8, such statutes show on their 
face that no plea in abatement can be filed as to the forma­
tion of either grand or petit juries? With these statutes 
in force, can there be an intelligent and intentional waiver 
of constitutional rights under the 14th Amendment? We 
think not. When the State deprives you, through these stat­
utes, of the right to raise this question in a trial, how then, 
when this is forbidden by statute, can there be a waiver 
when you follow the statute and do not file this plea in 
abatement? Such is the status as presented by the ruling 
of the State Supreme Court in this case. A statute is to be 
interpreted as meaning what it says. If this is so, bow 
then is there a waiver?

10. Constitutional questions, seasonably preserved, when 
a man’s life and liberty is at stake, will be considered by 
this Court. They are seasonably preserved for considera­
tion by this Court, when State procedure is followed. 
Therefore, we say, that when the constitutional questions 
raised for the first time on motion for new trial, shown by 
the record to have been considered and passed on by the 
trial court; made the basis for assignments of errors, sepa­
rately and severally; on appeal, such ruling incorporated 
in the bill of exceptions, and shown on the record as having 
been specifically pointed out by petitioner to the Supreme 
Court of Alabama ; and by that court considered and ruled 
on in its opinion, we are convinced they are seasonably 
preserved for consideration by this Court.

It is respectfully submitted that the questions raised in 
this case are of sufficient importance to require this Court

5 c



54

to issue a writ of certiorari to the Supreme Court of Ala­
bama, to review its decision made therein.

Respectfully submitted,
W alte r  S . S m it h , 
Counsel for Petitioner.

C ora R . T h o m p s o n ,
Of Counsel.

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IV-



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

No. 449

JOE VERNON,

vs.
Petitioner,

STATE OF ALABAMA.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF
ALABAMA.

BRIEF FOR PETITIONER.

Cora R. T h o m p s o n ,
Of Counsel.

W alter  S. S m it h , 
Counsel for Petitioner.





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

Opinions ............................................................................... 1
Jurisdiction ......................................................................... 2
Summary statement of the matters involved................... 3
Statutes involved ..............................................................  19
Ordinances of the City of Birmingham involved. . . .  20
Specifications of e r r o r ....................................................... 21
Propositions of law and authorities...............................  24
Argument ............................................................................ 31

Reasons relied on for reversal.................................  31
Question 1: The violation of the 14th Amend­

ment in intentionally and systematically ex­
cluding negroes from grand jury service solely
on account of race and color.................................  32

Question 2: Violation of the 14th Amendment 
upon confessions of guilt extorted from peti­
tioner by force, violence, torture and brutality
by city officers ........................................................  38

Question 3: On a trial involving deprivation of 
life, can accused or his attorney waive con­
stitutional rights'?..............................................  47

Conclusion ...................................................................... 52

A p p e n d ix  A .

Letter from the Department of Commerce, Bureau of 
the Census, containg statistics of white and negroes 
in Jefferson C ounty..................................................  53

A p p e n d ix  B.
Opinion of the Supreme Court of the State of Ala­

bama on original petition for stay of execution of 
death penalty, In re Vernon, 199 So. 809...............  54

A p p e n d ix  C.
Opinion of the Supreme Court of the State of Ala­

bama in case of Joe Vernon v. State of Alabama,
200 So. p. 560 .............................................................. 56

IN D E X .

—3895



11 INDEX

T a b le  of C ases C ited .
Page

Amos v. State, 83 Ala. 1, 3 So. 747, 3 Am. SE 682... 30
Anderson v. State, 104 Ala. 83, 16 So. 108...............  30
Barron v. Robinson, et at., 98 Ala. 351, 13 So. 476... 50
Brown v. State of Mississippi, 297 U. S. 278, 80 L.

Ed. 682 ................................................................... 24, 25,44
Buchananan v. Thomason, 70 Ala. 401.......................  28
Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839...........  25
Chambers v. State of Florida, 309 U. S. 227, 84 L. Ed.

716 ..........................................................................  24, 25,42
Clawans v. Rives, (App. D. C.) 104 P. (2d) 240, 122

A. L. R. 1436................................................  27
Re Cuddy, 131 U. S. 280, 33 L. Ed. 154.......................  27
Duncan v. Missouri, 152 U. S. 377, 38 L. Ed. 485... 29
Dunham v. Powers, 42 Vt. 1 ..................................... 49
Earle v. McVeigh, 91 U. S. 503, 23 L. Ed. 398......... ' 30
Elliott v. Piersoll, 1 Peters 328, 7 L. Ed. 164...........  28
Esco v. Zerbst, 295 U. S. 490, 79 L. Ed. 1566.........  27
Ex Parte Farley, 40 Fed. 66....................................... 26
Ex Parte Mills, 133 IJ. S. 263, 34 L. Ed. 107...........  27
Ex Parte Neilson, 131 U. S. 176, 33 L. Ed. 118........ 27
Ex Parte Virginia, 100 U. S. 339, 25 L. Ed. 676. . . . .  25
Farley, Ex parte, 40 Fed. 66........................................  26
Fisher v. State, 145 Miss. 116, 134, 1 10 So. 361.........  45
Frank v. Mangum, 237 IJ. S. 309, 59 L. Ed. 969.........  27, 29
Fulwider v. Jacob, 221 Ala. 221, 224, 127 So. 818. . . 50
Giozza v. Tiernan, 148 U. S. 658, 37 L. Ed. 599....... 29
Godau v. State, 179 Ala. 27, 60 So. 908.....................  30
Hebert v. Louisiana, 272 U. S. 312, 316, 71 L. Ed. 270,

272, 47 S. Ct. 103, 48 A. L. R. 1102.........................  45
Holden v. Hardy, 169 U. S. 366, 42 L. Ed. 780 . 30
Hopt v. Utah, l io  IT. S. 574, 28 L. Ed. 262.................  24
Hoskins v. Hight, 95 Ala. 284, 11 So. 253..................... 50
Hubbard v. State, 72 Ala. 164............................. 50
In re Mayfield, 141 U. S. 107, 35 L. Ed. 635.................  27
In re Vernon, 199 So. 809............................................  2
Jackson v. State, 74 Ala. 2 6 ..........................................  50
Jennings v. State, 134 Wis. 307, 114 N. W. 492, 14 

L. R. A. N. S. 862......................................................  49



INDEX 111

Page
Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461.... 26
Laundry License Cases, 22 Fed. 701........................... 26
Lee Tong, Re, 17 Fed. 253............................................  26
Leeper v. Texas, 139 IT. S. 462, 35 L. Ed. 225.............  29
Logan v. U. S.., 144 U. 8. 263, 36 L. Ed. 429, 442.......  28
Marsh v. Ellsworth, 50 N. Y. 309............................... 49
Martin v. Hunter, 1 Wheaton 304, 4 L. Ed. 497. . . .  28
McAlpine v. State, 117 Ala. 93, 23 So. 130...............  30
M’Culloch v. Maryland, 4 Wheaton 316, 4 L. Ed. 579 28
Martin v. Texas, 200 U. S. 316, 50 L. Ed. 497.........  25
Mayfield, In re, 141 U. S. 107, 35 L. Ed. 635...........  27
Mills, Ex parte, 133 U. 8. 263, 34 L. Ed. 107.............  27
Missouri P. R. Co. v. Mackey, 127 TJ. S. 205, 32 L. Ed.

107 ...............................................................................  29
Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791... . 28
Moore v. Dempsey, 261 IT. 8. 86, 67 L. Ed. 543.......  29, 33
Neilson, Ex parte, 131 IT. S. 176, 33 L. Ed. 118... . 27
Nixon v. State, 68 Ala. 535..........................................  50
Norris v. Ala., 294 U. S. 587, 79 L. Ed. 1074, 1077.... 25
Parrott, Re, 1 Fed. 481..................................................  26
Patterson v. Alabama, 294 IT. S. 600, 79 L. Ed. 1082. . 29
Patton v. U. S., 281 IT. 8. 276, 291, 74 L. Ed. 854, 860. 49
Pearson v. Murray, 169 Md. 478, 182 Atl. 590, 103

A. L. R. 706 . . ........................................................  28
People v. Burke, 32 Colo. 496, 30 A. L. R. 1096.......  28
People v. Titus, 85 Cal. App. 413, 259 P. 465.............  26
Peterson v. State, 227 Ala. 361, 150 So. 156...............  50
Pierre v. Louisiana, 306 IT. S. 354, 358, 83 L. Ed. 757,

760 ............................................................................... 25,51
Powell v. Alabama, 287 IT. S. 46, 77 L. Ed. 158, 84

A. L. R. 527................................................................ 29
Randall v. Patch, 108 Atl. 97, 8 A. L. R. 65.............  30
Regina v. Warringham, 2 Lead. Crim. Cases 487. . . .  24
Re Lee Tong, 17 Fed. 253..............................................  26
Renegar v. U. S., 26 L. R, A. n. s. 683, 97 C. C. A.

172, 172 Fed. 646 ......................................................  29
Roller v. Holley, 176 IT. S. 398, 44 L. Ed. 520 30
Simpson v. Golden, 114 Ala. 336, 21 So. 920...............  50
Smith v. O’Grady, 85 L. Ed. 548................................. 28
Smith v. Texas, 85 L. Ed. 106 (advance sheets). . . .  25, 33



IV INDEX

Page
Spurgeon v. Commonwealth, 86 Va. 632, 10 S. E. 979,

980 ...................................................................   26
State v. James, 116 S. C. 243, 107 S. E. 907...............  26
State v. Stallings, 142 Ala. 112, 38 So. 261...............  30
Terry v. Fellows, 21 La. Ann. 375...............................  49
Twining v. N. J 211 U. S. 98, 111, 42 L. Ed. 215... 30
Vernerv. Verner, 64 Miss. 321..................................... 49
Vernon, In re, 199 So. 809............................................. 2
Vernon v. State, 239 Ala. 593, 196 So. 96, 99.............  39, 50
Joe Vernon v. State of Ala., 200 So. 560.....................  34
Joe Vernon v. Earl R. Wilson, Warden, 85 L. Ed. 662 2
Virginia, Ex parte, 100 U. S. 339, 25 L. Ed. 676. . . .  25

S ta tu te s  C ited .

Code of Alabama, Sections 5202, 8630, 8637.............  51
U. S. C. A., Title 28, Sec. 344 (Chap. 229, 43 Stat.

936) .............................................................................. 2
U. S. C. A., § 237 (b), as amended February 13, 1925

and Act of Congress................................................... 2
U. S. C. A., Title 8, § 44, (18 Stat. at L. 225, Chap.

114) .............................................................................. 35
C it y  O rd in a n c es  C ited .

Ordinances of the City of Birmingham, City Code of 
Birmingham, Sections 4901 and 4902 .....................  20

T ext  B ooks a n d  E n c ycloped ias  C ited .

25 Am. Jur., § 49, pp. 179-180.......................................  27
Cooley on Torts, 2nd Ed. 250....................................... 49
29 Corpus Juris, p. 29, note 11 (a ) ............................... 26
16 Corpus Juris Secondum, §538, p. 1096...............  28'
23 Corpus Juris Secundum, §1417, p. 1114.............  26
1 Greenleaf on Evidence (Redfield Ed.), § 219.........  24
20 R. C. L. 242, § 2 7 ......................................................  50
Starkie, Criminal Pleading, 342 ................................... 29
Townshend on Slander and Libel, § 227 ...................  49

C o n s t it u t io n  C ited .

Constitution of the "United States, Article V I .......  35,36
Constitution of the "United States, 14th Amendment,

2,17, 21, 22, 23, 31,32,33



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1940

No. 449

JOE VERNON,

vs.

STATE OF ALABAMA.

Petitioner,

BRIEF FOR PETITIONER.

To the Honorable Charles Evans Hughes, Chief Justice of 
the United States, and the Honorable Associate Justices 
of the Supreme Court of the United States:

M ay it  P lease t h e  C ourt :

Petitioner, Joe Vernon, respectfully submits to this 
Honorable Court, in support of writ of certiorari granted 
heretofore by the United States Supreme Court to the Su­
preme Court of Alabama, the following supplemental brief:

I.

Opinions.

The opinion of the Supreme Court of the State of Ala­
bama in the case numbered and entitled on its docket 6 Div. 
460 is officially reported ip volume 239, page 593, of the

la



2

official reports of the decisions of the Supreme Court of 
Alabama, and in 196 Southern Reporter, page 96, and is set 
out in the record on page 100, et seq.

The opinion of the Supreme Court of the State of Ala­
bama in the matter of the original petition of Joe Vernon 
for stay of the death penalty pending appeal from the judg­
ment of the Circuit Court of Montgomery County denying 
writ of habeas' corpus numbered and entitled on its docket 
3 Div. 337, In re Vernon, which was rendered on January 
30, 1941, is reported in 199 Southern Reporter, 809.

The opinion of the Supreme Court of the State of Ala­
bama in case numbered and entitled on its docket, 3 Div. 340, 
Joe Vernony. State of Alabama, is reported in 200 Southern 
Reporter, p. 560, and is set out in the Transcript in Joe Ver- 
non v. Earl R. Wilson, Warden, No. 814, October Term, 1940, 
85 L. Ed. 662.

II.

Jurisdiction.
The jurisdiction of this Court is invoked by petitioner to 

review the judgment of the Supreme Court of the State of 
Alabama rendered on March 28,1940, rehearing having been 
denied by the Supreme Court of the State of Alabama, the 
highest court in the State, on May 21, 1940. Petitioner 
relies upon Section 237 (b) of the United States Judicial 
Code, as amended by the Act of Congress of February 13, 
1925, which was an Act to amend the Judicial Code, and to 
further define the jurisdiction of the Supreme Court, and 
for other purposes, Chapter 229, 43 Stat. 936 (U. S. C. A., 
Title 28, Section 344); also Act of Congress of March 8, 
1934, as giving this Court jurisdiction.

The petition for the writ of certiorari in the case at bar 
presents solely questions of the constitutional rights of peti­
tioner under the due process and equal protection of the 
laws clause of the 14th Amendment to the Constitution of 
the United States.



3

Summary Statement of the Matters Involved.

Petitioner was indicted for unlawfully, and with malice 
aforethought, killing one Bennie Montgomery by shooting 
him with a pistol, against the peace and dignity of the State 
of Alabama (R. 3). The death of Bennie Montgomery oc­
curred around 10:00 o ’clock at night on September 20, 1937, 
and only one shot was tired into the body of said Mont­
gomery (testimony of A. C. Bright, R. 22-23). The murder 
was discovered by Sidney Cobb, a carrier of the Birming­
ham Age-Herald, on the morning of September 21, 1937, 
when Cobb attempted to deliver a paper at the Rejoy Filling- 
Station between 3:30 and 4:00 o ’clock A. M. on September 
21,1937 (R. 24). At the time of the discovery of the murder 
the door to the filling station, fronting on First Avenue 
North, in Birmingham, Alabama, was closed but not locked, 
and witness Cobb at first thought he was asleep, but when 
he saw blood he jumped into his car and went about three 
blocks and found a policeman who returned to the filling- 
station with witness, and witness and the policeman found 
Bennie Montgomery on his knees. “ His head and hands 
were on the floor and knees on the floor”  (R. 24). De­
ceased’s body, in rigor mortis, was just inside and back of 
the filling station door in a pool of blood, in the posture of 
one begging, or praying, for his life. The physical facts 
show that the deceased had been shot one time, the bullet 
entering under the arm, passing through the body, and lodg­
ing inside of the shirt of the deceased. No weapon was 
found near the body or on the premises. The evidence 
showed that the deceased, a school boy about nineteen years 
of age, and a classmate of Sidney Cobb, who discovered the 
murder, lived with his -widowed mother in the community 
of the filling station where he -worked part time, and that 
on the night that he was killed he was left alone in charge 
of the filling station where motor fuels were sold until the 
closing hour, from 9 :00 to 10:00 o ’clock, with cash sufficient

2 a



4

to make change as purchases were made. A. B. Reese, who 
operated the filling station where the deceased was em­
ployed, testified that he had seen the deceased on the night 
of September 20, 1937, about 9 :00 o ’clock at the station and 
talked with him, and that he went in and picked up all the 
money over $15.00 and left the silver for change (R. 24-5). 
A. C. Bright, a brother-in-law of the deceased, testified that 
around 10:00 o ’clock of the night of the murder he heard 
one shot at or near the filling station which “ was rather 
muffled to some extent”  (R. 23). Petitioner was not ar­
rested and charged with the murder until more than a year 
after the commission thereof. He was indicted on Novem­
ber 12,1938, along with L. C. Bell, another negro youth, and 
charged with said murder (R. 3).

J. T. Bullard, who testified that he is a police officer for 
the Southern Railway, testified on cross-examination that 
he was present on two or three occasions when petitioner 
was taken out of the City Jail of Birmingham at night, “ to 
pick up some watches and stuff he had taken. He (Vernon) 
said he knew where they were and told us where he had put 
them. He was not beaten up by the officers to my knowl­
edge. I was present when the other confessions were made. 
I was not present when the negro named Mississippi con­
fessed, nor was I present when the one from Chattanooga 
made a confession. I do not know how many confessions 
have been made in this case”  (R. 36). This witness testi­
fied, in reply to the question “ How many (confessions) did 
you get him to sign all together!”  answered “ He admitted 
to about twelve pages of highway robbery”  (R. 37-38).

This witness further testified, in response to questions by 
the Solicitor:

‘ ‘ That statement there, which you were examining me 
about, was the statement he made in the jail at that 
time, and that statement is in his own handwriting. 
Mr. Johnson (Special Agent of the Central of Georgia



5

Bailroad) and myself were present and I believe we 
were the only ones present.”  (B. 38.)

This purported confession is set out on pages 38 and 39 
of the Transcript of the Becord.

Witness A. B. Beese, testified that the defendant made 
statements or purported confessions in the presence of said 
witness and police officers of the City of Birmingham, de­
tectives of the City of Birmingham and police officers and 
agents of the Southern Bailway and the Central of Georgia 
railway. He testified that after petitioner “ made a state­
ment in front of all of us and when the others went outside 
then he made one to me. I asked them to go outside. I 
told the officers ‘ if you believe in this case as strong as you 
appear to I would like to talk to him by m y s e l f * * *
“ The occasion of my going over to the jail was that they 
said they had the boy there and I said I would like to see 
him and talk to him. The officers were city detectives. I 
had not been with them prior to that time and had not 
heard what they said to him before I came to the jail. I 
did not notice any blood spots on his shirt. * * * I did
not see any scars on defendant. I examined him but did 
not take his clothes off. He pulled his pants up to his 
knees and I asked him if he had been abused there and he 
said ‘no.’ I was not told by the officers to do that”  (B. 26- 
27).

Witness Beese further testified as follows with reference 
to the purported confession of petitioner at the city ja il:

“ After the officers went out I said ‘ Joe, do you really 
want to say that you and L. C. killed that boy?’ and 
he said ‘ I do’. And I says ‘ Have those officers abused 
you and told you that they would see that you got 
life if you would plead guilty?’ and he says ‘ they 
didn’t.’ And I said ‘ you understand if you didn’t do 
it, if L. C. done the shooting and you put yourself 
there that is just the same as you as it is for him?’



6

And he says ‘ yes’. And I said ‘ do you realize what you 
are doing1?’ And I says, ‘ I really dont believe you 
boys done it, and if you will tell me I am not going to 
tell these officers, I wont mention it, I will step out and 
get you a lawyer’ and he says ‘we are guilty and they 
havent abused me, have treated me perfectly nice, as 
good as I have ever been during the time I have been 
here.’ The solicitor then asked the witness: ‘What 
then did he say about this killing,’ and to which the 
witness replied: He went on to say that they were both 
on the scene and L. C. done the shooting, he said he 
got the gun out there, stole it from out of the wardrobe 
at Mrs. Charlie Norrell’s house, that he knew Mrs. 
Norrell, and he said that Bell, that is L. C., did the 
shooting. After I had talked to the defendant, and on 
the same night I talked with L. C. Bell; witness, being 
asked if the defendant said why he was there and 
what they did that night stated: he said that they 
came down the railroad to steal some coal, they just 
come to steal some coal and they checked the Central 
of Georgia train and there wasn’t any coal on it, and 
then they went to the Southern and there wasnt any 
there and they came on back down the railroad past 
the place and Joe said ‘L. C. said let’s get that place’. 
And Joe said ‘ I know the man, I can’t go there.’ And 
L. C. said ‘ My girl needs some money’ and Defendant 
said ‘my wife needs some too.’

“ The Court inquired: ‘ you mean that you saw them 
or they told you? Witness: they told me that and de­
fendant said they walked back up the railroad track 
beyond the station where they could look between the 
station and the garage and see the boy getting ready 
to close up and L. C. went around and shot him.”  (R. 
27-28.)

Witness Reese further testified that he talked to L. C. 
Bell both alone and in the presence of defendant and that 
“ for awhile the officers were in there and then went out, 
and that while sitting there in the jail L. C. Bell would 
say: ‘ Joe done the shooting’ ’ ’—“ Little Joe did the shoot-



7

ing, ’ ’ and that when he heard the shot he ran around there 
and said “ What is the matter?”  and that petitioner Yernon 
then said “ I have shot this man,”  and that Bell then said 
“ How came you to do that?”  and that Vernon said “ He 
acted like he was going to pull a gun and I killed him.”  
Witness Eeese further testified that Vernon and Bell were 
brought to his place in the custody of the officers and that 
that night after supper witness and the officers went back 
over there and that he (Eeese) said to the officers:

“ If those boys done that let’s take them back to the 
station and let them re-act the crime. * * * When
we got out there to the station they were handcuffed 
together and I told Mr. Weir (a city detective) ‘ let’s 
un-hand cuff them and let them be separate and dont 
ask them any questions’ and we separated them and 
let them walk on each side of the officers and we started 
out and at first walked down the railroad track to First 
Ave. and that is where they had agreed on what they 
would do; and Little Joe was doing the talking then. 
And we walked up past the station so they could see 
them close up, and walked back and Little Joe told me 
he did the watching and L. C. the shooting, and out 
there Bell made the statement that Joe did the shoot­
ing, and Joe in the presence of Bell made the state­
ment that Bell had done the shooting. The time that 
they were out at my place showing me how the killing 
was done was during the latter part of September 1938, 
either the 26th or 27th and was at night after dark.”  
(E. 28-29.)

On cross-examination witness Eeese testified that he got 
with these officers and petitioner a couple of different times; 
“ Was over there in the morning, went over with the officers 
to the jail after him and when they left the jail they went 
straight to the station—they did not go down town in that 
railroad cut; Mr. Jones was not present, but Mr. Johnson 
(Special Agent of the Central of Georgia Eailroad) and 
Mr. Weir (a city detective) were along as well as Mr. Bul-

3a



lard (Police officer for the Southern Railway), but we did 
not go to the railroad cut first. They did not beat these 
two boys up first”  (R. 31).

Witness Reese gave the following testimony as to rewards 
offered for the arrest of the murderers of Bennie Mont­
gomery :

_ ‘ ka(J offered a reward of $25 for the capture and con­
viction of the men that killed Montgomery. The amount 
of the reward did not make $2,500, it was never over $1500 
or that was what I heard them say it was. I do not know 
how many nights these officers had taken these boys out 
before I saw them—or since either”  (R. 32).

Witness Reese testified as to confessions made to him 
by Willie Myers, who was nicknamed “ Mississippi”  and 
another negro from Baton Rouge, Louisiana, who had con­
fessed to him to the murder of Bennie Montgomery soon 
after the crime was committed. He further testified “ I 
told them that if they were not guilty I would hire them 
a lawyer myself, told both of them, and I was the one that 
came here when they turned the other negro loose. As a 
matter of fact I investigated the innocence of Willie Myers 
and conferred with Mr. McAdory about it and recommended 
that he be turned loose”  (R. 32-33).

Witness Reese further testified on recross-examination 
as follows:

“ I have never been a detective for anybody. This 
boy here did not tell me or anybody that I know of 
that he had pawned that gun to somebody, to another 
negro named Manny Green, and that Manny Green had 
at the time. He did not ask me or somebody else to 
get Manny Green and make him tell the truth. I testi­
fied in the lower court and when I testified there they 
didn’t ask me all that I have told here. They did not 
ask me if I knew anything else to tell. I told" them all 
they asked me. I had told whatever they asked me.”



9

Petitioner denied that he had ever made any confession 
to said witness Reese. The record discloses that petitioner 
was carried to the office of the Circuit Solicitor at which 
time Mr. McAdory (then assistant solicitor) and other offi­
cers, including H. 1ST. Weir, J. J. Bullard, and W. A. Johnson, 
all of whom were special officers, were present when Mr. 
J. W. Dickinson, a court reporter, took down in shorthand 
a purported confession of the murder of Bennie Montgom­
ery by petitioner and L. C. Bell (R. 40-47).

The record discloses that on the several occasions when 
petitioner is alleged to have made confessions that he was 
surrounded by city policemen, city detectives and special 
officers.

Rosa Lee Collins, also known as Rosa Vernon, the com­
mon law wife of petitioner at the time of the murder of 
Bennie Montgomery, and for more than a year prior 
thereto, was introduced as a witness by the State, and on 
cross-examination testified that she was the wife of Joe 
Vernon and had been living with him ever since 1936, at 
the home of Charlie Norrell, a city detective, and that 
both she and petitioner worked for Mr. and Mrs. Norrell. 
She testified that she was living with another man named 
Dickey, at the time of the trial in the circuit court of Jeffer- 
son County, Alabama. In response to the question: “ And 
you were told before you came here, if you came up here 
and helped him out, they would put you in jail, too?” , she 
answered “ They said that I knew that Joe had did it, they 
would get me messed up too.”  (R. 49-50.')'

In response to the question: “ And didn’t Mr. Norrell 
come home about nine-thirty or a quarter to ten and call 
Joe at that time when he put up the car?” , witness an­
swered “ He, referring to Norrell, called him, referring to 
Joe, that night too.”

Rosa Vernon further testified that she had written a 
letter to petitioner while he was in jail stating in substance



1 0

that petitioner according to the representations of the offi­
cers, had confessed to the murder and that they let her read 
his confession, but that she told them that she knew nothing 
about it and that they said she was lying and that they took 
her down town and were going to put her in jail if she did 
not say that petitioner had told her that he had committed 
the murder, and that petitioner’s sister was likewise threat­
ened by the officers unless she would tell the officers that 
petitioner committed the murder (R. 51).

Mrs. Frances Norrell, widow of Charlie Norrell, the city 
detective by whom petitioner was employed at the time of 
the murder, testified that officers Bullard, Johnson and 
Wier came to her home and procured from her the pistol 
which the State offered in evidence as the deadly weapon 
with which Bennie Montgomery was killed. On cross-ex­
amination, Mrs. Norrell testified as follows:

“ I have told Joe when I have missed my gun that 
if he didn’t get my gun back I would have the red car 
after him. I have done this only once. I did get after 
Joe about a gun but it was not this gun. He had taken 
several guns. He didn’t tell me that about this gun”  
(R. 55).

E. Luther Hollums, Chief of Detectives of the City of 
Birmingham, testified that a city detective by the name of 
J. N. Bryan turned over to him a bullet on September 20, 
1937, shortly after the time Bennie Montgomery was killed, 
which he forwarded to the F. B. I. at Washington, which 
he received back by air express, together with the pistol 
offered in evidence by the State, and that the pistol and 
bullet had been in his possession at all times since the de­
livery of the same to him, except when it was on its way to 
Washington and back when he forwarded the same to the 
F. B. I. in Washington, and that the pistol and bullet were 
in the same condition when offered in evidence in the trial



1 1

court as when he received the same, forwarded them to 
Washington and received them back by air express. He 
testified that the pistol and bullet were brought to him by 
detective Wier, and officers Bullard and Johnson.

T. F. Baughman, a Special Agent of the F. B. I. in Wash­
ington, testified that he is assigned to the technical lab­
oratory, and that he is a consulting specialist in firearms 
identification, and that he had made a special study of the 
science of identifying firearms, and that he had been as­
signed to that work steadily for five or six years, and had 
studied it for a good many years prior to that time, and 
had studied under recognized ballistic engineers and instruc­
tors and had testified a great many times as an expert wit­
ness on the subject of firearms identification frequently in 
both the State and Federal Courts. He testified: “ In Sep­
tember 1938, it is my recollection I received a bullet which 
came from Birmingham Police Department on September 
21st * # * and there was a .32 caliber Iver-Johnson Re­
volver also received. This (indicating) is the revolver I 
received”  (R. 56). Witness testified that he found that the 
land and grooves impressions on the bullet which he re­
ceived from Detective Hollums indicated that it was fired 
from a revolver of the type offered in evidence, and that he 
fired test cartridges and recovered them from waste cotton 
into which he had fired the bullets, recovered and examined 
them from markings of the weapon from which they were 
fired. He further testified: “ I found that on the evidence 
bullet, this bullet which you exhibited to me, that there 
too few individual markings, individual characteristics, to 
determine whether it was fired from this particular weapon. 
It was fired from a weapon of this type with rifles similar 
to this”  (R. 57). This witness further testified:

“ I was unable to reach a conclusion or decide 
whether it was fired in this particular weapon or not”  
(R. 57).



1 2

W. A. Johnson, special agent of the Central of Georgia 
Railroad, testified that he and Detective Wier had peti­
tioner out of jail four times to the best of his knowledge, 
and that on one occasion he carried petitioner to Lovick 
“ and I went on to Leeds and I called the City Officers and 
brought him back and didn’t stop and beat him then. I 
brought him on back to where the officers could get him. 
I knew what they wanted him for * * * I saw Joe again 
that night over at the City Jail. A number of people were 
with him. There was with him that time Mr. Gorman, 
Wier, Bullard, Wagner (all officers) and the Jail Warden. 
I have never been over to the waterworks or took him over 
there on that or any other occasion. Was not out there 
and had no switches and did not beat him up, nor did any­
body in my presence”  (R. 77).

Witness Johnson further testified as follows:

‘ ‘ I read at the time that there was a reward, but the 
exact amount I don’t know. I do not know that it was 
$1500.00. I had it made up with Mr. Weir and Mr. 
Wagner that when we let him out at his house that they 
were to grab him and I called Mr. Weir on the phone 
and told him that Joe would be at his home. We had 
not been discussing arresting him for the Montgomery 
killing. We were after him for highway robberies on 
the railroad”  (R. 77).

Witness Johnson further testified: “ I was present when 
he was brought over here to the Solicitor’s office. Mr. Wier 
had that paper. I was present in the court room yesterday 
morning when they were talking to the witnesses at a time 
when Mr. Wier had all the witnesses * * * back there 
and I was talking to them”  (R. 79).

Petitioner, Joe Vernon, testified that he first heard about 
the killing of Ben Montgomery about nine o ’clock, on the 
morning following his death, when the paper boy came 
around hollering “ extra” . He testified that he had bor-



13

rowed a gun from Mrs. Frances Norrell and had pawned 
it to Mannie Green, when he lost in a crap game, and that 
Mannie Green had returned the gun to him after the murder 
of Bennie Montgomery, and that he had returned it to 
Mrs. Norrell. He testified that he was at the home of his 
employer, Charlie Norrell, when the murder was committed. 
He testified: “ I didn’t have Mrs. Norrell’s gun in my pos­
session any time after I pawned it to Manny Green on the 
Saturday before the shooting, until it was brought back to 
me. I never bought any bullets for it. I was accused the 
first time of killing Mr. Montgomery when some special 
agents carried me out to Lovick’s to find a man for them 
named Tom Tyson. They carried me out there one day. 
That was the day that I was arrested, the 15th of Septem­
ber, I won’t ever forget that date. That was a little more 
than a year after the shooting * * * The officers that
came out and got me were Mr. Johnson and Mr. Gorman 
and they wanted me to find a man out at Lovick. Now 
when we got out there they put me out by the bridge, by 
a store, and they said they had some business at Leeds. 
I came out to my Aunt’s house, that is when I came back 
by and went down and waited on them. There was a boy 
they called ‘ poor Boy’ there and I got in and they left 
and went to a place where there was a Roccola and they 
bought me a drink in the car and they left there, and that 
is when they carried me to Sapperville * * # this means 
‘whip * * * you’ ” . He further testified: “ They did
not mention the Montgomery case out there at Sapperville. 
They whipped me and beat me. I got scars on my legs and 
got scars all over me.”  Petitioner here exhibited to the 
jury a bloody shirt and pants. Petitioner testified that 
they did not take him anywhere that night but that the next 
night they came and got him about eight-thirty and kept 
him out practically all night and carried him to a place 
where there was a lot of water, which the officers said was



14

the Birmingham Waterworks, across Red Mountain, and 
that they asked him if he was going to talk, and when he 
replied “ I don’t know nothing to talk about” , that Mr. 
Johnson struck him with his fist and broke off his tooth, 
and that officers Wier, Gorman, Johnson and Jones all took 
him to the City Jail. Petitioner testified: “ They whipped 
me * * * switches and one had something what the
police carry. He hit me right in the head. Mr. Johnson 
hit me. I couldn’t tell how many times, I was crazy. They 
did not put me over anything, they just laid me down on a 
cushion from the car. I did not tell them anything. They 
kept me out until around two and then took me to the City 
Jail * * * I didn’t see Mr. Reese until we were over
there a long time. I don’t know how many days we were 
over there * * * but it was over a week before I saw
him. I did not know him personally; I didn’t know him 
when I saw him. I heard him say yesterday that when he 
went over there and told me that if I was not guilty that 
he would hire me a lawyer, but I had no conversation with 
him like that. The only time I saw him was with the offi­
cers. I don’t know whether he was there when the writing 
was done or not. Mr. Johnson gave me something that he 
had done wrote. I don’t remember nothing about it, only 
he told me to write it down, there was some mistakes I 
made in there. He made me write it over again. He made 
me write it the second time before I could get it right * * * 
When I objected to the writing is when he told me he would 
carry me out and I wouldn’t come back any more. They 
said ‘We ain’t going to worry him now, he is about sick.’ 
Mr. Bullard bought me some asperin tablets and some pills 
and said ‘ that negro is about sick, we won’t worry him 
now, we will get him later though’ and they came out and 
got me two days later in the daytime. Mr. AVier, Johnson 
and Bullard came after me. They took me down stairs 
and questioned me there, in that little front room and that



15

is where they made me sign those papers”  (R. 62-63). 
Petitioner further testified:

“ They had already told me what would happen if I 
didn’t sign it and I knew they would. I was scared 
of them. They said my wife was worrying about me 
and they were going to take me out to see her and 
they carried me from there and says ‘ we ain’t got Joe 
for nothing, he will be back in twenty-five or thirty 
days.’ And she says ‘ I ’ve been worrying about him.’ 
And then they took me to the Artesian Wells. There 
was no house, but we went into a field and it was night 
time. At that time Mr. Jones, Bullard and Weir were 
with me. Then they whipped me, wanted me to sign 
those papers, and I wouldn’t sign them. I hadn’t 
signed them then. I had written the paper out, but 
hadn’t put my name on it. They kept me out there 
at that time from about nine until eleven, or something- 
like that. I don’t know who all did the beating, but 
I think all of them. They used switches to beat me and 
I still hadn’t signed the paper, but I promised them 
that night to sign it and when I came back to town I 
did sign it. I saw them again next day and they said 
‘ Now, we are getting somewhere, all we want is to clear * 
up our record.’ Then they wanted me to sign some 
more and I signed them. I did not know what they 
were. I remember going to the Solicitor’s office. It 
was a couple of days after they took me to the Artesian 
Wells before I came up to the Solicitor’s office. They 
had not beaten me any more in the meantime. Before 
they brought me over to the Solicitor’s office they said 
they were going to carry me to a man who would 
straighten out everything for me”  (R. 63).

Petitioner further testified:

“ I was in the City Jail before they carried me to 
the County Jail fifteen or sixteen days. It was Friday 
night at that filling station I signed that yellow state­
ment, or before. I think I had signed that yellow 
paper, before. I had not been up to the Solicitor’s

4 a



16

office. That was afterwards. Mr. Eeese took us in a 
Pontiac out to the filling station, in a new car. Him 
and Mr. Johnson, Mr. Bullard and Mr. Wier and Mr. 
Eeese, and it was about eight-thirty o ’clock at night. 
We went straight from the City Jail out to the filling 
station. Mr. Johnson and Mr. Wier had me handcuffed 
in the car, me and L. C. when they took us to another 
place. That is where the railroad comes up beside the 
filling station. They carried me down in a deep cut 
where some cross ties and rails were at. Then Mr. 
Johnson slapped me and had his pistol in his hand and 
said ‘ All right, are you going to do like I said’, and 
I said ‘ Yes’ * * * I did nothing out there of my
own volition, just done what he told me. They had 
L. C. there in the handcuffs by himself. He had his 
gun out. I didn’t hear what they told him to say. 
They carried him down the railroad and made him go 
through the same motions * * * I did not give
L. C. a gun that night. I did not stand watch outside 
that filling station that night. I did not go down to 
the coal yard and pick up coal that night”  (E. 64-65).

Petitioner stoutly maintained his innocence, while he was 
under the protection of the court, and testified that the 
confessions which he gave verbally and in writing had been 
extorted by officers and detectives of the City of Birming­
ham and by special officers of the Southern and Central of 
Georgia Eailway Companies had been extorted from him 
by and through force, violence and brutality.

Aside from the confessions, there was no evidence 
sufficient to authorize or warrant the submission of the 
case to the jury.

Questions Presented.

The questions sought to be presented are:
1. Whether the Supreme Court of the United States is 

precluded by the verdict of the jury in a case in which a 
conviction of a capital offense was obtained upon confes-



17

sions shown to have been extorted by the officers of the 
State or City from petitioner, through the use of force, 
violence and brutality, from determining for itself 
whether the confessions were illegally and improperly 
obtained, where the convicted person has seasonably as­
serted his constitutional right to have his guilt or inno­
cence determined without reliance upon confessions im­
properly obtained from him.

2. Whether the use by the State of an improperly ob­
tained confession to procure a conviction of a capital of­
fense and a death sentence, may constitute a denial of due 
process of law as guaranteed in the Fourteenth Amendment 
of the Constitution of the United States.

3. Whether confessions of the commission of a capital 
offense must be deemed involuntary, so as to render their 
use in obtaining a conviction of murder in the first degree, 
with the death sentence, a violation of the due process 
clause of the Fourteenth Amendment, were obtained from a 
young negro arrested without warrant, held in jail without 
formal charges some twelve to fifteen days, and without 
being permitted to see or confer with counsel or friends, 
made after petitioner had been repeatedly taken from jail 
to different places outside of the City, as well as to the 
place where the murder was committed, and after having 
been beaten by the officers required to reinact the murder, 
and to sign a written confession.

4. Whether the Supreme Court of the State of Alabama 
erred in holding and deciding that petitioner, after convic­
tion of murder in the first degree in the circuit court of 
Jefferson County, Alabama, under and by virtue of a pur­
ported indictment returned by a grand jury of said county, 
against petitioner, a young member of the negro race from 
which negroes were, at the time of the finding of said pur­
ported indictment against him, and have always been, in­



18

tentionally and systematically excluded from grand jury 
service solely on account of race and color, waived objec­
tions going to the formation of the grand jury so selected by 
failure to file a plea in abatement or motion to quash the 
indictment, and that such objections could not be raised for 
the first time on motion for a new trial after verdict of 
guilty.

5. Whether petitioner, a negro under indictment for first 
degree murder for killing a young white man, may, by his 
attorney, waive and does waive his constitutional rights of 
due process of law and equal protection of the laws as 
guaranteed to him by the Fourteenth Amendment of the 
Constitution of the United States, on the grounds negroes 
were, at the time of the finding of said purported indictment 
against him, and have always been, intentionally and sys­
tematically excluded from grand jury service solely on 
account of race and color, and from the petit jury trying 
him, if he fails to assert or claim them at the time of, or 
before, entering upon the trial of the case in the trial court.

6. Whether in a trial for a capital felony a waiver was 
binding on petitioner, when he himself did not make a 
waiver of his constitutional rights in open court, and where 
his trial attorney failed to file a plea in abatement or a 
motion to quash the indictment, and raise the question that 
petitioner, a member of the negro race, who was under 
indictment for the murder of a young white man, that 
negroes were, at the time of the finding of the purported 
indictment against him, and have always been, intentionally 
and systematically excluded from grand and petit jury 
service in the county in which he was indicted, solely on 
account of race and color, and that petitioner was convicted 
by a petit jury on an indictment by a grand jury so selected, 
of the crime of murder in the first degree, with a sentence 
of death, said question having been raised for the first time 
on a motion for a new trial by petitioner’s trial attorney.



19

7. Whether on a trial involving deprivation of life, pe­
titioner can waive an essential matter such as due process 
of law and equal protection of the laws, guaranteed to him 
by the Fourteenth Amendment to the Constitution of the 
United States, or must be considered as standing on all of 
his legal and constitutional rights, and waiving nothing.

8. Whether the Court rendering the judgment of guilty, 
on the verdict of the jury based upon a purported indict­
ment against petitioner, a member of the negro race, from 
which negroes were, at the time of the returning of said 
purported indictment against him, and have always been, 
intentionally and systematically excluded from grand jury 
service, solely on account of race and color, and that pe­
titioner, a member of the negro race, was convicted of 
murdering a young white man, with a sentence of death, 
was without jurisdiction to render it either because the 
proceeding was void or the law denying the petitioner the 
right to raise said questions is unconstitutional, or for any 
other reason the judgment of the trial court is void.

Statutes Involved.

Section 5202 of the Code of Alabama, 1923 provides as 
follows:

“ 5202. Objections to indictment for defects in grand 
jury; when not available; exceptions.—No objection can be 
taken to an indictment, by plea in abatement or otherwise, 
on the ground that any member of the grand jury w7as not 
legally qualified, or that the grand jurors were not legally 
drawn or summoned or on any other ground going to the 
formation of the grand jury, except that the jurors were 
not drawn in the presence of the officers designated by law; 
and neither this objection nor any other can be taken to the 
formation of a special grand jury summoned by the direc­
tion of the court,”



2 0

Section 8630 of the Code of Alabama, 1923 provides as 
follows:

8630. Objections to indictment; how taken.—No objec­
tion to an indictment on any ground going to the formation 
of the grand jury which found the same can be taken to the 
indictment, except by plea in abatement to the indictment; 
and no objection can be taken to an indictment by plea in 
abatement except upon the ground that the grand jurors 
who found the indictment were not drawn by the officer 
designated by law to draw the same; and neither this ob­
jection, nor any other, can be taken to the formation of a 
special grand jury summoned by the direction of the court.

Section 8637 of the Code of 1923, provides as follows:
8637. No objection except for fraud in drawing—No 

objection can be taken to any venire of jurors except for 
fraud in drawing or summoning of the jurors.

Ordinances of the City of Birmingham Involved.

Section 4901 of the City Code of Birmingham, Alabama, 
provides as follows:

“ Sec. 4901.—Arrest by police officers for offenses against 
law of State.— The Chief of Police or any policeman of the 
City have authority and it is his duty to make arrest, for 
offenses against the laws of the State in all cases where 
such authority is now or shall hereafter be conferred on 
such officers by the law of the State, and in making such 
arrest, whether with or without a warrant, they shall have 
all the authority conferred and be subject to all the duties 
imposed upon such officer, by the laws of Alabama, in ex­
istence now or that may hereafter be enacted.”

Section 4902 of the City Code of Birmingham, Alabama, 
provides as follows:

“ Sec. 4902.—It is the duty of the Chief of Police and of 
every policeman, to arrest without warrant any person



2 1

whom he has probable cause to believe guilty of the viola­
tion of any law or ordinance of the City of Birmingham; 
any person found drunk on the public street or in any pub­
lic place in the city; and any person found under suspicious 
circumstances who fails to give a satisfactory account of 
himself. Said officers have authority to enter any house, 
enclosure, or other place in which they have reason to be­
lieve that any person is committing, or about to commit a 
violation of the city laws.”

Specifications of Error.

1. The Supreme Court of the State of Alabama erred in 
holding and finding that objections to the formation of the 
grand jury which returned a purported indictment against 
petitioner, a member of the negro race, for the murder of a 
young white man, from which negroes were, at the time of 
the finding and returning of said purported indictment 
against petitioner, and have always been, intentionally and 
systematically excluded from grand jury service solely on 
account of race and color and that the conviction of pe­
titioner for murder in the first degree, with a sentence of 
death based upon an indictment returned by a grand jury so 
selected, thereby denying petitioner equal protection of the 
laws guaranteed to him by the Fourteenth Amendment of 
the Constitution of the United States, must be made by a 
plea in abatement or by motion to quash the indictment 
before pleading not guilty, and that after a plea of not guilty 
such objections are addressed to the irrevisable discretion 
of the trial court, and that said question and said constitu­
tional guaranty could not be raised for the first time by a 
motion for a new trial.

2. The Supreme Court of the State of Alabama erred in 
finding and holding that where no question was raised by 
petitioner, a negro defendant, on or before his trial for



2 2

murder of a young white man as to the formation of the 
grand jury presenting the indictment against him or as to 
the venire or formation of the petit jury, which tried him, 
based on the ground that negroes were, at the time of the 
finding of and returning of said indictment against pe­
titioner, and have always been, intentionally and systemat­
ically excluded from grand jury and petit jury service in 
Jefferson County, Alabama, solely on account of race and 
color and that the conviction of petitioner for murder in the 
first degree, with a sentence of death, based upon an indict­
ment found and returned by a grand jury of Jefferson 
County, Alabama, so selected, thereby denying and de­
priving petitioner of the equal protection of the laws 
guaranteed to him by the Fourteenth Amendment to the 
Constitution of the United States, could not be raised for 
the first time on motion for a new trial after verdict of 
guilty.

3. The Supreme Court of the State of Alabama erred in 
finding and holding that the conviction of petitioner based 
solely upon confessions of guilt extorted by and through 
force, violence and brutality, which were obtained by of­
ficers of the City of Birmingham and State of Alabama 
while acting in their official capacities, is not a denial of the 
equal protection of the laws and due process of law guar­
anteed by the Fourteenth Amendment to the Constitution 
of the United States.

4. The Supreme Court of the State of Alabama erred in 
finding and holding in substance that petitioner’s constitu­
tional rights, guaranteed to him by the due process of law 
and the equal protection of the laws clause of the Fourteenth 
Amendment may be waived by petitioner, or by his attor­
ney, and that petitioner does waive his constitutional rights 
so guaranteed to him if he fails to assert or claim them, or 
if his attorney fails to assert or claim them for him at the



2 3

appropriate time and place and according to the established 
course of procedure in the State court.

5. The Supreme Court of the State of Alabama erred in 
finding and holding* that the confessions of petitioner ex­
torted from him by force, violence, torture and barbarity, 
which were obtained by officers of the City of Birmingham 
and State of Alabama while acting in their official capacity 
were admissible in evidence, and in refusing to give the 
general affirmative charge in writing as requested by the 
defendant, because aside from the confession, there was no 
evidence sufficient to warrant the submission of the case to 
the jury by the trial court.

6. The Supreme Court of the State of Alabama erred in 
finding and holding in substance that in a trial for a capital 
felony a waiver was binding on petitioner, when he did not 
himself expressly waive his constitutional rights of due 
process of law and equal protection of the laws as guar­
anteed to him by the Fourteenth Amendment to the Con­
stitution of the United States in open court, and in holding 
that where petitioner’s trial attorney failed to file a plea in 
abatement or a motion to quash the indictment, and raised 
the question for the first time on a motion for a new trial 
that petitioner is a member of the negro race and that 
negroes were, at the time of the finding of and returning 
of the indictment against him, and have always been, in­
tentionally and systematically excluded from grand jury 
service, in the county in which he was indicted, solely on 
account of his race and color, and where petitioner was 
convicted on an indictment of a grand jury so selected of 
the crime of murder in the first degree, with a sentence of 
death, and in holding that such waiver by the trial attorney 
of petitioner is binding on him and that thereafter he cannot 
stand on his Constitutional rights as guaranteed to him by 
the Fourteenth Amendment to the Constitution of the 
United States.

5a



2 4

Proposition I.

The conviction of petitioner solely upon confessions of 
guilt extorted and illegally obtained by and through force, 
violence, torture and brutality by officers of the City of Bir­
mingham and State of Alabama while acting in their official 
capacities, is a denial of the equal protection of the laws 
and due process of law guaranteed by the Fourteenth 
Amendment to the Constitution of the United States.

Chambers v. State of Florida, 309 U. S. 227, 84 L. Ed.
716;

Brown v. State of Mississippi, 297 U. S. 278, 80 L. Ed.
682.

Proposition II.

The presumption upon which weight is given to a confes­
sion, namely: that an innocent man will not imperil his 
safety or prejudice his interest by an untrue statement, 
ceases when the confession appears to have been made, 
either in consequence of inducements of a temporal nature 
held out by one in authority, touching the charge preferred, 
or because of a threat or promise made by or in the presence 
of such person, in reference to such charge.

Hopt v. Utah, 110 U. S. 574, 28 L. Ed. 262;
1 Greenleaf on Evidence (Redfield Ed.) § 219;
Regina v. Warringham, 2 Lead. Crim. Cas., 487.

Proposition III.

The Supreme Court of the United States is not precluded 
by the verdict of the jury in a case in which a conviction of 
a capital offense was obtained upon a confession, from de­
termining for itself whether the confession was improperly 
obtained, where the convicted person has seasonably as-

Propositions o f Law and Authorities.



2 5

serted his constitutional right to have his guilt or innocence 
determined without reliance upon a confession improperly 
obtained.

Chambers v. Florida, 309 U. 8. 227, 84 L. Ed. 716;
Brown v. Mississippi, 297 U. S. 278, 80 L. Ed. 682.

Proposition IV.

Use by the State of an improperly obtained confession to 
procure a conviction of crime, may constitute a denial of 
due process of law as guaranteed by the Fourteenth Amend­
ment to the Constitution of the United States.

Chambers v. Florida, supra;
Brown v. Mississippi, supra;
Pierre v. Louisiana, 306 U. S. 354, 358, 83 L. Ed. 757, 

760;
Norris v. Alabama, 294 IT. S. 587, 590, 79 L. Ed. 1074, 

1077.
Proposition V.

The equal protection clause of the Fourteenth Amend­
ment is violated by the exclusion by a State of persons from 
grand or petit jury service solely on account of race or 
color, or on account of class or conditions, or occupations.

Smith v. Texas, (Decided November 25, 1940) 85 L. Ed. 
106, (Advance Sheets);

Pierre v. Louisiana, 306 U. S. 354, 83 L. Ed. 737;
Martin v. Texas, 200 U. S. 316, 50 L. Ed. 497;
Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839;
Ex Parte Virginia, 100 U. S. 339, 25 L. Ed. 676.

Proposition VI.

On a trial involving deprivation of life or liberty, accused 
cannot waive any essential matter but must be considered



2 6

as standing on all his legal and constitutional rights, and 
waiving nothing.

Johnson v. Zerhst, 304 U. S. 458, 82 L. Ed. 1461;
23 G. J. S. Sec. 1417, p. 1114;
People v. Titus, 85 Cal. App. 413, 259 P. 465.

Proposition VII.

In a trial for capital felony, no waiver is binding on ac­
cused, unless he himself makes the waiver in open court, 
and there are some constitutional provisions which lie him­
self cannot waive.

State v. James, 116 S. C. 243,107 S. E. 907;
Johnson v. Zerhst, supra.

Proposition VIII.

The reason that the doctrine of waiver does not extend 
to matters which are essential in proceedings involving the 
deprivation of life or liberty, is that “ a strict compliance 
with all essential formalities in a felony case is necessary to 
constitute a proceeding ‘ due process of laws’ ” .

Spurgeon v. Commonwealth, 86 Va. 632, 10 S. E. 979, 
980;

Johnson v. Zerhst, supra.

Proposition IX.

Courts indulge every reasonable presumption against a 
waiver of fundamental constitutional rights, and do not 
acquiesce in their loss. Right to due process of law cannot 
be waived.

Johnson v. Zerhst, supra;
Ex parte Farley, 40 Fed. 66;
Laundry License Cases, 22 Fed. 701;
Re Lee Tong, 17 Fed. 253;
Re Parrott, 1 Fed. 481;
29 C. J., p. 29, note 11(a).



27

It is not the law that facts outside the record and not 
brought out on the trial of the case cannot be shown, on the 
hearing of the motion for a new trial, after a trial and con­
viction of first degree murder.

Frank v. Mangum, 237 U. S. 309, 59 L. Ed. 969;
In re Mayfield, 141 U. S. 107, 35 L, Ed. 635;
Johnsons. Zerbst, supra;
Clawcms v. Rives (App. D. C.) 104 F. (2d) 240, 122 

A. L. R., 1436;
Re Cuddy, 131 U. S. 280, 33 L. Ed. 154.

Proposition XI.

If a court which renders judgment is without jurisdiction 
to render it, either because the proceedings or the law under 
which they are taken are unconstitutional, or for any other 
reason the judgment is void, then the court is without con­
stitutional power to convict and condemn the prisoner, and 
the proceedings are null and void.

Ex parte Neilson, 131 U. S. 176, 33 L. Ed. 118;
Ex parte Mills, 133 U. S. 263, 34 L. Ed. 107.

Proposition XII.

Recent decisions of the courts recognize and uphold a 
modern tendency to preserve constitutional safeguards of 
human liberty.

Johnson v. Zerbst, supra;
Esco v. Zerbst, 295 U. S. 490, 79 L. Ed. 1566;
25 Am. Jur. §49, pp. 179-180.

Proposition XIII.

A State is required, by the equal protection clause, to ex­
tend to its citizens of the white and colored races substan-

P r o p o s it io n  X .



28

tially equal treatment in all facilities or privileges provided 
from public funds.

Pearson v. Murray, 169 Md. 478, 182 Atl. 590, 1Q3 A.
L. R., 706;

16 C. J. 8. §538, p. 1096.

Proposition XIV.

When a court acts without jurisdiction and authority, its 
judgment is null and void and constitutes no justification of 
persons in executing such void judgment.

Elliott v. Pier soli, 1 Peters 328, 7 L. Ed. 164;
People v. Burke, 32 Colo. 496, 30 A. L. R., 1096;
Buchanan v. Thomason, 70 Ala. 401.

Proposition XV.

An Alabama statute could not affect Federal constitu­
tional law nor the constitutional rights or privileges of the 
petitioner.

M ’Culloch v. Maryland, 4 Wheaton 316, 4 L. Ed. 579;
Martin v. Hunter, 1 Wheaton, 304, 4 L. Ed. 497;
Logan v. U. S., 144 U. 8. 263, 299, 36 L. Ed. 429, 442.

Proposition XVI.

State courts, equally with Peder'al courts, are under an 
obligation to guard and enforce every right secured by the 
Federal Constitution.

Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791;
Smith v. O’Grady (Decided February 17, 1941), 85 L.

Ed. 548.

Proposition XVII.

Where an act or omission on the part of a court opei’ates 
so as to deprive a defendant of an opportunity to present



2 9

such evidence as he has, in support of a motion for a new 
trial or otherwise, then it can be said that due process of 
law has been denied.

Frank v. Mamgum, 237 U. S. 309, 59 L. Ed. 969;
Powell v. Alabama, 287 IJ. S. 46, 77 L. Ed. 158, 84 A. L. 

R., 527;
Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543.

Proposition XVIII.

In the exercise of its appellate jurisdiction, the Supreme 
Court has power not only to correct error in the judgment 
under review, but to make such disposition of the case as 
justice requires.

Patterson v. Alabama, 294 U. S. 600, 79 L. Ed. 1082.

Proposition XIX.

Strictly speaking, a plea (we interpolate, or motion) 
based upon the ground that no valid indictment was in 
court is one to the jurisdiction, for the accused thereby de­
nies the jurisdiction of a court to try him.

Starkie, Criminal Pleading, p. 342;
Renegar v. U. S., 26 L. R. A. N. S. 683, 97 C. C. A. 172, 

172 Fed. 646.

Proposition XX.

Due process of law within the meaning of the Fourteenth 
Amendment is secured only when the law operates on all 
alike, and does not subject the individual to an arbitrary 
exercise of the powers of government.

Missouri P. R. Co. v. Mackey, 127 U. S. 205, 32 L. Ed. 
107;

Deeper v. Texas, 139 U. S. 462, 35 L. Ed. 225;
Giozza v. Tiernan, 148 U. S. 658, 37 L. Ed. 599;
Duncan v. Missouri, 152 U. S. 377, 38 L. Ed. 485.



30

A  fundamental condition nnder the Fourteenth Amend­
ment to the Constitution of the United States is “ that there 
shall be opportunity for hearing given the parties” . This 
opportunity for hearing applies to a motion for a new trial.

Earle v. McVeigh, 91 U. S. 503, 23 L. Ed. 398;
Tivining v. N. J., 211 U. S. 98, 111, 42 L. Ed. 215;
Roller v. Holley, 176 U. S. 398, 44 L. Ed. 520;
Holden v. Hardy, 169 U. S. 366, 42 L. Ed. 780;
Rcmdall v. Patch (Me.) 108 Atl. 97, 8 A. L. R. 65.

Proposition XXII.

In Alabama, it has been repeatedly held, that all confes­
sions are prima facie involuntary, and in order to render 
them admissible it must be shown prima facie that they 
were voluntarily made, without the appliances of hope or 
fear, without extraneous inducement or pressure in either of 
those directions from other persons; and this is a condition 
precedent to their admissibility. Otherwise they are prima 
facie involuntary and illegal. A mere general objection to 
the evidence, or that the question propounded calls for ille­
gal and incompetent evidence, is sufficient for their exclu­
sion, in the absence of a proper predicate for their intro­
duction.

McAlpine v. State, 117 Ala. 93, 23 So. 130;
State v. Stallings, 142 Ala. 112, 38 So. 261;
Godau v. State, 179 Ala. 27, 60 So. 908;
Anderson v. State, 104 Ala. 83, 16 So. 108;
Amos v. State, 83 Ala. 1, 3 So. 749, 3 Am. S. R. 682.

P r o p o s it io n  X X I .



3 1

ARGUMENT.

Reasons Relied on for Reversal of the Judgment of the 
Supreme Court of the State of Alabama.

1. The judgment of the Supreme Court of the State of 
Alabama, affirming the judgment of the Circuit Court of 
Jefferson County in the case at bar, is a denial of funda­
mental rights of petitioner, denying him due process of law 
and the equal protection of the laws guaranteed to him by 
the Fourteenth Amendment to the Constitution of the United 
States.

2. The judgment and decision of the Supreme Court of 
the State of Alabama, if unreversed, would enable the courts 
of last resort of any State to emasculate due process and 
equal protection clause of the Fourteenth Amendment of 
the purpose said amendment was intended to subserve and 
have a strong tendency to influence and enable the highest 
court of a State to become the final arbiter over the lives 
and rights of the citizens of the State as guaranteed by the 
Fourteenth Amendment, under the statutes of the State and 
under procedural rules of the highest court of the State as 
to fundamental constitutional rights guaranteed by the Fed- 
eral Constitution.

3. The Supreme Court of the State of Alabama in hold­
ing in its judgment and opinion in the case at bar that an 
accused or his attorney may waive his rights guaranteed to 
him by the Federal Constitution requiring due process of 
law and equal protection of the laws, as guaranteed by Jhe 
Fourteenth Amendment, has decided a Federal question of 
substance in the case at bar in a way probably not in accord 
with applicable decisions of this Court.



3 2

4. The Supreme Court of the State of Alabama in affirm­
ing the judgment of the Circuit Court of Jefferson County, 
Alabama, denied petitioner an opportunity to be heard and 
to introduce testimony in support of his motion for a new 
trial, and thereby denied him the very essence of due proc­
ess of law guaranteed to him by the Fourteenth Amendment 
to the Constitution of the United States.

5. The conviction of petitioner solely upon the confes­
sions of guilt illegally extorted from him by force, violence, 
torture and brutality of officers of the City of Birmingham 
and State of Alabama, while acting in their official capaci­
ties, is a denial of the equal protection of the laws and due. 
process of law guaranteed to him by the Fourteenth Amend­
ment to the Constitution of the United States.

6. It is the duty of this Court to step in, in the case at bar, 
and prevent the State court from holding that a waiver, 
based strictly on failure of petitioner’s trial attorney to 
follow procedural grounds as laid down by the State Su­
preme Court, involving rights guaranteed to him by the 
Federal Constitution, is binding on petitioner, and to de­
clare in unequivocal terms that the right of due process of 
law and equal protection of the laws, guaranteed to him by 
the Fourteenth Amendment, cannot be waived by peti­
tioner’s trial attorney in a trial for a capital felony, and 
that petitioner has the right to stand on all his constitutional 
rights, guaranteed to him by the supreme law of the land, 
which constitutional rights he himself cannot waive, to say 
nothing of his attorney.

Question 1 : The violation of the Fourteenth Amendment 
to the Constitution of the United States in Intentionally and 
Systematically excluding from Grand Jury Service mem­
bers of the Negro Race in Jefferson County, Alabama, solely 
on account of race and color.



33

First Specification of Error.

In the recent case of Smith v. Texas, 85 L. Ed. 106 (Ad­
vance Sheets), the Supreme Court of the United States, in 
an opinion by Mr. Justice Black, held that a negro’s convic­
tion of crime (rape in that case), based upon an indictment 
returned by a Grand Jury from which negroes were ex­
cluded because of their race, is a denial of the equal protec­
tion of laws guaranteed by the Fourteenth Amendment. 
The Court held that on an appeal to the Supreme Court of 
the United States from a conviction in the State court on 
the ground of invasion of constitutional rights, guaranteed 
to the accused by the Fourteenth Amendment, the Supreme 
Court of the United States will, notwithstanding a State 
court has held the evidence insufficient to establish such 
invasion, determine for itself the sufficiency of the evidence.

The decision in the Smith case, supra, is in line with the 
decision of the Supreme Court of the United States in the 
case of Moore v. Dempsey, Keeper of the Arkansas State 
Penitentiary, 261U. S. 86, 67 L. Ed. 543, which was a habeas 
corpus proceeding, in which Mr. Justice Holmes wrote the 
opinion of the Court, holding, in substance, that the correc­
tive process afforded State courts in case alleged murderers 
are rushed to conviction through counsel, jury and judge 
being swept to the fatal end by an irresistible wave of 
public passion, so that no trial in a true sense was afforded 
them, will not, where such measures have been appealed to 
without affording relief, prevent a Federal court from issu­
ing a writ of habeas corpus to examine for itself the facts 
on which the conviction rested. In that case, a writ of 
habeas corpus to secure the release of petitioners from 
custody to which they had been committed after conviction 
of murder was dismissed by a District Court, but met with 
a reversal by this Court.



3 4

In the case of Smith v. Texas, supra, Mr. Justice Black 
said:

“ It is part of the established tradition in the use of 
juries as instruments of public justice that the jury be 
a body truly representative of the community. For 
racial discrimination to result in the exclusion from 
jury service of otherwise qualified groups, not only vio­
lates our Constitution and the laws enacted under it, 
but is at war with our basic precepts of a democratic 
society and a representative government.”

The law enacted under the Constitution of the United 
States to which Mr. Justice Black had reference is 18 Stat. at 
L., 336, Chap. 114, 8 U. S. C. A., Sec. 44, which provides as 
follows:

“ No citizen possessing all other qualifications * * * 
shall be disqualified for service as grand or petit juror 
in any court of the United States, or of any State, on 
account of race, color, or previous condition of servi­
tude; * *

It is the insistence of petitioner in the case at bar that be 
is entitled to a reversal of the judgment of the Supreme 
Court of the State of Alabama since his imprisonment is 
illegal or under void process even though the question could 
have been determined by filing a plea in abatement or a 
motion to quash the indictment as the State Supreme Court 
held was the correct procedure in the Alabama practice.

Recent decisions of the courts, including this Court, recog­
nize and uphold a modern tendency to extend the scope of 
the inquiry in reviewing the decisions of inferior courts so 
as to preserve constitutional safeguards of human liberty 
(see Proposition X II and authorities cited thereunder).

The Supreme Court of the State of Alabama, in its opin­
ion in the case of Vernon v. State, 200 So. 560, condemns 
this modern tendency to extend the scope of the inquiry in



3 5

judicial proceedings to preserve constitutional safeguards 
of human liberty in the following intemperate language:

“ That the rules of law, which preserve the sanctity 
of judgments of courts of competent jurisdiction regu­
lar on their face, encouraging the termination of liti­
gation are to be disregarded, and the record of judicial 
proceedings are a ‘ mere scrap of paper’, and under the 
force and virtue of the writ of habeas corpus, ‘ the great 
writ of liberty’, ‘ and the modern tendency to broaden 
the scope of such writ’, when its protection is invoked 
by one of the negro race, all law and rules of procedure 
for the protection of society and repose are swept aside 
as trash before the wind.”

Such expressions as “ mere scrap of paper”  and “ as trash 
before the wind”  are intemperate, unwarranted by the rec­
ord in this case, or by the contentions of petitioner or his 
counsel, and should find no place in judicial opinions or in 
the imperishable literature of the law. The foreboding of 
the Supreme Court of the State of Alabama, as expressed 
in the above cited opinion that the “ Fourteenth Amend­
ment of the Constitution of the United States, and Act of 
Congress, which provides that “ No citizen possessing all 
other qualifications, shall be disqualified for service as a 
grand or petit juror in any court of the United States, or of a 
State, on account of race, color or previous condition of 
servitude” —18 Stat. at L. 226, Chap. 114, 8 U. S. C. A. § 44, 
are preeminent and predominant of all law, State and Fed­
eral, are purely imaginary, and the record, as well as brief 
of counsel for petitioner do not justify the concept in the 
mind of the court that “ The Constitution is gone.”  Counsel 
for petitioner in the case at bar are making no attempt 
Uzzah-like to lay impious hand on either Ark of the Covenant 
or upon the Constitution and laws either of the United 
States or of the State of Alabama, except that it is our con­
tention that Article VI of the Constitution of the United



36

States is still in force and should be enforced by the courts 
of the State of Alabama.

Article VI of the Constitution of the United States pro­
vides as follows:

‘ ‘ This Constitution and the laws of the United States 
which shall be made in pursuance thereof * * * shall 
be the Supreme law of the land; and the Judges, in 
every State, shall be bound thereby, anything in the 
Constitution and laws of any State to the contrary not­
withstanding. ’ ’

In the words of Chief Justice Marshall, “ We should re­
member that it is a Constitution that we are construing” 
in considering the case at bar, which presents to this Court 
solely questions of constitutional rights under the Four­
teenth Amendment, which Mr. Justice Brown of the Su­
preme Court of the State of Alabama, in the case above 
cited in an appeal from a habeas corpus proceeding insists 
that counsel for petitioner contend “ are preeminent, and 
predominant of all law, State and Federal.”  Both the 
Fourteenth Amendment and the Federal Statute “ are pre­
eminent and predominant of all”  State law.

It is the insistence of petitioner in the case at bar that 
he was denied due process of law, on the trial in the State 
Court within the meaning of the Fourteenth Amendment 
which is secured only when the law operates on all alike 
and does not subject the individual to an arbitrary exer­
cise of the powers of government.

We must consider the record in the case at bar in the 
light of the important principles declared by this Court in 
the case of Smith v. Texas, supra, and when so considered 
it will follow “ as the night the day and the day the night,” 
that members of the negro race were excluded from grand 
jury service at the time of the return of the indictment 
against petitioner for the murder of Bennie Montgomery, 
and have always been excluded from grand jury service in



3 7

Jefferson County, Alabama, both intentionally and syste­
matically, solely on account of race and color and that the 
conviction of petitioner in the case at bar, a member of the 
negro race, for the murder of Bennie Montgomery, a white 
boy, based upon an indictment so returned by a grand jury 
of Jefferson County, Alabama, so selected, denied petitioner 
the equal protection of the laws guaranteed to him by the 
Fourteenth Amendment to the Constitution of the United 
States, and that said indictment so returned against peti­
tioner is void.

In this connection, as a part of our argument, we adopt 
the words of Mr. Justice Black in the case of Smith v. 
Texas, supra, as applicable to the case at bar, in which he 
says:

“ The fact that the written words of a state’s laws 
hold out a promise that no such discrimination will be 
practiced is not enough. The Fourteenth Amendment 
requires that equal protection to all must be given not 
merely promised.

“ Here, the Texas statutory scheme is not in itself 
unfair; it is capable of being carried out with no racial 
discrimination whatsoever. But by reason of the wide 
discretion permissible in the various steps of the plan, 
it is equally capable of being applied in such a manner 
as practically to proscribe any group thought by the 
law’s administrators to be undesirable.”

We are attaching to this brief as Exhibit A thereto a 
letter from the Department of Commerce, Bureau of the 
Census, to Honorable Lister Hill, United Stated Senator 
from Alabama, containing detailed statistics by color or 
race, age, educational attainments, etc., for Jefferson 
County, Alabama, according to the 1930 Census, which 
should throw some light on qualifications of both members 
of the white and negro race for grand and petit jury serv­
ice in Jefferson County.



3 8

Second Specification of Error.

What we have hereinbefore said under the first specifica­
tion of error also applies to petitioner’s second specifica­
tion of error.

Q uestion  2 :

The Conviction of Petitioner solely upon Confessions 
of g’uilt extorted from him by force, violence, torture, 
and brutality by the officers of the City of Birmingham 
and State of Alabama, while acting in their official 
capacities, is a denial of due process of law and the 
equal protection of the laws guaranteed by the Four­
teenth Amendment to the Constitution of the United 
States.

Third Specification of Error.

One of the principal questions in this case is whether the 
conviction of petitioner in the State Court, which rests 
solely upon confessions shown to have been extorted by 
officers of the City of Birmingham and of the State of Ala­
bama by force, violence, torture and brutality, are con­
sistent with due process of law required by the Fourteenth 
Amendment to the Constitution of the United States.

Petitioner was indicted for the murder of one Bennie 
Montgomery, whose death occurred on September 20, 1937, 
on November 12, 1938, more than a year after the murder, 
and was arraigned on January 9, 1939, and tried and con­
victed of murder in the first degree, and his punishment 
was fixed by the jury at death, on January 10, 1939.

It is the earnest insistence of petitioner that aside from 
the confessions, extorted from him by force, violence, tor­
ture and brutality, there was no material evidence intro­
duced by the State sufficient to warrant the submission of 
the case to the jury, and that petitioner (defendant in the 
State Court), was due to have the general affirmative charge 
in writing was. .shown to be given in his behalf by the court 
as requested. On his appeal to the Supreme Court of the



3 9

State of Alabama petitioner (defendant) assigned as error 
the inadmissibility of the confessions. The judgment of the 
circuit court of Jefferson County was affirmed by the Su­
preme Court of the State of Alabama. Vernon v. State, 239 
Ala. 593, 196 So. 96.

Defendant then moved in the Supreme Court of the State 
for a rehearing, explicitly challenging the proceedings of 
the trial court, and the judgment and decision of the Su­
preme Court of the State of Alabama in the use of the 
confessions as evidence against petitioner, which he con­
tends were extorted from him by officers, while acting within 
their official capacities, by the use of force, violence, tor­
ture and brutality, and the intentional and systematic ex­
clusion of negroes from grand jury service in Jefferson 
County, Alabama, as violating the due process clause of the 
Fourteenth Amendment of the Constitution of the United 
States (R. 108-112). The Supreme Court of the State of 
Alabama overruled the application for a rehearing, and de­
cided against defendant’s contentions on April 12, 1940 
(R. 113).

This Court denied petition for writ of certiorari on No­
vember 12, 1940. 85 L. Ed. 82. A petition for rehearing 
was duly filed and was denied by this Court on December 
16,1940. 85 L. Ed. 282.

On April 7, 1941, this Court denied certiorari in No. 814, 
Vernon v. Earl R. Wilson, Warden of Kilby Prison, and 
on the same date the order denying certiorari was vacated 
and certiorari granted in No. 449, Vernon v. Alabama, and 
stay of the death sentence was continued.

The essential facts with reference to the confessions 
relied upon by the State for a conviction of the defendant 
are hereinbefore set forth under the heading of Summary 
Statement of the Matters Involved, and, in the interest of 
brevity, are not here repeated at length. The undisputed 
evidence shows that petitioner, Joe Vernon, was arrested



40

without a warrant, on or about September 15, 1938, on 
charges of robbing hoboes of their watches on the Southern 
and Central of Georgia Railroads, and that he was at first 
apprehended by police officers or agents of the railroad com­
panies on such charges, and was later turned over to police 
officers and detectives of the City of Birmingham and incar­
cerated in the city jail of Birmingham under sections 4901 
and 4902 of the City Code of Birmingham, which are here­
inbefore cited upon this brief, which ordinances petitioner 
earnestly insists are unconstitutional and void. Petitioner 
was held a prisoner “ incommunicado” , in the city jail from 
September 15, 1938 to October 1, 1938, at which time lie 
was transferred to the county jail of Jefferson County, Ala­
bama, and charged with the murder of Bennie Montgomery, 
which occurred on September 20, 1937. The undisputed evi­
dence shows that petitioner was taken from the city jail 
of Birmingham by officers and detectives of the city and 
by police officers and agents of the railroad companies and 
carried by them both in the daytime and nighttime, and 
both verbal and written confessions were extorted from 
him by the officers while acting in their official capacities, 
by the use of force, violence, torture and brutality. Peti­
tioner testified at length on the trial of the case in the 
circuit court of Jefferson County, Alabama, as to the times 
and places when he was taken out of the City Jail by the 
officers, and as to the violence, torture, and brutality to 
which he was subjected by the officers while acting in their 
official capacities, and the officers themselves testified to 
taking him out of the city jail on numerous occasions, both 
in the daytime and at night. Petitioner testified that on 
one of the occasions the officers struck him with such force 
as to break one or two of his teeth, which injury he ex­
hibited to the jury on his trial in the Circuit Court of 
Jefferson County, Alabama (R. 62). Petitioner testified that 
on this occasion, when officers Wier, Gorman, Johnson and



4 1

Jones took him out of the city jail, and that Mr. Johnson 
hit him over the head, petitioner could not tell how many 
times, but with such force that he testified “ I was crazy” . 
Thereafter Mr. Johnson gave him something that he had 
already written and required him to copy it, but there were 
some mistakes that petitioner made, and that Johnson re­
quired him to write it over again (R. 62-63). Witness then 
testified “ Then they whipped me, wanted me to sign those 
papers, and I wouldn’t sign them. I hadn’t signed them 
then. I had written the paper out, but hadn’t put my name 
to it. * ’* # I don’t know who all did the beating, but
I think all of them”  (R. 63). Petitioner was carried to the 
Solicitor’s office, and in the presence of the officers who had 
theretofore beaten him was examined by the assistant so­
licitor (Mr. McAdory), and the questions propounded to 
petitioner and his answers thereto were taken down by J. W. 
Dickinson, a court reporter, on September 27, 1938, in the 
presence of assistant solicitor McAdory and officers H. N. 
Wier, J. J. Bullard and W. A. Johnson “ all of whom were 
special officers”  (R. 40-47).

Petitioner and L. C. Bell, who was jointly indicted for 
the murder with petitioner, were carried to the scene of 
the murder by the officers and by A. B. Reese, whose true 
and correct name is A. V. Reese, and at the dictation of the 
officers were required to reenact the murder, after they 
had been directed, told or ordered what to do and what 
to say in reenacting the murder.

Witness Reese testified that before petitioner confessed 
to the murder that he said to petitioner:

“ I really don’t believe you boys done it, and if you 
will tell me I am not going to tell these officers, I won’t 
mention it, I will step out and get you a lawyer,”

and that Vernon said “ We are guilty.”
We respectfully submit that the above and foregoing 

statement by Reese to petitioner holds out the hone of em-



4 2

ployment of counsel for petitioner by Beese, which, we sub­
mit, is hope of reward, but Yernon stoutly denied making 
any confession to Beese. We respectfully submit that 
Beese’s testimony as to the confession which he claims 
that petitioner made to him is wholly lacking in verisimili­
tude.

In Alabama, it has been repeatedly held by the State Su­
preme Court that all confessions are prima facie involun­
tary, and, in order to render them admissible, it must be 
shown prima facie that they were voluntarily made, without 
the appliance of hope or fear, without extraneous induce­
ment or pressure in either of those directions from other 
persons; and this is a condition precedent to their admissi­
bility. Otherwise, they are prima facie involuntary and 
illegal. A  mere general objection to the evidence, or that 
the question propounded calls for illegal and incompetent 
evidence, is sufficient for their exclusion, in the absence of 
a proper predicate for their introduction. (See Proposition 
X X II and authorities cited thereunder.)

In recent decisions, notably in the Chambers case, supra, 
and in the Brown case, supra, this Court has held that the 
conviction of a defendant solely upon confessions of guilt 
extorted by force, violence, torture, and brutality, by officers 
while acting in their official capacity, is a denial of the equal 
protection of the laws and due process of law guaranteed by 
the Fourteenth Amendment to the Constitution of the 
United States. (See Propositions I and II and authorities 
cited thereunder.)

In this connection, and as a part of our argument, we cite 
the words of Mr. Justice Black in the recent case of Cham­
bers v. Florida, 309 U. S. 227, 236, 84 L. Ed. 716, 721, as fol­
lows :

“ The scope and operation of the Fourteenth Amend­
ment have been fruitful sources of controversy in our 
constitutional history. However, in view of its his-



4 3

torical setting and the wrongs which called it into being, 
the due process provision of the Fourteenth Amend- 
ment—just as that in the Fifth—has led few to doubt 
that it was intended to guarantee procedural standards 
adequate and appropriate, then and thereafter, to pro­
tect, at all times, people charged with or suspected of 
crime by those holding positions of power and author­
ity. Tyrannical governments had immemorially util­
ized dictatorial criminal procedure and punishment to 
make scape goats of the weak, or of helpless political, 
religious, or racial minorities and those who differed, 
who would not conform and who resisted tyranny. The 
instruments of such governments were in the main, two. 
Conduct, innocent when engaged in, was subsequently 
made by fiat criminally punishable without legislation. 
And a liberty loving people won the principle that crim­
inal punishments could not be inflicted save for that 
which proper legislative action had already by ‘ the law 
of the land’ forbidden when done. But even more was 
needed. From the popular hatred and abhorrence of 
illegal confinement, torture and extortion of confessions 
of violations of the ‘ law of the land’ evolved the funda­
mental idea that no man’s life, liberty or property be 
forfeited as criminal punishment for violation of that 
law until there had been a charge fairly made and fairly 
tried in a public tribunal free of prejudice, passion, 
excitement and tyrannical power. Thus, as assurance 
against ancient evils, our country, in order to preserve 
‘ the blessings of liberty,’ wrote into its basic law the 
requirement, among others, that the forfeiture of the 
lives, liberties or property of people accused of crime 
can only follow if procedural safeguards of due process 
have been obeyed.

The determination to preserve an accused’s right to 
procedural due process sprang in large part from 
knowledge of the historical truth that the rights and 
liberties of people accused of crime could not be safely 
entrusted to secret inquisitorial processes. The testi­
mony of centuries, in governments of varying kinds 
over populations of different races and beliefs, stood 
as proof that physical and mental torture and coercion



44

had brought about the tragically unjust sacrifices of 
some who were the noblest and most useful of their 
generations. The rack, the thumbscrew, the wheel, soli­
tary confinement, protracted questioning and cross 
questioning, and other ingenious forms of entrapment 
of the helpless or unpopular had left their wake of muti­
lated bodies and shattered minds along the way to the 
cross, the guillotine, the stake and the hangman’s noose. 
And they who have suffered most from secret and dicta­
torial proceedings have almost always been the poor, 
the ignorant, the numerically weak, the friendless, and 
the powerless.”

In the case of Brown v. Mississippi, 297 U. S. 278, 80 L. 
Ed. 682, this Court, in an opinion by Chief Justice Hughes, 
held that a State is free to regulate the procedure of its 
courts in accordance with its own conceptions of policy 
unless in so doing it offends some principle of justice so 
rooted in the traditions and conscience of the people as to 
be ranked as fundamental. In the great opinion of the 
Court in this case, the Chief Justice said:

“ But the freedom of the State in establishing its 
policy is the freedom of constitutional government and 
is limited by the requirements of due process of law. 
Because a State may dispense with a jury trial, it does 
not follow that it may substitute trial by ordeal. The 
rack and torture chamber may not be substituted for 
the witness stand. The State may not permit an ac­
cused to be hurried to conviction under mob domina­
tion—where the whole proceeding is but a mask—with­
out supplying corrective process. Moore v. Dempsey, 
261 TJ. S. 86, 91, 67 L. Ed. 543, 545, 43 S. Ct. 265. The 
State may not deny to the accused the aid of counsel. 
Powell v. Alabama, 287 IT. S. 45, 77 L. Ed. 158, 53 S. Ct. 
55, 84 A. L. R. 527. Nor may a State, through the action 
of its officers, contrive a conviction through the pre­
tense of a trial which in truth is ‘ but used as a means 
of depriving a defendant of liberty through a deliberate 
deception of court and jury by the presentation of testi-



45

mony known to be perjured.’ Mooney v. Holohan, 294 
U. S. 103,112, 79 L. Ed. 791, 794, 55 S. Ct. 340, 98 A. L. 
E. 406. And tbe trial equally is a mere pretense where 
the state authorities have contrived a conviction rest­
ing solely upon confessions obtained by violence. The 
due process clause required ‘ that state action, whether 
through one agency or another, shall be consistent with 
the fundamental principles of liberty and justice which 
lie at the base of all our civil and political institutions. 
Herbert v. Louisiana, 272 U. S. 312, 316, 71 L. Ed. 270, 
272, 47 S. Ct. 103, 48 A. L. E. 1102. It would be difficult 
to conceive of methods more revolting to the sense of 
justice than those taken to procure the confessions of 
these petitioners, and the use of the confessions thus 
obtained as the basis for conviction and sentence was a 
clear denial of due process.

2. It is in this view that the further contention of the 
State must be considered. That contention rests upon 
the failure of counsel for the accused, who had objected 
to the admissibility of the confessions, to move for their 
exclusion after they had been introduced and the fact 
of coercion had been proved. It is a contention which 
proceeds upon a misconception of the nature of peti­
tioners’ complaint. That complaint is not of the com­
mission of mere error, but of a wrong so fundamental 
that it made the whole proceeding a mere pretense of 
a trial and rendered the conviction and sentence wholly 
void. Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543, 
43 S. Ct. 265, supra. "We are not concerned with a mere 
question of state practice, or whether counsel assigned 
to petitioners were competent or mistakenly assumed 
that their first objections were sufficient. In an earlier 
case the Supreme Court of the State had recognized 
the duty of the court to supply corrective process where 
due process of law had been denied. In Fisher v. State, 
145 Miss. 116,134,110 So. 361, the court said: ‘ Coercing 
the supposed state’s criminals into confessions so 
coerced from them against them in trials has been the 
curse of all countries. It was the chief iniquity, the 
crowning infamy, of the Star Chamber, and the Inquisi-



46

tion and other similar institutions. The constitution 
recognized the evils that lay behind these practices and 
prohibited them in this country. * * * The duty of 
maintaining constitutional rights of a person on trial 
for his life rises above mere rules of procedure and 
wherever the court is clearly satisfied that such viola­
tions exist, it will refuse to sanction such violations and 
will apply the corrective.’

In the instant case, the trial court was fully advised 
by the undisputed evidence of the way in which the 
confessions had been procured. The trial court knew 
that there was no other evidence upon which conviction 
and sentence could be based. Yet it proceeded to per­
mit conviction and to pronounce sentence. The convic­
tion and sentence were void for want of the essential 
elements of due process, and the proceeding thus viti­
ated could be challenged in any appropriate manner. 
Mooney v. Holohan, 294 IT. S. 103, 79 L. Ed. 791, 55 
S. Ct. 340, 98 A. L. E. 406, supra. It was challenged 
before the Supreme Court of the State by the express 
invocation of the Fourteenth Amendment. That court 
entertained the challenge, considered the federal ques­
tion thus presented, but declined to enforce petitioner- 
ers ’ constitutional right. The court thus denied a fed­
eral right fully established and specially set up and 
claimed and the judgment must be reversed. ’ ’

It had been a year since the murder of Bennie Mont­
gomery before petitioner was arrested on other charges, 
cast into the city jail of Birmingham and held incommuni­
cado, without a warrant for a period of from twelve to six­
teen days before he was finally arrested on the murder 
charge. Two other negroes had confessed to the crime 
shortly after the commission of the same, but had been 
given their freedom. Here was a crime that had gone un­
solved for a period of a year. According to the testimony 
of the State’s witness, A. B. Reese, there was a reward for 
the arrest and conviction of the perpetrator of the horrible



4 7

murder. Reese testified: “ The amount of the reward did 
not make $2,500, it was never over $1,500 or that was what 
I heard them say it was”  (R. 32). W. A. Johnson, who 
beat petitioner until he was crazy, broke his tooth, and 
compelled bim to copy a purported confession, testified: 
“ I read at the time that there was a reward, but the exact 
amount I don’t know. I do not know that it was $1,500.00. 
I had it made up with Mr. Wier and Mr. Wagoner that 
when we let him out at his house that they were to grab 
him and I called Mr. Wier on the phone and told him that 
Joe would be at his home. We had not been discussing 
arresting him for the Montgomery killing. We were after 
him for highway robberies on the railroad”  (R. 77).

The testimony of Reese and the officers should he read in 
the light of the large reward offered for the1 apprehension, 
arrest and conviction of petitioner for the commission of 
the murder of Bennie Montgomery.

It is the earnest insistence of petitioner that his third 
specification of error should be sustained by this Court and 
the judgment of the Supreme Court of the State of Ala­
bama should be reversed.

Fifth Specification of Error.

The fifth specification of error, we submit, is in substance 
the same as the third specification of error, and what we 
have hereinbefore said in support of the third specification 
of error is applicable to the fifth specification of error, and, 
in the interest of brevity, is not here repeated.

Q u e st io n  3 :

On a trial involving deprivation of life or liberty, accused 
cannot waive any essential matter but must be considered 
as standing on all his legal and constitutional rights, and 
waiving nothing.



4 8

In a trial for a capital felony, no waiver is binding on 
accused unless he himself makes the waiver in open court, 
and there are some constitutional provisions which he him­
self cannot waive (Propositions VI and VII and authori­
ties, cited thereunder).

The reason that the doctrine of waiver does not extend to 
matters which are essential in proceedings involving the 
deprivation of life or liberty, is that “ a strict compliance 
with all essential formalities in a felony case is necessary to 
constitute a proceeding ‘ due process of law’ ”  (Proposition 
V III and authorities cited thereunder).

Courts indulge every reasonable presumption against a 
waiver of fundamental constitutional rights, and do not 
acquiesce in their loss. Eight to due proces of law cannot 
be waived (Proposition IX  and authorities cited there­
under).

Recent decisions of the courts, and especially of this 
Court, recognize and uphold a modern tendency to preserve 
constitutional safeguards of human life and of human 
liberty (Proposition X II and authorities cited thereunder).

A  State is required, by the equal protection clause, to 
extend to its citizens of the white and colored races sub­
stantially equal treatment in all facilities or privileges pro­
vided from; public funds (Proposition X III and authorities 
cited thereunder).

The Federal Constitution provides certain absolute rights 
and privileges which, we submit, cannot be waived. Article 
I, Section 6 of the Constitution declares that members of 
Congress, for any speech or debate in either House, shall 
not be questioned in any other place.

Another relates to what is testified by a witness in the 
course of judicial proceedings, and which is not allowed to

Fourth and Sixth Specifications o f Error.



4 9

be made the ground of a civil action, however false and 
malicious it may be, though the State may punish the 
perjury.

Marsh v. Ellsworth, 50 N. Y. 309;
Terry v. Fellows, 21 La. Ann. 375;
Verner v. Verner, 64 Miss. 321.

A like right of protection is thrown around what a juror 
may say to his fellow jurors in the jury-room, concerning 
the parties to the case, or concerning who may have given 
testimony therein.

Dunham v. Powers, 42 Vt. 1.

The President of the United States and the Governors of 
the several States are exempted from responsibility for 
their official utterances and so are all Judges of courts and 
all officers performing functions in their nature judicial, 
while acting within the limits of their jurisdiction.

Cooley on Torts, Second Ed. 250;
T ownshend on Slander and Libel, § 227.

It is our insistence in the case at bar that petitioner on 
trial for a capital felony, had no power to waive a lawful 
grand jury or a lawful petit jury, when he puts himself on 
the country, and that the law requires a jury of twelve to 
comply with the demands of the Federal Constitution. 
Without a lawful grand jury and a lawful indictment and 
without the verdict of a jury of twelve as provided in the 
Federal Constitution a verdict of the jury required by the 
Federal Constitution cannot be said to have been returned 
by a lawful jury. Such a verdict is illegal and insufficient 
to support a judgment of conviction in a capital case.

Jennings v. State, 134 Wis. 307, 114 N. W. 492, 14 
L. R. A. N. S. 862;

Patton v. U. S., 281 U. S. 276, 291, 74 L. Ed. 854, 860.



5 0

It is our serious insistence that the rights, immunities 
and guaranties of the Federal Constitution and of all of the 
amendments thereto, including the guaranties of the Four­
teenth Amendment, cannot be waived by any citizen, other­
wise we would have a government of men and not of laws.

It is, therefore, the insistence of petitioner that his fourth 
and sixth specifications of error should he sustained by this 
Court, on consideration of the foregoing authorities cited 
upon this brief.

In the case of Vernon v. State, 239 Ala. 593, 196 S. 96, 99, 
the Supreme Court of the State of Alabama, in an opinion by 
Mr. Justice Brown, said:

“ It is well settled that objections going to the forma­
tion of the grand jury which presented the defendant 
must be made by plea in abatement before pleading 
not guilty, and after so pleading, any such objection is 
addressed to the irrevisible discretion of the trial court. 
Nixon v. State, 68 Ala. 535; Jackson v. State, 74 Ala. 
26; Hubbard v. State, 72 Ala. 164.

So, also, that objections going to the venire of the 
petit jury or any member thereof, must be made before 
entering upon the trial of the case on its merits under 
the defendant’s plea of not guilty, and a failure to make 
such objections constitutes a waiver. Peterson v. 
State, 227 Ala. 361, 150 So. 156. This rule has its ex­
ceptions as when defendant is misled by the false oath 
and fraud of a venireman, and thereby induced to 
accept such venireman on the jury. 20 R. C. L. 242, 
Art. 27.

It is not permissible for the defendant, who has not 
been misled, to participate in the selection of the jury 
without objections, speculate on winning a favorable 
verdict, and failing to do so, allow him to raise such 
questions on a motion for new trial. Simpson v. Golden, 
114 Ala. 336, 21 So. 990; Hoskins v. Hight, 95 Ala. 284, 
11 So. 253; Barron v. Robinson et al., 98 Ala. 351, 13 
So. 476 -Fulwider v. Jacob, 221 Ala. 224, 127 So. 818.



51

We observe that there is nothing in the record going 
to show that defendant and his counsel were not fully 
informed and had knowledge of the facts averred in 
said several grounds when he entered his plea and 
entered upon the trial. See Fulwider v. Jacob, supra. ’ ’

It is the earnest insistence of petitioner that under Sec­
tions 5202, 8630 and 8637 of the Code of Alabama, of 1923, 
which Code Sections are hereinbefore set out upon this 
brief, that petitioner could not raise the question of racial 
discrimination in drawing the grand jury that indicted him, 
or “ any other ground going to the formation of the grand 
jury, except that the jurors were not drawn in the presence 
of the officer designated by law,”  by either plea in abate­
ment or otherwise, and that he had a right to raise the ques­
tion for the first time on his motion for a new trial in the 
trial court. Moreover, it is the earnest insistence of peti­
tioner that Sections 5202, 8630 and 8637 of the Code of 
Alabama of 1923 are unconstitutional and void in that they 
preclude petitioner and all minority groups from raising 
the question of racial discrimination or other grounds 
going to the formation of the grand jury with the one ex­
ception named in the statutes, as in contravention of the due 
process and equal protection clause of the Fourteenth 
Amendment to the Constitution of the United States.

In the opinion of this Court in the case of Pierre v. 
Louisiana, 306 U. S. 354, 83 L. Ed. 757, written by Mr. Jus­
tice Black, this Court held that where a question of depri­
vation of constitutional rights by action of State officers in­
volves the conclusion reached by the State court whose 
decision is being reviewed, upon the question of facts in­
volved, such conclusions, while entitled to great respect, are 
not controlling, and it is the duty of the Supreme Court to 
make independent inquiry and determination of the dis­
puted facts.



5 2

We respectfully invite the Supreme Court to make inde­
pendent inquiry upon the questions of fact presented by the 
record in the case at bar, to weigh such facts in diamond 
scales in which justice should always be weighed, and to 
render such judicial determination of the disputed facts as 
right and justice requires.

Conclusion.

It is, therefore, respectfully submitted that this case is 
one calling for the exercise by this Court of its supervisory 
powers, to the end that the errors hereinabove pointed out 
and complained of may be corrected; that the law may he 
properly and authoritatively defined, and that the judg­
ment of the Supreme Court of the State of Alabama should 
be reversed in order that justice may be done to petitioner.

Respectfully submitted,

W alte r  S . S m it h , 
Counsel for Petitioner.

C ora R. T h o m p s o n ,
W a l te r  S. S m it h , Jr.,

Of Counsel.



5 3

A P P E N D IX  A.

Department of Commerce, 
Bureau of the Census,

Washington. 

My dear S enator  Hill:
March 11, 1941.

I have for reply your letter of March 7, concerning the 
request of Honorable Walter S. Smith of Birmingham, 
Alabama.

According to the 1940 Census the total population ol 
Jefferson county, Alabama, is 459,930. The detailed statis­
tics by color or race, age, educational attainment, etc., will 
not be available before summer. There are given below, 
however, 1930 Census statistics, which may be of interest:

Jefferson County, Alabama.

Total population........................................................
White .........................................................................
Negro .........................................................................
Other races (Indian, Chinese, Japanese, etc.)

1930
431,493
263,475
167,957

61

The 1930 statistics on literacy were based on the popu­
lation 10 years old and over, the number of Negroes of this 
age in Jefferson county being 134,503. Of the latter num­
ber 112,290 were reported as able to read and write.

The number of Negro home owners in Jefferson county, 
Alabama, in 1930 was 9,016. The 1940 statistics on tenure 
of homes will not be available for the counties of Alabama 
before the late summer. We have made a special note of 
Mr. Smith’s request and 1940 statistics will be sent him 
as soon as it is possible to do so.

Sincerely yours,
V ebgil  D. R eed ,

Acting Director.
Hon. L ister H il l ,

United States Senate,
Washington, D. C.



54

Reported in Yol. 199—No. 7,
Southern Reporter, 809.

In re Vernon 
3 Div. 337.

S u p r e m e  C ourt  op A l a b a m a .

Jan. 30, 1941.
Head Note: Criminal law, key 1084.

Where petition for writ of habeas corpus on its face dis­
closed that the proceedings presented but a second effort 
to review the questions fully considered and determined on 
appeals in the Supreme Court of Alabama and the Supreme 
Court of the "United States, and the petition was but a col­
lateral attack on decisions of those courts, Supreme Court of 
Alabama would not grant petition for suspension of death 
sentence or further postponement pending appeal from a 
judgment denying a writ of habeas corpus. Code 1923, 
art. 3238.

Original petition of Joe Vernon for stay of execution of 
death penalty pending appeal from a judgment of the Cir­
cuit Court of Montgomery County denying writ of habeas 
corpus.

Petition denied.
Walter S. Smith and Cora R. Thompson, both of Birming­

ham, for petitioner.
Thos. S. Lawson, Atty. Gen. opposed.

Per C u r ia m :

Joe Vernon was duly convicted of murder in the first 
degree with infliction of the death penalty. Upon appeal 
to this court the judgment of conviction was affirmed. No 
motion to quash the indictment was presented or filed on the 
trial by his counsel, and the matter of the invalidity of the 
indictment on the ground that members of the colored race 
were systematically omitted from the jury box was pre­
sented for the first time on motion for a new trial.

A P P E N D IX  B.



55

This question was here reviewed on appeal of the cause 
and the holding was that the question was presented too 
late and of consequence waived. See Vernon v. State, 239 
Ala. 593, 196 So. 96. So far as the matter of voluntary 
confession was concerned, that was also fully reviewed on 
appeal to this court and found without merit.

Petitioner, Joe Vernon, then sought a review to the 
Supreme Court of the United States and that court denied 
the writ and declined to further review the cause. Joe 
Vernon v. State, 61 S. Ct. 135, 85 L. Ed. —. There have 
been previous suspensions of the sentence of the court 
that the defendant might have ample time for proper pre­
sentation of his case.

And it now appears that petitioner sought by habeas 
corpus to raise the question of the invalidity of the indict­
ment upon the same grounds as set up in the motion for a 
new trial and which were fully reviewed by this court on 
appeal. Petitioner’s writ of habeas corpus being denied, he 
has prosecuted an appeal to this court. Sec. 3238, Code 
1923.

There is no statute which calls for a suspension of the 
execution of the sentence of the court on such appeal. Per- 
haps the court would have inherent power to so suspend 
the sentence, a matter which would be directed to this 
court’s sound discretion. Yeates v. Roberson, 4 Ga. App. 
573, 62 S. E. 104; Ex parte Green, D. C. 165 F. 557; 29 
C. J. 189-190.

We are of the opinion the petition for writ of habeas 
corpus upon its face discloses that the proceedings present 
but a second effort to review the questions fully considered 
and determined on the appeal both in this Court and the 
Supreme Court of the United States. It is indeed but a 
collateral attack upon the decisions of these two courts 
rendered after due consideration. Of consequence, the court 
is of the opinion no order for suspension of the sentence or 
further postponement should be here entered.

It is therefore ordered that petitioner’s application for 
a suspension of the sentence of the court or a postpone­
ment thereof be and is hereby denied.

All Justices concur, except Knight, J. not sitting.



56

T h e  S ta te  of A l a b a m a , J u d ic ia l  D epar tm en t  

T h e  S u p r e m e  C o u rt  of A la b a m a , O ctober T e r m , 194041

3 Div. 340

Ex Parte J oe V er n o n  

[In re: Joe Vernon v. State of Alabama.] 
Appeal from Montgomery Circuit Court 

[From Habeas Corpus Proceedings]
B r o w n , Justice:

This appeal is from an order made by the Honorable 
Eugene W. Carter, Judge of the Circuit Court of Mont­
gomery County, after a hearing on writ of habeas corpus, 
remanding the petitioner, Joe Vernon, appellant here, to 
the custody of Earl R. Wilson as Warden of Kilby Prison, 
pending his execution for the murder of Bennie Montgom­
ery in pursuance of his trial, conviction and sentence in the 
Circuit Court of Jefferson County, Alabama.—Code 1923, 
§ 4310; Vernon v. State, 239 Ala. 593, 196 So. 96; Joe Ver­
non v. The State of Alabama, 85 Law Ed. Advance Opinions 
of the Supreme Court of the United States; In re: Joe 
Vernon, Petitioner, MS. 3 Div. 337.

The appeal is authorized by § 3228 of the Code of 1923, 
as last amended by Act No. 122, approved April 14, 1936, 
Acts General and Local Extra Session 1936, p. 81.

On the hearing’ before Judge Carter, Warden Wilson, in 
response to the writ of habeas corpus produced the peti­
tioner in person, and made due return in writing, and under 
oath, showing that said petitioner, Joe Vernon, was regu­
larly indicted by a grand jury of the Circuit Court of Jef­
ferson County, Alabama, on November 12, 1938, said in­
dictment charging “ that before the finding of this indict­
ment, Joe Vernon, unlawfully, and with malice afore­
thought, killed Bennie Montgomery by shooting him with a 
pistol, against the peace and dignity of the State of Ala­
bama. ’ ’ The indictment, a copy of which is attached to the

A P P E N D IX  0.



57

petition for the writ of habeas corpus, is in the form pre­
scribed by the statute, in such cases made and provided by 
Code 1923, § 4556, p. 489, Form 76, indorsed “ A True Bill, 
Hubert S. Atchison, Foreman of the Grand Jury,”  was pre­
sented in open court by the grand jury, and filed by the 
clerk of the court.

The return further shows that on the thirty-first day of 
December, 1938, petitioner appeared with his attorney, was 
duly arraigned and entered a plea of not guilty; that the 
court by order set Monday the 9th day of January, 1939, 
as the day for his trial.

“ On the 9th day of January, 1939, the petitioner being- 
represented by able and experienced counsel of his own 
selection and employment, the case was regularly tried be­
fore a jury in the Circuit Court of Jefferson County. No 
question was raised on or before the trial as to the forma­
tion of the grand jury that presented the indictment, or as 
to its regularity. No objection was entered as to the venire 
for the trial or the formation of the petit jury selected and 
impaneled therefor.”

The trial was entered upon on the day set therefor, with 
defendant and his counsel in attendance, without objection 
or exception and without motion for postponement or con­
tinuance.

The jury, after hearing the case, returned a verdict of 
guilty of murder in the first degree, as charged in the indict­
ment, and fixing the punishment at death. A judgment of 
conviction and sentence in accordance with the verdict of 
the jury was duly entered. The judgment entry recites:

“ This the 9th day of January, 1939, came Geo. Lewis 
Bailes Solicitor, who prosecutes for the State of Alabama, 
and also came the defendant in his own proper person and 
by attorney, and said defendant being in open Court, and 
being duly arraigned upon the indictment in this cause for 
his plea thereto, says that he is not guilty, and issue being 
joined on said plea, thereupon came a jury of good and 
lawful men, to-wit, J. C. Arthur and eleven others, who 
being empanelled and sworn according to law, before whom 
the trial of this cause was entered upon and continued from 
day to day and from time to time, said defendant being in 
open Court at each and every stage and during all of the



58

proceedings in this cause, now on this the 10th day of Jan­
uary, 1939, said jurors upon their oaths do say: ‘ We the 
jury find the defendant guilty of Murder in the first degree 
as charged in the indictment, and fix his punishment at 
death. ’

“  ‘And on this the 12tli day of January, 1939, said de­
fendant, Joe Vernon, being in open Court, and having been 
convicted by a jury of Murder in the First Degree, and his 
punishment fixed by said jury at death, and said defendant, 
Joe Vernon, being asked by the Court if he had anything to 
say why the judgment of the Court and sentence of the Law 
should not now be pronounced upon him, says nothing. It 
is therefore considered by the Court, and it is the judgment 
of the Court, that said defendant, the said Joe Vernon, is 
guilty of Murder in the First Degree, in accordance with 
the verdict of the jury in this cause, and it is the judgment 
of the Court and sentence of the Law, that the said defend­
ant the said Joe Vernon, suffer death by electrocution on 
the 17th day of March, 1939, and the Sheriff of Jefferson 
County is directed to deliver the defendant, the said Joe 
Vernon, to the Warden of Kilby Prison at Montgomery, 
Alabama, and said Warden of said Kilby Prison shall on 
the 17th day of March, 1939, before the hour of sunrise, in 
said prison, and on said day, cause a current of electricity 
of sufficient intensity to cause death to pass through the 
body of said Joe Vernon until he is dead.

“ ‘ It is further considered by the Court that the State 
of Alabama have and recover of the said defendant the 
costs in this behalf expended, including the costs of feeding 
the defendant while in jail, for which let execution issue.’ ”

The proceedings of the Circuit Court of Jefferson County 
were reviewed on his appeal here and were held to be in 
all things regular and free of reversible errors.—Vernon v. 
State, supra.

The appellant, on the- hearing before Judge Carter, con­
tended that though on examination and search of the record 
and proceeding of the Circuit Court of Jefferson County, 
the pioceeding on the trial, the judgment, conviction and 
sentence on their face, appear in all things regular, it is 
permissible on the hearing under the writ of habeas corpus,



5 9

to look behind the indictment, trial and judgment of convic­
tion, and, by parol evidence show “ that there has never 
been any negroes placed on the Grand Juries of Jefferson 
County, although there is a large percentage of negro popu­
lation in that county;”  and he offered to adduce evidence 
to that effect; [Record p. 9] and nothing more. On the 
hearing appellant made the contention that on such predi­
cate he was entitled to be discharged from custody. That 
contention is here renewed.

Confessedly this is a collateral attack on the judgment 
and proceeding of a court of constitutional creation, and of 
competent jurisdiction of the offense, and on the face of the 
proceedings, the court had jurisdiction of the person.—Con­
stitution 1091, [Alabama] Art. VI, § 143.

The contention is predicated on the concept that the 
Fourteenth Amendment of the Constitution of the United 
States, and the Act of Congress, which provides that “ No 
citizen possessing all other qualifications, shall be disquali­
fied for service as a grand or petit juror in any court of 
the United States, or of any State, on account of race, 
color or previous condition of servitude.” —IS Stat. at L. 
226, Chap. 114, 8 U. S. C. A. § 44, are preeminent, and pre­
dominant of all law, State and Federal. That the rules of 
law, which preserve the sanctity of judgments of courts of 
competent jurisdiction regular on their face, encouraging 
the termination of litigation are to be disregarded, and the 
record of judicial proceedings are as a “ mere scrap of 
paper,”  and under the force and virtue of the writ of 
habeas corpus, “ the great writ of liberty,”  “ and the mod­
ern tendency to broaden the scope of such writ,”  when its 
protection is invoked by one of the negro race, all law and 
rules of procedure for the protection of society and repose 
are swept aside as trash before the wind.

That concept may some time, in this changing world, be 
recognized as law, but it is not now the law in Alabama, nor 
in the United States, and we apprehend, as long as the 
principle of the common law prevails and the “ law of the 
land as established therein,”  is recognized and enforced it 
will not be established as law by legislative act nor by judi­
cial ipse dixit.



60

If the records of courts of justice, regular on their face 
may be impeached by parol testimony and their verity de­
stroyed there would be no end to litigation in efforts to 
release murderers, robbers, rapists and other dangerous 
criminals who have been tried and convicted without any 
suggestion on or before the trial that jurisdiction of the 
person had not been acquired; and no skilled lawyer would 
ever attempt to raise such question until after conviction. 
He would take chances on securing an acquittal of his client, 
and if he failed he would invoke the protection of the writ 
of habeas corpus, and compel the state to litigate as to his 
client’s guilt or innocence, faced with a plea of former 
jeopardy.

For more than three quarters of a century it has been 
settled law in this jurisdiction, in line with the great weight 
of authority that “ on a hearing under habeas corpus, if no 
evidence is adduced by either party, the return is presumed 
to be true; and the averments of the petition for the writ, 
though not denied or controverted by the return, can not 
be considered as thereby admitted.” —Ex Parte Hunter, 39 
Ala. 560; Payne v. Graham, 20 Ala. App. 439, 102 So. 729; 
25 Am. Jur. 241, § 137, note 8; Bray v. The State, 140 Ala. 
172, 177, 37 So. 250.

Also, where the court proceeding and conviction under 
which the prisoner is held are of a court of competent juris­
diction and are regular on their face, it is not permissible 
to impeach the court’s jurisdiction by parol testimony. It 
is only when invalidity appears on the face of the proceed­
ings that it may be impeached on habeas corpus.—Ex Parte 
Bizzell, 112 Ala. 210, 213, 214, 21 So. 371; State v. Savage, 
89 Ala. 1, (7) ; Bray v. The State, supra; Ex Parte Hill 
Adams, 170 Ala. 105, 54 So. 501; Ex Parte Lane, 12 Ala. 
App. 232, 67 So. 727; Ex Parte Haley, 1 Ala. App. 528, 56 
So. 245.

So also, that one may waive and does waive his constitu­
tional rights if he fails to assert or claim them at the appro­
priate time and place and according to the established 
course of procedure.—Vernon v. State, supra; Moorer v. 
The State, 115 Ala. 119, 22 So. 592; City of Huntsville v. 
Gudenrath, 194 Ala. 568, 69 So. 629; City of Birmingham,



6 1

v. Wills, 178 Ala. 198, 59 So. 173; Am. Cas. 1915 B 746; 
City of Mobile v. Smith, 223 Ala. 480, 136 So. 851.

This is also the federal rule where the procedural law 
of the state as interpreted and applied by the state courts 
affords ample opportunity to claim the constitutional rights 
of the accused.—Carruthers v. Reed, 102 Fed. (2d) 933, 938, 
307 U. S. 643; Bunn v. Lyons, 23 Fed. (2d) 14, 276 U. S. 
622; Craig v. U. S., 89 Fed. (2d) 980, 985; Ln re Wood, 140 
U. S. 278; Andrews v. Swartz, 156 U. S. 272.

The statutes and rules of procedure as interpreted and 
applied in the courts of Alabama, give fair and full oppor­
tunity of an accused to claim his constitutional rights, ap­
plicable not only as to the white race hut to the negro race. 
Spooney was a negro.—Spooney v. State, 217 Ala. 219, l lo  
So. 308; Doss v. State, 220 Ala. 30, 123 So. 231; Spivey v. 
The State, 172 Ala. 391, 56 So. 232.

The petitioner by demurring to the return admitted the 
truth of the facts stated.—Spivey v. State, supra.

The demurrer was properly overruled, and the objection 
to the proffered testimony if it had been admitted does not 
contradict the return, nor does it show that the rules of 
due process of law were violated, and the objection thereto 
was sustained without error.

The Judge of the circuit court did not err in remanding 
the petitioner to the custody of the Prison Warden.

Affirmed.
All Justices concur except Knight, J ., not sitting.

(3895)





63

APPENDIX D.

Excerpts from testimony of L. C. Bell, alias Berry, on 
trial of case.

Direct examination.

By Mr. Russell:
* * * * * * *

Q. Do you know Joe Vernon?
A. I know him when I see him.
Q. Did you ever associate with him?
A. No, sir.
Q. Were you with him on the night of September 20,1937 ? 
A. No, sir.

* * * * * * *

Q. When they arrested you where did they carry you?
A. Out there in a big old field at Ensley, somewhere out 

that way, they taken me out of the car; when they were 
going out there they asked me had me and Joe been running 
together and I says “ No”  and he says * * * they taken me 
of of the car and when they had taken me out of the car they 
said “ You say you and Joe ain’t never been running to­
gether?”  and I says “ No, because Joe had it in for me ever 
since I have cut him about his first wife ’ ’ and they told me 
that I was going to change that lie * * *.

Cross-examination.

By Mr. Tate:
* * * * * * *

Q. So now you say that you have known Joe Vernon, 
how long ?

A. I know him when I see him.
Q. You don’t know him?
A. No, sir.
Q. That is right?
A. Yes, sir.



64

Q. He is a prize fighter, isn’t he?
A. I don’t know.
Q. You don’t know any negro prizefighter that lives in 

the same community as you do that is called by everybody 
“ Little Joe,’ ’ you don’t know him?

A. No, sir, I know him by his name, I have heard his 
name.

Q. Didn’t you just get through telling us awhile ago that 
you and Joe had had some trouble about his wife?

A. Yes, sir.
Q. Which is right—you didn’t know Joe or had had trouble 

with him ?
A. I didn’t know him when I had trouble with him.
Q. How many years ago was that?
A. I don’t know exactly.
Q. Give us some idea—was it two or three or twelve, or 

six months, or what ?
A. It was around 1935.
Q. You had trouble with Joe about your wife?
A. He had me arrested.
Q. Did he testify against you in court ?
A. Didn’t no trial come up.
Q. And did you have any more trouble with uim after 

that?
A. Yes, sir.
Q. When did you have your next trouble with him?
A. Just a little before we got in jail.
Q. And hadi you been visiting his wife?
A. No, sir.
Q. Did you know his wife?
A. Yes, sir.
Q. Knew her pretty well?
A. I knew her by her and my girl friend running together. 
Q. And yet you told this jury that you didn’t know Joe 

Vernon?
A. I know him when I see him.
Q. And this is as close as you came to knowing him?
A. Yes, sir.

*



65

State of A la ba m a ,
Jefferson County:

I, Thomas V. Barry, of Jefferson County, Alabama, do 
make oath that I am a court reporter and that I took the 
evidence in the case of State of Alabama vs. L. C. Bell, alias 
Berry, and that the foregoing is a true excerpt from the 
testimony of the defendant given in the trial of said case.

T h o m as  V. B abry .

Sworn to and subscribed before me, this April 22, 1941.
E d w in  a  W oods,

Notary Public.

(4023)













SUPREME COURT OF THE IF!TED- STATES

OCTOBER TERM, 19to

JOE VERNON, PETITIONER 

V s.

STATE OF ALABAMA 

BRIEF IN SUPPORT

OF PETITIOI FOR WRIT OF CERTIORARI

WALTER S. SMITH

Counsel for p e titio n e r

CORA R. THOMPSON,

Of cou n sel.













&

mmx to bribe  pg .

Opinions o f the Courts Below .  . ........................  1
j u r i s d i c t i o n ............................................... . .............................  2
Statement o f t tm C a s e .....................................................  6
Assignmente o f  ................................................................. ...... • H
Spool fio a tlo n e  o f E r r o r *  .  . .................................... 22
Suatni&ry o f at guaen ................................................................... 22
p ro p o s iti' n » o f  Imv ........................................................... 26
SRX1F AND AROtWSHT .......................................................  32



.

.................... .....

■



1

is p s x  tc c i TATI ONS

pg#
A s s n ,  fo r  r r o t .  o f  Adirondaeks v . . . .  34  **39

Mo Dona la ,  231 n .Y .S .  3 1

Brown v ,  M is s is s ip p i , 297 U .S . 5^7 . . . 11 A 21

Bunoa v .  U .S. o f  America, 77 L .Ed.266 28
Carpenter v .  P ennsylvania, 17 ho . 456;

15 L .E d .  1 2 7 ................................... 29,32 ,4 6  a 49

carter v . T exa s, 177 U .S. 4 4 2 .............................. 30

Chambers v .  F lo r id a , 8 4  L.Ed. 419. .  1 1 ,2 1 ,3 9 , 44

Chicago 2 .R * A P Co v .  Burns, 294 U . S .  648 . ,  29

Cincinnati P .B .S t  P .P . CO v .  Bay, 50 Fed
42S-433  ............................................................  27 A 31

C ltixen s Bank v .  Owensboro, 173 u .S .
6 3 6 ........................................................................... 32 A 46

Continental R&tl Bk v .  Chicago, 7 9 ,L .E d .
1110# 55 Sup a t.R ep . 5 9 5 ........................  29

Ex Parte R oyal, 117 u.S. 2 4 1 ; 25 L.Ed.
868 ..............................................    29

Frank v .  Man gum, 237 UJS. 3 0 9 -3 3 5  . . . 30,29
4*4 4 ,4 5

Farmers a arin e  v .  cobney, lf>9 u .S .
301 . .................................................................................2 7 ,3 2

F irst  N a tl Bk. ▼. Kentucky, £9 L.Ed.
701 ............................................................  2 9 ,3 2 ,4 6 ,4 9

Foster v .  U. S. 82 L.Ed. 700 ............................ 2g

Slbaon v .  M is s is s ip p i , 162 u . S .  565 . . .  3 0 ,4 7

Gulf o.A F. v .  D ennis, 56 F sd .g 6o -g 62 ;
* 2  U. S.  503 ...........................................................

Hale v .  Kentucky, 303 U .S . 613 . . . .

. 2 7  

3 0 ,3 1





i i

Pg
Hamilton M fg .C o .v . Mass. IS L. Ed. 904 . . .  32

Harrison v .  E rickson, 90 Mont. 259 . . . .  39

Hebert v .  Louis ana, 272 U .S . 316 . . . .  45

Johnson v .  c r a f t ,  57  So. 375  ..............................  42

Johnson s Z e r b s t , g2 L.Ed. 1461 . . 1 1 ,29, 3 1 ,3 2 ,4 4

Langnes v .  Green, 252 D .S . 5 3 1 - 5 4 1 .................... 25

Martins E * tr s . v .  Common we a 1th , 126 Va.603 • • 39

Martin v ,  Texas, 200 U.S« 3 I6- 3I9 .................... 30

Moore v . Dempsey, 261 D .S. 59 . • • 2 9 ,3 0 ,4 4 ,4 5

Neal v .  oelwaare, 103 U .S. 3 7 0 -3 9 7 1 
40 L.Ed. 5 6 7 -5 7 4  ...................................  2 9 ,3 0 ,3 1 ,4 6

Re N eilso n , 131 U .S . 176 . . . . . 29,30,41*,4-5

N orris v .  Alabama, 294 U .S .5 S 7 -5 9 0 , . . . 2 1 ,2 7
2 5 ,3 0 ,3 1 ,4 5

Patterson v.A labam a, 294 U .S , 600 ; 79
L.Ed. 1076; 55 Sup .C t .R e p .575 ....................  27, 2g

INDEX TO CITATIONS Con‘ td .

People v . p r e s t ig e , 145 N.w. 3 4 -7 ....................  31

People v .  R ogers, 136 N.W. 479 .........................  31

Pierre v . Louisana, 306 U. S.354' 1 1 ,2 1 ,4 7
4 9 ,5 1 ,5 2

Powell v .  Alabama, 77 L.Ed* 1 5 * ; 53 Fed.
757; 53 sup c t  Rep. 5 5 .........................  21, 27,29

3 2 ,3 7 ,4 9

Rep. River pr co .v .K an sas p r . 92 U .8.
315 ; 23 L.Ed .515 » » » • • » • • • • •  3 0 ,4 6

Rogers v . Alabama,912 U .S . 2 2 6 -2 3 1 ; 45
L.Ed. 4 1 7 ,4 1 9 ; 24 Sup Ct Rep.257 . . . 3 0 ,4 7





1U

Pgs

pft Piefeold, 10 *! .? . 3 7 lj  *5 L .~ d . 717 - 29
* ter an* 'in n . 179 U.f?, 223; *6 k .?d ,

162 ; 21 f,qp 0% F ep 75 . . . . . . . . .  . Jt6

inmx TO C I T A T I ^ F  QO-’Y* D

ntrauder v .  100 2f ,  L.
Sd. 664 . . . . . . .  .  3 0 ,3 l ,* 7

gugaragui v .  0 . 8 *  2 hg n.«* 182  . . . . . .  29

The v .  Mor $ m , 286 H .o , 1 ,9 ;
ho L . d . 1 0 2 7 ..................................   29

W in n in g  ▼. K*w Jn rn e y , 29 r*qp> O t pep 14 ;
2 1 1  7 8 ;  5 3  JL. 0 . ? ? ....................................3 1 ,  h«

Tandalln . ,R . v .  Indiana, 57  L .T'd -97  - .  .
2C7 U.<*. > > ; . . . . . . ........................................... 29

V ir  ir ,i f  r .  H i v e * , ITT T7.P. 7 I 3 ,  3*9 - . . .  26
"U de v . ilaberaa, 93 r °  9 7 .....................* « 2 7 ,3 2 ,3 £

•".l tonoy v .  o  l i  f o r m , 71 Fed 1095*
274 r . f .  3 5 6 , 7 .......................... 3 ^ ,4 6

Zlan g  «i3n uan v .  266 1 ,  16 • • .  t l

goH F T iT im -'ii

Oonet. o f  *ml ted ~ tr te a , i H h  *«endr*siit. .  3 ,22
2 6 ,2 7 ,2 6 ,3 0 ,3 1 ,3 7 ,3 5 .4 0  
h i ,  ^ , 4 4 . 4 7 , %  ,5 3 *$ *»5 5

GROTS Aft <36°
City code o f ^rfain gh w n ,oee#.4901-h o rg  .  ,  6

STATlffiir
Code o f  Alaboa* I9 2 3 , r t a t .  325# . . . .  23 , hO

a - *  • 5202  .  .  3 , 2 9 , 2 3 ,5 2
* » (* * » sS'zr. . .  3 , 2 0 , 2 3  

3 9 ,4 c ,h i ,4 2 ,4 h ,4 7 ,4 6 ,5 2 ,5 3



.

• - ■ ■ -v -

. . . . .  . . .
.

»

* * ■



iv

P «8

Code of Alabama 1 ^ 3 , 3ec. S637 . . . 3,20,23,52

IKOBX TO CITATION, COJT»D

" *  *» *  &592 (1^ ) .  .  .  k$
Fs^ '-tnL  f m + i m n

n .p .o .A . t i t l e  as m o . ^ h ............................... 30

" * • " Chap. 229, ?*3r<3 s ta ti, S3b,
See. 2 37  (a ) and ( b ) .................................... .....  2

U.H.C.A. Chap, 229, 2*50 (a )  a.3 amended b y
Act February I 3 ,  I9 2 5 .........................................  .  2

U.S.C.A. Chap 229 , PhO, e.r amended by Act
March 4 .  X g *  .  .  .  .....................................................  2





isL S sa .

BIPREtfK GOffiT OF THE UNITED STATES 

OCTOB1P TERM, 19%)

JOE VERNON.

p e t i t i o n e r .
V s.

THE STATE OF ALABAMA, 

respondent.

BRIEF AID ARGUMENT IB SUPPORT OF PETITION 

FOR WRIT OF OBFTIORiR.X.--

I .

OPINIONS or THE COTBT5 BELOW 

There was no opinion rendered by the 

t r i a l  court r e la t in g  to  p e tit io n e r  oth er than 

sentence accordin g to  law. A copy o f  the opin­

ion rendered by the Suprewe. Court o f  Alabama 

h&s been p laced  in  the appendix to  the p e t it io n  

for w rit o f  c e r t io r a r i .  No opinion  was render­

ed by the puprease oour t o f  Alabama on the pe­

t i t io n  for re—hearing other than th a t i t  was



■

'

,



2

overruled  (R ee. p 1 1 6 ) .  This opin ion  has been  

re p o rte d  In  southern R e porter Advance Sheets*

n .

m i a i g i i i M L

A* th e  Supreme Court o f  Alabama made l t e  

order denying the p e t i t io n  fo r  a re -h e a rin g  on 

the 2i s t  day o f  Ray, 19**0 ,  (Reo. p 116) ,  and 

made it®  order fo r  execution  o f  p e t it io n e r ,  

t h e r e a fte r , on p e t i t io n  o f  counsel fo r  p e t i ­

t io n e r , a s ta y  was granted fo r  a period  o f  90 
day® (R eo. p 117) to f i l e  th is  p e t i t io n  fo r  

w rit o f  o e r t lo r a r l to  th is  CourtJ the date o f  

execu tion  being se t August 30th , 19^0 . That 

on August 2 1 s t ,  19^0 , a  s ta y  o f  30 day® ea® 

granted to  p e tit io n e r  by Mr. J u s tic e  B lack , to  

f i l e  th is  p e t i t io n .

B. The J u risd ic tio n  o f  t h is  Court la  in ­

voked pursuant to  the p ro v isio n s o f  Chap. 229, 

**3 s t a t .  9 3 6 , Sec. 237 (a )  and ( b ) ,  and Sec.

21*0 ( a ) ,  o f  the J u d ic ia l Code o f  the United  

S ta te e , as amended by the Act o f  February 13th ,  

1 9 2 5 , a ls o  Act o f  March 8t h , 193^» and ru le s



*

, •; : § | | :

.

•

. s <V’ ’’



3

o f  p r a c tic e  and procedure 6f  the Supreme Court 

o f  the U nited S ta te s , (R ules 1 2 , 27 and 3 $ ) ,  

a ft e r  v e r d ic t  o f  fin d in g  o f  g u i l t ,  in  crim in al

o a se s .

0 .  That the holdin g o f  the Supreme Court 

o f  Alabama, and the t r i a l  c o u rt, i s  oontra to  

the h old in g  o f  th is  Court on the fo llo w in g  Fed­

e r a l q u e stio n , guaranteed under the l^ th  Amend­
ment to the Federal C o n stitu tio n :

1 . V io la tio n s  o f  procedural due prooess  

o f  law .

2 .  V io la tio n s  o f  equal p ro te c tio n  o f  the

law .

3 . That under co n stru ctio n  o f  c e r ta in  

State  s t a t u t e s ,  Nos. S63O, $>37 and 5202, de­

fin in g  the q u a lif ic a t io n s  o f  ju r o r s , whioh 

s ta tu te s  though v a lid  on th e ir  f a c e ,  through

the a d m in istra tiv e  o f f i c e r s  o f the S ta te , ne­
groes are being denied th e ir  c o n s t itu tio n a l

r ig h t s ,  guaranteed under due p rocess and equal

p ro te c tio n  clau ses o f  the l^ th  Amendment to the

Federal C o n stitu tio n .

4 .  There was no f a i r  im p a rtia l t r i a l  in



1

' .

.

• it*

.

.

.

im&k s u it*



4

the lower court in  t h i s *  th a t the s t r ik in g  o f 
the grounds o f  the amended m otion f o r  a new 

v t r i a l  r e la t i n g  to  c o n s titu tio n a l q u e s tio n s , m s  
an abuse o f the d is c re tio n  vested In  the t r i a l  
c o u rt by law , and such judgment m s  an a r b it r a ­
r y  a c tio n  and in  the face o f the recent d e - 
c ie lo n e  o f  th is  C o u rt on these sane Federal 
q u e s tio n s , a d e n ia l o f  due p ro c ess, whioh t h i s  
C ou rt has the power to re vie w .

*>• The S ta te  c o u rts misconceived the 
p r in c ip le s  th a t u n d e rlie  the claim s o f  the Fed­
e ra l C o n s titu tio n a l r ig h ts }  i t s  r u lin g s , a f­
firm in g  o f  the adm ission o f  i l l e g a l l y  o b ta in ­
ed c o n fe s s io n s , s t r ik in g  the grounds o f the 
amended m otion f o r  a new t r i a l ,  h o ld in g  th a t 
p e tit io n e r  had waived h is  c o n s titu tio n a l r ig h t s , 
th a t sane should have been se t up by p le a  in  
abatement} and denying the p e t it io n  f o r  a re­
h e a rin g , p o in tin g  out to the Supreme Court o f  
Alabama i t s  e rro rs in s o fa r  as they were in  
c o n f lic t  w ith  the decisions o f  th is  Court on 
Federal q u e s tio n s , and denying th a t c e rta in  
s ta tu te s  ( s o t  o u t by number in  paragraph 3 o f



*

'

■ - - . ,.«■«

.

I  ■■ u  -m  - • * «* .* $ £



5

o f  S e c tio n  C o f  th is  b r i e f )  a te  used by the 
a d n in ls tr a tiv e  o ffic e r s  o f  th is  State  to con­
tin u o u s ly  avo id  the p ro h ib itio n s  o f  the lh t h  
Amendment to  the Fe d e ra l C o n s titu tio n ; such 
e rro rs  are re v ie m b le  by t h i s  C o u r t , and i t  la  
the d u ty  o f  th is  C ou rt to  see not o n ly  th a t 
p e titio n e r*®  c o n s titu tio n a l r ig h ts  were not 
denied in  express t o m s , but a ls o  whether they 
were denied in  substance ami e f f e c t .

6« th a t  the t r i a l  court ad subsequent­

ly  th e State  Supreme Court lo o t  ju r 1s u lc it io n  

" i n  the course o f  proceedings* due to  fa i lu r e  

to comply w ith a l l  the requirem ents o f  the  

lUth Amendment to the Federal C o n stitu tio n ; 

and th e i l l e g a l  co n v ictio n  and sentence o f  pe­

t i t io n e r  under such circu m stan ces, dep rives  

him o f  h is  l i b e r t y  and l i f e  w ithout due pro­

c e ss  o f  law , which circum stances i t  i s  tho duty  

of t h is  Court to examine and c o r r e c t .

7 .  That th is  C ourt, under i t a  power o f  

review , m ist see th at State  a c t io n , whether 

through one agenoy or an oth er, s h a ll be con­

s is te n t  w ith the fundamental p r in c ip le s  o f





l i b e r t y  and ju s tic e  which l i e  in  the bast o f  
a l l  our c i v i l  laws and in s t it u t i o n s  and which 
are in fre q u e n tly  designated ae "la w  o f  the 
la n d ."

I l l *

On September 15 t h ,  I 93S , p e tit io n e r  went 
w ith  two r a ilr o a d  d e te c tiv e s  tc  A l t o n , A la -  
b&aa, to hunt f o r  a negro* On t h e i r  re tu rn  
p e tit io n e r  me handed over to two c i t y  o f­
f i c e r s , who placed b is  in  th e  B lrain g haa o i t y  
J a i l  under ordinances #**901 and #**902 (See 
Appendix to  p e t i t i o n  fo r  w r it  o f  c e r t io r a r i  
fo r  f u l l  t e x t )  w ith o ut a w arrant* He was 
held th e r e , in  absolute s e c lu s io n , fo r  about 
two weeks# During which time ho was taken 
in  and out o f  the j a i l ,  b y day and by n ig h t , 
by o f f i c e r s , questioned re p e a te d ly , ( E t c *  pp 
37*3®, w itness B u l l a r d ) , abused by v io le n c e , 
and threatened fro n  day to  d a y . D u rin g  which 
time he was said to  have confessed to  aany 

c ris e s .

6



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The S tate  claim s he made three confes­

sio n s to the unlaw ful homicide o f  Bennie Mont­

gomery, a white man. The f i r s t  toeing taade to  

A. B. Reece which p e t it io n e r  d e n ie s , p e t i ­

tion er s ta te s  th a t he was forced to  copy from 

a statement w ritten  by an o f f i c e r ,  which he 

at f i r s t  refu sed  to  s ig n , but a f t e r  being  

taken in  and out o f  the j a i l  se v e ra l tim e s, 

did f i n a l ly  s ig n , to  avoid  fu rth er v io le n c e .

The th ird  was given  in  answer to q u estion s a t  

the s o lic ito r * !*  o f f i c e ,  which was not sign ed , 

surrounded by s ix  o f f i c e r s  (See Ree p 4 8 , 

cross exam ination w itness D ick in son ). That 

he and one L. C. B e l l ,  a c c u s e d  a ls o  o f  same 

crim e, were taken to the p la ce  o f  the homicide 

and forced to go through what the o f f ic e r s  

termed the * commission o f  the cr im e .H That 

th is  was not o f  hla own v o l i t io n , but was 

forced on him , ( r e c .  p 5 9 1 testim ony o f  Joe 

Vernon), through fe a r  from th re a ts  and v io len ce . 

D etectives adm itted takin g him in  and out o f  

j a i l ,  day and n ig h t, qu estion in g  him repeat -  

•d ly , and claim ed that they were hunting some



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Je w e lry which bad been s to le n  fr o a  hoboes, 
but denied v i o l e n t *  However, th re e  doctors 
weir© h ire d  by the p o lio s  O o m le a lo a e r o f  tbs 
C it y  o f  B lM ln g h n a  to  go to  tbs C i t y  i l a i l  end 
see these mm m th a t th e y could t e s t i f y  th a t 
there set® no aarka o f violence on t hm (Moo. 
p 69,  ?0 and 71)*  They t e s t i f i e d  th at &x* 

Connor (p o lic e  Cosw iasiouer) m n te d  to  be sure 
o f t h i s  ( e c . p ? !> • fbese doctors adm itted 
on orooo*-eaaislnation th a t at the t l » »  Ib e y ex­
amined p e t i t i o n e r , th a t I f  there had been any 
sorbs on b i s , they would have been m*» by the 
t in s  th e y s x m ln e d  h la * (R if*  p 7®* witness 
Dr. H a r r l n ) . the c lo th e s th a t he was a rre ste d 
la  were e x h ib ite d  to  the  ju r y  and c o u r t , show­

ing blood e to la s  $ p e tit io n e r  o la in e  th a t he 

wag whipped w ith  green sw itch e s, some te e th  
broken o f f ,  and other i n j u r i e s . (Ree* pp 59$ 

60,  61 and 6* ) *  sev era l other p e rso n s, be­
fore  the a r r e s t  o f  th is  p e t it io n e r , had been 
arrested  f o r ,  and confessed a ls o , to  the k i l l ­
ing o f  th in  sane person* One o f th e  con fes­

sion s o f  p e t it io n e r  a lle g e s  th a t the gun was



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dlecbar *ed during a s o u ffle #  The t e s t  loony  

f a i l s  to  mention any pw&er bu m s e ith e r  on 

body o f  deceased or h ie  c loth es#  A fte r  these  

co n fe ssio n s were made, p e t it io n e r  m s  trane** 

fe rre d  to  the J e ffe r s o n  County 4 a *  1 ;  an in ­

dictment was returned a g a in st alia charging  

him with the unlaw ful k i l l i n g  o f  one Bennie 

Montgomery, a white man, by shooting hits with  

a p is t o l*  The grand Jury th at returned th is  

indictm ent m s  composed s o le ly  o f  whit® men 

(H ec. p 90,  showing o ffe r e d  o f  testim ony o f  

H erbert A tkin son , Form an o f  Grand Jury re­

turning in dictm en t, Sd Neman B a i l i f f  in  oharge 

o f  J u r ie s , and C h a rlie  H i l l ,  Grand Jury Re­

porter# on the t r i a l  o b je c tio n  m s  made to  

adm ission o f  co n fessio n s which was o v erru led ; 

Defendant m s  the o n ly  w itness in  h is  b e h a lf ; 

he denied the charges. The S o lic it o r  a lso  

claimed that because the B ib le  o f  p e t it io n e r  

showed that i t  had been read a t  c e r ta in  pas­

sages that th ose c e rta in  passages on those  

pages in d icated  c o n fe ssio n  o f  h is  g u i l t ;  a f ­

te r  c o n v ic tio n , motion was made fo r  a new



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t r i a l ,  in  which were s e t  up s p e c if ic  v io la ­

tio n s o f  the l4 th  Amendment (hoc pp l 1* , 1 5 ,

16 , 1? and 1 5 ) ;  two amendments were made to  

the m otion, en largin g  th ese ch arges; on mo­

tio n  o f  the S ta te , a l l  o f  the grounds o f  the  

amended a c t io n  were s tr ic k e n  regarding vio­

la t io n s  o f  the Ikth  Amendment to the Federal 

C o n stitu tio n , because i t  was claim ed Federal 

c o n s t itu tio n a l qu estion s were not the proper 

grounds o f  & m otion f o r  a  new t r i a l ,  and the 

question  o f  v io la t io n  o f  c e r ta in  c o n s titu tio n a l  

q u estion s came too l a t e ;  these m otions o f  the  

S o lic ito r  were su stain ed  (Hoc p 5 9 ) ,  proper 

exceptions were ta ie n  sep a ra te ly  and se v e ra l­

l y ,  and la t e r  assigned  as assignm ents o f  er­

ror to the .-Jt&te Supreme C ourt. (See ju r i a -  

d io it io n a l statement o f  p e t it io n  for  c e r tio r a ­

r i ,  PP S , 3 and 4 ) .  p e t it io n e r  a ls o  exce ted  

to the o v erru lin g  o f  the motion fo r  new t r i a l  

(r e o . p 91) which * ls o  was assign ed  as an a s­

signment o f  error (se e  ju r is d ic t io n a l  s ta te ­

ment p 4 o f  p e t it io n  fo r  w rit o f  c e r t io r a r i ) .



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A l1 the grounds o f the m otion fo r  a new t r i a l  

were placed In  the b i l l  o f  exceptions and as­

signed as grounds o f  e r r o r , sep a ra te ly  and 

s e v e r a lly $ th e judgment and sentence o f  the 

t r i a l  cou rt m s  affirm ed  by the Supreme Court 

o f  Alabaaa (Sec p 1 0 0 )S p e t i t io n  fo r  re -h e a rin g  

f i l e d  (Reo p 1 1 0 -1 1 4 ) poin ted  out s p e c i f ic a l ly  

that th e h old in g  o f  th e Supreme Court m s  

In d ir e c t  c o n f l ic t  with the oases o f  S t e H a g i  

et a l  r .  F lo r id a , 64 L .s d . 419 j frlerr& Jk.

Loulsana, 306 V . S. 354} Brown y H l e s l a ^ t o U  

<297 o* 8* 5®7i Johnson v. Serbs 62 h.Ed.

1461 i Pow ell y . A labam a 77 U E d . 1 5 6 ; and 

th at the r e v e rsa l in  each o f  th ese  c a se s  m e  

id e n tic a l w ith assignm ents o f  error in  the in ­

sta n t c a s e . P e t it io n  fo r  re -h e a rin g  m s  over­

ruled  May » s t ,  1940 , (R eo. p 1 1 0 , 3*X ground) 

(Reo* pp 1 1 1 , grounds 4 ,  5 ,  6,  7 ) I R«°*  P 112> 

ground 4 ,  6  and 9)» Reo. p 113* grounds 1 0 ,

11 and 13) ,

1 7 .

^nmiYKls or «



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1. The S tate  Supreme Court erred in  holding  

that the t r i a l  court mis co rrect in  i t s  a c tio n  

in s tr ik in g  grounds 19, 2o and 2l  o f  the o rig ­

in a l motion fo r  a new t r i a l  (Rec. p 1 4 ) ,  “ fo r  

the reason th at sa id  grounds c o n s titu te  no 

proper grounds fo r  a new t r i a l ,  and fo r  the 

further reason that i t  i s  too la te  to r a is e  

the m atters a sserted  in  sa id  grounds fo r  the  

f i r s t  time in  a motion fo r  a new t r i a l ,  Said 

action  being made the b a s is  o f  assignm ents

of error Nos. S i ,  S3 and S4 r e s p e c tiv e ly  (Reo 

p 98, the assignm ents o f  error reading as f o l ­

lows:

S I .  For th at the court erred in  granting  
the S ta te ’ s o r a l motion to s tr ik e  ground
19 o f defendan t’ s o r ig in a l motion fo r  a 
new t r i a l .

S3. For th at the court erred in  granting  
th e S ta te ’ s o r a l motion to s tr ik e  ground
20 o f  d e fen d a n t's  o r ig in a l motion fo r  a 
new t r i a l .

#!•. For that the court erred in  granting  
the S ta te ’ s o ra l motion to s tr ik e  ground
21 o f  the d efen d a n t's  o r ig in a l motion for  
a new t r i a l .

2. The State Supreme Court erred in  holding  

that the t r i a l  court was correct in  i t s  a ctio n  in  

granting the S t a t e 's  o r a l motion in  s tr ik in g



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" a l l  grounds in  the amendments to  the o r ig i ­

nal motion fo r  a new t r i a l ,  having referen ce  

to and p e rta in in g  to  d efen d a n t's  r ig h t  under 

the iM-th Amendment to  the Federal C on stitu ­

t io n ,"  (R ee. p 98) sa id  r u lin g  b ein g made the  

b asis o f  assignm ent o f  error Ho. 8 2 , (Reo p 98. 

The assignment o f  error i s  as fo llo w s :

8 2 . For that the Court erred in  grant­
in g  the S t a te 's  o r a l motion to s tr ik e  
d e fe n d a n t's  amendments to  said  o r ig i ­
n a l m otion fo r  a new t r i a l ,  or rather  
s tr ik in g  therefrom  a l l  grounds having  
re feren ce  to  and p e rta in in g  to  defend­
a n t 's  r ig h t?  under the l^ th  Amendment 
to  the Federal C o n stitu tio n .

3 . The State Supreme Court erred in  a ffirm ­

ing the a c tio n  o f  the t r i a l  court in  ov erru lin g  

ground So. 22 o f  the 1 s t  amendment to  the mo­

tio n  for  a new t r i a l  ( r e c .  p 15) which ground 

is  in  subBtance that th e adm ission in  evidence  

of the c o n fe ss io n s , over the tim ely  o b je c tio n s  

of defendant, were in  v io la t io n  o f  the lUth  

Amendment to the Federal C o n stitu tio n ; th is  

action  o f  the court m s  made the b a s is  o f  a s ­

signment o f  error Ho. 60 (Reo p 9 7 ) t th® as­

signment o f  error readins as fo llo w s :



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fo r  th a t the cou rt erred, l a  o v erru lin g  
th a t p o rtio n  o f  defendant’ s a c t io n  fo r  
new t r i a l  a s  f i r s t ,  amended as embraced 
in  ground 2 2 .

b . The Supreme Court erred in  h oldin g that  

th e  a c tio n  o f  the t r i a l  court was co rrect in  

o v e rru lin g  ground Ho. 2h (Reo p 15) o f  the  

f i r s t  amendment to  the motion fo r  a new t r i a l » 

and assign ed  a s  assignment o f  error Ho. 6 2 ; 

(Reo p 9 7 ) .  The assignm ent o f  error reading

as fo llo w si

f o r  th a t the cou rt erred in  ov erru lin g  
that p o rtio n  o f  defendan t’ s motion fo r  
a new t r i a l  as f i r s t  amended as embraced 
in  ground Ho. 2h .

5 . The Supreme Court erred in  h old in g  that  

the a ctio n  o f  the t r i a l  court m s  co rre ct in  

o v e rru lin g  ground Ho. 25 (R eo. p 1 5 ) ^ iC 

f i r s t  amendment to  the n o tio n  fo r  a new t r i a l • 

and assigned as assignment o f  error Ho. 63*

(R e c . p  9 7 ) .  The assignment o f  erro r reading

as fo llow s*

For th at the cou rt erred in  overru lin g  
that p o rtio n  o f  defendant’ s motion fo r  
& new t r i a l  as f i r s t  amended as embraced 
in  around Ho, 25 (R ec. p 9 7 )*



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6 .  The Supreme Court erred In  h old in g  th at

the a c t io n  o f  the t r i a l  court m e  co rrect in

o v e rru lin g  ground Ho* 33 (Bee p 16) o f  the

f i r  a t amendment to the n otio n  fo r  a new t r i a l ,

which i s  as fo llo w s*

For that the defendant m e  denied the  
equal p r o te c tio n  o f  the la w , guaranteed  
him by the l J?th Amendment to the Con­
s t i t u t i o n  o f  the United S ta te s , in  th at  
the defendant being a co lored  nan i s  en­
t i t l e d ,  that in  the s e le c t io n  o f  Jurors 
to  p a ss  upon h is  l i f e ,  l ib e r t y  or pro­
p e r t y , that there s h a ll  be no ex clu sio n  
o f  h is  ra c e , and no d isc rim in a tio n  a -  
g a in st  them because o f  th e ir  o o lo r ; fo r  
th at in  the in sta n t ease in  the s e le c t io n  
o f  Jurors to pass upon h is  l i f e  th is  de­
fendant was denied the opportu n ity  o f  
a o e le o tio n  o f  any member o f  h ie own 
r a c e , s o le ly  on account o f  th e ir  ra ce .

Said grounds b ein g made the b a sis  o f  assignment

o f  error So. 7 (H ec. p 9 7 )*  assignment

reading a s fo llow s*

For th a t the cou rt erred in  ov erru lin g
th a t p o rtio n  o f  d e fe n d a n ts  m otion fo r  a  
t r i a l  aa f i r s t  amended as embraced in  
ground s o . 31*

7 . The Supreme Court erred in  h olding th at  

the t r i a l  court was co rre ct in  o verru lin g  

ground So. 3** o f  the f i r s t  amendment to the 

motion fo r  a new t r i a l  (Hec p 1 6 , whloh reads



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For th at the number o f  negroes drawn on
p e t i t  ju r ie s  and those drama on the in ­
s ta n t ju ry  are not s u f f ic ie n t  to  a ffo rd  
t h is  defendant the equal p ro te c tio n  o f  
the laws guaranteed him by the l^ th  
Amendment to th e C o n stitu tio n  o f  the  
U n ited  States*

Said ground b ein g  made the b a s is  o f  assignment 

o f erro r So* Td (R«c P 97)•  assignment 

readin g as follow®*

For th a t the cou rt erred in  o v erru lin g  
th a t  p o rtio n  o f  d efen d a n t's  motion fo r  
a new t r i a l  a s f i r s t  amended a s eubraoed
in  ground Bo* jk *

S* the  supreme Court o f  Alabama erred in  

h oldin g th at the t r i a l  court was correct in  

o v erru lin g  grounds Nos. 35 o f  the f i r s t  a -  

aendnent to  the m otion fo r  a new t r a i l  (Heo

P 16- 17) ,  which reads as fo llo w s :

For th a t the records r e la t in g  to the  
grand ju r y , grand ju ry  s e r v ic e , and the  
grand ju ro rs  who returned the indictm ent 
show th at there were no negroes on the  
grand ju ry  that returned t h is  in diotn en t  
as guaranteed him under the lh th  Amend­
ment to  the C o n stitu tio n  o f  the United 
States*

This ground was made the b a s is  o f  assignment

So. 73 ( r e c .  p 9 7 ) rm d a  aa * ° lio w 8*

Fo r th a t the court erred in  overru lin g  
that p o rtio n  o f  d efen d an t's  motion fo r  a 
new t r i a l  as f i r s t  amended as embraced in  
ground So. 35*



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9* The Supreme Court o f  Alabama erred in  

h o ld in g  th a t the t r i a l  cou rt was co rrect in  

o v e rru lin g  ground Ho* o f  the f i r s t  amend­

ment to  the motion fo r  a  new t r i a l  (H oc. p 

I f ) ,  which reads a s fo llo w s !

For that in  exclu din g negroes from the  
grand Ju ries o f  th is  cou n ty , i s  in  fa c t  
c r e a tin g  a  d e n ia l o f  the ©Q uality o f  
r ig h t s  and i s  a  d isc rim in a tio n  again st  
t h is  defendan t, a  negro, hence i s  a  de­
n ia l  o f  the equal p ro te c tio n  o f  the laws 
o f  the United S t a te s , guaranteed him by 
th e  ih th  Amendment to  the C o n stitu tio n  
o f  the United States*

This ground m s  made the b a sis  o f  assignment ,

Ho. ?*<, (Bee* p $ 8 ) and reads a s  fo llo w s !

fo r  th at the cou rt erred in  ov erru lin g  
th a t p o rtio n  o f  d e fen d a n t's  motion fo r  
a new t r i a l  as f i r s t  amended as embraced ; 
in  ground Ho. 36*

10* The Supreme Court erred in  b o ld in g  th at  

the t r i a l  cou rt m s  co rrect in  ov erru lin g  

ground Ho* 3? o f  the f i r s t  amendment to the  

m otion fo r  a new t r i a l  (R eo. p 17)*  which read 

as fo llo w s !

For th a t the number o f  negroes drawn on 
grand ju r ie s ,  i s  in  fa c t  a d e n ia l o f  
th e ir  r ig h ts  to  equal P ^ « c Jio “  o f  * h® 
laws guaranteed by the l^ th  Amendment tc 
the C o n stitu tio n  o f  the United s ta te s*  .



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IS

Said ground being made the b a d e  o f  Assign­

ment o f  Error So. 75 (Rec p $&) and reads a® 

fo llo w s*

For th a t the court erred in  o verru lin g  
th a t p o rtio n  o f  defendant*® motion fo r  
& now t r i a l  as f i r s t  amended as embraoed 
in  ground Ho. 37*

U .  For th a t the duprosae Court o f  Alabama

erred in  h olding th at the t r i a l  court was e o r -  

r e o t  in  o v erru lin g  ground Ho. 3s  ( f «o P *7 )  

o f  the f i r s t  amendment to  defendant*a motion

fo r  a new t r i a l  which reads as fo llo w s*

For th a t , the defendan t, being a aegro 
and in d ic te d  fo r  the aurdar o f a white 
aan j th at a t  le a s t  o n e -th ird  o f  the pop­
u la t io n  o f  the county from which the 
grand and p e t i t  ju r ie s  were drawn were 
members o f  the negro r a c e , and that the 
gen eral venire contained no name® o f  ne­
groes when the grand ju ry  th at in d icted  
p e t it io n e r  was Spawn* or th at there were 
®o few as to a d e n ia l o f  the r ig h ts  o f  
p e t it io n e r  when considered in  conjunction  
w ith  the number o f  negroes and the number 
o f w hite people drawn on the v e n ir e o r  
the number that ought to have been drawn 
to  preserve a  proper r a t io  to be a com­
p lia n c e  with the 14th Amendment o f  the 
U nited States C o n stitu tio n , and that th s  
S ta te  O ff ic e r s , charged oy law with the  
duty o f  provid in g  names fo r  the general 
venire had *had d e lib e r a te ly  excluded  
therefrom , or so sm all a number had been 
drawn as to be an exclu sion  o f  any ne­
groes q u a lif ie d  to  serve a s grand or





19

p e t i t  ju r o r s , and had done so system­
a t i c a l l y ,  u n la w fu lly , and unconstitu ­
t i o n a l ly  fo r  a lon g  period  o f  time • 
s o l e l y  and o n ly  because o f  th e ir  race  
and c o lo r * , was denied the equal pro­
t e c t io n  o f  the law guaranteed him by  
th e  lh th  Amendment to  the C o n stitu tio n  
o f  the United S ta te s .

Which ground was made the b a sis  fo r  assignment 

o f  erro r Ho. 76 (R ee. p 98) ,  the assignment

readin g  as fo llo w s}

For th a t the court erred in  ov erru lin g  
th a t p o rtio n  o f  the d efen d a n t's  motion  
fo r  a new t r i a l  as f i r s t  amended as em­
braced in  ground No. 3S.

1 2 . The Supreme Court o f  Alabama erred in

h old in g  th a t the t r i a l  court was co rre ct in

o v e rru lin g  ground Ho. 35» o f  the amendment to

defendant*a motion as amended fo r  a new t r i a l

as embraoed in  Ground 35 (Reo p IS ) which

reads as fa llo w s !

For th at the court ex aero motu should 
have entered a  m is t r ia l ,  as i t  i s  the 
duty o f  the c o u rt, as an o f f i c e r  o f  the  
S ta te , to see that the l^ th  Amendment to  
the C o n stitu tio n  o f the U nited States  
i s  obeyed.

Which ground was made the b a sis  o f  assignment 

o f  error No. SO (Reo p $6 ) ,  the assignment

reading a s fo llo w s !



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.

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<

' . .



20

For th at the court erred in  overru lin g  
th a t p o rtio n  o f  the amendment to de­
fe n d a n t's  m otion as amended fo r  a new 
t r i a l  as embraced in  ground No. 35*

13, The S tate  Supreme Court erred in  holding  

th a t the t r i a l  court committed no error in  

ad m ittin g in  evidence three co n fessio n s i l ­

le g a l ly  obtained w hile p e tit io n e r  m s  con­

fin e d  in  the Birmingham c it y  j a i l ,  in  t h is :  

that i t  i s  apparent on the fa c e  o f the record  

th a t p e t it io n e r  d id  not have b e n e fit  o f  coun­

s e l  b efore  or at the time these co n fessio n s
I

were obtain ed .

Ik-. The State o f  Alabama, a c tin g  by and thru  

i t s  a d m in istra tiv e  a g e n cie s , i . e .  the t r i a l  

c o u r t , and the Jury Commission, have so ad­

m in istered  S tatu tes Nos. 9630, 5637 and $$02  

(Code o f  Alabama o f  19^3) as to deny p e t it io n ­

er h is  c o n s t itu tio n a l r ig h t under the l^ th  

Amendment to the Federal C o n stitu tio n , in  

t h is  way: that thru these s ta tu te s  the t r i a l  

court and the ju ry  commission excluded a l l  

n egroes, s o le ly  because o f  th e ir  race from th€



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"i 1 -H ■ 1 -3 .. J J X 3 

:



21

grand Jury th at returned th is  Indictm ent, and 

from the p e t i t  Jury th at tr ie d  t h is  p e t it io n e r ;  

p e tit io n e r  being a negro was thus denied due 

process and equal p r o te c tio n  o f  the law under 

the Ib th  Amendment; in  the affirm an ce o f  the  

Judgment and sentence o f  the t r i a l  c o u r t , the  

Supreme Court o f  Alabama eotaaitted e rro r , and 

thus denied p e tit io n e r  hi® r ig h t s .

1 5 . The State Supreme Court erred in  over­

r u lin g  th e p e t it io n  fo r  a re -h e a rin g  wherein 

i t  was s p e c i f i c a l ly  poin ted  out th a t the hold­

ing o f  th e  3 ta te  supreme C ourt, in  resp ect to  

the Federal q u estion s involved in  the in sta n t  

ea se , was in  d lreo t c o n f l ic t  w ith th is  0 u r t ,  

in  the fo llo w in g  cases*

16. The State supreme Court erred in  affirm­

ing the Judgment and sentence o f  the tr ia l

court, in this* the affirmance of the Judg­

ment and sentence by the supreme Court failed



\

,

■

V '



to  a ffo r d  the safeguard o f  that due process  

and equal p r o te c tio n  o f  the law guaranteed pe­

t i t io n e r  by the l lHh Amendment to  the Federal 

C o n s titu tio n .

17 . The State Supreme Court erred In h olding  

th a t p e t it io n e r  had waived h is  c o n s titu tio n a l  

r ig h ts  by f a l l i n g  to  f i l e  a p le a  In abatement 

In r e sp e c t to  the v io la t io n  o f  h ie  c o n s titu ­

t io n a l  r ig h ts  under the lU th Amendment. ,

■

V.
i

P e tit io n e r  hereby adopts and makes & part 

o f  th is  b r i e f ,  the assignm ents o f  errors .which 

have been s e t  out In  the preceding se c tio n  IV  

as h is  fp e e lf io a i io n  o f  fx r o r s .

VX*

A. The adm ission in  evidence o f  th ree con­

fe s s io n s  in  the in sta n t case was a d en ia l to  

p e t it io n e r  o f  procedural due p rocess o f  law , 

and in  v io la t io n  o f  the due p rocess and equal 

p r o te c tio n  c la u se s  o f  t h t  l^ th  Amendment to th« 

Federal C o n stitu tio n , fo r  the reason that*



.

.



( 1 )  I t  la  apparent on the fa ce  o f  the re  

cord th at n eith er  b efo re  nor a t  the time said
,i

c o n fe ss io n s  were made m s  p e tit io n e r  allow ed
ft.

the a d v ice  o f  co u n se l, which I s  a den ial o f  

procedu ral due p rocess o f  law*

( 2 )  I t  I s  the duty o f  the auprm e C ourt,

in  c r im in a l o a se s , to  search the record fo r  

e r ro rs  n e ith er  assign ed  nor argues (s ta tu te  

#3258,  Code o f  A la 1983)*  done 00 * and

knowing from the record th at th a t i s  tr u e , i t  

was th e ir  duty to  hold  the co n fessio n s inad­

m is s ib le , and the t r i a l  court in  error in  i t s  

r u lin g s  in  the adm ission in  evidence o f  th ese  

c o n fe s s io n s i fa i lu r e  to do so i s  a d en ia l to  

p e t it io n e r  o f  due p ro cess and equal p ro tectio r  

o f  the law under the i H h  Amendment.

B« Whether or not v io la t io n s  o f  c o n a titu -  

t io n a l r ig h ts  under the lU th Amendment a m  be 

s e t  up fo r  the f i r s t  time in  a motion fo r  a  

new t r i a l  and the amendments th e r e to .

0 ,  whether or not s ta tu te s  Nos. do30, 

and 5 2 0 2 , Code o f  Alabama o f  1923» though 

v a lid  on th e ir  fa c e , are u n co n stitu tio n a l in



•

.

-

■

■



2h

t r i a l s  o f  negroes, when, under th ese  s ta tu te s ,  

no o b je c t io n  can be taken by motion or p le a  in  

abatement to the form ation o f  e ith e r  grand or 

p e t i t  ju r i e s ,  and thereby through such uncon­

s t i t u t io n a l  e x e rc ise  o f  a u th o r ity , the admin­

i s t r a t i v e  o f f ic e r s  o f  the S ta te , Exclude a l l  

negroes from grand ju r i e s ,  and p e t i t  ju r ie s ,  

or in clu de so sm all a number on p e t i t  ju r ie s  

a s , in  comparison to  the number o f  white jurori 

summoned, c o n stitu te  a v ir tu a l exclu sion  o f  

negroes from p e t i t  ju r ie s .

D, The Judgment and sentence o f  the t r i a l  

co u rt i s  v o id , fo r  la ck  o f  ju r is d ic t io n , fo r  

the reason th a t:

( 1 )  The t r i a l  o o u rt, during the course o f  

the t r i a l ,  admitted in  evidence three con fes­

s io n s i l l e g a l l y  obtained from p e tit io n e r  with­

out a llo w in g  him b e n e fit  o f  counsel b efore  or 

a t the time they were g iv en , which i s  in  v io ­

la t io n  o f  the l^ th  Amendment to  the Federal 

C o n s titu tio n .

( 2 )  The a c tio n  o f  the t r i a l  cou rt in  

s tr ik in g  grounds 19» 20 and 21 o f  the o r ig -



- t  , h  -t

■ '

: I ! - n  1 ■: V i

. .



In a l a c t io n  fo r  a new t r i a l ,  and in  s tr ik in g  

from the nwniiiitfciTite th e r e to , a l l  grounds p e r -  j 

ta in in g  to  the l^ th  Amendment to  the Federal 

C o n s titu tio n , i s  in  v io la t io n  o f  the lUth A - 

oendaent and to the r u lin g s  o f  t h is  Court on 

the id e n t ic a l  Federal q u estio n s ;  th e r e fo re , 

i t  was w ithout ju r l i d i o i t i o n  l a  the n a tte r  and 

the o v e rru lin g  o f  the notion  fo r  a new t r i a l  

was void fo r  want o f  ju r is d ic t io n  fo r  the  

lenuae reason*
■

( 3 )  The judgment and sentence o f  the 3tat< 

Supreme Court a ffirm in g  the judgment and sen­

ten ce  imposed by the t r i a l  cou rt was void fo r  

th e reason th at (a )  the aipreae Court lo s t  

ju r is d ic t io n  in  a ffir m in g  the void a ctio n s o f  

the t r i a l  court s e t  out in  paragraphs D -l  and 

D -2 o f  the summary o f  argument} (to) the su­

preme Court lo s t  J u r is d ic tio n  in  o v erru lin g  

the p e t i t io n  fo r  a re -h e a rin g  wherein i t  was j 

s p e c i f i c a l ly  pointed out to them th a t th e ir  

r u lin g s  in  a ffirm in g  the a c tio n  o f  the t r i a l  

court in  resp ect to  the motion fo r  new t r i a l ,  

the adm ission o f  th e c o n fe ss io n s , and th e ir

*5





26

own op in ion s rendered in  the in sta n t c a s e , was 

con tra  to the id e n t ic a l  qu estion s h ereto fo re
j

h eld  by t h is  Court in  c e r ta in  s p e c if ic  oases  

which c a se s  were poin ted  out to  them toy name, 

book and page in  the p e t it io n  fo r  re -h e a rin g .

( 3 )  As th ese  r u lin g s  r e la t e  to  v io la t io n s  o f  

the lh th  Amendment in  resp ect to due process  

and equal p r o te c tio n  o f  law , the s ta te  aupreai 

Court was without J u r isd ic tio n  fo r  fa i lu r e  to  

fo llo w  the holdings o f  th is  Court in  respect  

to  the id e n t ic a l q u estio n s s e t  up in  the in ­

stant c a s e .

m *

m i m m m k M .M i L

1• The n otion  o f  the t r i a l  cou rt in  

s tr ik in g  from the n o tio n  fo r  a new t r i a l  as  

amended a l l  grounds p e rta in in g  to  the v io la ­

t io n  o f  the lh th  Amendment (no n o tio n  o f  so­

l i c i t o r )  and the a ffirm in g  o f  th is  a c tio n  o f  , 

th e  t r i a l  court by the S tate  supreme Court, 

as shown by the reco rd , I s  a d e n ia l o f  due 

p ro c e ss  and equal p r o te c tio n  o f  the law under(



-■,i .V -



*7

The iM h  Asen&ssmt to  the Federal C on stitu ­

t io n  and su b je c t to  review  by t h is  Court on 

w rit o f  c e r t io r a r i .  ( Assignments o f  error  

X to  XO in c lu s iv e ) .

P ow ell r .^ la b a a a  7 /  kt .*fifc&iaS&A

D e n n i s  ry>  « p o - a ^ -
*- S I a - ‘« i  Z T T a

t .  The tr ia l court, by the ad oloelon  o f  

this® oonfeaulone In evidence, ana the a f f l m -  

once o f Vais to M l  m3 o f the tr ia l oourt by t h .  

State supreme Court, failed to  afford the eafe- 
guard o f  that due prooeee and ogual p ro te c tio n  

o f the leu, guaranteed by the l lth  Anenteent 
to the federal oonetltutloni euoh action le 
eubjeot to  review by thle Court on w rit of 
c e r t io r a r i .  (Aaalgnaenta o f  error #3. )  1

r i p U ^la iT X  >
IE E

f f  fflorid a ^





26

3* <hile d isc re tio n a r y  a c tio n s  by a 

t r i a l  cou rt and S ta te  Supreme Court a r t  not 

s u b je c t , o r d in a r ily , to in te rfe re n c e  by an 

A p p e lla te  Courtj when such a c tio n  i s  not one 

o f  con o oien tiou s Judgment, but an a rb itra ry  

judgment and known by th ese court® to  be in  

o o n f l io t  w ith the well-known d e c is io n s  o f  th is  

C o u rt, o f  Federal q u estio n s} when such Judg­

ments and sentences are shown on p e t it io n  fo r  

w r it o f  c e r t io r a r i  to  be a  d en ia l o f  the due 

p ro c e ss  and equal p r o te c tio n  o f  the law under , 

th e  Ihth  aiendasat, th is  Court w i l l ,  in  the  

e x e r c is e  o f  i t s  sound d is c r e t io n , see fo r  i t ­

s e l f  by independent in qu iry  whether or not the 

Judgments and sentences so imposed are a de­

n ia l  o f  that due proeeao o f  law and equal pro­

t e c t io n  prescribed  by the l4 th  Amendment, and 

w i l l  determine fo r  i t s e l f  what ju s t ic e  require  

( Assignments o f  Error 1  to  12 in c lu s iv e } .

V irginia w. R ives,.100 U.3 .



i t  *

.

.

.

»
■



29

j p i l i S S Q ^ ^C o n tin e n t'-l r a t i  Bank jf»...i'jj? g .s s *ja iLy ,
O F TBf

. .M a m a  v . U»8* ffE n T T a T T ^
i d i O ^ ^'/ t i i e l l a  ;-. n Co v .  jm l^ n a

XL

J J suLjsA*
P g t y y l a . ^  y, Morgan.. 16V fj-itgt, l...-% «

4 .  Ths t r i a l  c o u r t , thr ugh i t a  ru lin go  In

the cou rse  o f  the t r i a l  o f  th is  p e t i t i o n e r , 
and the S ta te  Supreme C o u r t , through I t s  a f­
firmance o f  the judgment and sentence o f  the
t r i a l  c o u r t , lo s t  Ju rife d io U io n  o f  the causes
th e  judgments and saatenoeo oo rendered by 
|h«3 are void* (Assignm ents o f  a rre t 15» lo )*

fr* p a rt,e  d o m i

ft 'J- S'
V t  ?fi- .^ *•—<■ - i i£ r -B I

$ , I t  i s  open to  the Cupreuo Court o f the 
U n ite d  States upon a p p lic a tio n  f o r  a w rit o f 
c e r t io r a r i  to  lo o *  beyond forms and inquire !

in t o  the v e ry  substance o f  the n a tte r thus 
p r i n t e d !  s o , where a Federal question is  in 

v o lv e d , the supreme Court o f  the united state 

oan review  *  deoieion o f  a 3ta te  Court w ith



, 1.



r e sp e c t  to  a q u estion  a r is in g  under the Con­

s t i t u t io n  o f the U nited S ta te s . (Assignment

o f  Error So. I X ) .

I juM j a ju lM s J L f l r t

« . u r  j f l t
.S x ik

a.22I.fi...Y..t I
Moor® v . n o lo

ll « 8« XI&

3J&

p-

$ .  E xclu sive fron  grand ju ry  or p e t i t  

ju r y  se rv ic e  on account o f  raoe i s  forbidden t 

the Xhth Amendment to Federal C o n stitu tio n .

(Assignm ents o f  Error Hos. I> 2 # 3* ,|»5t6*7»® »9
1 0 , 11 , 12 and lQ »

■ m
Z 2

H ff5 ? 3 2 Z

7* fh e t r i a l ,  co n v ictio n  and sentence o3 

p e t i t io n e r , under the oirctm sfc nces here d is ­

c lo s e d , w i l l  deprive him o f  l i b e r t y ,  and l i f e  

w ithout due process o f  law in  v io la t io n  o f  th  

lh th  Amendment to  the Federal C o n s titu tio n



II



31

(A be le m e n t o f  Error Ko. 1 6 ) .

8 .  T&« 14th Amendment was Intended to

make secu re a ga in st s ta te  in vasion  o f  a l l  

r ig h t s ,p r iv i le g e s  and ia a u a lt ie s  protected  

from fe d e r a l v io la t io n  by the B i l l  o f  Rights 

(amendments 1 to V I I I ) . Assignment o f  Error 

Ho. 14.

g e . t v .  D . ^ 5 ^  n

9 .  under the law o f the State o f  Alabama 

there can be no waiver of constitutional r ig h te  

in r e sp e o t to  the form ation o f  grand or p e t i t  

ju r ie s ; and I f  t h is  Court i s  reasonably s a t -  

i s i f i e d  th a t th is  p e t it io n e r  hae n ot in ten tio n ­

a lly  and i n t e l l ig e n t ly  waived h is r i # i t s  to  

due process and equal p ro te c tio n  under the 14th  

Amendment, the judgments and sentences are void  

as they are a d en ia l o f h is  r ig h te  under the 

14th Amendment to the Federal Oonetitution.



.

.

■
* ■- X  r. i '

• ■ . ■'

• •• '• •••■■ ‘



32

Assignment o f  p*ror So. 17)

Johnson v . .lerbst. u . s .  **57

10. ooaititu tional questions are sea­

sonably preserved for consideration by tills 

Court when they are set up for the f i r s t  time 

in the amended motion for a new t r ia l ; passed 

on by the tr ia l court; assigned as grounds o f  

assignment of error; also placed in the b i l l  

of exceptions; shown by the record and the 

opinion o f  the state supreme court as having 

been considered and decided by that court.

PQ. . U  v t U .W .a .  77 L .*l.X58i S3 a u  Ot Rep

Farmers & merchants Inc, v , 0QbneyA._,lS9...1?.%gA

Cincinnati p.B.CQ v . Bay. 5C Fed 432
Wal'e~v. hTP 6 a "'so 75
ffHltoey vJ‘ C alifornia, 71 Fed 1095? 27h U.P.

l 9 t % i l  Bank v .  Kentucky, 19 L. lid . 701
citizens 38nV ^ a ri9 ix ffo ^ ffl ytf:,bjb  
Carp ten ter  v .  ren tiaylvsn la , 15 ,U_ Kd. ^ 7  
Hamilton \ lfk » .CO. V> t f a s e . I l L . f d . w f r
S3 L; R . ~ A . T 7 t ^ M

BRIE" AND AROUSE NT 

PROPOSITI -'ill 1 .

The principles of law which w ill be die- 

ouseed under this proposition were presented 

to this (*>urt in  Assignment o f *rror No. 1 .



i s  ■ ; j : ....a . *  ■

'

■

• -
.

, *

>.■ . : ' ■ - - >! ^

• ■ ■ ■ . :■ . . v . :

■ ■ • ■ ■ ' ■ ■



33

The court ty I ts  ru lin g  impliedly con­

ceded that the sufficiency o f  the grounds set  

up were well stated. The sole question being, 

were they proper grounds and were they too 

la te .

fear a proper tader standing o f  these ques­

tions, i t  w ill be necessary hereto sake a brief 

summary o f the jury system and the procedure 

of toying capital criminal eases in Alabama.
One week in every -«>nth, the clerk o f  

the Circuit Court sets a certain number o f  cap­

ita l orIn in  a1 oases for a specific date; atout 

two seeks before the tr ia l is  set, defendants 

are arraigned before one of the judges of the 

Circuit court; at this t i me defendants f i le  

any plendings which they or their counsel nay 

desire; then plead to the merits o f the indict­

ment.

On the day o f t r i a l ,  usually Monday, a l l  

cases set for that week, are set down for a 

day special during the week, to be heard; on 

the ca llin g  of the ease, a l l  pleadings are 

heard and ruled on; the co'jrt then sends the



.

-



34

B ailiff for the Jury box containing venire 
fro® which the jiffy is  to be selected, a  the 
instant case, the tr ia l being had on a Monday, 
the petitioner had no opportunity to know ho 
had been summoned on this Jury, a e the Jury is 
eapanelled in one room while the docket la be­
ing called in another, in this state, we have 
a secret Jury. It is  & siedesesnor for any one 
to make public who tee bees summoned for either 
petit juries or on the grand Jury, so, at the 
time the defendant ie  re uired to plead to the 
merits, or f i le  other pleas, he does not know 
who hie been eu ssoned and whether or not any 
negroes have been summoned. SO then the time 
for pleading having passed, how then, and when 
could he set up the violation of hie constitu­
tional rights? Shall he pre-suppoee that the 
officers whose duty i t  la to supply Juries w ill 
violate the law? certainly not—the law pre­
sumes th<*t a ll  o fficers  w ill do their duty.
that opportunity did the defendant have to pre­
sent this matter to the tr ia l court before the



■
 i  : : • . . . v -

.

i

.

.

-

^  ■■ " .. '■ V V, f  p  4



35

motion fo r  a new t r i a l ?  I f  p lead in gs had been 

f i l e d  during the t r i a l ,  they would most assur­

edly have teen o v e rru le d , eg t ir e  for pleading  

had pa seed .

«A waiver 9 h&e been d e fin ed  to be *& 

voluntary and in te n t io n a l relinquishment o f  

or abandonment o f  a known existing legal right, 
advantage, benefit, cla im  or privilege, which, 
except for  such waiver, the party would have 
enjpysea.' Could the p e ti tioner have been 
heard in c o u r t  to eay ntbat he w&c afraid 
that the officers charged by la* w ith  the du­

ty o f p ro v id in g  jurors would fa i l  in their 
duty?* puch an allegation would be an ab- 
surdity. Hence, t. e say there could have been 

no waiver by th is  defendant, as so far &e i t  

was known, there was no injury at this tirae 

that he knew o f .

I f  the t r i a l  court was co rrect then, the 
State, by statu tory  procedure, has narrowed 
end abridged the ande tes o f  the <jon®ti tut io n -  

then there need be no further argureent, as





36

th is  would be an admission o f  the v io la t io n  

o f the 14th Amendment, hence the r u lin g  o f  the 

t r ia l  cou rt and sta te  fuprerae court would be 

erroneous and on a Sedera 1 q u estio n , su bject  

to  review by th is  c o u rt.

On qu estion s o f  v io la t io n  o f  fe d e ra l  

r ig h t s ,  the d e c is io n s  o f  t h is  court are su­

preme. to  t h is  Court i s  given the so lean duty 

to see  to i t  th at there are no in vasion s by 

s ta te s , the Federal covernaesot, or any other  

le g a l body, c a lle d  by whatever name they choose, 

the r ig h ts  o f the people placed in  the 14th  

A nendasnt to  the fe d e ra l c o n s t itu tio n .

What i s  meant by due process under th is  

amendment? simply th a t i t  i s ‘ the law o f  the 

land* car * an opportunity to  be heard before  

being condemned.* Where was th is  p e titio n e r  

given the opportunity to  be beard as to whether 

or n ot h is  r ig h ts  to  due process had been in ­

vaded? ho o th er opportunity was given hits,

Other th&n in  the action  for a new t r i a l . This 

i s  n ot a new q u estio n , but has been decid­

ed over and over by th is  Court. The aost





outstanding and re c e n t cate  i s  th a t o f  pow ell 

v . Alabama,  53 Sup. c t .  Hep. 5 5 ; the id e n ti­

c a l question  * a s  there decided which i s  the 

b asis o f  th is  p r o p o s itio n , i . e . ,  th at the 

question o f whether or n ot c o n s t itu tio n a l  

r ig h t® * guaranteed under the 14th pmn&wem 

can be s e t  up for the f i r s t  tim e, and whether 

or n ot they were seasonably s e t  14) ,  for the 

f i r s t  tim e , in the n o tio n  for a new t r i a l .  

This court he Id ; that v io la t io n s  o f  the 14th  

Amendment, s e t  up in  an amended motion for a 

new t r i a l  for the f i r s t  tim e, considered by 

both t r i a l  and supreme Court, were properly  

preserved for i t s  co n sid era tio n . (On the 

question as to what i e  a reasonable preserva­

tio n , s e e  argument on p rop osition  1 0 ) .

A» i t  was held  in  the pew ell c a s e , supra, 

that the ov erru lin g  o f the motion fo r  a new 

t r i a l ,  con tain in g  a lle g e d  v io la tio n e  o f  the 

14th Amendment, was a d e n ia l o f  d efen d an t's  

c o n s titu tio n a l r ig h ts  under the 14th Aaend- 

« n t ,  so then the s tr ik in g  o f  the grounds con­

taining averments o f  v io la t io n s  o f  the 14th 

Amendment stands on the same fo o tin g  as that



.



3 ft

in  the Pow ell ca se , end the r u lin g  o f  the 
t r i a l  court and the a ffixs a n c e  by the cuprene 
Court o f .lab»is£ was in  d ir e c t v io la tio n  o f  

the 1 r« under th is  faeadaen t.
While the r u lin g  o f the t r i a l  c o u rt end 

the sta te  Supreme Co iff t  on the actio n  to 
s trik e  was in  open v io la t io n  o f  the announced 

decisions o f th is  c o u rt,  which were s p e c if ­

ic a lly  pointed out to both c o urts by p e t i ­

tio n e r , i t  was also  in v io la t i o n  o f  the r u l­

ing o f the sta te  Supreme Court i n  the case o f  

Wade v .  s ta te  o f  a labs me, 93 00 97* la  that  

case, the c o n s titu tio n a l question was rfciged 

for the f i r s t  time in  the notion for a new 

t r i a l ,  and by th is  same supreme Court o f  Ala­

bama. reversed on that very ground.

pence the conclusion i s  inescapable that  

tne judgment o f the t r i a l  court and s ta te  ° t*« 

presce court in  s tr ik in g  these grounds fro  a 

the action  for a ne« t r i a l , i n  overru lin g  the 
motion, do n o t coincide w ith the r u lin g s  o f  

the supreme 00 iff t o f  the united s ta te s . I t  

is the duty o f  courts o f  every S ta te , no r a t -



«  v  “ . - : - M  ■ ■ V:- >  I

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39

ter tow d is t a s t e f u l  i t  say be, and whether 

w il f u l l y  or seiin ten t io n a lly  done, to obey the 

c le a r nan da tee o f  the supreme Court o f  the 

United S tates on q u e stio n s re g a rd in g  the con­

s t it u t io n a l  r ig h t s  o f p e t it io n e r s  under the 

14th amendment. T o  do ot^arw is® , would be 

to allo w  a state  to  a bridge or narrow, as i t  

would, the mandates o f the 14th 'raendment to  

the F e d e ra l C o n s titu tio n . *No power or au­

th o rity  i s  co n fe rre d  on t h is  court or i t s  

fudges to fo r g iv e , condom  or h a d  v io la t io n *  

o f the p la in  unambiguous mandates, p roh ib i­

tio n s, or l im it a t io n s  o f  the c o n stitu tio n , 

even i f  the v io la t io n  r e s u lt e d  i n  the g reate st  

good or promotes a u n iv e r s a l b en e fa c tio n .*

Ho emergency c o n fro n tin g  a State warrants a 

court In «*a iv in g  the c o n s titu tio n a l p r o v is io n *.
C .J ,B . 16 con st. Law. g C l.
Harrison"V"'kH cKsqb,  90 Font. 2*8  
■ ^sen. p ro t . o f  dlrondsoka v .  H^CDonels.

% i^ n '* '1s^Hx~icrs^ V. "corf.^onwcglth, 126 ¥e. 603

2 .  The argument on th is  case can be con­

fined to  the con sid era tion  of one case alon e- 

the e»se  o f  Chambers e t  a l .  ▼« F lorida* 84  L.Fd. 

4 1 - 476.



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This moat recen t e sse  o f  the supreme 

Court o f the Lhited s ta te s  on th is  su b ject  

holds th a t; Since the reeord fa ile d  to  show 

that defen dan ts were allowed co u n se l, a t  the 

time or before the co n fe ssio n s were obtain ed , 

which were used in evidence aga in st these de­

fen d an ts, the court denied to defendants in  

th at c a s e , procedural due process o f  law— the 

same get o f  fa c ts  in  that c?sa are presen t  

in the in sta n t case shewn by the reco rd ; since  

petiton er was n ot allow ed the advice counae 1 

a t the time or before th ese c o n fe ss io n s , i t  

i s  s v io la t io n  o f  that due process and equal 

p ro tectio n  o f  the laws, a s  guaranteed under 

the lhth Amendment.

In th is  s t a t e ,  under seotion  325*5» (Code 

o f Alabama, 1923) ,  on ap peal, i t  la  the duty 

o f the supreme Co r t to  search the record to 

see that no e rro rs  was coram tted  by the t r i a l  

court th at were not argued or urged, or as­

signed as e r r o r .

I t  i s  apparent on the face o f the reoord , 

that p e tit io n e r  co n fessed , and these con fee-



'

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'

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41

sic c £  were used l a  the t r i a l ,  and that at the 

time he had n o t been allow ed the advice o f  

counsel* hence the conclusion cannot he es­

caped that the adm ission in  evidence o f  these

confession! was s violation o f procedural due 

process of l a * ,  and in violation o f  the 14th  

Amendment. This, the State supreme 3ovc t  

should have seen on appeal, and applied the 

remedy—& v e r s a l .

3 .  o r d in a r ily , a c tio n  by a t r i a l  court  

on nations far  new t r i a l s  i s  d isc re tio n a ry , 

and w i l l  not be disturbed by a higher court 

on ap peal, y e t ,  i f  th at d isc re tio n  i s  abused, 

and such abuse i s  predicated  on fa c t s  showing 

s v io la tio n  o f  the 14th Amendment to the Fed­

e r a l c o n s t itu t io n , such action  i s  review able  

by the *ppcllat& c o u r t , and by t h is  c o u r t ,-  

indeed, such review  i s  mandatory, in  or dear 

to see whether or n o t such action  on the part 

of the t r i a l  cou rt i s  in  tr u th , a d en ia l o f  

the 14th Amendment.

While the le g is la tu r e  and sta te  procedure 

may hold th at d e c isio n s on motions for new



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t r ia ls  are d isc re tio n a ry  with the t r i a l  co u rt, 

when such a c tio n s  are predicated  on v io la t io n s  

of the lUth Atsendment, no s t a t e , under i t s  

procedure or oth erw ise , has the power to  say 

that such a ctio n  being d is c r e tio n a r y , cannot 

be review ed, when the q u estion s i s  whether 

or not such a c tio n  denied to p e tit io n e r  h ie  

r ig h t  to  due process and equal p ro te c tio n o f  

the law© under the lh tb  Amendment. Courts 

have a duty to give due e f f e c t  to c o n stitu ­

t io n a l lim ita t io n  to which an a sso rted  r ig h t  

i s  s u b je c t , and, as no power or au th ority  i s  

conferred on e ith e r  the t r i a l  or the -'upreae 

Court, to fo r g iv e , condone or h eal v io la t io n s  

of p lain  unambiguous mandates, p ro h ib itio n s  

or lim ita t io n s  o f  the c o n e titu io n , even i f  

the v io la t io n  r e s u lt s  in  the g re a te st Rood to 

or promotes a u n iversa l ben efA ction .

Johnson v .  g ra ft*  87  So 2 5 9 »

State courts derive their power to  

e x is t  and operate through grace o f  the Fed­

era l C on etrtu tion — i t  alone can say what s h a ll



.* ... ~>v.

■

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t  - ■■■■■ ^  - i ' t s - l t *  K  ; - # ! §  < 4  -5 i v m

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. :.■■*.'■■ *s/; js

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.



and what s h g ll  n ot be done in  the State  

c o u rts . I t  has prescrib ed  that any proced­

ure, that the people o f  any sta te  Bay d e s ir e , 

they Ray do, provided such procedure does not 

in any »ay v io la t e ,  or abridge c e r ta in  pro­

v is io n s  o f  the F e d e ra l a o c s t itu t io n . the lUth 

Aaendrsent to the c o n stitu tio n  e s p e c ia lly  pre­

scrib es c e rta in  v io la t io n s — one o f which i s  

the e x c lu sio n  o f  negroes f t  on eith er grand or 

p e t it  j i f f i e s ,  so le ly  because o f  their race and 

c o lo r . Then a state  c o u r t , even sanctioned  

by sta te  procedure does so , i t  exceeds i t  a 

jiff is d ic t io n  and any judgment and sentence, 

so pronounced by i t ,  i s  v o id . This we con­

tend w&e done in  the in s ta n t  ca se .

The t r i a l  co u rt, w e ll awaire o f  the fa c t  

that a l l  negroes have been excluded for a t  

le a st 30 years (se e  showing o ffe re d  Rec p 6 9 ,

90 and 915,  and that there were none on the 

p e t it  jury frora which p e tit io n e r  was forced  

to s e le c t  the jury to  s i t  on th is  t r ia l ,p r o ­

ceeded to the t r i a l  o f h is  cause. A ll  pro­

ceedings th erea fter  by t h is oourt in th is  oase, 

are v o id , for want o f  ju r is d ic t io n . Frank v .



.  .

. ■

«

,./■ • "  - • ' v: ■ ■' :



jysjSHE. 237 0 . 8 .  3301 Moore v .  Dempsey. 26I

0. 8 .  8 6 ; Be m i  Ison, 131 0 . S . 176; Johnson 

v .,_Z e rb e t,  304 u. 9. 4 6 s , And the affirm ance  

by the s ta te  supreme court i s  a lso  void  for  

lack o f J u r is d ic t io n . Thus, «e have p e titio n e r  

about to  lose hie l i f e  and lib e r t y  on a judg­

ment and sentence absolute v o id .
The question o f  whether the court ex­

ceeded i t s  ju r is d ic tio n  and such sentence i s  

v o id , i s  one th a t  we ask th is  court to  review 

by p e tit io n  for w r it  o f  o e r t i c r a r i .
Both the t r i a l  court and the ? tate Su­

preme court knew from the undisputed t e s t i ­

mony* and the r e c o r d , th a t the con fession s  

admitted in evidence were made before p e t i ­

tioner was allowed cou n sel. T herefore, un­

der the most recen t d e c is io n  o f  th is  Court, 

Chambers v . F lo r id a , L. Sd. 41JM 76, I t  

eannot be disputed that the admission o f these  

c o n fe ssio n s , working greviou s harm to p e ti ­

t io n e r , deprive him o f  due process and equal 

protection  of the law., demanded by the 14th





5 .  The ^ t e a «  court o f  the United States  

ie  the sole  a rb ite r  as to whether or not a 

S ta te , thru any o f  i t s  agen cies has perm itted  

v io la t io n s  o f  the lhtfc Amendment, n ere a Fed­

e ra l r ig h t  i s  in v o lv ed , t h is  jo u rt aan review  

® d eo isio a  o f  a sta te  cou rt with r e s p e c t  to  

a question  a r is in g  under the J o n stitu tio n  o f  

the United s t a t e s ,  Hebert v« Louisiana. g7g

0 . ? .  3 X6,  I t  i s  opes to  th is  Court upon ap­

p lic a tio n  for  w r it  o f c e r t io r a r i  to  look be­

yond farms and in qu ire  in to  the very substance 

of the m a tter . Frank v . Mananas, 237 U. S. 330; 

Moore v .  Dempsey,  261 u. S . 8 6 ; " e  K e ils o n ,I 3I

U. S. 176.
we i n s i s t  th at a l l  v io la t io n s  claimed and 

shown by the record to have been considered by 

the t r i a l  cou rt and the s ta te  supreme Court, 

that th is  Court has the r ig h t  and power, not 

only to review  such a c t io n s , but to decide for  

i t s e l f ,  through examination o f  the e n tire  

record , i f  n ecessa ry , whether or not these  

actions o f  the s ta te  cou rts r e s u lt  in  a v io ­

lation  of the lk th  Amendment, and when these 

actions are about to deprive p e titio n e r  o f  h it



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46

U f t  EBd l ib e r t y , to do wfcat ju s t ic e  req u ires  

in the c a se . Whitney v .  C a lifo r n ia , ?1  Fed

1095; F ir s t  N atl Bank v .  Kentucky. 19 L .' d . 

701; c it iz e n s  Bank v ,  owensboro, 173 a . s . 636.

wisere a r ig h t  i s  set up in  the sta te  

Courts under an Ac t o f co n g ress, any matter o f  

law found in the re c o rd  decided by the F-tate 

Courts, re g a rd in g  a Fed e ral question or r ig h t ,  

can be review ed by t h is  Court on w rit of cer 

t ic r & r i .  63 I*.K, a * 57 1-56 2; R epublican Fiver 

Co v .  Kansas P . QQ. 92 0 ,8 . 315; lerpentere  

v . 1 ennsy I van i s , 15 1. ;d . 12?; ta m e s  v ,  

Minnesota, 179 0. r . 223.

6 ,  T h is argument covers assignm ents o f  

error 1 to  12 in c lu s iv e  end 14 , Por the reason  

that w hile they were- assigned as separate a s­

signments o f  e r r o r , the same p r in c ip le  regard­

ing th eir e x c lu s io n , governs a l l .

•whenever by any a ctio n  o f  a o ta te , 

whether through i t e  l e g i s la t i v e ,  through i t s  

oourte or through i t s  execu tive  or administra­

tiv e  o f f i c e r s ,  a l l  per gone o f the African race  

are exclu ded , s o le ly  because o f their race or



* -
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c o lo r , froia servin g  as grand or p e t i t  ju r o r s , 

in  the c r im in a l p ro secu tio n  o f  a person o f  the 

African r a c e , the equal protection  o f  the laws

i s  denied to hi® co n tra ry  to the lU th a mend- 

aent to the Cons t i t  utio n o f  the United S ta te s . * 

Strader v .  -xest V ir g in ia .  IOC T j.r, 3 0 3 ;  l e a l  

v . Delaware, 103 U. 370 ; Uhson v . M jeaisp- 

loci. 162 U*S. 565; foyers v. Alabam a,  hg L.

Ed. W - U I 9.

And, though the s ta te  court d efin in g  the 

q u a lif ic a t io n s  of ju ro rs  a&y be v a lid  on i t s  

fa c e , the C o n stitu tio n a l p ro v isio n s a ffo r d s  

p ro tectio n  a g a in st a ctio n  o f  the S tate ,th o u gh t  

i t s  ad m in istra tiv e  o f f ic e r s  in  e f fe c t in g  the 

prohibited  d isc rim in a tio n . In other words, 

the s ta te  cannot do in d ir e c t ly  through i t s  

s ta tu te s , what i t  cannot do d ir e c t ly .

A con sid eration  o f the la t e s t  case con­

sidered by th is  Court on t h is  question  o f  Is*  

i s  the case o f  P ierre v .  Louisana, 3C6 U .S. 

35^. in t h is  c a se , t i s  cou rt e e id : "  The 

Ihth Amendment in tr u s t  those who, becam e o f  

race, are denied equal p ro tectio n  o f  the





laws in  a s ta te  f i r s t  " t o  the re v iso ry  power 

o f the higher cou rts o f  the s t a t e , and u l t i ­

mately to  the r e v is e  o f  t h is  c o u r t ."  so a ls o  in  

the case o f  N orris v .  Alabama,  29*  C .8 . 5^7*

T h erefore , exclu sion  from the grand jury  

or p e t i t  Jury service  on account o f  race co­

co lor i s  forbidden by the lhth  Amendment to the 

C o n stitu tio n , and i s  su b je ct to review  by th is  

Cour t .

7.  The p e t it io n e r , having been tr ie d  

and sentenced to  death i n s i s t s  th at he i s  about 

to lo se  h is  l i f e  and l ib e r t y , w ithout due pro­

cess o f  law. That th is  Court, where a r ig h t  

i s  s e t  up in  the sta te  C ourt, e ith e r  under the 

14tb Amendment,or an Act o f  C o n fe s s , devised  

to secure to hi® his r ig h t s  under due process  

and equal p ro tectio n  o f  the law under the l^ th  

Amendment,- th a t any e e t t e r  o f law found in  the 

record decided by s ta te  c o u rts , regardin g  a 

Federal r ig h t ,  can be review ed by the vvtprem 

Court o f  the UniBd s ta te s  to  se e  whether or 

not auch v io la t io n  has occurred . (63 L.' .A . 

5 7 1 -5 8 2 ) ; Twinning v .  New -̂ a>H»f e ,2 9  Supt.Ct.lh;



- .  . . .

V. - , -  • ' ■ ' . v 1 .£ ■ ,

.

.

“ ■■■' . .  " ■ ■*> • * :'!• £--•

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*9

powell  v ,  s ta t e ,  77 L.Ed. 1$S

tod th at when the supreme court o f  the 

Uni ted s ta te s  i s  s a t is f ie d  that such q u estion s  

are shown toy the record to have been consider­

ed , carpenter v .  pennayIvanis.  15 L«~d 127; 

F ir s t  K a tl . Bank v .  Kentucky, 19 I*. I d . 701* 

t h is  court w i l l  review  the a ctio n s o f  the state  

courts ae the 14th *.®end:isent in tr u s ts  th is  l 

Court with re v iso ry  pow-r t o r  eview such ques­

t io n s . p ie rre  v .  Louiean a, 306 u .  s .  354.

g .  in J efferso n  county, a la  bee®, the 

Board o f  jury Commissioners i s  charged with  

the duty o f  s e le c t in g  ju r o r s  for both grand 

and p e t i t  ju r ie s ;  th eir c lerk  i s  charged witr. 

the duty o f  v i s i t i n g  every p re c in c t and g e ttin g  

the names o f every man, who i s  not d is q u a lifie d  

under sectio n  £592# P a r .1 4 , fro®  jury se r v ic e .  

These names are placed in  a book and known as  

the jury r o l l .  This book i s  kept under look 

and key and i s  n ot open for p u b lic  in sp e c tio n . 

From th is  book, a card for ee ch name i s  made, 

showing the name, occupation and residen ce o f  

each in d iv id u a l. These oards are placed in a





50

looked box, one key to i t ,  being kept by the 

p resid en t o f  the ju ry  commission, the other by 

the p re sid in g  judge o f  the c ir c u it  court o f  

th is  county. Ithen a jury i s  drawn the box i s  

w ell shaken, and then the Judge draws from th is  

box enougn cards to  sake up the ju r ie s  to r  a 

ce rta in  p erio d . Grand ju ro rs  are a ls o  selected  

fr o a  the cards so drawn. A ll  ju ro rs serve a lik e  

on c i v i l  and crim in al ju r ie s .  But does I t  not 

seem stran ge , though th is  seems a fa ir  method 

o f  s e le c t in g  j u r i e s ,  that for sev era l y e a rs , 

th is  coincidence has happened: gaoh week,

about 125 white ju r or s  ar? drawn and only one 

negro, i f  th is  happened once or tw ice , i t  

sig h t be an acciden t but to have i t  happen 

e*?ch and every week for a period o f  years—  

there can be no aociddn t; and that fo r  over 

30 y e a r s , a t  le a s t ,  not one sin g le  negro has 

been se le cte d  for grand jury s e r v ic e . Whether 

there are any names o f  negroes in  th is  box or 

how aany, we are unable to  sa y , since we do 

not have access to the book con tain in g the jury  

r o l l . But fro a  the fa c t  th a t  no negroes have





51

ever been se le c te d  a t  le a s t  in the le s t  30 

years (shown by Rec.pp 8 9 , 90 and 91) ,  and 

only one negro for every 125 white ju ro rs  i s  

s e le c te d , we must conclude, that there are  

few , i f  any, name® o f  negroes on t h is  jury  

r o l l ,  the State does n ot oaatend or o ffe r  

any testimony a s to how th is  can happen. The 

question then i s ,  i s  there a s u f f ic ie n t  r a t io  

taken in connection with the proportionate  

number o f  white and negro people in  th is  

State q u a lif ie d  to  serve on ju r i e s ,  to he a 

compliance w ith the requirem ents o f  the Ihth  

Amendment. This was p r e c is e ly  the question  

brought before th is  Court in  Pierre v . Louis­

ans , 306 u . 8 .  and was by th is  Court de­

cided th a t , upon the examination o f  the e v i­

dence, a stron g prime fa c ie  case was made, 

showing that negroes had been sy stem a tica lly  

excluded— because o f r a c e , from the grand 

jury and the ven ire  from which i t  was se­

le c te d . "'uoh an ex clu sio n  b ein g a d e n ia l of 

equal p ro te c tio n  o f  the law s, contra to the 

Federal c o n s t itu tio n , the w r it  o f  c e r tio ­

r a r i ,  was granted. "The fa c t  th at the



. ' %

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m own

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52

testimony was not challenged by evidence ap­

p ro p ria te ly  d ir e c t ,  cannot be brushed a s id e .*  

Suoh were the id e n t ic a l  circum stances in  the 

in s ta n t c a s e .  Testimony was o ffe re d  by the 

p e tit io n e r  on the motion fo r  a new t r i a l ,  and 

refu sed  by the cou rt, ^hereupon, a showing 

was o ffe re d  the c o u rt, incorporated in  the 

b i l l  o f  ex ce p tio n s , (B ee. p 8 $ ,  90 and 91) ,  

showing s u b s ta n tia lly  that the r a t io  between 

white and colored men in J efferso n  County, 

wag about 60? negroes and 40? w h ite , these  

fig u re s  being taken from the la s t  Federal 

Census. T h erefore , uren th is  showing the 

14th Amendment i s  being denied , cv eiy  day, 

in every t r i a l ;  a l l  o f  these matters were 

considered by the s ta te  Bupreae Court on ap­

p e a l, shown on the re co rd . T h erefore, under 

the au th ority  o f  r ia r r e  v .  iou lsan a . supra. 

the negroes in  J efferson  county, at the time o f  

the t r i a l  o f  the in sta n t ca se , were exeluded 

from both grand amd p e t i t  jury s e r v ic e .

These s ta tu t e s , Roe. 8630,  8637 end 5202, 

while fa ir  on th e ir  fa c e , are used by the ad- 

B in istr& tive o f f ic e r s  (a fa c t  which i s  so w ell



A .

.

I f

I m  $ -Mi mS3-

n -  ■ * *  B  ;-o f c  ' - i i  v  T f t ;

.

■ , . . . *■ > -■ HI



53

knows as to be «  matter o f common knowledge) 
charged w ith  the duty o f  s e le c tin g  ju r o r s , 
as a d is c rim in a tio n  a g a in st negroes and are 
used to exclude them ft*oo ju r y  s e rv ic e .

The te s t  o f whether a s ta tu te  i s  uncon­
s t i t u t i o n a l , is  not wh&t i s  done under i t ,  
but what can be done under i t .

In the in s ta n t case, the t r i a l  co urt and 
the supreme court o f Alabama say th a t you 
waive your c o n s titu tio n a l r i 4 i t s  under the lU th  
Amendment, when no o b je c tio n s are f i l e d ,  and 
on the other hand, these s ta tu te s  s a y , th at no 
o bjection can be f i l e d  in  any my to  the forma­
tio n  o f the grand or p e t i t  j u r y , in n in e ty - 
nine per c e n t o f the cases tr ie d  in  which th is  
question has been r a is e d , one way or the o th e r, 
a l l  courts i n  Alabama have overruled every ob­
je ctio n  and upheld these s ta tu te s ; n o s , th is  
p e t it io n e r , because o f  these s ta tu te s  ra is e s  
the question fo r the f i r s t  time on motion for 
he* t r i a l .  AND THE T R IA L COURT PROMPTLY RULES' 
THAT THE OBJECTIONS COWS TOO L a t e ,  how then 
under the circum stances, i f  these sta tu te s  are





constitutional, can there be an intelligent 
and intentional waivear o f these rights? For 
unless there hm been such waiver, petitioner 
is  being deprived o f his rights under the 14th

Amendment.

Hence, we ask th is  court to review th is  

q u estion , as to whether under these s ta tu te s ,  

the 14th Amendment can be and i s  v io la te d  as 

these s ta tu te s  are used by the adm in istrative  

o f f ic e r s  o f  th is  s ta te  to  exclude negroes 

from jury s e r v ic e ; and whether or n o t, with  

these s ta tu te s  in  fo r c e , can there be a waiver 

o f c o n s t itu t io n a l r ig h ts  as to the form ation  

o f grand or p e t i t  ju r ie s ?

Therefore, as the 14th Amendment was de­

signed and intended to  make secure a g a in st  

State in v a sio n , a l l  r i g h t s ,  p r iv ile g e s  and im­

munities p rotected  from Federal v io la t io n  by 

the B ill o f  B ig h ts , i f  these s ta tu te s  can be 

and are used for such discrim inatory purpose, 

i s  not th is  an in vasio n  by the s ta te  o f  Ala­

bama, through i t s  ad m in istrative  o f f ic e r s  o f  

r ig h ts  seoured under the 14th Amendment, and



■



55

hence in  v io la t io n  o f  such Amendment? I f  so , 

then th is  p e tit io n e r  i s  e n t it le d  to the w rit, 

end to have th is  Court render such judgment 

as ju s t ic e  r e q u ir e s .

9 . vost o f  the d isc u ssio n  on th is  pro­

p o sitio n  has been d iscu ssed  in  p rop osition  8 , 

but as the opinion o f  the Supreme Ooisrt i s  

to the e f f e o t  th a t because p e tit io n e r  fa i le d  

to f i l e  a p le a  in  abatement to  the form ation  

o f  both grand and p e t i t  ju r i e s ,  he had waived 

his r ig h ts  under the l^ th  Amendment.

How can this be, when, under the state  

s ta tu t e s , ju s t  mentioned, in p rop osition  8 ,  

such s ta tu te 8 show on th e ir  face  th at no plea  

in abatement can be f i le d  as to the formation  

o f e ith er grand or p e t i t  ju r ie s ?  With these  

sta tu tes  in fo r c e , can there be an in t e ll ig e n t  

and in te n tio n a l waiver o f  c o n s titu tio n a l r ig h ts  

under the lb th  Amendment? le  think n o t , when 

the sta te  deprives you, through these s ta tu te s , 

of the r ig h t  to r a is e  th is  question in  a t r i a l ,  

how then , when th is  i s  forbidden by s ta tu te ,  

can there be a waiver when you fo llow  the 

statute and do not f i l e  th ie  plea in  abatement?



.

'

■

.



56

Puck Is the statue as presented by the ruling 

of the state Supreme Court in this case. A 

statute is  to be interpreted as meaning what 

i t  says. I f  this is  so, how then is  there a 

waiver?

30. Constitutional questions, season­

ably preserved, when a man's l i fe  and liberty 

is at stake, w ill be considered by this court. 

They are seasonably preserved for consider­

ation by this court, when state procedure is  

followed. Therefore, we tay, that when the 

constitutional questions raised for the f ir s t  

time on motion for new tr ia l, shown by the 

record to have been considered and passed on 

by the tr ia l court; made the basis for as­

signments of errors, separately and severally; 

on appeal, such ruling incorporated in the 

b ill  of exceptions, and shown on the reoord 

as having been eepcifioally pointed out by 

petitioner to the supreme court of Alabama; 

and by that oourt considered and ruled on in 

its  opinion, we are convinced they are season­

ably preserved for consideration by this court.





57

I t  i s  r e s p e c t fu l ly  submitted that the 

qu estion s r a is e d  i s  th is  ease are o f  s u f f ic ­

ie n t iraportance to req u ire  th is  Court to i s ­

sue a w rit o f  c e r t io r a r i  to the supreme court 

o f Alabama, to review i t s  d ecision  made there­

in .

RESPECTFULLlf SUB MI TTED*

A

Counsel for p e t it io n e r .









SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

M AY 1  1941

No. 449

JOE VERNON,

vs.
Petitioner,

STATE OF ALABAMA.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE
OF ALABAMA.

BRIEF FOR RESPONDENT.

T h o m as  S. L aw son ,
Attorney General,

W il l ia m  H . L oeb,
Assistant Attorney General,

Counsel for Respondent.





INDEX.

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

Opinion of the court b e lo w ........................................ 1
Jurisdiction ................................................................... 2
Statement of the ca se ...................................................  2
Summary of State’s evidence in the trial cou rt.......  4
Summary of petitioner’s testimony in the trial court 10
Argument ......................................................................  14

The petitioner was not denied equal protection
of the laws .........................................................  14

Petitioner was not denied due process of law by 
the admission into evidence of his confessions 27 

Conclusion ..................................................................... 59

T able  of C ases C ited .

Allen v. State, 298 S. W. 993, 175 Ark. 264 ................. 57
Atlantic Coast R. Co. v. Alims, 242 U. S. 532 ...............  24
Beckman v. State, 100 Ala. 15, 14 So. 859 ................. 58
Bram v. United States, 168 U. S. 532 ........................  57
Broad River Co. v. South Carolina, 281 U. S. 539 . . .  21
Brooks v. Missouri, 124 U. S. 394 ................................  24
Brownv. Mississippi, 297 U. S. 278 ............................  27
Buckler v. State, 171 Miss. 353, 157 So. 353 ............... 57
Cady v. State, 44 Miss. 332 .........................................  58
Chambers v. Florida, 309 U. S. 227 ..........................  27
Clark v. State, 195 So. 260 ...........................................  18
Commonwealth v. Dilsworth, 289 Pa. 498, 137 A. 683 57
Cooper v. State, 64 Md. 40, 20 Atl. 986 ......................  26
Erie Ry. Co. v. Purdy, 185 U. S. 1 48 ..........................  24
Garnett v. State, 60 S. \Y. 765 ...................................... 26
Gibson v. Mississippi, 102 U. S. 565 ............................  15
Rarrison v. State, 110 Fla. 420, 148 So. 882 .............  57
Rendon v. Georgia, 295 U. S. 4 4 1 ..............................  22
Hicks v. State, 143 Ark. 158, 202 S. W. 308 (cert. den.

254 U. S. 630) ...........................................................
—4040

25



11 INDEX

Page
llopt v. Utah, 110 IT. 8. 574 .......................................... 57
Jacobi v. Alabama, 187 U. S. 133 ................................  22
John v. Paullin, 231 U. S. 583 ......................................  24
Kennard v. State, 61 S. W. 1 3 1 ....................................  26
Mach v. State, 203 Ind. 355, 180 N. E. 279 .................  57
Martin v. Texas, 200 U. S. 3 1 6 ....................................  15
Millhouse v. State, 232 Ala. 567, 168 So. 665 ............. 19
Neal v. Delaware, 103 U. S. 370 ..................................  15
Norris v. Alabama, 294 U. S. 587 ..............................  15, 21
Osborn v. People, 83 Colo. 4, 262 P. 892 ...................  58
Pearlman v. United States, 10 F. (2d) 460 ................. 57
People v. Albers, 360 111. 73, 195 N. E. 459 .............  57
People v. Bartato, 254 N. Y. 170,172 N. E. 458 .........  57
People v. Duncan, 261 111. 339, 103 N. E. 1043 ...........  26
Peterson v. State, 277 Ala. 361, 150 So. 1 5 6 ............... 18
Pierre v. Louisiana, 306 U. S. 354 ............................  15
Powell v. State, 224 Ala. 540, 141 So. 2 0 1 .................  17
Rogers v. Alabama, 192 U. S. 226 ................................  15, 21
Simpson v. Golden, 114 Ala. 336, 21 So. 990 .............  18
Smith v. Texas, 85 L. Ed. 1 06 ......................................  15
Snyder v. Massachusetts, 291 U. S. 9 7 ....................... 47
Spears v. State, 2 Ohio St. 583 ..................................  58
State v. Andreason, 44 Idaho 396, 257 P. 370 ..........  57
State v. Dixson, 80 Mont. 181, 260 P. 138 .................. 57
State v. Green, 128 Ore. 49, 273 P. 3 8 1 ...................... 57
State v. Grover, 96 Me. 363, 52 A. 757 .......................  58
State v. Ilophirh, 84 Mo. 278 ....................................... 58
State v. Peden, 154 S. E. 658, 157 S. C. 459 ..............  57
State v. Richards, 101 W. Va. 136, 132 S. E. 375 . . . . 57
State v. Yarrow, 104 N. J. Law 512, 141 A. 8 5 ....... 57
State v. Yeager, 12 S. W. (2d) 3 0 ...............................  57
State y. Walker, 189 La. 241, 179 So. 302 .................. 26
Strauder v. West Virginia, 100 U. S. 303 ................... 15
Sweda v. State, 206 Wis. 617, 240 N. W. 369 .............  57
Tarrance v. Florida, 188 IT. S. 519 ..............................  24
Travers v. United States, 6 App. D. C. 450 ............... 57
United. States v. Gale, 109 U. S. 6 5 ..............................  26
Vaughn v. State, 235 Ala. 80, 177 So. 553 .................  21
Vernon v. State, 239 Ala. 593, 196 So. 9 6 .............  1



Page
Washington v. State, 95 Fla, 289, 116 So. 470 .........  25
Watts v. State, 75 Tex. Crim. Rep. 330, 171 S. W. 202 26
White v. Texas, 310 U. S. 530 ...................................... 28, 52

S tatu tes  C ited .

Code of Alabama, 1923, Sections 5202......................  20
8630........................  20
8637........................  20

28 II. S. C. A. 344 (Judicial Code, Sec. 237(b), as 
amended) ................................................................... 2

INDEX lU





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1940

No. 449

JOE VERNON,

vs.
Petitioner,

STATE OF ALABAMA.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE
OF ALABAMA.

BRIEF FOR RESPONDENT.

I.

Opinion of the Court Below.

The opinion of the Supreme Court of Alabama, which is 
here under consideration, is reported as follows: Vernon 
v. State, 239 Ala. 593, 196 So. 96 (R. 100-107). All of the 
justices of the Supreme Court of Alabama concurred in the 
opinion rendered by that Court.

la



2

Jurisdiction.

1. Statutory provision by which jurisdiction of this 
procedure is authorized is Section 344 of Title 28, U. S. 
C. A. (Judicial Code, Section 237(b), as amended).

2. The opinion of the court below was rendered on March 
2, 1940, and application for rehearing overruled on May 21, 
1940.

3. Petitioner claims that the judgment of the Supreme 
Court of Alabama should be reversed in that he has been 
deprived of constitutional rights guaranteed him by the 
Fourteenth Amendment in that (a) he has been denied 
equal protection of the law and (b) he was convicted with­
out due process of law.

I I .

III.

Statement of the Case.

Between the hours of nine o ’clock on the night of Septem­
ber 20, 1937, and four o ’clock in the morning of September 
21, 1937, Ben Montgomery, a young man nineteen years 
old, was shot to death (R. 22, 23, 24, 33 and 42). His body 
was discovered by a newsboy around three-thirty o ’clock 
of the morning of September 21, 1937, lying on the floor 
of a filling station located at 47th Place and First Avenue, 
North, in Birmingham, Jefferson County, Alabama (R. 
23 and 24). The newsboy immediately reported his dis­
covery to the police, who, upon their arrival at the filling 
station, found that all merchandise kept on the outside of 
the filling station for display during business hours had 
been moved inside and all lights except the light at the 
front door had been extinguished, leading to the conclusion 
that Montgomery had been in the act of closing the station



3

for the night when he was shot (R. 25). Montgomery had 
evidently been shot several hours previously, in view of the 
fact that the body was in rigor mortis when found (R. 24). 
The body of Montgomery was found resting on the knees 
with face and hands resting on the floor in a pool of blood 
(R. 34). He had been shot, the bullet entering under the 
left arm, passing through the body, and emerging under 
the right arm. The bullet was found inside of his shirt 
(R. 34).

On September 27, 1938, over a year after Montgomery 
was killed, the petitioner confessed to the commission of 
the crime (R. 26-29, 35-40, 40-48, 63-65). He was indicted 
on November 12,1938, by a grand jury of Jefferson County, 
Alabama, for first degree murder of the deceased (R. 3).

On the 31st day of December, 1938, the petitioner and 
counsel of his own choosing appeared before a judge of the 
Circuit Court of Jefferson County, Alabama, and being duly 
arraigned upon such indictment, interposed a plea of not 
guilty. The court thereupon fixed January 9, 1939, as the 
date for the trial of the case (R. 4).

When the trial was reached, counsel for petitioner inter­
posed no objections to going to trial on the indictment 
which had been returned by the grand jury on November 
12, 1938, nor was any objection interposed to the com­
position of the petit jury before whom the case was to be 
tried. No ruling of the court was sought to be invoked 
on the proposition that the petitioner was denied rights 
guaranteed to him by the Fourteenth Amendment to the 
Constitution because members of his race had been sys­
tematically and arbitrarily excluded from the jury rolls 
and jury boxes of Jefferson County, Alabama, from which 
rolls and boxes the grand jury which had indicted petitioner 
and the petit jury which was to try petitioner had been 
drawn (R. 22).

2o



4

A.

Summary of State’s Evidence in the Trial Court.

The corpus delecti was proven by State witnesses Bright 
(R. 22), Cobb (R. 23), Reese (R. 24), and Bryan (R. 33). On 
the morning of September 15, 1938, nearly one year after 
Ben Montgomery was killed, Mr. W. A. Johnson and a Mr. 
Gorman, special agents of the Central of Georgia Railroad, 
contacted this petitioner for the purpose of questioning 
him concerning highway robberies on the railroads (R. 77). 
According to a prearranged plan, Johnson and Gorman 
were met later in the morning by two city detectives, a Mr. 
Weir and a Mr. Wagner (Maynor) who then took Vernon 
into custody (R. 79, 81). The crime with which he was spe­
cifically charged at that time is not shown. The special 
agents and the city detectives were interested in recovering 
property which had been stolen from hoboes riding the 
trains and from other persons (R. 40, 77, 78). Petitioner 
was taken out of the city jail on several occasions during 
the first few days of his confinement for the purpose of 
showing the officers the location of property which had 
been stolen and hidden (R. 40, 77, 78). Several days after 
the petitioner had been in jail, Mr. J. T. Bullard, a police 
officer for the Southern Railway, secured a gun from the 
home of Mrs. Frances Norrell (R. 54), for whom the peti­
tioner worked in September, 1937, the date of the alleged 
homicide, and who testified that the pistol belonged to her 
and was kept in a cedar chest or chifferobe in her home, 
and that the petitioner had access to her house (R. 55). 
This gun obtained by officer Bullard was turned over to the 
Chief of Police of the City of Birmingham, and by him for­
warded to the Federal Bureau of Investigation in Wash­
ington, D. C., together with the bullet which had been found 
inside the shirt of the deceased on the morning of the 
homicide (R. 33, 53). The pistol and bullet were received



5

by the Federal Bureau of Investigation on or about Sep­
tember 21, 1938 (R. 56). Rosa Lee Collins, who was the 
common law wife of petitioner at the time of the alleged 
homicide, testified that she remembered the night when the 
deceased was killed and that the petitioner came to her 
sister’s house where she was visiting around 10:30 or 
11:00; that she and the petitioner walked part of the way 
from her sister’s home to their home in the servants’ house 
of Mr. and Mrs. Charles Norrell, and it was then that she 
saw the petitioner pull a gun out of his pocket and throw 
away an empty shell which he took out of the gun; that 
after they arrived at their home, she saw the petitioner 
again when he placed the gun in a pan of water, where he 
allowed it to remain until the next morning, when he re­
moved it from the water, dried it off, cleaned out the barrel 
and replaced the cartridges. She further testified that 
petitioner told her that he was going to slip the pistol back 
into Mrs. Norrell’s chest (R. 48, 49). On cross-examination, 
this witness testified as follows:

“ My real name is Rosa Vernon, but I am the wife 
of Joe Vernon and have been living with him ever 
since 1936. I am now living with another man named 
Dickey. I am not staying with him. Don’t stay with 
anybody.”  (These statements appear in conflict and 
evidently the word “ now”  as it appears in the sen­
tence, “ I am now living with another man named 
Dickey,”  should probably be “ not.” )

The witness testified that she had written the petitioner 
some letters when he had been in jail telling him that she 
wanted to tell the truth and how much she cared for him. 
Her testimony seems to be in conflict as to whether or not 
she was afraid to refuse to testify. In answer to the ques­
tion, “ And you were told before you came here, if you got 
up here and helped him out, they would put you in jail, too ? ’ ’ 
she said, “ They said that I knew that Joe had did it, they



6

would get me messed up too.”  Later on in the cross-exam­
ination, she made the following statement: “ I have not 
been told to deny that or I would be put here with Joe. I 
have not been told what to say today or threatened I would 
be put in with Joe if I did not.”  The witness then identi­
fied a paper as a letter which she had written to the peti­
tioner, wherein she indicated that she had talked because 
she was afraid to do otherwise. She testified on re-direct 
that the reason for writing the letters was that she “ did 
not want to tell off on him,”  and that Mr. Weir, one of the 
officers, had taken her to see the petitioner.

The State proved by witness T. F. Baughman, who is a 
consulting specialist in firearm identification with the Fed­
eral Bureau of Investigation in Washington, that the bullet 
which he received from the Police Department of Birming­
ham had been fired from an Iver-Johnson gun of the type 
which was forwarded to him by the Birmingham Police 
Department (R. 56, 57, 58).

Mr. A. B. Reese, the operator of the filling station in 
which the deceased worked, testified that on either the 26tli 
or1 27th of September, 1938, he had a conversation with tke 
petitioner in the City Jail in Birmingham, Alabama, in 
which the petitioner confessed to having a part in the homi­
cide. Mr. Reese testified that the confession was in all 
respects voluntary and that neither he nor anyone in his 
presence in any way abused petitioner or gave him any 
reward or offered him any hope of reward for making the 
confession. From Mr. Reese’s testimony, it appears that 
he talked with the petitioner in the presence of the officers 
interested in the case and that he also talked to petitioner 
alone and in the presence of his alleged accomplice, L. 0. 
Bell. Reese testified that when he talked with the peti­
tioner alone, he cautioned the petitioner about making the 
confession and specifically inquired as to whether or not 
the officers had abused him in any way, and that petitioner



7

advised him definitely that he and L. C. Bell were guilty 
and that the officers had not abused him. Mr. Reese further 
testified that in this voluntary confession the petitioner 
stated that his alleged accomplice, L. C. Bell, did the actual 
shooting, while he acted as a look-out, and that the gun 
which was used had been taken from Mrs. Charlie Nor- 
relPs. This witness further stated that in the confession 
the petitioner related how he and Bell had started out on 
the night of the homicide to steal some coal and after check­
ing the trains of the Central of Georgia and of the South­
ern Railway and finding no coal on either train, that they 
agreed to hold up. Reese’s filling station (R. 26, 27, 28).

Reese further testified that on the same occasion he 
talked with L. C. Bell, the alleged accomplice, alone and 
also in the presence of the petitioner; that Bell told prac­
tically the same story as petitioner except that he con­
tended that the shot was actually fired by the petitioner 
and he acted as a look-out (R. 28). Reese stated that at 
one time during his conversation with Bell and petitioner, 
he expressed to them some doubt as to their guilt and 
offered to employ counsel, but that the petitioner reiterated 
his guilt and the guilt of his alleged accomplice (R. 27).

It further appears from the testimony of Mr. Reese that, 
on the same night, the petitioner and Bell were brought from 
the jail to the scene of the crime and the handcuffs removed 
so as to enable them to reenact the crime, and that when 
they reached the scene they accused each other of having 
fired the shot (R. 29).

It appears that some changes had been made in the fill­
ing station between the date of the alleged homicide and 
the night on which the petitioner and his alleged accomplice 
were taken back by the officers and Mr. Reese, in that a 
large cabinet and showcase which were put together had 
covered up some cracks in the building which were present 
in September, 1937. The witness testified that on the night

3a



8

when petitioner and Bell were carried to the scene of the 
homicide, Bell made the statement that on the night of the 
homicide he stood at a certain position and saw the de­
ceased inside the filling station, and when told that he 
couldn’t have seen him because of this obstruction, Bell 
replied that it wasn’t there at the time of the alleged homi­
cide and described the type of desk that was there at such 
time (R. 29).

On cross-examination, this witness testified that he had 
heard of two other people confessing to the murder of Ben 
Montgomery. One of them was a Negro to whom he re­
ferred as “ Mississippi.”  On re-direct, it was shown that 
the Negro’s nick-name was “ Mississippi”  and that his 
real name was Willie Myers. It appears that Myers was 
arrested in Nashville and brought to Birmingham and 
that this witness and Assistant Solicitor McAdory, not be­
lieving that Myers was telling the truth, recommended his 
release. Reese testified that the other confession was made 
by a “ dopehead”  who staggered into police headquarters 
in Baton Rouge, Louisiana, and confessed to the killing of 
Ben Montgomery. That after an investigation it was found 
that this man could not have committed the crime, in view 
of the fact that he had not been in Birmingham at the time.

Mr. J. T. Bullard, special police officer of the Southern 
Railway, also testified that the petitioner confessed to being 
implicated in the killing of Montgomery. He testified that 
the confession was voluntary in all respects and that peti­
tioner was not abused or coerced in any way. Mr. Bullard 
testified that he was present on two occasions when peti­
tioner confessed to taking part in the robbery and murder 
of Montgomery, once on September 27, 1939, in the office 
of the Circuit Solicitor of Jefferson County, at which time 
Mr. Robert McAdory, Assistant Solicitor of Jefferson 
County, questioned the petitioner and his accomplice at 
length, which questions and answers thereto were taken



9

down by a court reporter, Mr. J. W. Dickinson (R. 35, 36, 
40). On the same date on which the confession was made 
in the office of the Solicitor, the petitioner wrote out a 
confession in his own handwriting, which confession is set 
out in haec verba on pages 38 and 39 of the Record.

The confession which was made in the office of the Cir­
cuit Solicitor and taken down by Mr. J. W. Dickinson, the 
court reporter, is set out on pages 42-47 of the Record.

The State, in support of the confessions which had been 
introduced, offered the testimony of Dr. H. A. Harris (R. 
72), who is the City Physician and Surgeon, who testified 
that some time in the month of September, 1938, he ex­
amined the petitioner and another negro by the name of 
L. C. Bell. That this examination was made by him at 
the request of City Commissioner Conner and that during 
the examination, he examined the petitioner and Bell thor- 
ougly and that he found no evidence of any violence. He 
also testified that petitioner when asked whether or not he 
had been asked any questions and whether or not his an­
swers to such questions had been voluntarily given, stated 
that he had been asked questions and that his answers 
thereto were voluntary (R. 72, 73).

Dr. Green Smith testified that he was the Jail Physician 
in September, 1938, and was present at the examination of 
the petitioner and L. C. Bell in the City Jail of Birming­
ham, at which time were present Dr. Harris, Dr. Stephens, 
Dr. Farrar and possibly another doctor. That the examina­
tion made of the petitioner at that time failed to disclose 
any evidence of violence (R. 73-75).

All of the State •witnesses who testified as to the con­
fessions made by the defendant positively stated that the 
confessions were voluntarily made and that petitioner was 
not mistreated or coerced in any manner.



1 0

B.

Summary of Petitioner’s Testimony in the Trial Court.

The petitioner, Joe Vernon, was the only defense wit­
ness and testified in substance that he remembered the oc­
casion when Ben Montgomery was killed but that he did 
not kill Mm, had nothing to do with the killing, and was 
not present at the time the deceased was shot. He ad­
mitted that he took a gun from the home of Mrs. Frances 
Norrell on the Saturday before the shooting, but that he 
had it in Ms possession only a few hours, as he pawned it 
to one Manny Green, and that he did not see the gun again 
until the following Sunday week, when he secured the gun 
back from Manny Green. He testified that he was anxious 
to get the gun back because Mrs. Norrell had found out that 
the gun was gone and had threatened to report it to the 
police if he did not return it. The petitioner testified that 
on the night of the homicide Mr. Norrell carried him by 
Ms wife’s sister’s home and that he and Ms wife went on 
back to their home in Mr. Norrell’s servant’s quarters about 
9 :30 or 10:00. He contradicted the testimony of his com­
mon law wife, Rosa Lee Collins, which she had given for 
the State (R. 58, 59, 60).

Petitioner testified that on the 15tli day of September, 
1938, Mr. Johnson and Mr. Gorman, special agents for the 
railroad, and another man, asked him to go out to Lovick 
to assist them in finding a Mr. Tom Tyson. That after reach­
ing Lovick he was put out and the officers proceeded on 
to the town of Leeds, but they returned for him shortly 
thereafter and took him into the woods and accused him 
of robbing the man who was in the car with them. Peti­
tioner testified that they whipped him with switches which 
left scars on Ms legs. He further testified that at this 
time nothing was said to him about the Montgomery case. 
That after they brought him back and just as he was about



1 1

to get out of the car, Mr. Weir and Mr. Wagnor (Maynor), 
who were officers of the city, drove up and took him to the 
City Jail. That when he saw Mr. Weir, he laughed and said 
“ Hello, Captain Weir.”  That on the way to jail, when 
they passed the filling station where the crime was com­
mitted, the city officers asked him, “ Do you know what 
took place there?” , to which he replied, “ I read about 
it.”  That after they reached the City Jail he was placed 
in a line-up and was identified by some man (the Record 
does not disclose who made the identification and there is 
no implication therefrom that the Montgomery case was 
involved) (R. 61). Petitioner testified that the first night 
he was in jail he was questioned but was not mistreated, in 
view of the fact that “ Captain Jack would not let them 
whip him, ’ ’ but that the next night he was taken out of the 
jail and was kept out practically all night and that Mr. 
Johnson, one of the special agents for the railroad, broke 
his tooth off. That in addition to knocking his tooth out, they 
made him lie down across a log and proceeded to whip him. 
Petitioner testified that he had been in jail more than a week 
before he talked to Mr. Reese, the operator of the filling- 
station where the deceased worked (R. 62). He further 
testified that special agent Johnson made him copy some­
thing which Mr. Johnson had written which was, in effect, 
a confession by petitioner. That he copied this confes­
sion but refused to sign it, and that shortly thereafter they 
took him out to see his wife, but before bringing him back 
to jail, he was taken into a field and whipped because he 
would not sign the confession, and that he finally con­
sented to sign it when he got back to town, and that he 
signed it that night. He admitted making the confession 
in the presence of the Assistant Solicitor, but stated that he 
was afraid not to make it and that the confession made in 
the solicitor’s office was subsequent to the confession which 
be signed (R. 63),



1 2

In regard to the occasion when he and Bell were 
taken out to the scene of the homicide, petitioner testified 
that they were forced by the officers present to do as 
they were told and that they were threatened with harm 
unless they complied with directions given them (R. 64). 
Petitioner denied that Mr. Reese, a witness for the State, 
had told him that if the petitioner was not guilty, that 
Reese would hire him a lawyer (R. 65). Petitioner testi­
fied that he had been convicted of stealing, that he did 
not know how many times he had been convicted of steal­
ing, hut that he had been put in the penitentiary as punish­
ment for that crime (R. 69). He testified that “ I stayed 
in jail before anybody ever mentioned this Montgomery 
killing to me until it was about the last day before they 
brought me over here. I didn’t know anything about the 
Montgomery case until I had been in jail ten or twelve days. 
* * * It was something like ten or twelve days since
I had been in jail that I first mentioned the Montgomery 
case”  (R. 69).

* * # * # # #

On the 10th day of January, 1939, petitioner was found 
guilty by a jury of Jefferson County of the crime of mur­
der in the first degree and his punishment was fixed at 
death (R. 5). Petitioner was sentenced by the Court on the 
12th day of January, 1939, to suffer death by electrocution 
on the 17th day of March, 1939.

Petitioner filed notice of appeal on the 17th day of Janu­
ary, 1939, which automatically suspended the execution of 
sentence (R. 6). Motion for a new trial was filed on Feb­
ruary 9, 1939 (R. 6). A  hearing on the motion for a new 
trial was continued from time to time. On April 1, 1939, 
petitioner amended his motion for a new trial (R. 12) and 
again filed amendments to the motion for a new trial on 
April 11, 1939 (R. 15). The motion for a new trial, as



13

amended, came on for a hearing on April 11, 1939, at which 
time the State, through its Solicitor, moved to strike from 
the motion grounds 19, 20 and 21 (R. 11) for the reason 
that said grounds constituted no proper grounds for a 
new trial, and for the further reason that it was too late 
to raise the matters asserted in said grounds for the first 
time on a motion for a new trial. The State, through its 
solicitor, further moved the Court to strike the amend­
ments to the motion for a new trial purported to have 
been tiled April 1, 1939, and April 11, 1939, and also to 
strike from said amendments all grounds predicated upon 
the alleged violation of the defendant’s rights under the 
Fourteenth Amendment to the Federal Constitution. The 
Court granted said motion to the extent of striking all 
grounds in said amendments alleging a violation of the 
defendant’s rights under the Fourteenth Amendment and 
said grounds were stricken from said motion, to which 
action the defendant excepted (R. 84). The motion for a 
new trial was overruled, to which action of the Court the 
petitioner excepted (R. 87).

The case was appealed to the Supreme Court of Alabama, 
which Court, in an opinion rendered by Mr. Justice Brown 
on the 28th day of March, 1940, affirmed the decision of 
the lower court (R. 100-107). Petitioner thereafter filed 
an application for a rehearing in the Supreme Court of 
Alabama, which application was overruled on May 21, 1940 
(R. 113). Upon application by the petitioner, the Supreme 
Court of Alabama reset the date of the execution of the 
sentence by changing it from May 31, 1940, to August 30, 
1940, in order that petitioner might file a petition to this 
Honorable Court for writ of certiorari (R. 115).

On the 21st day of August, 1940, Associate Justice 
Black, of this Court, granted to petitioner an extension 
of thirty days within which to file a petition for writ of 
certiorari (R. 118),



14

This Court, on November 12, 1940, denied certiorari (R. 
118). While it does not appear in this Record, a petition 
for writ of habeas corpus was filed in the Circuit Court of 
Montgomery County on the day preceding that on which 
the execution of sentence was to be carried out. The Circuit 
Court of Montgomery County denied the application for the 
writ. On that day, the Supreme Court of Alabama refused 
to grant a stay pending appeal from the order of the Cir­
cuit Court of Montgomery County denying the writ. A few 
hours before the execution of sentence was to be carried out, 
Mr. Justice Frankfurter, of this Court, issued an order stay­
ing execution of sentence. Thereupon, the Governor of Ala­
bama granted additional time to the petitioner within 
which to perfect his appeal to the Supreme Court of Ala­
bama, which court affirmed the judgment of the Circuit 
Court denying the petition for writ of habeas corpus; 
whereupon, petition for a writ of certiorari was filed in 
this Court seeking a review and reversal of the decision 
of the Supreme Court of Alabama. Briefs were filed 
by the State of Alabama in opposition to this petition 
and this Court denied petition for writ of certiorari in the 
habeas corpus proceeding, but entered an order vacating the 
order theretofore entered by this Court on November 12, 
1940, denying certiorari in the original case, and granted 
certiorari in the instant case (R. 118).

IV.

ARGUMENT.

THE PETITIONER WAS NOT DENIED EQUAL PRO­
TECTION OF THE LAWS.

Respondent construes the petition for the writ of cer­
tiorari filed in this cause and briefs filed by counsel for 
petitioner to take the position that the judgment of the



15

Supreme Court of Alabama should be reversed because 
of the fact that the Supreme Court of Alabama erred in up­
holding the order of the trial judge striking from peti­
tioner’s motion for a new trial, on motion of State Solicitor, 
all grounds which alleged that petitioner had been denied 
equal protection of the law in that members of his race—the 
negro race—had been systematically and arbitrarily ex­
cluded from the jury rolls and jury boxes from which the 
grand jury which found the indictment against petitioner 
was drawn and from which the petit jury which convicted 
petitioner was drawn.

Respondent is familiar with the long line of cases cited 
by petitioner holding that whenever by any action of a 
State, whether through its Legislature, through its courts, 
or through its executive or administrative officers, all per­
sons of the African race are excluded, solely because of their 
race or color, from serving as jurors in the criminal prose­
cution of a person of the African race, the equal protection 
of the laws is denied to him, contrary to the Fourteenth 
Amendment to the Constitution of the United States.

Strauder v. West Virginia, 100 U. S. 303;
Neal v. Delaware, 103 U. S. 370, 397;
Gibson v. Mississippi, 102 U. S. 565;
Rogers v. Alabama, 192 U. S. 226;
Martin v. Texas, 200 U. S. 316;
Norris v. Alabama, 294 U. S. 587;
Pierre v. Louisiana, 306 U. S. 354;
Smith v. Texas (decided November 25, 1940), 85 L.

Ed. 106.

We respectfully submit, however, that in each of the 
cases just above cited, the defendant raised the point in 
accordance with the established practice or procedure of 
the State in which the trial was had.

4a



16

Here, however, petitioner, admits that this question was 
not raised nor was any attempt made to raise the question 
until after a verdict of guilty had been returned by the jury 
and the judgment and sentence of the Court pronounced 
thereon. It is uncontroverted that this question was first 
presented on the motion for a new trial. Petitioner con­
tends that the point, although made for the first time on the 
motion for a new trial, was timely and seasonably made. 
He contends that constitutional rights cannot be waived and 
that a conclusion that such a point could not be raised for 
the first time on a motion for a new trial would be tanta­
mount to holding that such a right could be waived.

Respondent contends that it is not necessary to go into 
the question as to whether or not a constitutional right 
may be waived, but in view of the fact that petitioner has 
dwelt on this point at such great length, we call to the 
Court’s attention the recent case of Johnson v. Zerhst, 304 
U. S. 458, wherein it is held specifically that a constitu­
tional right may be waived, in that case the right to coun­
sel. To a like effect is the decision in the case of Patton v. 
United States, 281 TJ. S. 76, wherein it is held that the con­
stitutional right of one on trial for crime to a jury of twelve 
persons may be waived.

We submit that his failure to interpose a timely motion 
to quash or a plea in abatement does not involve the ques­
tion of a waiver of the right to equal protection of the 
laws, but is a failure to comply with the law of the State 
of Alabama as to the method of presenting to the trial 
court for its consideration the question as to whether or 
not that right had been denied.

An examination of the opinion of the Supreme Court of 
Alabama in this case (Record 100-10) will immediately re­
veal that the Court did not pass on the federal question of 
whether the petitioner had been deprived of any right 
guaranteed him by the Federal Constitution because of the



17

alleged exclusion of negroes from the grand jury, but on 
the contrary, rested its conclusion on the established prac­
tice of Alabama, which it concluded had been correctly fol­
lowed by the trial court. The Supreme Court of Alabama 
simply held that since the Federal question was not pre­
sented in the lower court until the filing of the motion for 
a new trial after the verdict, and since under the Alabama 
rules of practice, such a claim could not be considered on 
such motion, it was forced to conclude that the trial court 
correctly struck the grounds raising the Constitutional ob­
jection from both the original and amended motions.

The Supreme Court of Alabama did not pass on the pro­
cedural question for the first time-in this case. The rule had 
theretofore been laid down that where a defendant made 
no objection to the personnel of the jury on account of race 
or color until on motion for a new trial, that such objection 
came too late. In the case of Powell v. State, 224 Ala. 540, 
550,141 So. 201, the Supreme Court of Alabama considered 
the identical question and said as follows:

“ It is also insisted, however, for the first time on 
motion for new trial, that ‘ exclusion of negroes from 
the list of jurors,’ from which defendants’ jury was 
drawn, was a denial of the defendants’ rights under 
the Constitution of the United States, Amendment 14, 
Sec. 1. It should suffice to say that the defendants made 
no objection whatever to the venire upon any such 
ground, nor does the record, in point of fact, sustain 
any such contention. Having made no objection to the 
personnel of the jury on account of race or color, the 
defendants are in no position to put the court in error, 
in the contention made for the first time on motion for 
new trial. By failing to object to the personnel of the 
jury, the defendant must be held to have waived all 
objections thereto. Batson v. State, 216 Ala. 275, 113 
So. 300; Herndon v. State, 2 Ala. App. 118, 56 So. 85; 
Carson v. Pointer, 11 Ala. App. 462, 66 So. 910; 20 
R. C. L. 241; 18 L. R. A. 475, Note; 68 L. R. A. 885;



18

Note; 16 Corpus Juris 1156; Eastman v. Wight, 4 Ohio 
St. 156; State v. Jones, 89 S. C. 41, 71 S. E. 291, Ann. 
Cas. 1912 D, 1298; Ryan v. Riverside, 15 R. I. 436; 8 
A. 246; Stewart v. Ewbank, 3 Iowa, 191; State v. White- 
side, 49 La. Ann. 352, 21 So. 540; Ferrell v. State, 45 
Fla. 26, 34 So. 220; Whitehead v. State, 206 Ala. 288, 
90 So. 351.”

To like effect is the decision of the Supreme Court of 
Alabama in the case of Clark v. State, 195 So. 260. In the 
case of Peterson v. State, 277 Ala. 361, 150 So. 156, it was 
held that an objection going to the venire of the petit jury 
or any member thereof must be made before entering upon 
the trial of the case on its merits, on the defendant’s plea 
of not guilty, and a failure to make such objection consti­
tutes a waiver. The courts of Alabama have consistently 
held that it is not permissible for a defendant who has not 
been misled by the false oath and fraud of a juryman to 
participate in the selection of a jury without objection, 
thereby speculating on winning a favorable verdict, and 
failing to do so, allow him to raise such question on a 
motion for a new trial. Simpson v. Golden, 114 Ala. 336, 
21 So. 990.

It certainly cannot be successfully contended that peti­
tioner could not have raised the question before entering 
his plea of not guilty on the ground that prior to that time 
he had no way of knowing whether or not members of 
his race were on the petit jury before whom he was to he 
tried. The constitutional guaranty is not that a negro is 
entitled to have a member of his race on the grand jury 
which returned the indictment or on the petit jury 
which tries him, but is that he is entitled to have members 
of his race who are otherwise qualified to be on the jury 
rolls and in the jury boxes from which such juries are 
drawn.

Counsel for petitioner, in his brief, makes the broad



19

assertion that it is commonly known that at the present time 
negroes are excluded from the jury rolls and jury boxes 
of Jefferson County solely because of their race or color. 
With this statement, the State of Alabama definitely takes 
issue. Counsel for petitioner, an attorney whom the 
Supreme Court of Alabama in its decision in this case 
recognized as “ able and experienced” , believing this con­
dition to be true, could have given the trial court the oppor­
tunity to pass on the question and to require a compliance 
with the law as laid down by this Court in the case of Norris 
v. State, supra; Pierre v. Louisiana, supra; Smith v. 
Texas, supra, if the facts sustained petitioner’s contention. 
The recent cases of the Supreme Court of Alabama fol­
low the decision of this Honorable Court in the Norris 
case, supra. We call to the Court’s attention the case of 
Millhouse v. State, 232 Ala. 567, 168 So. 665, wherein the 
Supreme Court of Alabama specifically holds that a mo­
tion to quash an indictment on the ground that the defen­
dant is of the negro race, and, in the selection of the grand 
jury which found the indictment, members of his race were 
systematically excluded because of race, presented good 
ground to quash the indictment. The Supreme Court of 
Alabama reversed the trial court in that case and included 
in its opinion the following:

“ We would impress upon trial courts and jury com­
missions the importance of full compliance with the 
jury laws that the rights of all accused under the Fed­
eral Constitution, as construed by the Supreme Court 
of the United States, shall be fully conserved. The act 
of August 27, 1935 (General Acts, 1935, page 713) was 
designed to give circuit judges more clearly defined 
power and discretion in having jury boxes refilled 
when found necessary or expedient in the administra­
tion of justice.”

We submit that the above statement made by the Supreme 
Court of Alabama is indicative of the position not only of



2 0

the judiciary, but of the administrative officials of the State 
of Alabama in regard to the jury question. Since the de­
cision of this Honorable Court in the case of Norris v. Ala­
bama, supra, we submit that the jury commissions of Ala­
bama have tried to comply with the law as they understand 
it. Of course, the question as to whether or not they have 
complied is one of fact, depending on the conditions in each 
county in Alabama, and the writers of this brief cannot say 
with definite certainty that in every county in Alabama 
that there is that number of negroes in the jury boxes 
which this Court would consider sufficient after passing on 
all of the facts which might be presented to this Court. 
This Court alone is the final arbiter in all such cases. The 
question is one of fact. We submit, however, that the broad 
assertion that the officials of the State of Alabama are not 
complying with the law as enunciated by this Court is un­
true, unfair and without foundation of fact. Certain it is 
that the trial court of a sovereign state should be given the 
opportunity of passing on such a question in accordance 
with the law and the practice of that particular state, sub­
ject, of course, to review by this Court.

Petitioner contends that the point was properly raised 
on the motion for a new trial because of the fact that Sec­
tions 5202, 8630 and 8637 of the Code of Alabama, 1923, 
prevented him from raising the question by' a motion to 
quash or a plea in abatement. Said sections are hereafter 
set out:

“ Section 5202. Objections to indictment for defect 
in grand jury; when not available; exceptions.—No ob­
jection can be taken to an indictment, by plea in abate­
ment or otherwise, on the ground that any member of 
the grand jury was not legally qualified, or that the 
grand jurors were not legally drawn or summoned, or 
on any other ground going to the formation of the grand 
jury, except that the jurors were not drawn in the 
presence of the officers designated by law; and neither



2 1

this objection nor any other can be taken to the forma­
tion of a special grand jury summoned by the direction 
of the court.”

“ Section 8630. Objections to indictments; how taken. 
—No objection to an indictment on any ground going 
to the formation of the grand jury which found the 
same can be taken to the indictment, except by plea 
in abatement to the indictment ; and no objection can 
be taken to an indictment by plea in abatement except 
upon the ground that the grand jurors who found the 
indictment were not drawn by the officer designated by 
law to draw the same; and neither this objection, nor 
any other, can be taken to the formation of a special 
grand jury summoned by the direction of the court.”  

“ Section 8637. No objection except for fraud in 
drawing.—No objection can be taken to any venire of 
jurors except for fraud in drawing or summoning the 
jurors.”

This contention of petitioner is specifically answered by 
the decision of the Supreme Court of Alabama in the cases 
of Millhouse v. State, supra, and Vaughn v. State, 235 Ala. 
80, 177 So. 553, where it was held that a motion to quash 
the indictment is a proper method of raising this question.

In the case of Norris v. Alabama, 294 U. S. 587, this Hon­
orable Court recognized the fact that a motion to quash the 
indictment was a proper method of raising the exclusion 
question in Alabama.

It is true that this Court has decided that even though 
a constitutional question which has been sought to be in­
voked is denied on non-Federal grounds, it is the province 
of this Court to inquire whether the decision of the State 
court rests upon a fair or substantial basis. This Court 
will determine for itself whether or not the decision of the 
State court on a non-Federal ground was a real one, oi 
whether it was set up as an evasion and merely to give color 
to a refusal to allow the Federal right.

Rogers v. Alabama, 192 U. S. 226;
Broad River Company v. South Carolina, 281 U. S. 539.



2 2

Respondent submits, however, that the- action of the trial 
court in this case was not an attempt to evade a Federal 
question but was following the usual course of its judg­
ments. The fact that the Supreme Court of Alabama had 
theretofore reversed the action of the trial court in the case 
of Millhouse v. State, supra, where a motion to quash was 
seasonably made is indicative of the fact that such court is 
not inclined to such evasive practices.

In the case of Jacobi v. Alabama, 187 U. S. 133, it appears 
that the State was allowed in the trial court to introduce 
evidence of the prosecuting witness which had been given 
on a former trial due to her absence from the state, which 
was in accordance with the established decisions of the 
courts of this State. The defendant objected and moved 
to exclude on the ground that “ the defendant has the con­
stitutional right to be confronted by the witness.”  Objec­
tion was overruled. No reference was made to the Consti­
tution of the United States in the objection. When the case 
reached the Supreme Court for the first time error was as­
signed to the admission of the evidence as being in violation 
of the Fourteenth Amendment. The Supreme Court of Ala­
bama did not refer to that contention because of the settled 
rule in Alabama in criminal cases that when specific grounds 
of objection to the admission of evidence are assigned, all 
others are waived. This Court refused to interfere with 
the action of the Supreme Court of Alabama in adhering to 
the usual course of its judgments.

To like effect is the decision of this Court in the case of 
Herndon v. Georgia, 295 U. S. 441, wherein it was held as 
follows:

“ It is true that there was a preliminary attack upon 
the indictment in the trial court on the ground, among 
others, that the statute was in violation ‘ of the Consti­
tution of the United States’ and that this contention



23

was overruled. But, in addition to the insufficiency of 
the specification, the adverse action of the trial court 
was not preserved by exceptions pendente life or as­
signed as error in due time in the bill of exceptions, 
as the settled rules of the state practice require. In 
that situation, the State Supreme Court declined to 
review any of the rulings of the trial court in respect 
of that and other preliminary issues; and this determi­
nation of the State Court is conclusive here.'”  (Italics 
ours.)

The opinion of this Court in the Herndon case, supra, 
does not disclose what were the preliminary attacks which 
were made upon the indictment. A consideration of the 
decision of the Supreme Court of Georgia, 178 Ga. 832, 174 
S. E. 597, rehearing denied, 179 Ga. 597,176 S. E. 620, shows, 
however, that before pleading to the merits, Herndon filed 
a motion to quash the indictment and also a plea in abate­
ment alleging in each that he was a negro, and that members 
of his race were unlawfully, systematically, and intention­
ally excluded from the grand jury which indicted him, in 
direct violation of the Fourteenth Amendment to the Con­
stitution of the United States, and of Paragraph 3, Section 
1, Article 1, of the Constitution of the State of Georgia. 
Issue was joined and the judge decided the matter without 
a jury. The trial judge denied both the motion to quash 
and the plea in abatement. A similar procedure was 
followed in regard to the array and a like decision was ren­
dered by the trial judge.

No exceptions pendente, lite were filed to any of the rul­
ings of the trial judge denying the motions to quash and 
the pleas in abatement. However, the action of the trial 
judge in denying and overruling such motions and pleas 
were assigned as error in the motion for a new trial. The 
Supreme Court of Georgia held that under the set rules of 
practice applicable in that state, the rulings and findings of 
the trial judge upon the preliminary issues could not prop-

5 a



24

erly be asserted as grounds of the motion for a new trial 
relating to the main and final issue as made by the indict­
ment and the plea of not guilty, but that the conclusions 
reached by the court on such preliminary or collateral issues 
should have been excepted to pendente lite, or assigned as 
error, in due time in the bill of exceptions.

Thus, the Supreme Court of Georgia refused to pass on 
the Federal question, but based its decision on the rule of 
practice and procedure long applicable in the courts of that 
state. Respondent, therefore, respectfully submits that the 
conclusion of this Honorable Court in the -Herndon case, 
supra, to the effect that the “ determination of the State 
court is conclusive here”  is applicable to the present case. 
In fact, respondent submits that the rule which was followed 
by the Supreme Court of Alabama in the instant case is 
more substantial and based more on logic and reasoning 
than is the rule which was followed by the Supreme Court 
of Georgia in the Herndon case.

Jolm v. Paullin, 231 U. S. 583;
Atlantic Coast R. Co. v. Mims, 242 U. S. 532;
Brooks v. Missouri, 124 U. S. 394;
Erie Railway Co. v. Purdy, 185 U. S. 148.

In the case of Tarromce v. Florida, 188 U. S. 519, 525, this 
Court considered the action of the trial court of Escambia 
County, Florida, in striking defendant’s motion to quash 
the indictment, on the ground that negroes had been sys­
tematically excluded from the grand and petit juries where 
a negro was the defendant. This Court refused to reverse 
the judgment of the Supreme Court of Florida on the 
ground that that court had considered no Federal question, 
but had applied to the action of the trial court a settled 
rule of practice in the State of Florida, which rule of prac­
tice was supported by many prior decisions to the effect 
that all objections to the competency of and to the regularity



2 5

of selecting, drawing or impaneling of, grand or petit juries 
must be raised by plea in abatement instead of by motion 
to quash. In tlie instant case, the decision of the Supreme 
Court of Alabama is not based on the fact that petitioner 
was mistaken in the proper way of presenting to the court 
for its determination the question as to whether or not he 
had been denied his constitutional rights, but is based on 
the fact that although represented by competent counsel 
who had long been an active practitioner in the courts of 
the county and state, no such question was presented until 
after verdict, judgment and sentence.

Decisions of the courts of last resort of the several states 
of the Union are, of course, not binding upon this Honor­
able Court. But respondent would like to call to the Court’s 
attention the fact that there are many decisions of state 
courts which hold to the same conclusion as does the Su­
preme Court of Alabama; namely, that the question of the 
exclusion of members of a race or class from the grand or 
petit juries comes too late when not raised in accordance 
with the established rule of practice and procedure in the 
state. This fact is called to the Court’s attention for the 
purpose of showing that the Supreme Court of Alabama 
did not act in an evasive manner when it refused to consider 
the Federal question, but based its conclusion on the law of 
practice and procedure in effect in Alabama.

The identical situation is presented in the case of Hicks v. 
State, 143 Ark. 158, 202 S. W. 308, cert. den. 254 U. S. 630. 
In the case of Washington v. State, 95 Fla. 289, 116 So. 470, 
the Supreme Court of Florida held that timely and appro­
priate procedure must be invoked in asserting race discrimi­
nation in forming jury panels, citing the case of Tarrance 
v. Florida, supra. In the Washington case, no motion to 
quash or plea in abatement was tiled until after a conviction, 
when the defendant sought to raise the question of exclusion 
of negroes from the grand and petit juries by a writ of



2 6

coram nobis, which the Supreme Court held could not be 
done. This Court denied certiorari, 278 U. S. 599.

Garnett v. State, 60 S. W. 765 (T ex .);
Watts v. State, 75 Tex. Crim. Rep. 330, 171 S. W. 202; 
Kennard v. State, 61 S. W. 131 (T ex.);
Cooper v. State, 64 Md. 40, 20 Atl. 986;
People v. Duncan, 261 111. 339,103 N. E. 1043;
State v. Walker, et al., 189 La. 241,179 So. 302.

The case of United States v. Gale, 109 U. S. 65, in answer 
to a challenge which had been made to the constitutionality 
of a Federal statute, this Court said:

“ Inasmuch as, by pleading not guilty to the indict­
ment, and going to trial without making any objection 
to the mode of selecting the grand jury, such objection 
was waived. The defendant should either have moved 
to quash the indictment or have pleaded in abatement, 
if they had no opportunity or did not see lit, to challenge 
the array. This, we think, is the true doctrine in cases 
where the objection does not go to the subversion of all 
the proceedings taken in impanelling and swearing the 
grand jury; but relates only to the qualification or dis­
qualification of certain persons sworn upon the jury 
or excluded therefrom, or to mere irregularities in the 
constituting the panel.”

Respondent respectfully submits that the Supreme Court 
of Alabama did not commit reversible error in holding that 
the trial court was correct in granting the motion of the 
State Solicitor to strike from petitioner’s motion for a new 
trial those grounds which sought to raise the proposition 
that he had been denied equal protection of the laws in that 
members of his race—the negro race—had been systemati­
cally and arbitrarily excluded from the grand and petit 
juries in Jefferson County.



27

B.

PETITIONER WAS NOT DENIED DUE PROCESS OF
LAW BY THE ADMISSION INTO EVIDENCE OF
HIS CONFESSIONS.

Petitioner contends that the judgment of the Supreme 
Court of Alabama should be reversed in that he was con­
victed solely upon confessions of guilt extorted by third 
degree methods in violation of the Fourteenth Amendment 
of the Constitution of the United States.

This Court, in the case of Brown v. Mississippi, 297 U. S. 
278, clearly stated the law to be that “ convictions which 
rest solely upon confessions shown to have been extorted 
by officers of the State by brutality and violence are in­
consistent with the due process of law required by the 
Fourteenth Amendment of the Constitution of the United 
States”  and that such a conviction and a sentence thereon 
were void for want of the essential elements of due process 
and that the proceeding so vitiated could be challenged in 
any appropriate manner.

In the case of Chambers v. Florida, 309 U. S. 227, this 
Court held that the “ use by a State of an improperly ob­
tained confession may constitute the denial of due process 
of law as guaranteed in the Fourteenth Amendment ’ ’ and 
that where a petitioner has seasonably asserted the right 
under the Federal Constitution to have his guilt or inno­
cence of a capital crime determined without reliance upon 
confessions obtained by means proscribed by the due proc­
ess clause of the Fourteenth Amendment, that this Court 
must determine independently whether petitioner’s con­
fessions were so obtained by review of the facts upon which 
that issue necessarily turns.

After reviewing the facts in those cases, this Court found 
that the undisputed facts showed that compulsion was ap­
plied, and reversed the judgment of the State courts. In



28

the case of White v. Texas, 310 U. S. 530, this Court applied 
the principle enunciated in Chamber v. Florida in the facts 
of that case and reversed the judgment of the Texas court.

The question is presented, therefore, in the instant case, 
as to whether or not the facts and circumstances incident 
to the alleged confession of the petitioner show that he 
has been deprived of due process of law in that he was com­
pelled to confess.

This petitioner had for several years prior to the date 
of the homicide, acted as a stool-pigeon or informer for 
one of the members of the detective force of the City of 
Birmingham. At one time he had served a sentence in 
the pentitentiary of the State of Alabama as punishment 
for the crime of larceny. The testimony in this case shows 
that the petitioner had been engaged in a series of rob­
beries committed on the railroads of this State. Complaints 
had been made to the agents of the railroad about these 
robberies and we think it only reasonable to assume that 
over a period of time the special agents for the railroad 
had been watching Joe Vernon’s activities. So, on the 
morning of September 15, 1937, two special agents for the 
railroads picked Vernon up. They had with them a man 
whom the record shows to have been one Lyles, who claimed 
that he had been robbed while riding on a train. Petitioner 
says that the agents told him that they wanted him to help 
them locate a man who was alleged to have been in a com­
munity in which petitioner had formerly lived. We think 
it only fair to conclude from the testimony that Lyles iden­
tified Vernon as the man who had robbed him in view of 
the fact that the special agents called the officers of the City 
of Birmingham and told them where they would be with 
Vernon when they returned to Birmingham. "When the 
special agents and Vernon arrived back in Birmingham, 
they were met by two members of the city detective force, 
a Mr. Weir and a Mr. Wagnor (Maynor). Petitioner him-



29

self testifies that when he saw “ Captain Weir“  he laughed 
at him and spoke to him, but that Weir seemed serious and 
placed the petitioner under arrest. Petitioner was taken to 
the City Hall and from there carried to the City Jail, where 
he was placed in a line-up and, according to the evidence, 
identified. It is not shown by whom he was identified or 
what specific crime he was charged with at that time. We 
submit, however, from a careful reading of the testimony in 
this connection, only one conclusion can be reached and 
that is that it was a continuation of the effort being made 
by the special agents of the railroads and the city detectives 
to solve the numerous highway robberies which had been 
committed.

In the testimony of the petitioner, there is a conflict as 
to when the Montgomery case was first mentioned to him. 
But we submit, in view of the statements of all of the 
officers and special agents when construed with that part 
of Vernon’s testimony which is hereafter set out, that this 
petitioner was never questioned about the crime for which 
he was convicted until the day he made his confession or 
the day before:

“ I stayed in jail before anybody ever mentioned this 
Montgomery killing to me until it was about the last 
day before they brought me over here. I didn’t know 
anything about the Montgomery case until I had been 
in jail ten or twelve days.

“ It was something like ten or twelve days after I 
had been in jail that I first mentioned the Montgomery 
case. ’ ’

It is reasonable to assume that the officers, when Joe 
Vernon was arrested, did not have in mind the Montgomery 
case nor did they have Vernon in mind as being the mur­
derer.

It is true that the petitioner was taken out of the City 
Jail on several occasions. Witnesses for the State placed



30

it at anywhere from three to five times, but specifically show 
the purposes for which he was taken out and specifically 
and categorically deny that it was for the purpose of ques­
tioning him about the murder of Ben Montgomery or even 
about the commission of the robberies. The State’s evi­
dence is to the effect that Vernon was taken out to allow 
him to show the officers the location of property which he 
had stolen, to allow him to see his wife or to convince 
Mr. Reese, the owner of the Station at which Montgomery 
was working at the time of his death, of petitioner’s knowl­
edge of the physical facts.

The petitioner is a negro man of thirty-five years of age. 
He had lived in Birmingham for eight years. He knew 
members of the police force, as is shown by his familiarity 
with Mr. Weir. He was not kept incommunicado. The un­
contradicted evidence is that he was allowed to see his 
wife and the State’s evidence shows that on the occasion 
of making the confession in the City Jail, that a private 
citizen, Mr. A. B. Reese, after being told by the officers 
that the petitioner had confessed to the crime, told the 
officers that if they believed so strongly in the petitioner’s 
guilt to allow him to talk to him in private. Mr. Reese 
testified that he talked with Joe Vernon alone and admon­
ished him to tell the truth and not to implicate any other 
person unless that person was guilty. It is shown that 
Reese conferred with the petitioner and his accomplice, 
L. C. Bell, when no other person was present and that he 
told them that he had some doubt of their guilt and that 
if they were innocent to say so and that he himself would 
see that they had the benefit of counsel. There is nothing 
in the record to indicate that Vernon was ever denied the 
opportunity of conferring with family and friends. The 
mere fact that he was in jail is not evidence of the fact 
that he was kept incommunicado.

Therefore, it cannot be said that Vernon was kept in



31

solitary confinement and had no opportunity to convey to 
liis friends or his relatives the situation in which he was 
placed according to his testimony as given on the trial.

Vernon was not questioned about thei Montgomery mur­
der until more than a year after its commission. It cannot 
be said that he was caught in a dragnet and was questioned 
under pressure, confessed, and was indicted and convicted 
within a short time of the commission of the offense. There 
is absolutely nothing in this Record to show that he was 
arrested in an atmosphere of mob violence or hostility. 
On the contrary, we submit that the evidence preponderates 
in favor of the conclusion that Vernon was treated fairly 
at all times.

In regard to the claims made by Vernon that he was sub­
jected to estreme cruelty and was beaten unmercifully to 
the point that he was compelled to confess to the crime, 
we submit that the evidence in this case does not bear out 
Vernon’s contention. He claims that on the morning of 
September 15 when he was first picked up, that he was 
carried out in the country and was carried into some woods 
and beaten by the officers. In this connection, it is inter­
esting to note his testimony as to what took place when he 
arrived back in Birmingham:

“ They whipped me trying to get me to say that I 
robbed this man. We stayed there about an hour 
They whipped me with switches. They cut the switches 
there. Then they brought me to my sister’s house 
and tole me that if I said anything what would happen. 
Just as I went to get out of the car, Mr. Weir and 
Wagnor rode up. They were the city officers. When 
I got ready to get out of the car, Mr. Weir came around 
to the back door and he says ‘ Hello, Joe,’ and I says 
‘ Hello, Captain W eir’ and he was not smiling at all and 
I went to laughing and he said ‘ I want to talk to you’ 
and I says ‘ All right’ and he says ‘ Get in that car’ ’ 
(R. 61).’



32

We submit that regardless of any admonition which the 
special agents might have given him in regard to the heat­
ing, which he claims they gave him out in the country, it is 
hardly probable that when he got out of their ear that he 
would have been in a laughing mood if he had just under­
gone aj severe beating. It is also interesting to note that 
although the petitioner remained in jail some ten or eleven 
days before he confessed to the commission of the Mont­
gomery murder, that he did not contend that he was ever 
beaten or subjected to any cruelty in the jail. In fact, he 
specifically stated that they would not beat him in the jail 
because Captain Jack (speaking of Jack Lasseter, a jail 
employee), would not permit them. If he had been sub­
jected to such cruel and inhuman treatment when he ac­
companied the officers outside of the jail and had such 
complete confidence in “ Captain Jack,”  we submit that 
it is reasonable to assume that he would have communicated 
to Captain Jack the facts and circumstances concerning 
the treatment which he was receiving on the outside.

According to Vernon’s testimony, he was never whipped 
or beaten with anything but switches, except that on one 
occasion a Mr. Johnson, a special agent, hit him in the 
nose and in the mouth, knocking out some teeth, and that 
another officer had something the police carry. In a short 
time after petitioner confessed, four doctors of the City 
of Birmingham examined him. The testimony shows that 
a complete and thorough examination was made. He was 
made to strip and his body was carefully examined to de­
termine whether or not there were any scars or any other 
evidence of violence. The testimony of the doctors is to 
the effect that they found no evidence whatsoever of vio­
lence. His blood pressure was taken and every effort made 
to determine whether or not any foul play had been re­
sorted to in an effort to force this petitioner to confess.

In order that this Court may clearly see the nature of



33

the evidence which the trial court had before it regarding 
the confession, that is, whether it came as a result of the 
use of force or brutality, we hereafter set out the pertinent 
evidence in parallel columns so that it may be compared 
readily.

Testimony of Joe Vernon 
(R. 60-61).

“ I was accused the first 
time of killing Mr. Mont­
gomery when some special 
agents carried me out to 
Lovick’s to find a man for 
them named Mr. Tom Tyson. 
They carried me out there 
one day. That was the day 
that I was arrested, the 15th 
of September, I  won’t ever 
forget that day. That was 
a little more than a year 
after the shooting. I have 
lived here in Birmingham 
all during that year and 
ftave been around headquar­
ters and the officers. The 
officers that came out and 
got me were Mr. Johnson 
and Mr. Gorman and they 
wanted me td find, a man out 
at Lovick. Now when we 
got out there they put me 
out by the bridge, by a store, 
and they said they had some 
business in Leeds. I came 
to my Aunt’s house, that is 
when I came back by and 
went down and waited on 
them. There was a boy they 
called ‘ poor Boy’ there and 
I got in and they left and

States’s Evidence.
Cross-examination of Pe­

titioner, Vernon (R. 68-69).
I

“ When these officers, Mr. 
Gorman and Mr. Johnson, 
came to Jake me to see if I 
could help them to find a 
man named Tom Tyson up 
at Lovick’s, they came in the 
morning soon. I had lived 
at Lovick’s years ago and I 
knew the territory up there 
pretty well and I was going 
up there to find this man 
Tyson. They had a man in 
the back of that automobile 
with them. I could not say 
he was a sort of trampy- 
looking fellow. When I first 
saw this man I had just got 
through exercising and I 
came to the car. lie asked 
me if I was ready to go and 
I told him as soon as I 
changed. This man was in 
the back of the automobile 
went to where I got out, 
and they went on in the di­
rection of Leeds, and when 
they came back they didn’t 
have this man. I had never 
seen the man before. He 
had not kicked me on the



34

went to a place where there 
was a Roccola and they 
brought me a drink in the 
car and they left and went 
to the left there, and that is 
when they carried me to Sap- 
perville—this means ‘ Whip- 
You’. In going there we 
turned off the Bankhead 
Highway to the left. No, in 
coming hack you turn to the 
left about two miles after 
you get off the road, the 
mines were there. I do not 
know what mines they were. 
They did not take me into 
the mines, they took me in 
the woods, and then they ac­
cused me of robbery. They 
had a man in the back of 
the car, and old man with a 
suit case, and this man kept 
looking at me. They kept 
talking to me about boxing 
and when we got there in the 
wood, Mr. Johnson asked 
me did I ever rob anybody 
and that is when they started 
beating on me. This man I 
was talking about was in the 
car. I couldn’t tell you how 
many men identified me. 
They did not mention the 
Montgomery case out there 
at S a p  p e r v i l l  e. They 
whipped me and beat me.
I got scars on my legs and 
got scars all over me. The 
defendant was then asked to

shins in a hold-up, and he 
never said a word to me ex­
cept that he asked two or 
three questions about how 
come I was out boxing. Yes, 
I told the jury a while ago 
that he looked at me all of 
the time. Now, when they 
come back from Leeds they 
cut over to one side and I 
got in the car with them, but 
I did not come back to my 
sister’s house, but to a stand. 
I don’t know if they had a 
phone at that stand. When 
I got back to my sister’s 
house in the city Mr. Weir 
and Mr. Wagner came down 
behind this car. I don’t 
know where Mr. Johnson 
and Mr. Gorman had called 
them. The first thing that 
I confessed to was robbing 
that hobo in the bach of 
that automobile. Mr. John­
son had been beating me. I 
don’t remember that I told 
them that this man had 
kicked me in the shins while 
I was holding him, or that 
he kicked with his heels. I 
stayed in jail before any­
body ever mentioned this 
Montgomery killing to me 
until it was aboid the last 
day before they brought me 
over here. I  didn’t know 
anything about the Mont­
gomery case until I  had been



35

show the jury the scars on 
his legs, which he did. The 
defendant further testified: 
They did not take my clothes 
off hut laid me down across 
a log. I don’t know if there 
are any scars on my back, 
hut they heat on my back 
and on my legs. At that 
time I had on this shirt, 
holding up and exhibiting a 
shirt to the jury. This shirt 
is in the same condition now 
as when they got through 
whipping me and that is the 
shirt they took me to jail in. 
I had on the pants I have on 
now. They have never been 
cleaned. I went to jail with 
these pants on and I have 
had them on ever since. 
They whipped me trying to 
get me to say that I robbed 
this man. We stayed there 
a b o u t  an h o u r .  T h e y  
whipped me with switches.”  
(Italics supplied.)

#  *  #  #

in jail ten or twelve days.”  
(Italics supplied.)

# # * #
Testimony of W. A. Johm- 

son (R. 76).
“ My occupation is that of 

Special Agent of the I Central 
of Georgia Railroad. I re­
member the occasion which 
this defendant Joe Vernon 
was arrested. He was with 
me. He was arrested by of­
ficers Weir and Wagner. I 
had previously been with 
him out to Lovick. When I 
first saw him that day I had 
with me a Mr. Liles, Jos. H. 
Liles. From the time this 
man was arrested and at no 
subsequent time have I ever 
whipped him with switch or 
hose or hit him with a black­
jack, slapped him, or abused 
him or offered him any vio­
lence whatever, or offered 
him any threats or any in­
ducements or held out any 
hope of reward to him, nor 
has anybody in, my presence 
or hearing done so. I  have 
not had any physical con­
tact with this defendant at 
all. * * *

“ I  never heard of Sapper- 
ville; (R. 76) * * *. We 
had not been discussing ar­
resting him for the Mont­
gomery killing. We were 
after him for highway rob-



36

(R. 61).
“ When they (Weir and 

Wagner) got to this filling 
station where they said this 
killing took place, they said: 
‘ Do you know what took 
place there ! ’ and I said ‘ I 
read about it ’ and they says 
‘ You will know.’ I did not 
stop there then.”

#  *  #  *

(R. 61).
‘ ‘ They took me out lots of 

times.”
# # # #

beries on the railroad”  (fi. 
77) (Italics supplied.)

# *  *  #

Testimony of H. H. Weir 
(R. 82).

“ On our way back to the 
city jail I did mot- point out 
this filling station where 
Montgomery was killed and 
ask him ‘ do you know any­
thing about that?’ ”  (Italics 
supplied.)

* * # #

W. A. Johnson (R. 78).
“ The occasion of our tak­

ing him out was to recover 
some stolen watches that he 
had taken off some hoboes 
cmd the hoboes had made 
complaint to me.’'’ (Italics 
supplied.)

Testimony of J. T. Bul­
lard (R. 36).

“ 7 was present on two or 
three occasions when he was 
taken out at night from the 
City Jail. I  was not out at 
Lovick’s nor out by the 
waterworks. The occasions 
of him being taken out of the 
City Jail was to pick up 
some watches and stuff he 
had taken. He said he knew 
where they were and told us



37

where he had, put them. He 
was not beaten, up by the 
officers to my knowledge.”  
(Italics supplied.)

(E. 61-62).
‘ ‘ They left me at the City 

Jail. I was at the City Hall 
a good while before I was 
taken to the City Jail. The 
next time I saw Mr. Weir 
and Mr. Wagner was that 
night. It was "night. I had 
had no supper. They didn’t 
take me anywhere that night. 
They questioned me there, 
they couldn’t heat me there. 
Captain Jack came in, he 
ivouldn’ t let them whip me.”  
(Italics supplied.)

(R. 62-63).
“ The next night they 

came and got me about 
eight-thirty and they kept 
me out practically jail night 
long. They took me to a 
place where there: was a lot 
of water. They said it was 
the Birmingham W a t e r  
Works. It is across Red 
Mountain. They carried me 
in a little place. There was 
a little brick house, there 
was a kind of works going 
on there. Then they asked 
me was I going to talk and 
I says ‘ I don’t know nothing 
to talk about,’ and that is

Testimony of H. H. Weir 
(R. 82).

“ We were not gone one 
night nearly all night. He 
never went to the ! Water 
Works.”

# # # #

Testimony of W. A. John­
son (R. 77).

“ I have never been over 
to the waterworks or took 
him over there on that or 
any other occasion. Was 
not out there and had no 
switches and did not beat 
him up, nor did anybody in 
my presence.”



3 8

where Mr. Johnson broke 
this tooth out there. I  had
good teeth, all except one. 
It was brake off. (Italics 
supplied.)

The defendant was then 
asked to show to the jury 
where his tooth was broken 
off.

“ Mr. Johnson broke this 
off with his fist. Mr. Weir, 
Gorman, Johnson and Jones, 
all took me to the1 City Jail. 
He is the one I saw in the 
court room yesterday. It 
was the one sitting back 
t h e r e  (indicating). They 
whipped me with switches 
and one had something what 
the police carry. He hit me 
there right in the head. Mr. 
Johnson hit me. I couldn’t 
tell how many times, I was 
crazy. They did not put me 
over anything, they just laid 
me down on a Cushion from 
the car. I did not tell them 
anything. They kept me out 
until around two and then 
took me to the City Jail. 
* * * At that time Mr.
Jones, Bullard and Weir 
were with me. Then they 
whipped me, wanted me to 
sign those papers, and I 
wouldn’t sign them. I hadn’t 
signed them then. I had 
written the paper out, but 
hadn’t put my name on it.

(R. 79).
“ I know where the Ar­

tesian Wells are, out be­
tween here and Gate City. 
They didn’t take Joe over 
there. They took him to
Hammond Mine Quarters. 
That is this side of the Ar­
tesian ■ Wells. Our object 
was to try and recover a 
wrist watch that was taken 
from a hobo.”

* # # *

Testimony of J. T. Bullard 
(R. 36).

“ I was not out at Lovick’s 
nor out by the waterworks.”

*  *  *  #



39

They kept me out there at 
that time from about nine 
until eleven, or something 
like that. I don’t know who 
all did the heating, but I 
think all of them. They 
used switches to beat me 
and I still hadn’t signed the 
paper, but I promised them 
that night to sign it and 
when I came back to town I 
did sign it. ’ ’

# # * *

(R. 62).
“ Mr. Johnson broke this 

tooth out there. 1 had good 
teeth, all except one. It was 
I r o h e  off.”  (Italics sup­
plied. )

* * # #

Testimony of W. A. John­
son (R. 78).

‘ ‘ I did not take my fist and 
knock him in the jaw and 
break off two of his teeth. 
Those teeth have not been 
broken off since I have 
known him. (Here the de­
fendant was requested by 
counsel to go around and 
show the witness his teeth 
which was done). The front 
ones have been broken out. 
That was the first thing I 
learned about him.”

# * * *

Testimony of Joe Vernon 
on cross-examination (R. 
71).

“ One of my teeth was 
knocked out while I was liv­
ing at Mrs. Norrell’s house. 
I don’t see where but one 
tooth is knocked out in this



40

(R. 62-63)

“ Mr. Johnson gave me 
something that he had done 
wrote. I don’t remember 
nothing about it, only he told 
me to write it down, there 
was some mistakes I made in 
there. He made me write it 
over again. He made me 
write it the second time be­
fore I could get it right. He

picture. I don’t see but one 
tooth that is shown knocked 
out on this picture.

“ Q. And that one has been 
knocked out ever since yon 
have been prize-fighting?

“ A. This one here.
“ Q. Yes.
“ A. Yes, sir.
“ Q. That’s right, isn’t it?
“ A. Yes, sir.
‘ ‘ Counsel for defendant 

stated: “ Let’s see those
others on the side there; let 
the jury see them; the two 
broken ones there'. Then the 
following question was asked 
by the Solicitor.

“ Q. That picture don’t 
show the tooth that has been 
broken off, but the one that 
has been knocked out?

“ A. Yes, sir.
‘ ‘ Q. That one was knocked 

out prize fighting?
“ A. Knocked out in Nash­

ville. ’ ’

Testimony of W. A. John­
son (R. 79).

“ I did not tell him that if 
he did not stick to that con­
fession that he had made and 
sign it that I would take him 
out and that he wouldn’t 
come back. * * * I did not 
set down there and write on 
another piece of paper what 
I wanted this man to write. 
He did not make a mistake in



41

said there was some mistake, writing and I did not have 
I knew what I was writing, him write it over. He signed 
I did not know what use he it the day it was written and 
was going to. put it to. When it was not two or three days 
I objected to the writing is later.”  
when he told me he would 
carry me out and I wouldn’t
come back any more.”  (Ital- Testimony of J. T. Bullard 
ics supplied) (E. 37-38).

“ Q. Were you present 
when Mr. Johnson handed 
him a piece of paper and 
told him to copy it on that?

“ A. No, Mr. Johnson gave 
him this paper and asked 
him if he would write it out.

“ (Question by defend­
ant’s counsel).

“ Q. Don’t you know he 
copied it?

“ A. No.
“ Q. How long had you 

been there before he was told 
to do it?

‘ ‘ A. Approximately an 
hour, I guess.

“ (Question by defend­
ant’s counsel).

‘ ‘ Q. You were there all the 
time Mr. Johnson was there?

“ A. On this particular 
day.

“ Q. How many did you 
get him to sign all together?

“ A. He admitted to about 
twelve pages of highway 
robbery.

“ Q. This one here?
“ A. He only made this 

one statement in his own



42

(R. 63)
‘ ‘ * * * they came out and 

got me two days later in the 
day time. Mr. Weir, John­
son and Bullard came after 
me. They took me down 
stairs and questioned me 
there, in that little front 
room and that is where they 
made me sign those papers. 
They had already told me 
what would happen if I 
didn’t sign it and I knew 
they would. I was scared of 
them. They said my wife 
was worrying about me and 
they were going to take me 
out to' see her and they car­
ried me from there, and says 
‘we ain’t got Joe for noth­
ing, he will be back in twenty- 
five or thirty days. ’ And she 
says ‘ I ’ve been worrying 
about him! ’ ”

* * * *

(R. 63)
“ I saw them again next 

day and they said ‘ Now, we 
are getting somewhere, all 
we want is to clear up our 
record.’ Then they wanted 
me to sign some more and I 
signed them. I did not know

handwriting, and he made a 
statement in the Solicitor’s 
office.”

* * # #

Testimony of Rosa Collins 
(R. 53).

“ He (Mr. Weir) would 
come out there and get me 
and take me to see Joe. He 
didn’t take me to another 
place. I cannot say how 
many times he has been out 
to my house.”

Testimony of J. T. Bullard 
(R. 37).

“ I was present at the jail 
at a time when this defend­
ant wrote a statement in his 
own handwriting about this 
case. Prior to the time that 
he wrote this statement I did 
not threaten him or abuse 
him or offer him any violence 
or hold out any hope or re­
ward or hold out any induce­
ment, nor did anybody do so 
in my hearing or my pres­
ence or knowledge. ’ ’



43

what they were. I remember 
going to the Solicitor’s office. 
It was a couple of days after 
they took me to the Artesian 
Wells before I came up to the 
Solicitor’s office. They had 
not beaten me any more in 
the meantime. ’ ’ (Italics sup­
plied)

# # # *

(E. 64)
“ The last threat they 

made to me was when they 
were bringing me over here 
(to the court-house). Mr. 
Bullard, Mr. Johnson and 
Mr. Weir said: ‘ You are go­
ing to a place and this man 
is going to help you. This is 
the last chance. If you don’t 
sign these papers and do 
what we say, you won’t get 
back. You know Mr. Charlie 
told you about carrying ne­
groes riding and they didn’t 
come back.’ Mr. Reese was 
not with me then. ’ ’

(R. 64)
“ Mr. Reese took us in a 

Pontiac car out to the filling 
station, in a. new car. Him 
and Mr. Johnson, Mr. Bull­
ard and Mr. Weir and Mr. 
Reese, and it was about 
eight-thirty o ’clock at night. 
We went straight from the 
City Jail out to the filling 
station. Mr. Johnson and

Testimony of J. T. Bullard 
(R. 38).

“ Q. (By the Court) You 
testified that at no time, so 
far as you know, neither you 
nor anyone else ever threat­
ened him, or abused him, or 
made him any offers or 
promises?

“ Witness answered: A. 
Yes, sir; that is my testi­
mony. ’ ’

Testimony of A. B. Reese 
(R. 28-29).

“ After that time that is 
after these conversations 
these two defendants were 
brought to my place of busi­
ness in the custody of of­
ficers. That night after sup­
per we went back over there 
and I said ‘ If those boys 
done that let’s take them



44

Mr. Weir had me handcuffed 
in the car, me and L. C. when 
they took us to another place. 
That is where the railroad 
comes up beside the filling 
station. They carried me 
down in a deep cut where 
some cross-ties and rails 
were at. Then Mr. Johnson 
slapped me and had his pis­
tol in his hand and said ‘ All 
right, are you going to do 
like I said,’ and I said ‘ yes’. 
Then he wanted me to go 
through a motion. He 
brought me back up there to 
the filling station and he 
started me to walking. 
Every light was turned out 
except one' light, the street 
light. All the filling station 
lights were turned out, he 
said he didn’t want the pub­
lic to see us, so they started 
me to walking and had me in 
front. He had his gun in his 
hand. I walked where he 
told me and he said ‘ Come 
on, go and twist that water 
something there.’ He told 
me to twist that, he told me 
—I don’t know what all he 
told me. I did nothing out 
there of my own volition, 
just done what he told me. ’ ’

back out to the station and 
let them re-act the crime.’ 
And they got in the automo­
bile and drove out. Nobody 
threatened them or abused 
them—no one offered any 
reward, or told them it would 
be better for them if they 
made a statement or worse 
for them if they did not, nor 
held out any inducement to 
them. At the request of the 
Solicitor, the witness was 
then told to tell the jury what 
was said and done out there 
at the witness place of busi­
ness by defendant Joe Ver­
non, and L. C. Bell, in his 
presence and hearing. And 
the witness stated substan­
tially stated as follows: 
When we got out there to 
the station they were hand­
cuffed together and I told 
Mr. Weir ‘ Let’s unhandcuff 
them and let them be sep­
arate and don’t ask them 
any questions’ and we sep­
arated them and let them 
walk on each side of the of­
ficers and we started out and 
at first walked down the rail­
road track to First Ave. and 
that is where' they had 
agreed on what they would 
d o ; and Little Joe was doing 
the talking then. And we 
walked on up past the station 
so they could see them close 
up, and walked back and Lit­
tle Joe told me he did the



45

watching and L. C. the shoot­
ing, and ont there Bell made 
the statement that Joe did 
the shooting, and Joe in the 
presence of Bell made the 
statement that Bell had done 
the shooting. The time that 
they were out at my place 
showing me how the killing 
was done was during the lat­
ter part of September 1938 
either the 26th or 27th and 
was at night after dark. The 
interior and exterior of that 
filling station in the latter 
part of Sept. 1938 was not 
the same as in September 
1937; after the first part of 
1938, I had had a large cabi­
net and, show case combined 
built together coming up 
under the side of the wall 
and had covered up the door 
where in 1937 the cracks 
were open. These extra, cases 
that I had built covered up 
the cracks. L. C. and Little 
Joe both said that the cabi­
net wasn’t there and L. C. 
as he was telling the story 
said he saw the deceased 
thru the window and one of­
ficer said ‘ you couldn’t have 
seen him there on account of 
that big high desk,’ and he 
said it wasn’t there then, 
that there was a flat topped 
desk then with a radio on it. 
In September, 1937 there 
was a flat topped desk there 
and in 1938 when these de­



46

fendants came out there and 
were making this statement 
there was a roller top desk 
there.”

Testimony of W. A. John­
son (R. 78-79).

“ I was present when Mr. 
Reese1 and all of them went 
out to the filling station 
where Mr. Montgomery was 
killed. I don’t remember 
any specific thing that I told 
him to do. He was around 
the filling station re-enacting 
the crime and he was not told 
by me what to do. There 
were four or five of us to­
gether all of the time. I 
would not say that I went 
down in the1 cut with him. I 
accompanied him to the posi­
tion he claimed he stood. I 
did not go with him into that 
fill close to the station. We 
did not take him down there. 
Question: Don’t you know 
you did and beat him up 
again? Answer: No.”

Note : Attention is partic­
ularly directed to the testi­
mony of Drs. H. A. Harris 
(R. 72, 73) and Green Smith 
(R. 73, 74) wherein they un­
equivocally state that they 
examined Vernon while he 
was in jail and found no evi­
dence that Vernon had been 
mistreated.



47

The State submits that the words of Mr. Justice Cardozo 
in the case of Snyder v. Massachusetts, 291 U. S. 97, are 
applicable to the attempt on the part of petitioner to apply 
the rule laid down in the cases of Brown v. Mississippi, 
supra, White v. Texas, supra, and Chambers v. Florida, 
supra, to the facts in this case.

In Snyder v. Massachusetts, supra, this Court said:

“ A fertile source of perversion in constitutional 
theory is the tyranny of labels. Out of the vague pre­
cepts of the 14th Amendment a court frames a rule 
which is general in form, though it has been wrought 
under the pressure of particular situations. Forth­
with another situation is placed under the rule because 
it is fitted to the words, though related faintly, if at all, 
to the reasons that brought the rule into existence.”

In the case of Brown v. Mississippi, supra, the undis­
puted evidence showed that one of the petitioners on the 
night of the commission of the alleged crime was twice 
hanged by a rope to the limb of a tree, and was tied to a 
tree and whipped and was finally released upon refusing 
to accede to the demands that he confess. A day or two 
later, he was arrested by a deputy sheriff and was severely 
beaten until he was forced to confess to the commission of 
the crime. Two of his co-defendants were arrested and 
placed in jail and wdiile in jail were beaten with leather 
straps by several men, including a jailer and an officer, 
until they were forced to confess. The trial was had within 
four or five days of the date of the alleged crime and this 
Court found that there was no other evidence in the case 
which tended to connect the petitioner with the commission 
of the crime.

Certainly, it cannot be argued that the facts in this case 
remotely approach those in the case of Brown v. Mississippi.

In the case of Chambers v. Florida, the alleged homicide 
occurred on Saturday night, May 13th. Within twenty-four



48

hours thereafter from twenty-five to forty men had been 
arrested on suspicion. There was evidence of mob violence 
and mob hysteria. From Sunday, May 15 to Saturday, 
May 20, the defendants were questioned from time to time 
by members of the sheriff’s force and a convict guard, as 
well as private citizens. At about 3 :30 on Saturday after­
noon, May 20, the Sheriff and convict guard alternated in a 
concentrated attempt to secure a confession. The question­
ing of the defendants continued without interruption until 
about 2 :30 in the morning of May 21, when one of the pe­
titioners “ broke” . Whereupon, the State Solicitor was 
notified that a confession had been obtained. The confes­
sion, however, was not satisfactory to the State Solicitor 
and he instructed that it be torn up and that if and when 
a satisfactory confession was obtained, that he be notified. 
About sunrise of the same morning, he was notified and a 
confession was dictated which was satisfactory to him and 
which was the basis of the State’s case.

An examination of the testimony as set out in the deci­
sion of this Honorable Court does not disclose that there 
was any other evidence upon which the conviction could have 
been based. The defendants in the Chambers case insisted 
that they had been beaten and otherwise violently treated. 
This fact, however, was controverted by the witnesses for 
the State.

In coming to the conclusion that the judgment of the 
Supreme Court of Forida should be reversed, this Court 
said:

“ Here, the record develops a sharp conflict between 
the issue of physical violence and mistreatment, but 
shows, without conflict, the dragnet methods of arrest 
on suspicion without warrant and the protracted ques­
tioning or cross-questioning of these ignorant young 
colored tenant farmers by State officers and other white 
citizens, in a fourth-floor jail room, where as prisoners



49

they were without friends, advisors or counselors, and 
under circumstances calculated to break the strongest 
nerves and the stoutest resistance. Just as our deci­
sion in Brown v. Mississippi was based upon the fact 
that the confessions were the result of compulsion, so 
in the present case the admitted practices were such as 
to justify the statement that ‘ the undisputed facts 
showed that compulsion was applied.’ _

“ For five days petitioners were subjected to interro­
gations, culminating in Saturday’s (May 20) all night 
examination. Over a period of five days they steadily 
refused to confess and disclaimed any guilt. The gen­
eral circumstances surrounding their confinement and 
their questioning without any formal charges having- 
been brought were such as to fill petitioners with terror 
and frightful misgivings. Some were practical 
strangers in the community. Three were arrested in 
a one-room farm tenant house which was their home; 
the haunting fear of mob violence was around them in 
an atmosphere charged with excitement and public 
indignation from virtually the moment of their arrest 
until their eventual confessions. They never knew just 
when any one would be called back to the fourth-floor 
room, and there, surrounded by his accusers and others, 
interrogated by men who held their very lives so fai 
as these ignorant petitioners could know—in the bal­
ance. The rejection of petitioner Woodward’s ‘ first 
confession’ given in the early hours of Sunday morn­
ing demonstrates the relentless tenacity which broke 
petitioners’ will and rendered them helpless to resist 
their accusers further.”

The State submits that the facts in the instant case fall 
far short of those in the case just above quoted from. It 
is true that in this case the petitioner claims that he was 
beaten. This, however, is denied in every particular and 
in every way by those persons whom he charges with such 
brutality. His claims, we submit, are refuted to some extent 
by his own testimony, as well as by the testimony of the 
doctors.



50

Tlie Record does not show why these doctors were re­
quested to make an examination of the petitioner. It is 
reasonable to assume that the knowledge that in many in­
stances confessions are voluntarily made and thereafter re­
tracted on the grounds that the defendant had been coerced 
into making a confession could have played some part in 
the cause of the doctor’s examination.

There were no dragnet methods of arrest in this case. 
The petitioner was arrested by a man whom he knew and 
with whom he seemed to be on friendly terms. Counsel for 
petitioner, on pages 39 and 40 of the brief filed in this cause, 
states that the undisputed evidence shows that petitioner, 
Joe Vernon, was arrested without a warrant. There is not 
set out in this record a copy of the warrant charging peti­
tioner with the unlawful killing of Ben Montgomery. How­
ever, on page 81 of the Record State witness Weir testified as 
follows: “ I testified on the preliminary trial.”  This is,
of course, indicative of the fact that petitioner had been 
arrested on affidavit and warrant prior to the indictment. 
This not being shown in the record, however, it is impos­
sible to state when this process was issued. Petitioner, 
in his brief, on page 40 thereof, refers to the fact that pe­
titioner was arrested under Sections 4901 and 4902 of the 
City Code of Birmingham. We submit that there is noth­
ing in this Record to show whether such is or is not the 
case and respectfully insist that the reference to said sec­
tions has no part in this case. It is to be noted in this 
connection that the testimony is practically undisputed 
that the petitioner was not arrested or picked up origin­
ally for having any connection with the killing of Mont­
gomery.

The facts in this case do not show a protracted question­
ing and cross-questioning of this petitioner. While the pe­
titioner testified as to having been beaten on four or five 
occasions (all of which is denied by State witnesses), he



51

does not indicate that he was forced to undergo long and 
continuous ordeals of questioning and cross-questioning, 
as was evident in the Chambers case, supra. The tes­
timony for the State in this connection shows that while 
the officers were with the petitioner on several occasions 
during the first part of his incarceration, that the reason 
for their frequent visits to the petitioner was due to the 
fact that after being identified as having committed high­
way robberies, he confessed to the commission of such 
crimes and on several occasions carried the officers to the 
place where the property which he had stolen had been 
hidden. We submit that the fact that he and his accomplice 
on the evening after he had made the oral confession to the 
officers and Mr. Reese, were carried to the scene of the 
homicide, should not be construed as compulsion on the 
part of such officers. It is the position of the State that this 
action on the part of the officers was done for the purpose 
of satisfying Mr. Reese that the petitioner had not been in 
any way forced to make the confession.

Petitioner in this case cannot be classed as either ignorant 
or young. A careful reading of the testimony in this case 
will show that Vernon possesses average intelligence. 
He is a man of about thirty-four years of age, ac­
cording to his own testimony. He had formerly been in 
prison. He had worked with the police force of Birmingham 
for many years. It is true that he is a colored man, 
as was Chambers. But, of course, this fact alone can not 
he taken as evidence of the fact that he was denied due 
process of law.

There is no evidence in this case that any outsiders sub­
jected the petitioner to examination and cross-examination, 
hi fact, the only reference to an outsider becoming involved 
in the investigation at all is the instance of Mr. Reese, who, 
as the evidence discloses we submit, was much more in­
terested in determining Vernon’s innocence than his guilt.



52

The petitioner in this case, although he was a prisoner in 
the City Jail of Birmingham, was not without friends, 
advisors or counsellors, unless the word “ counsellors” as 
used in the Chambers case, supra, refers to an attorney at 
law. The record shows that Vernon knew the police officers. 
Mr. Reese testified that he had known the petitioner prior 
to the time he talked to him about the homicide. Accord­
ing to Vernon’s own testimony, the officers permitted him 
to visit his wife. There is absolutely no evidence in this 
case that this petitioner was kept incommunicado as is 
claimed by counsel for petitioner on page 40 of his brief.

Vernon had lived in and around Birmingham for eight 
years, according to the testimony. He was certainly not a 
stranger in the community. There was no haunting fear of 
mob violence nor an atmosphere charged with excitement 
and public indignation. The crime to which he confessed 
was committed more than a year prior to the date of his 
confession. The fear of mob violence could not have been 
the compelling force behind this confession.

In the case of Chambers v. Florida, supra, the Court put 
great emphasis on the fact that the State Solicitor was in­
volved in the securing of the confession, to the extent that 
when the first confession was made, he examined it, tore 
it up, and told the officers conducting the examination to 
call him when they had gotten what he wanted. In this 
case, Assistant Solicitor McAdory, of Jefferson County, 
indicated in his examination of Vernon when he was mak­
ing his confession, that he was extremely anxious that every­
thing that Vernon said was a result of his own volition. 
We can see no impropriety in having the Solicitor take 
steps to properly prepare his case such as was done by 
the Assistant Solicitor of Jefferson County in this instance.

In the case of White v. Texas, 310 IJ. S. 530, it appears 
that the defendant was an illiterate farmhand who was 
arrested on the day following the crime with which he was



53

charged (Rape). He was one of fifteen or sixteen negroes 
who were taken in custody without warrants or the filing 
of charges, and during a period of five or six days prior to 
his confession he was out of touch with friends or relatives. 
While there were denials that defendant was ever mis­
treated it was uncontroverted that he was taken out of jail 
on many nights and subjected to questioning about the 
crime. The defendant when confronted by the county attor­
ney as to whether he was going to confess began crying. 
There was no other evidence indicating that the defendant 
committed the crime.

In the instant case the petitioner cannot be classed as 
illiterate. His arrest was not the result of dragnet opera­
tions put in effect immediately after the commission of the 
offense. There is no evidence in this record to indicate 
that Vernon’s arrest was made in a general round up in 
order to satisfy public demand for the apprehension of the 
criminal.

There is absolutely nothing in this case which shows that 
this petitioner was held without warrant. The record 
shows that petitioner was given a preliminary trial which 
of course required the issuance of a warrant. Certainly 
the court will not indulge in the presumption that it was not 
done until after the confession was made. There is nothing 
in the record to indicate that when this petitioner was first 
arrested that it was without warrant. We submit that ex­
perienced counsel for defendant should have proven such 
absence of process if the facts would permit such proof.

This petitioner was not out of touch with friends and 
relatives from the time of his arrest to the date of his con­
fession. According to his own testimony and that of his 
wife, he was allowed to see his wife. He was allowed to 
talk to Mr. Reese, alone, in which conversation Mr. Reese 
offered to furnish counsel for the petitioner if he professed 
his innocence.



54

The petitioner in the instant case when carried to the 
office of the Circuit Solicitor displayed no emotions, insofar 
as the record discloses, except by his own testimony. The 
confession taken! by the solicitor shows how cautiously that 
officer proceeded and how anxious he wTas to determine 
whether or not the confession was voluntary.

In this case the confession was not the only testimony 
connecting the petitioner with the commission of the crime.

The facts of this case and the facts of White v. Texas may 
seem at a casual reading to have one thing in common, 
namely the fact that the defendants were both taken out 
of the jail on several occasions.

In the White case, supra, the officers did not deny that he 
was taken out of the jail at night and questioned in the 
woods and at other places concerning the commission of 
this offense.

In this case the officers admit taking him out of the jail 
on several occasions. They deny categorically and specif­
ically that it was for the purpose of either beating the 
petitioner or subjecting him to examination. They do not 
stop with a mere denial, they go further and specify the 
reasons for taking him out. They were (1) to see his wife, 
(2) to collect articles which were stolen and which the 
State’s testimony discloses he had disposed of, (3) to re­
turn to the scene of the crime. Petitioner in his own testi­
mony admits that he "was taken by the officers to see his wife. 
He denies that the officers recovered a watch which he had 
stolen but admits that they did go looking for a watch and 
found one. He was carried to the filling station where the 
crime occurred not before he made a confession, but after­
wards. He wras carried there not because the officers wanted 
him there but because a private citizen, the owner of the 
station, wanted him there for the purpose of determining 
whether or not petitioner’s confession was absolutely 
voluntary.



55

Reference is made in the petitioner’s brief to the fact 
that two other negroes had previously confessed to the 
murder of Ben Montgomery. It is true that a negro by the 
name of Willie Myers, alias Mississippi, was brought back 
to Birmingham from Nashville and there confessed to hav­
ing murdered Montgomery. We call to the attention of 
the Court the fact that Vernon, in the confession which he 
made in the office of the Assistant Circuit Solicitor, stated 
that when he was acting as the stool-pigeon for Mr. Charlie 
Norrell, a city detective, he told Mr. Norrell that this negro, 
Myers, had committed the murder, for the purpose of 
getting the officers off of his (Vernon’s) trail. The Record 
discloses that as soon as Assistant Solicitor McAdory and 
Mr. Reese, the filling station operator, talked with Myers, 
they came to the conclusion that his confession was not 
true and immediately made an independent investigation 
which cleared Myers, and the Assistant Solicitor dismissed 
all charges against him.

The Record in this case does not show whether or not 
the person who confessed in Baton Rouge, Louisiana, was a 
white man or a colored man, but may we go out of the Record 
to the extent to say that he was a white man. Certainly 
the confession of this man, which was made in the police 
department of Baton Rouge, Louisiana, to Louisiana officers 
cannot shed any light on the question as to whether or not 
petitioner’s confession was involuntarily made. In fact, it 
goes to prove that such things do happen without any 
grounds therefor and without any coercion on the part of 
the officers.

Why did Vernon confess? The confession in this case, 
in our opinion, was brought about by the realization on the 
part of Vernon that the officers knew his connection with the 
case. First, Vernon had been identified by various people 
as having perpetrated robberies. He had confessed to those



56

robberies. He was convinced that it was useless to do 
otherwise in that these officers had been working on his case 
over a period of months before he was arrested. It is 
our opinion that when the officers secured the gun from 
the home of Mrs. Norrell that it was the first time that 
they gave any thought to the question of Vernon having a 
part in the Montgomery killing. The testimony shows that 
nothing was said to him about the gun immediately when it 
was obtained. This gun, together with the bullet which 
had killed Montgomery, was sent to Washington. While 
the Record does not show that the officer specifically con­
fronted Vernon with the report of the ballistics expert, 
Vernon does state that the gun was shown to him by the 
officers and he admitted that it looked like Mr. Charlie 
Norrell’s gun.

This man had been defying the law under what he 
thought was the protective arm of a detective of the City 
of Birmingham for many years. He had acted without 
caution. He felt that the officers knew the whole story and 
therefore, voluntarily told the story of the murder.

This case is also distinguishable from the case of Brown 
v. Mississippi, Chambers v. Florida and White v. Texas in 
that there is evidence independent of the confession which 
indicated that Vernon was the murderer. The fact that 
Montgomery was killed by a bullet fired from a gun such as 
the one which he admitted having taken from the home of 
Mr. Norrell on the Saturday before the murder, and which 
Vernon admitted he did not return until a short time there­
after is evidence of his guilt. The testimony of his wife 
that on the night of the murder he had that gun in his 
possession substantiates the ballistics testimony.

It is settled law, both in the State of Alabama and in 
this Court, that it is the duty of the trial court to determine 
whether the admission or confession of a defendant is vol­



57

untary, and only an abuse of that discretion will justify a 
reversal by the reviewing court.

Hopt v. Utah, 110 U. S. 574, 583;
Bram v. United States, 168 U. S. 532, 549;
Travers v. United States, 6 App. D. C. 450, 459; 
Pearlman v. United States, 10 Fed. (2d) 460;
Allen v. State, 298 S. W. 993; 175 Ark. 264;
Harrison v. State, 110 Fla. 420, 148 So. 882;
State v. Andreason, 44 Idaho 396, 257 P. 370;
People v. Albers, 360 111. 73, 195 N. E. 459;
Mach v. State, 203 Ind. 355, 180 N. E. 279;
Buckler v. State, 171 Miss. 353, 157 So. 353;
State v. Yeager, 12 S. AY. (2d) 30, (M o.);
State v. Dixson, 80 Mont. 181, 260 P. 138;
State v. Yarrow, 104 N. J. Law 512, 141 A. 85;
People v. Bartato, 254 N. Y. 170, 172 N. E. 458;
State v. Green, 128 Ore. 49, 273 P. 381;
Commonwealth v. Dilsworth, 289 Pa. 498, 137 A. 683; 
State v. Peden, 154 S. E. 658, 157 S. C. 459;
State v. Richards, 101 AY. Va. 136, 132 S. E. 375; 
Sweda v. State, 206 AYis. 617, 240 N. AY. 369.

The rule is best expressed by Mr. Justice Harlan, who 
delivered the opinion of the court in Hopt v. Utah, supra, 
that:

“ The admissibility of such evidence (of a confes­
sion) so largely depends upon the special circumstances 
connected with the confession that it is difficult, if not 
impossible, to formulate a rule that will comprehend 
all cases. As the question is necessarily addressed^ in 
the first instance, to the judge, and since his discretion 
must be controlled by all the attendant circumstances, 
the courts have wisely forborne to mark with absolute 
precision the limits of admission and exclusion.”  
(Italics supplied)



58

And as said by Mr. Justice White in Bram v. United 
States, supra:

“ * * * all the decided cases necessarily rest upon 
the state of facts which existed in the particular case, 
and, therefore, furnish no certain criterion, since the 
conclusion that a given state of facts was adequate to 
have produced an involuntary confession does not es­
tablish that the same result has been created by a 
different although somewhat similar condition of fact.”

It is to be seen, therefore, that in the instant case a 
determination of the question presented must necessarily 
devolve upon the facts which were before the trial court at 
the time of the admission of the confession.

In Alabama, as well as in other states, the exclusion 
from the jury of a confession rests on its connection with 
the inducement. If promises or threats do not have the 
influence to induce the confession, the confession must be 
referred to other motives. As held in Beckman v. State, 100 
Ala. 15, 14 So. 859: (Quoting from syllabus)

“ The exclusion from the jury of a confession rests 
on its connection with the inducement; they stand to 
each other in the relation of cause and effect, and if it 
is apparent that no such connection exists, there is 
no reason for the exclusion of the evidence.”

This is uniformly the rule throughout the United States.

See Osborn v. People, 83 Colo. 4, 262 P. 892, 904; 
State v. Grover, 96 Me. 363, 52 A. 757;
Cady v. State, 44 Miss. 332;
Spears v. State, 2 Ohio St. 583;
State v. Hopkirk, 84 Mo. 278.

As has been heretofore pointed out, the only indication 
in this case that the confessions introduced by the State 
were obtained by compulsion, as is contended for in brief



for petitioner, is found in the testimony of petitioner him­
self, Joe Yernon, who at the time this testimony was given 
was on trial for his life.

No admitted incidents tend to such a conclusion: that of 
consequence we submit the rule announced as controlling- in 
the Brown, Chambers and White cases should not be here 
applied.

Conclusion.

On the reasons hereinabove set forth, we base our con­
tention that the judgment of the Supreme Court of Ala­
bama be affirmed.

Respectfully submitted,
T h o s . S. L aw so n ,

Attorney General of Alabama,

W il l ia m  H. L oeb,
Assistant Attorney General, 

Counsel for Respondent.

(4040)













Offls* - Supreme Court, U. S.
FXL.E3D

OCT 21 1940

= = = = = : : : = = = = = = =  t̂ HAfiLES elkobeT ro pley
Suprem e C o u rt o f  th e  U n ite d  S t a t e d 1"

O C T O BER  T ER M , 1940 

NO . i i ®

JO E  V ER N O N ,

Petitioner

v.

S T A T E  OF A L A B A M A ,

Respondent

b r i e f  i n  o p p o s i t i o n  t o  p e t i t i o n  f o r

W R IT  OF C E R T IO R A R I

T H O M A S  S. LAW SO N,

Attorney General of Alabama.

W IL L IA M  H. LOEB,

Assistant Attorney General.

PRIME F. OSBORN,
Assistant Attorney General,
On the Brief.



■

■

; ' - .

-

’

■V % r  s -

•



Suprem e C o u rt o f  th e  U n ite d  States

O C TO BER  T ERM , 1940 

NO..........

JOE V ER N O N , 

Petitioner

v.

S T A T E  OF A LA B A M A , 

Respondent

B R IE F  IN  O PPO S IT IO N  TO P E T IT IO N  FOR 
W R IT  OF C E R T IO R A R I

T H O M A S  S. LAW SO N,

Attorney General of Alabama.

W IL L IA M  H. LOEB,

Assistant Attorney General.

PR IM E F. OSBORN,
Assistant Attorney General,
On the Brief.





IN D E X

S U B JE C T  IN D E X

Page

Opinion of the court below ........ ....................  1

Jurisdiction ... ..... .... ....................... ..........  2

Statement of the F a c ts.................................  3

Argument

A. The Supreme Court of Alabama did not 
attempt to decide the Federal question 
which petitioner sought to present, but 
fairly and substantially, and without 
attempt at evasion, based its opinion on
a non-Federal ground........................ 7

B. There was no denial of due process of
law by the admission in evidence of 
petitioner’s confessions........................19

1. The question of the admissibility of 
a confession is necessarily addressed 
to the discretion of the trial court, 
and, in the absence of an abuse of 
such discretion, it cannot be said that 
the confession was erroneously ad­
mitted into evidence...................... 19



2. The trial court did not abuse its dis­
cretion in finding that the evidence 
did not show that the confessions 
were extracted from the petitioner 
by force, brutality or length of con­
finement .........   21

C. Cases cited by petitioner.........—.........  46
Brown v. M ississipp i........ -...............47
Chambers v. Florida ............  48

Conclusion ......    50

IV



TABLE OF CASES CITED

Page

Allen v. State, 298 S. W. 993,175 Ark. 264 ........ 20

Atlantic Coast Line R. Co. v. Mims,
242 U. S. 532, 535 ....................................17

Beckman v. State, 100 Ala. 15, 14 So. 859 __ ____22

Bram v. United States, 168 U. S. 532, 549 ..... 20, 21

Broad River Company v. South Carolina,
281 U. S. 537, 540 ...... .... .........................13

Brown v. Massachusetts, 144 U. S. 573, 580 ........ 18

Brown v. Mississippi, 297 U. S. 278 .........46, 47, 48

Buckler v. State, 171 Miss. 353, 157 So. 353 ......20

Cady v. State, 44 Miss. 332 .......... ................ 22

Chambers, et al. v. Florida,
84 L. ed. 417 ...... ........................46, 48, 49, 50

Cincinnati, P. B. S. & P. Packet Co. v. Bay,
200 U. S. 179, 182 .................................... 18

Commonwealth v. Dilsworth,
289 Pa. 498,137 A. 683 .............................. 20

v



TABLE OF CASES CITED— Continued

Page

Davis v. Wechsler, 263 U. S. 2 2 ...................... .15

Dewey v. City of Des Moines, 173 U. S. 193,199 . .. 9

Doss v. State, 220 Ala. 30,
123 So. 231, 68 A. L. R. 712 ........... ............ 12

Erie R. Co. v. Purdy,
185 U. S. 148, 154 .....................  9, 15, 16, 17

Fulwider v. Jacobs, 221 Ala. 124, 127 So. 818 .....10

Harrison v. State, 110 Fla. 420, 148 So. 882 .....20

Hartford Life Ins. Co. v. Johnson,
249 U. S. 490, 493 ................ .................... 1'

Herndon v. State of Georgia, 295 U. S. 441 ........17

Higdon v. State, 20 Ala. App. 649, 104 So. 913 —.10

Hopt v. Utah, 110 U. S. 574, 583 .............. 20, 50

Hornsby v. State, 94 Ala. 5 5 ......... ..... ........... ^

Hulbert v. Chicago, 202 U. S. 275, 281 ............. ^

Jacobi v. Alabama, 187 U. S. 133 ....................^

vi



TABLE OF CASES CITED— Continued

Page

John v. Paullin, 231 U. S. 583 .......... ............. 18

Jones v. State, 23 Ala. App. 384, 125 So. 898 ____46

Kipley v. Illinois, 170 U. S. 182 ..................... 9

Layton v. Missouri, 187 U. S. 356, 361 ........ ...... 17

Louisville & Nashville R. Co. v. Woodford,
234 U. S. 46, 5 1 ......................... . 18

Love v. Griffith, 266 U. S. 32 ........................ 18

Mack v. State, 203 Ind. 355, 180 N. E. 279 ........ 20

Millhouse v. State, 232 Ala. 567, 569,168 So. 665 10

Moorer v. State, 115 Ala. 119, 22 So. 592 ........... 10

Mutual Life Ins. Co. v. McGrew,
188 U. S. 291, 308 ..... ............ -............. ... 17

Nevada-California-Oregon Ry. v. Burrus,
244 U. S. 103 .................................... ......18

New York Central R. Co. v. New York &
Pa. Co., 271 U. S. 124,126,127............. -...... 18

vii



TABLE OF CASES CITED— Continued

Page

Nordan v. State, 143 Ala. 13, 39 So. 406 ........... 12

Norris v. Alabama, 294 U. S. 587, 590 .............. 10

North Carolina R. Co. v. Zachary,
232 U. S. 248, 257 .................................... 18

Osborn v. People, 83 Colo. 4, 262 P. 892, 904 .....22

Pearlman v. United States, 10 Fed (2d) 460 ..... 20

People of the State of New York ex rel Bryant v. 
Zimmerman, 278 U. S. 63, 67 .....................  9

People v. Albers, 360 111. 73,195 N. E. 459 ........20

People v. Bartato, 254 N. Y. 170, 172 N. E. 458 ....20

Rogers v. Alabama,
192 U. S. 226, 230, 231 ..... ... ...........13, 15, 18

Simpson v. Golden, 114 Ala. 336, 21 So. 990 .....10

Spears v. State, 2 Ohio St. 583 ....................... 22

Spivey v. State, 172 Ala. 391, 56 So. 232 ........... 12

State v. Andreason, 44 Idaho 396, 257 P. 370 .....20

viii



TABLE OF CASES CITED— Continued

Page

State v. Dixson, 80 Mont. 181, 260 P. 138 ......... 20

State v. Green, 128 Ore. 49, 273 P. 381 ......  20

State v. Grover, 96 Me. 363, 52 A. 757 ___  22

State v. Hopkirk, 84 Mo. 278 .........    22

State v. Peden, 154 S. E. 658,157 S. C. 459 .........20

State v. Richards, 101 W. Va. 136,132 S. E. 375 ....20 

State v. Yarrow, 104 N. J. Law 512, 141 A. 85 — 20

State v. Yeager, 12 S. W. (2d) 30, (Mo.) .........20

Sweda v. State, 206 Wis. 617, 240 N. W. 369 ......20

Travers v. United States, 6 App. D. C. 450, 459 ....20

Vaughn v. State, 235 Ala. 80, 81, 177 So. 553 .....10

Vernon v. State, 196 So. 9 6 .......................- 1,12

Wadsworth v. State,
18 Ala. App. 352, 92 So. 245 ......................-1 0

Walker v. State, 19 Ala. App. 20, 95 So. 205 .....10

IX



T E X T B O O K  C IT E D

Page

Jurisdiction of the Supreme Court of the 
United States, by Robertson and Kirkham,

pp. 102,103, et seq............. .....................  9

T A B L E  OF S T A T U T E S  C IT E D  

Code of Alabama, 1923:

Section 5202........................................... 11

Section 8630 -......... ..................................11

Section 8637 ....... .............................. —..~H

x



Suprem e C o u r t  o f  th e  U n ite d  States
O C T O BER  T ERM , 1940 

N O .........

JO E  V ER N O N , 

Petitioner

v.

S T A T E  OF A LA B A M A , 

Respondent

B R IEF  IN  O P P O S IT IO N  TO P E T IT IO N  FOR 
W R IT  OF C E R T IO R A R I

I.

O P IN IO N  OF T H E  COURT BELO W

The opinion of the Supreme Court of Alabama 
which Petitioner asks this Court to review is report­
ed in 196 So. 96.



2

J U R IS D IC T IO N

Petitioner seeks to invoke the jurisdiction of this 
Court to review the judgment of the Supreme Court 
of Alabama rendered on March 2, 1940. Petitioner 
relies upon Section 237 (b) of the United States 
Judicial Code, as amended on February 13, 1935, 
43 Stat. 937 (U. S. C. A., Title 28, Section 344), as 
giving this Court jurisdiction.

Petitioner bases his claim for relief on the follow­
ing propositions:

1. That the trial was had in violation of the Equal 
Protection Clause of the Fourteenth Amendment to 
the Constitution of the United States in that negroes 
were systematically excluded from the grand and 
petit juries because of race or color in Jefferson 
County, Alabama, where the trial was held.

(a) That the trial court erred in concluding that 
the alleged exclusion of negroes from the grand and 
petit jury of Jefferson County could not be set up 
for the first time in a motion for a new trial and the 
amendments thereto, and the Supreme Court of Ala­
bama erred in sustaining this conclusion.

2. He was convicted of the crime of murder by 
reason of the admission into evidence of an alleged 
confession of guilt obtained by state officers through 
illegal or coercive methods, thus compelling him to

II.



3

produce testimony against himself, contrary to the 
guaranties of the Constitution of the State of Ala­
bama and of the Constitution of the United States.

5 III .

S T A T E M E N T  OF T H E  FA C T S

On the night of September 20, 1937, Bennie Mont­
gomery was shot to death. Montgomery was a nine­
teen year old school boy living with his widowed 
mother in the community of a filling station in B ir­
mingham in Jefferson County, Alabama, where he 
worked part-time (R. 19). On the night he was kill­
ed he was left alone in charge of the filling station 
until the usual closing hour, from nine to ten o’clock, 
with cash sufficient to make change as purchases 
were made (R. 21). About nine o’clock a sound, 
described by the witnesses as a muffled shot, was 
heard at or near the filling station (R. 19). No im­
mediate investigation of the shot was made in view 
of the fact that the sound was not unusual in the 
vicinity of the filling station where automobiles fre­
quently backfired (R. 20). Between three and four 
o’clock of the next morning, however, Montgomery’s 
body was discovered by a newsboy while delivering 
the morning paper at the filling station (R. 20). He 
immediately reported his discovery to the police, who, 
upon their arrival at the filling station, found that 
all merchandise kept on the outside for display dur­
ing business hours had been moved inside, all lights, 
except the light at the front door, had been exting-



4

wished, and concluded that Montgomery was in the 
act of closing the station for the night (R. 21). They 
found the deceased’s body in rigor mortis just inside 
and back of the door resting on the knees with face 
and hands resting on the floor in a pool of blood (R. 
29). He had been shot, the bullet entering under 
the arm, and passing through the body and lodging- 
inside of his shirt. No weapon was found near the 
body or on the premises (R. 29).

An intensive search at the time failed to disclose 
the culprit. Almost a year later the police officers 
of Jefferson County arrested one L. C. Bell, who 
confessed to the shooting and implicated this peti­
tioner (R. 60, 61), who had, at the time, been in jail 
some ten or twelve days on other charges (R. 60).

When confronted with the Bell accusation, Vernon 
confessed his part in the crime (R. 22-28, 30-34, 
35-42).

The foregoing facts were made known to the grand 
jury of Jefferson County, Alabama, which, on No­
vember 12, 1938, returned a true bill charging the 
petitioner with the murder in the first degree of 
Bennie Montgomery by shooting him with a pistol 
(R. 1).

On the 31st day of December, 1938, the petitioner 
appeared with his attorney, was duly arraigned and 
entered a plea of not guilty, the court specially set­
ting Monday, the 9th day of January, 1939, for the 
trial of the case (R. 2).



5

The case was regularly tried on the 9th day of 
January, 1939, the petitioner being represented by 
able and experienced counsel of his own selection 
and employment, and on said trial he was convicted 
as particeps criminis in the murder of Bennie Mont­
gomery.

No question was raised on or before the trial as 
to the formation of the grand jury that presented 
the indictment, or as to its regularity.

Nor was there any objection to the venire for his 
trial or the formation of the petit jury selected and 
impaneled therefor. The trial was entered upon on 
the day set therefor with defense counsel in attend­
ance, but without objection or exception and with­
out motion for continuance or motion for postpone­
ment.

The jury, upon hearing the case, returned a ver­
dict of guilty on the 10th day of January, 1939, and 
the judgment was entered and sentence pronounced 
on the 12th day of January, 1939 (R. 3).

On the 9th day of February, 1939, the petitioner 
filed a motion for new trial, cataloguing twenty-one 
grounds, mostly for alleged errors in refusing spe­
cial instructions, rulings on evidence and alleged 
misconduct of the solicitor in argument, those 
grounds raising constitutional questions being as fol­
lows:



6

“19. For that the defendant, Joe Vernon, be­
ing a negro, it was error to force the defendant 
to be compelled to select from a venire composed 
solely of white men.” (R. 8)

“20. For that it invaded the constitutional 
rights of the defendant, Joe Vernon, in that he 
was forced to select a jury from men composed 
entirely of white men.” (R. 8)

“21. For that the defendant, Joe Vernon, was 
denied his constitutional rights or deprived of his 
constitutional rights by a trial of his peers in that 
the venire, from which the jury was selected, and 
the number of the jurymen from which he was 
compelled to select the jury for the trial of his 
cause, wTas composed solely of white men.” (R. 8).

This motion was regularly continued from time 
to time until the first of April, 1939, when the pe­
titioner filed additional grounds numbered from 22 
through 38 (R. 9-11), which grounds, in addition 
to raising the constitutional questions raised in the 
original motion, charged that in permitting the in­
troduction of the confession the trial court had com­
mitted error in that such admission deprived the pe­
titioner of certain constitutional rights guaranteed 
him by the 14th Amendment to the Constitution of 
the United States (Grounds 22 and 23, R. 9).

This motion, as amended, was then continued un­
til the 11th of April, 1939 (R. 8), and on that date,



7

on oral motion of the solicitor (R. 8), the circuit 
court expunged or struck from the original motion 
said Grounds 19, 20 and 21, and also struck from 
the amendment all grounds predicated upon an al­
leged violation of the petitioner’s rights under the 
14th Amendment to the Federal Constitution (R. 
9).

To these rulings, the petitioner reserved separate 
exceptions (R. 8, 9).

After hearing arguments upon the motion for new 
trial as thus limited, the court proceeded to overrule 
the same and petitioner excepted (R. 9).

From the foregoing orders of the court petitioner 
appealed to the Supreme Court of Alabama, and on 
December 21, 1939, his cause was argued and sub­
mitted to that Court. OnJVtarch 28, 1940, the Su­
preme Court affirmed the judgment of the Circuit 
Court of Jefferson County. Petitioner’s application 
for rehearing filed on April 12, 1940, was duly over­
ruled by the Supreme Court on August 21, 1940, 
whereupon petitioner applied to this Honorable Court 
for a writ of certiorari.

IV.

A R G U M E N T

A.

T H E  S U P R E M E  CO URT OF A L A B A M A  D ID  
NOT A T T E M P T  TO D E C ID E  T H E  F E D E R A L



8

Q U E ST IO N  W H IC H  P E T IT IO N E R  SO U G H T  TO 
P R E SE N T ,  B U T  F A IR L Y  A N D  S U B S T A N T IA L ­
LY , A N D  W IT H O U T  A T T E M P T  A T  EV A S IO N , 
B A S E D  IT S  O P IN IO N  ON A  N O N -F E D E R A L  
GROUND.

This petitioner is applying to this Court for writ 
of certiorari to review the judgment of the Supreme 
Court of Alabama under Section 237(b) of the 
United States Judicial Code, as amended, on Feb­
ruary 13, 1935, 43 Stat. 937 (U. S. C. A., Title 28, 
Section 344). The first clause of Section 237(b) 
of the Judicial Code authorizes the Supreme Court 
to review by certiorari, among other things, a final 
judgment or decree of the highest court of the state 
in which decision could be had “where is drawn in 
question” the validity of the statute of a state on the 
ground of its repugnance to the Federal Constitu­
tion, regardless of how the question was decided in 
the State court.

The last clause of Section 237(b) authorizes the 
Supreme Court to review by certiorari similar de­
cisions of the state courts wherein a title, right, 
privilege or immunity “is specially set up or claim­
ed” by either party under the Federal Constitution, 
treaties or laws, etc.

It would appear that these requirements, that the 
validity of the statute shall have been “drawn in 
question” or that the Federal right shall have been 
“specially set up or claimed”, make it mandatory 
that the Federal question should have been “proper­
ly presented” or “properly raised” in the state court.



9

In so far as the cases reveal, according to the con­
clusion reached by Messrs. Robertson and Kirkham1 
and the study of the writers of this brief, no dis­
tinction seems to be made with regard to the par­
ticularity required in raising a Federal question 
under the “specially set up and claimed” clause and 
under the “drawn in question” clause. At least, 
the Supreme Court does not appear to have applied 
wholly different rules to cases arising under the two 
clauses. See Dewey v. City of Des Moines, 173 U. S. 
193, 199; People of the State of New York ex rel. 
Bryant v. Zimmerman, 278 U. S. 63, 67; Kipley v. 
Illinois, 170 U. S. 182; E rie R. R. Co. v. Purdy, 185 
U. S. 148, 153.

It becomes necessary, therefore, for this Court to 
determine, at the outset, whether the Federal ques­
tion of denial of due process of law under the 14th 
Amendment because of the alleged arbitrary or un­
reasonable exclusion of negroes from the Grand and 
Petit Juries of Jefferson County, Alabama, was 
“drawn in question” or “specially set up and claim­
ed”, in short, raised in the lower courts.

A  determination of this question must, of course, 
lead to an examination of the applicable rules of the 
State practice concerning the matter of raising such 
questions. According to the decisions of the Supreme

1Jurisdiction of the Supreme Court of the United 
States, pp. 102,103, et. seq.



10

Court of Alabama, the proper manner of raising the 
Federal question of the systematic exclusion of ne­
groes from the grand jury where the defendant is 
of the negro race is by a plea in abatement or mo­
tion to quash the indictment. Millhouse v. State, 232 
Ala. 567, 569,168 So. 665; Vaughn v. State, 235 Ala. 
80, 81, 177 So. 553; Norris v. Alabama, 294 U  S 
587, 590.

It  is also well settled that where a defendant pleads 
to the merits without interposing a formal plea in 
abatement or motion to quash the indictment and 
proceeds to trial, he cannot be heard, upon motion 
for new trial, to complain of any defects in the grand 
jury or its composition.

Simpson v. Golden, 114 Ala. 336, 21 So. 990; 
Fulwider v. Jacobs, 221 Ala. 124, 127 So. 818; 
Moorer v. State, 115 Ala. 119, 22 So. 592;
Higdon v. State, 20 Ala. App. 649,104 So. 913; 
Walker v. State, 19 Ala. App. 20, 95 So. 205; 
Wadsworth v. State, 18 Ala. App. 352, 92 So. 245.

In  the Wadsworth case, for instance, the Court of 
Appeals of Alabama remarks:

“Having the opportunity to raise this question 
(the validity of the grand jury that found and re­
turned the indictment) on the main trial, and it 
appearing not to have been then presented, the de­
fendant cannot ask that it be reviewed, when first 
presented in his motion for a new trial.”



11

Again, in Hornsby v. State, 94 Ala. 55, the court, 
while concluding that the indictment was improperly 
drawn, stated:

“We are of the opinion that the particular de­
fect complained of (an insufficient averment) is 
not available on motion in arrest of judgment; 
but to be available, advantage must be taken of 
the defect before trial and conviction.”

The court pointed out the danger of following any 
other rule, stating:

“Under any other rule, no attorney of skill 
would interpose a demurrer or other objection 
when an indictment was defective. He would 
simply take the chance of acquittal, and failing in 
this, would move in arrest of judgment and there­
by secure a discharge of defendant or a new trial.”

The same conclusions are equally applicable in the 
instant case, for if this Court were to hold that the 
petitioner in this case had been denied due process 
of law, even though he delayed raising the point un­
til after the verdict of the jury, it would be tanta­
mount to nullifying the rules of procedure which the 
State of Alabama has interposed to prevent just such 
a gamble.

Petitioner’s contention that Sections 5202, 8630 
and 8637 of the Code of Alabama, 1923, inhibited 
the presentation, by plea in abatement or motion to



12

quash the indictment, of the constitutional objections 
now sought to be raised, obviously is without merit. 
It has been repeatedly held by the Supreme Court of 
Alabama that these statutes deal with defects in the 
machinery by which the jury is brought into exist­
ence— its formation, as distinguished from errors 
which render the indictment void.

Spivey et al. v. State, 172 Ala. 391, 56 So. 323;
Norctan v. State, 143 Ala. 13, 22, 39 So. 406;
Doss v. State, 220 Ala. 30, 123 So. 231.

An examination of the opinion of the Supreme 
Court of Alabama (196 So. 96) in the instant case 
will immediately reveal that the Appellate Court did 
not pass on the Federal question of whether the pe­
titioner had been deprived of any right guaranteed 
him by the Federal constitution because of the al­
leged exclusion of negroes from the grand jury, but, 
on the contrary, rested its conclusion on the long- 
established Alabama practice which it concluded had 
been correctly followed by the trial court. The Su­
preme Court of Alabama simply held, as to this ques­
tion, that since the Federal question was not raised 
in the State trial court until filing of the motion for 
new trial after verdict, and since under the Alabama 
rule of practice such a claim could not be considered 
on such motion, it was forced to conclude that the 
trial court correctly struck the grounds raising the 
constitutional objections from both the original and 
amended motions.



13

It thus appears that the constitutional principle 
which this petitioner sought to invoke in the lower 
court was denied on non-Federal grounds and con­
sequently, this Court, according to the well estab­
lished precedent, is without jurisdiction.

This statement is, of course, made with the reser­
vation that manifestly State practice or State rules 
of procedure cannot override Federal rights, for we 
are well aware that this Court has often stated that 
the law of the United States cannot be evaded by the 
forms of local practice, this Court reserving to itself 
the right to determine whether the decision of the 
State Court has fair support or whether there was 
actually an attempted evasion of the constitutional 
issue. Rogers v. Alabama, 192 U. S. 226, 230.

The applicable rules are simply stated in Broad 
River Co. v. South Carolina, 281 U. S. 537, 540, as 
follows:

“Whether the state court has denied to rights 
asserted under local law the protection which the 
Constitution guarantees is a question upon which 
the petitioners are entitled to invoke the judg­
ment of this Court. Even though the constitu­
tional protection invoked be denied on non-federal 
grounds, it is the province of this Court to inquire 
whether the decision of the state court rests upon 
a fair or substantial basis. If  unsubstantial, con­
stitutional obligations may not be thus evaded. 
Fox River Paper Co. v. Railroad Commission of



14

Wisconsin, 274 U. S. 651, 655; Ward v. Love Coun­
ty, 253 U. S. 17, 22; Enterprise Irrigation Dis­
trict v. Canal Co., 243 U. S. 157,164. But if there 
is no evasion of the constitutional issue, Nickel v. 
Cole, 256 U. S. 222, 225; Vandalia Railroad v. City 
of South Bend, 207 U. S. 359, 367, and the non- 
federal ground of decision has fair support, Fox 
River Paper Co. v. Railroad Commission, supra, 
657; Enterprise Irrigation District v. Canal Co., 
supra, Leathe v. Thomas, 207 U. S. 93; Vandalia 
Railroad Co. v. City of South Bend, supra; Sauer 
v. New York, 206 U. S. 536, this Court will not 
inquire whether the rule applied by the state court 
is right or ivrong, or substitute its own view of 
what should be deemed the better rule, fo r  that of 
the state court.'”

The narrow issue therefore is: Was the ruling of 
the Alabama State Supreme Court that the Federal 
question was not raised in the circuit court at the 
proper time and in the proper manner under the state 
system of pleading and practice based upon a fair or 
substantial ground or was it rather rendered in a 
spirit of evasion for the purpose of defeating the 
claim of Federal rights?

A  careful review of the many cases in which state 
courts have based their decisions on a matter of 
local pleading or practice leads to the conclusion 
that this Court will determine that a State Supreme 
Court has attempted to evade the constitutional is­
sue when the State Court bases its decision upon a



15

finding of fact which it might have applied with 
equal facility to reach the opposite conclusion. For 
instance, in Rogers v. Alabama, 192 U. S. 226, 230, 
where the Alabama Supreme Court determined that 
a motion to quash the indictment was prolix and 
therefore struck the motion under a statute author­
izing the striking of prolix pleadings, this Court 
found its action evasive and reversed its judgment. 
And in Davis v. Wechsler, 263 U. S. 22, Mr. Justice 
Holmes, speaking for the Court, points clearly to 
the distinction, saying:

“If  the Constitution and laws of the United 
States are to be enforced, this court cannot accept 
as final the decision of the state tribunal as to 
what are the facts alleged to give rise or to bar 
the assertion of it even upon local grounds.”

On the other hand, compare Erie R. R. Co. v. Pur­
dy, 185 U. S. 148, where this Court found that the 
defendant did not claim in the trial court, in any 
form, generally or specially, that the statute depriv­
ed it of its property without due process of law, or 
denied to it the equal protection of the laws, and that 
the Court of Appeals of the State of New York sim­
ply declined to consider any Federal question for the 
reason that no point was made at the trial in respect 
thereto, following the settled rule of practice of New 
York, Mr. Justice Harlan speaking for the Court, 
concluding:



16

“Now, where a party— drawing in question in 
this court a state enactment as invalid under the 
Constitution of the United States, or asserting 
that the final judgment of the highest court of a 
State denied to him a right or immunity under the 
Constitution of the United States— did not raise 
such question or specially set up or claim such 
right or immunity in the trial court, this court 
cannot review such final judgment and hold that 
the state enactment was unconstitutional or that 
the right or immunity so claimed had been denied 
by the highest court of the State, if that court did 
nothing more than decline to pass upon the Fed­
eral question because not raised in the trial court 
as required by the state practice. Spies v. Illi­
nois, 123 U. S. 131,181; Miller v. Texas, 153 U. Sv 
535, 538; Morrison v. Watson, 154 U. S. I l l ,  115. 
Of course, if upon examining the record this court 
had found that a Federal question was properly 
raised, or that a Federal right or immunity was 
specially claimed, in the trial court, then our ju­
risdiction would not have been defeated by the 
mere failure of the highest court of the State to 
dispose of the question so raised or to pass upon 
the right or immunity so claimed.”

Attention is also directed to the case of Jacobi v. 
Alabama, 187 U. S. 133, wherein Jacobi contended 
that he was deprived of rights secured by the Fed­
eral Constitution and denied due process of law by 
the admission of certain evidence over his objection.



1 7

This Court found that, under the Alabama rule of 
practice, when specific grounds of objection are as­
signed all others are waived, and that the Supreme 
Court of the State was correct in holding that it was 
not called upon to review the ruling of the circuit 
court upon the admission of this evidence, because 
the objections were not entered in the lower court 
in accordance with this rule of practice.

Many other cases might be cited in further evi­
dence of this view. Among these, the Court’s atten­
tion is respectfully directed to the following:

Hartford Life Ins. Co. v. Johnson, 249 U. S. 490, 
493, 39 S. Ct. 336, 63 L. Ed. 722;

Atlantic Coast Line R. Co. v. Mims, 242 U. S. 532, 
535, 37 S. Ct. 188, 61 L. Ed. 476;

Herndon v. State of Georgia, 295 U. S. 441, 55 S. 
Ct. 794, 79 L. Ed. 1530;

Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 
308, 23 S. Ct. 375, 47 L. Ed. 480, 63 L. R. A. 33;

Erie R. Co. v. Purdy, 185 U. S. 148,154, 22 S. Ct. 
605, 46 L. Ed. 847;

Layton v. Missouri, 187 U. S. 356, 361, 23 S. Ct. 
137, 47 L. Ed. 214;



1 8

North Carolina R. Co. v. Zachary, 232 U. S. 248, 
257, 34 S. Ct. 305, 58 L. Ed. 591;

Hulbert v. Chicago, 202 U. S. 275, 281, 26 S. Ct. 
617, 50 L. Ed. 1026;

Cincinnati, P. B. S. & P. Packet Co. v. Bay, 200 
U. S. 179, 182, 26 S. Ct, 208, 50 L. Ed. 428;

Nevada-California-Oregon Ry. v. Burrus, 244 U.
S. 103, 37 S. Ct. 576, 61 L. Ed. 1019;

Louisville & Nashville R. Co. v. Woodford, 234 U. 
S. 46, 51, 34 S. Ct. 739, 58 L. Ed. 1202;

Rogers v. Alabama, 192 U. S. 226, 230, 231, 24 S. 
Ct. 257, 48 L. Ed. 417;

Love v. Griffith, 266 U. S. 32, 45 S. Ct. 12, 69 L. 
Ed. 157;

New York Central R. Co. v. New York & Pa. Co., 
271 U. S. 124, 126, 127, 46 S. Ct. 447, 70 L. Ed.
865;

John v. Paullin, 231 U. S. 583;

Brown v. Massachusetts, 144 U. S. 573, 580.

It  is obvious, of course, that the Supreme Court 
of Alabama here did nothing more than decline to 
pass upon the Federal question because not raised



19

in the Trial Court as required by Alabama practice. 
No effort was made by the Court to “find facts” and 
base its decision thereon. There was no exercise of 
judicial discretion in an attempt at evasion of con­
stitutional issues “properly raised”.

The Supreme Court of Alabama merely adhered 
to an established principle in holding that the ruling 
of the Circuit Court of Jefferson County, Alabama, 
striking from the motion for new trial and the 
amended motion for new trial all grounds referable 
to the 14th Amendment was a proper procedure un­
der the Rules of Practice of the State of Alabama. 
It is therefore earnestly and respectfully submitted 
that this Court should not interfere with its action 
or review its judgment.

B.

T H E R E  W A S  NO D E N IA L  OF D U E  PRO CESS 
OF LA W  B Y  T H E  A D M IS S IO N  IN  E V ID E N C E  
OF P E T IT IO N E R ’S C O N FESS IO N S.

1 .

The question o f the admissibility of a confession is 
necessarily addressed to the discretion of the 
trial court, and, in the absence of an abuse of 
such discretion, it cannot be said that the con­
fession was erroneously admitted into evidence.



20

It  is settled law, both in the State of Alabama and 
in this Court, that it is the duty of the trial court to 
determine whether the admission or confession of 
a defendant is voluntary, and only an abuse of that 
discretion will justify a reversal by the reviewing 
court.

Hopt v. Utah, 110 U. S. 574, 583;
Bram v. United States, 168 U. S. 532, 549;
Travers v. United States, 6 App. D. C. 450, 459;
Pearlman v. United States, 10 Fed. (2d) 460;
Allen v. State, 298 S. W. 993; 175 Ark. 264;
Harrison v. State, 110 Fla. 420, 148 So. 882;
State v. Andreason, 44 Idaho 396, 257 P. 370;
People v. Albers, 360 111. 73, 195 N. E. 459;
Mack v. State, 203 Ind. 355, 180 N. E. 279;
Buckler v. State, 171 Miss. 353, 157 So. 353;
State v. Yeager, 12 S. W. (2d) 30, (M o .);
State v. Dixson, 80 Mont. 181, 260 P. 138;
State v. Yarrow, 104 N. J. Law 512, 141 A. 85;
People v. Bartato, 254 N. Y. 170, 172 N. E. 458;
State v. Green, 128 Ore. 49, 273 P. 381;
Commonwealth v. Dilsworth, 289 Pa. 498, 137 A.

683;
State v. Peden, 154 S. E. 658, 157 S. C. 459;
State v. Richards, 101 W. Va. 136, 132 S. E. 375;
Sweda v. State, 206 Wis. 617, 240 N. W. 369.

The rule is best expressed by Mr. Justice Harlan, 
who delivered the opinion of the court in Hopt v. 
Utah, supra, that:



21

“The admissibility of such evidence (of a con­
fession) so largely depends upon the special cir­
cumstances connected with the confession that it 
is difficult, if not impossible, to formulate a rule 
that will comprehend all cases. As the question 
is necessarily addressed, in the first instance, to 
the judge, and since his discretion must be con­
trolled by all the attendant circumstances, the 
courts have wisely forborne to mark with abso­
lute precision the limits of admission and exclu­
sion.” (Emphasis supplied)

And as said by Mr. Justice White in Bram v.
United States, supra:

“ * * * all the decided cases necessarily rest upon 
the state of facts which existed in the particular 
case, and, therefore, furnish no certain criterion, 
since the conclusion that a given state of facts 
was adequate to have produced an involuntary 
confession does not establish that the same result 
has been created by a different although some­
what similar condition of fact.”

2.

The Trial Court did not abuse its discretion in find­
ing that the evidence did not show that the con­
fessions were extracted from  the petitioner by 
force, brutality or length of confinement.



2 2

It is to be seen, therefore, that in the instant case 
a determination of the question presented must nec­
essarily devolve upon the facts which were before 
the trial court at the time of the admission of the 
confession.

In Alabama, as well as in other states, the exclu­
sion from the jury of a confession rests on its con­
nection with the inducement. If promises or threats 
do not have the influence to induce the confession, 
the confession must be referred to other motives. 
As held in Beckman v. State, 100 Ala. 15,14 So. 859: 
(Quoting from syllabus)

“ The exclusion from the jury of a confession 
rests on its connection with the inducement; they 
stand to each other in the relation of cause and 
effect, and if it is apparent that no such connec­
tion exists, there is no reason for the exclusion of 
the evidence.”

This is uniformly the rule throughout the United 
States.

See Osborn v. People, 83 Colo. 4, 262 P. 892, 904; 
State v. Grover, 96 Me. 363, 52 A. 757;
Cady v. State, 44 Miss. 332;
Spears v. State, 2 Ohio St. 583;
State v. Hopkirk, 84 Mo. 278.

The only indication in this case that the confes­
sions introduced by the State were obtained by force,



23

brutality or confinement, as is contended for in brief 
for petitioner, is found in the testimony of petition­
er himself, Joe Vernon, who at the time this testi­
mony was given was on trial for his life.

In order that this Court may clearly see the na­
ture of the evidence which the trial court had before 
it regarding the nature of the confession, i. e., 
whether voluntary or involuntary, we herewith set 
out the pertinent evidence, with page reference to the 
record, in parallel columns so that it may be readily 
compared.

TESTIMONY OF 
JOE VERNON

(R. 52-53)

“I was accused the 
first time of killing Mr. 
Montgomery when some 
special agents carried me 
out to Lovick’s to find a 
man for them named Mr. 
Tom Tyson. They car­
ried me out there one 
clay. That was the day 
that I was arrested, the 
15th of September, I 
won’t ever forget that 
day. That was a little 
more than a year after

STATE’S
EVIDENCE

CROSS
EXAMINATION 

OF PETITIONER, 
VERNON 
(R. 59-60)

“When these officers, 
Mr. Gorman and Mr. 
Johnson, came to take me 
to see if I could help them 
to find a man named 
Tom Tyson up at Lov­
ick’s, they came in the 
morning soon. I had liv­
ed at Lovick’s years ago 
and I knew the territory 
up there pretty well and



24

the shooting. I have liv­
ed here in Birmingham 
all during that year and 
have been around head­
quarters and the officers. 
The officers that came 
out and got me were Mr. 
Johnson and Mr. Gor­
man and they wanted me 
to find a man out at Lov- 
ick. Now when we got 
out there they put me out 
by the bridge, by a store, 
and they said they had 
some business in Leeds. 
I came to my Aunt’s 
house, that is when I 
came back by and went 
down and waited on 
them. There was a boy 
they called ‘poor Boy’ 
there and I got in and 
they left and went to a 
place where there was a 
Roccola and they brought 
me a drink in the car and 
they left and went to the 
left there, and that is 
when they carried me to 
Sapperville —  this means 
‘Whip-You’. In going 
there we turned off the

I was going up there to 
find this man Tyson. 
They had a man in the 
back of that automo­
bile with them. I could 
not say he was a sort of 
trampy-looking fellow. 
When I first saw this 
man I had just got 
through exercising and I 
came to the car. He 
asked me if I was ready 
to go and I told him as 
soon as I changed. This 
man was in the back of 
the automobile went to 
where I got out, and they 
went on in the direction 
of Leeds, and when they 
came back they didn’t 
have this man. I had 
never seen the man be­
fore. He had not kicked 
me on the shins in a hold­
up, and he never said a 
word to me except that 
he asked two or three 
questions about how 
come I was out boxing. 
Yes, I told the jury a 
while ago that he looked 
at me all of the time.



25

Bankhead Highway to 
the left. No, in coming- 
back you turn to the left 
about two miles after you 
get off the road, the 
mines were there. I do 
not know what mines 
they were. They did not 
take me into the mines, 
they took me in the 
woods, and then they ac­
cused me of robbery. 
They had a man in the 
back of the car, and old 
man with a suit case, and 
this man kept looking at 
me. They kept talking 
to me about boxing and 
when we got there in the 
wood, Mr. Johnson ask­
ed me did I ever rob any­
body and that is when 
they started beating on 
me. This man I was 
talking about was in the 
car. I couldn’t tell you 
how many men identified 
me. They did not men­
tion the Montgoviery case 
out there at Sapperville. 
They whipped me and 
beat me. I got scars on

Now, when they come 
back from Leeds they cut 
over to one side and I got 
in the car with them, but 
I did not come back to my 
sister’s house, but to a 
stand. I don’t know if 
they had a phone at that 
stand. When I got back 
to my sister’s house in the 
city Mr. Weir and Mr. 
Wagner came down be­
hind this car. I don’t 
know where Mr. Johnson 
and Mr. Gorman had 
called them. The first 
thing that I confessed to 
was robbing that hobo in 
the back of that automo­
bile. Mr. Johnson had 
been beating me. I don’t 
remember that I told 
them that this man had 
kicked me in the shins 
while I was holding him, 
or that he kicked with his 
heels. I stayed in jail be­
fore anybody ever men­
tioned this Montgomery 
killing to me until it was 
about the last day before 
they brought me over



26

my legs and got scars all 
over me. The defendant 
was then asked to show 
the jury the scars on his 
legs, which he did. The 
defendant further testi­
fied: They did not take 
my clothes off but laid me 
down across a log. I  
don’t know if there are 
any scars on my back, 
but they beat on my back 
and on my legs. A t that 
time I  had on this shirt, 
holding up and exhibit­
ing a shirt to the jury. 
This shirt is in the same 
condition now as when 
they got through whip­
ping me and that is the 
shirt they took me to jail 
in. I had on the pants I  
have on now. They have 
never been cleaned. I  
went to jail with these 
pants on and I have had 
them on ever since. They 
tvhipped me trying to get 
me to say that I  robbed 
this man. We stayed 
there about an hour. 
They whipped me with

here. I  didn’t know any­
thing about the Mont­
gomery case until I had 
been in jail ten or twelve 
days.” (Emphasis sup­
plied)

iji %

T E S T IM O N Y  OF 
W. A. JO H NSO N  

(R. 67)

‘‘M y occupation is that 
of Special Agent of the 
Central of Georgia Rail­
road. I  remember the 
occasion which this de­
fendant Joe Vernon was 
arrested. He was with 
me. He was arrested by 
officers W eir and Wag­
ner. I  had previously 
been with him out to Lov- 
ick. When I  first saw 
him that day I  had with 
me a Mr. Liles, Jos. H. 
Liles. From the time 
this man was arrested 
and at no subsequent 
time have I  ever whipped 
him with switch or hose 
or hit him with a black­
jack, slapped him, or



27

switches.”
supplied).

* *

(Em phasis

* *

abused him or offered 
him any violence what­
ever, or offered him any 
threats or any induce­
ments or held out any 
hope of reward to him, 
nor has anybody in my 
presence or hearing done 
so. I  have not had any 
physical contact with this 
defendant at all. * * *

“I  never heard of Sap- 
perville; * * * .We had 
not been discussing ar­
resting him for the Mont­
gomery killing. We were 
after him for highway 
robberies on the rail­
road.” (Emphasis sup­
plied)

* * * *

T E ST IM O N Y  OF 
H. H. W E IR

(R. 53-54) (R. 72)

“When they (W e ir  and “On our way back to 
Wagner) got to this fill- the city jail I  did not 
mg station where they point out this filling sta- 
said this killing took tion where Montgomery



28

place, they sa id: ‘Do you 
know what took place 
there?’ and I  said ‘I  read 
about it’ and they says 
‘You w ill know.’ I  did
not stop there then.”

* * * *

(R. 54)

“They took me out lots 
of times.”

was killed and ask him 
‘do you know anything 
about that?’ ”  (Empha­
sis supplied )

* * * *

W. A. JOHNSON 
(R. 68)

“The occasion of our 
taking him out was to re­
cover some stolen watch­
es that he had taken off 
some hoboes and the ho­
boes had made complaint 
to me.” (Emphasis sup­
plied)

* * * *

T E ST IM O N Y  OF 
J. T. B U LLA R D  

(R. 31)

“I  was present on two 
or three occasions when 
he was taken out at night 
from  the City J  ail. I was 
not out at L o v ick ’s noi 
out by the waterworks. 
The occasions of him be­
ing taken out of the City



29

* * * *

(R. 54)

“They left me at the 
City Jail. I  was at the 
City Hall a good while 
before I was taken to the 
City Jail. The next time 
I saw Mr. W eir and Mr. 
Wagner was that night. 
It was night. I  had had 
no supper. They didn’t 
take me anywhere that 
night. They questioned 
me there, they couldn’t 
beat me there. Captain 
■Jack came in, he ivouldn’t 
let them whip me." (Em ­
phasis supplied)

Jail was to pick up some 
watches and stuff he had 
taken. He said he knew 
where they were and told 
us where he had put 
them. He was not beat­
en up by the officers to 
my knowledge.” (Em ­
phasis supplied)



30

(R. 54-55)

“The next night they 
came and got me about 
eight-thirty and they 
kept me out practically 
all night long. They took 
me to a place where there 
was a lot of water. They 
said it was the B irm ing­
ham Water Works. It  is 
across Red Mountain. 
They carried me in a lit­
tle place. There was a 
little brick house, there 
was a kind of works go­
ing on there. Then they 
asked me was I  going to 
talk and I  says T don’t 
know nothing to talk 
about’, and that is where 
Mr. Johnson broke this 
tooth out there. I  had 
good teeth, all except one. 
It was broke o ff. (Em ­
phasis supplied)

The defendant was 
then asked to show to the 
jury where his tooth was 
broken off.

T E S T IM O N Y  OF 
H. H. W E IR  

(R. 72)

“We were not gone one 
night nearly all night. 
He never went to the
Water Works.”

* * * *

T E S T IM O N Y  OF 
W. A. JO H NSO N  

(R. 68)

“I  have never been 
over to the waterworks 
or took him over there on 
that or any other occa­
sion. W as not out there 
and had no switches and 
did not beat him up, nor 
did anybody in my pres­
ence.”

(R. 69)

“I  know where the Ar­
tesian Wells are, out be­
tween here and Gate 
City. They didn’t take 
Joe over there. They 
took him to Hammond



31

“Mr. Johnson broke 
this off with his fist. 
Mr. Wier, Gorman, John­
son and Jones, all took 
me to the City Jail. He 
is the one I  saw in the 
court room yesterday. 
It was the one sitting 
back there (indicating). 
They whipped me switch­
es and one had something 
what the police carry. He 
hit me there right in the 
head. Mr. Johnson hit 
me. I couldn’t tell how 
many times, I  was crazy. 
They did not put me over 
anything, they just laid 
me down on a cushion 
from the car. I  did not 
tell them anything. They 
kept me out until around 
two and then took me to 
the City Jail. * * * A t 
that times Mr. Jones, 
Bullard and W eir were 
with me. Then they 
whipped me, wanted me 
to sign those papers, and 
I wouldn’t sign them. I 
hadn’t signed them then. 
I had written the paper

Mine Quarters. That is 
this side of the Artesian 
Wells. Our object was 
to try and recover a wrist 
watch that was taken
from a hobo.”

* ❖  * *

T E ST IM O N Y  OF 
J. T. B U L LA R D  

(R. 31)

“I  was not out at Lov- 
ick’s nor out by the wa­
terworks.”

* * * *



32

out, but hadn’t put my 
name on it. They kept 
me out there at that time 
from about nine until 
eleven, or something like 
that. I  don’t know who 
all did the beating, but I  
think all of them. They 
used switches to beat me 
and I  still hadn’t signed 
the paper, but I  promis­
ed them that night to 
sign it and when I  came 
back to town I  did sign 
it.”

* * % *

(R. 54)

“Mr. Johnson broke 
this tooth out there. I 
had good teeth, all except 
one. It was broke o f f.” 
(Em phasis supplied)

* * * *

T E S T IM O N Y  OP 
W. A. JO HNSO N  

(R. 68-69)

“I  did not take my fist 
and knock him in the jaw 
and break off two of his 
teeth. Those teeth have 
not been broken off since 
I  have known him. 
(Here the defendant was 
requested by counsel to 
go around and show the 
witness his teeth which 
was done). The front



33

ones have been broken 
out. That was the first 
thing I learned about 
him.”

* * * *

T E ST IM O N Y  OF 
JO E V ER N O N  

ON CROSS 
E X A M IN A T IO N  

(R. 62)

“One of my teeth was 
knocked out while I was 
living at Mrs. Norrefl’s 
house. I  don’t see where 
but one tooth is knocked 
out in this picture. I 
don’t see but one tooth 
that is shown knocked 
out on this picture.

“Q. And that one has 
been knocked out ever 
since you have been 
prize-fighting?

“ A. This one here.

“Q. Yes.

“A. Yes, sir.



3 4

“Q. That’s right, isn’t 
it.?

“A. Yes, sir.

“Counsel for defen­
dant stated: Let’s see 
those others on the side 
there; let the jury see 
them; the two broken 
ones there. Then the fol­
lowing question was ask­
ed by the Solicitor.

“Q. That picture don’t 
show the tooth that has 
been broken off, but the 
one that has been knock­
ed out?

“A. Yes, sir.

“Q. That one was 
knocked out prize fight­
ing?

“A. Knocked out in 
Nashville.”



3 5

(R. 55)

“Mr. Johnson gave me 
something that he had 
done wrote. I  don’t re­
member nothing about 
it, only he told me to 
write it down, there was 
some mistakes I  made in 
there. He made me 
write it over again. He 
made me write it the sec­
ond time before I  could 
get it right. He said 
there was some mistake. 
I knew what I  was w rit­
ing. I did not know what 
use he was going to put 
it to. When I  objected  
to the writing is when he 
told me he would carry 
me out and I  wouldn’t 
come back any m ore.”  
(Emphasis supplied)

T E ST IM O N Y  OF 
W. A. JOHNSON 

(R. 69)

“I  did not tell him that 
if he did not stick to that 
confession that he had 
made and sign it that I 
would take him out and 
that he wouldn’t come 
back. * * * I  did not set 
down there and write on 
another piece of paper 
what I  wanted this man 
to write. He did not 
make a mistake in writ­
ing and I  did not have 
him write it over. He 
signed it the day it was 
written and it was not
two or three days later.”

$  ̂ ^

T E ST IM O N Y  OF 
J. T. B U L LA R D  

(R. 32)

“Q. Were you present 
when Mr. Johnson hand­
ed him a piece of paper 
and told him him to copy 
it on that?



36

“A. No, Mr. Johnson 
gave him this paper and 
asked him if he would 
write it out.

“ (Question by defen­
dant’s counsel)

“Q. Don’t you know he 
copied it?

“A. No.

“Q. How long had you 
been there before he was 
told to do it?

“A. Approximately an 
hour, I  guess.

“ (Question by defen­
dant’s counsel)

“Q. You were there all 
the time Mr. Johnson was 
there?

“A. On this particular 
day.



37

* * * ❖

(R. 55)

“ * * * they came out 
and got me two days lat­
er in the day time. Mr. 
Weir, Johnson and Bul­
lard came after me. 
They took me down stairs 
and questioned me there, 
in that little front room 
and that is where they 
made me sign those pa­
pers. They had already 
told me what would hap­
pen if I  didn’t sign it and

“Q. How many did 
you get him to sign all 
together?

“A. He admitted to 
about twelve pages of 
highway robbery.

“Q. This one here?

“A. He only made this 
one statement in his own 
handwriting, and he 
made a statement in the
Solicitor’s office.”

* * * *

T E ST IM O N Y  OF 
RO SA  C O LL IN S  

(R. 46)

“He (Mr. W eir) would 
come out there and get 
me and take me to see 
Joe. He didn’t take me 
to another place. I  can­
not say how many times 
he has been out to my 
house.”



38

I  knew they would. I 
was scared of them. 
They said my wife was 
worrying about me and 
they were going to take 
me out to see her and 
they carried me from 
there, and says ‘we ain’t 
got Joe for nothing, he 
will be back in twenty- 
five or thirty days.’ And 
she says ‘I ’ve been wor­
rying about h im !”

$  ̂  ̂ ^

(R. 55)

“I  saw them again next 
day and they said ‘Now, 
we are getting some­
where, all we want is to 
clear up our record.’ 
Then they wanted me to 
sign some more and I  
signed them. I  did not 
know what they were. I  
remember going to the 
Solicitor’s office. It  was 
a couple of days after 
they took me to the A r ­
tesian Wells before I  
came up to the Solicitor’s

T E S T IM O N Y  OF 
J. T. B U L L A R D  

(R. 32)

“I  was present at the 
jail at a time when this 
defendant wrote a state­
ment in h is own hand­
w riting about this case. 
Prior to the time that he 
wrote this statement I 
did not threaten him or 
abuse him or offer him 
any violence or hold out 
any hope or reward or 
hold out any inducement, 
nor did anybody do so in 
my hearing or my pres­
ence or knowledge.”



39

office. They had not 
beaten me any more in 
the meantime.”  (Em ­
phasis supplied)

# * * *

(R. 56)

“The last threat they 
made to me was when 
they were bringing me 
over here (to the court­
house). Mr. Bullard, 
Mr. Johnson and Mr. 
Weir said: ‘You are go­
ing to a place and this 
man is going to help you. 
This is the last chance. 
If you don’t sign these 
papers and do what we 
say, you won’t get back. 
You know Mr. Charlie 
told you about carrying 
negroes riding and they 
didn’t come back.’ Mr. 
Reese was not with 
me then.”

❖  * >k *

T E S T IM O N Y  OF 
J. T. B U L L A R D  

(R. 33)

“Q. (B y  the Court) 
You testified that at no 
time, so far as you know, 
neither you nor anyone 
else ever threatened him, 
or abused him, or made 
him any offers or prom­
ises?

“ W  itness answered: 
A. Yes, sir; that is my 
testimony.”



40

(R. 56)

“Mr. Reese took us in 
a Pontiac car out to the 
filling station, in a new 
car. H im  and Mr. John­
son, Mr. Bullard and 
Mr. W e i r  and Mr. 
Reese, and it was about 
eight-thirty o’clock at 
night. We went straight 
from the City Jail out to 
the filling station. Mr. 
Johnson and Mr. W eir 
had me handcuffed in the 
car, me and L. C. when 
they took us to another 
place. That is where the 
railroad comes up beside 
the filling station. They 
carried me down in a 
deep cut where some 
cross-ties and rails were 
at. Then Mr. John­
son slapped me and had 
his pistol in his hand and 
said ‘A ll right, are you 
going to do like I  said,’ 
and I  said ‘yes’. Then he 
wanted me to go through 
a motion. He brought 
me back up there to the

T E S T IM O N Y  OF 
A. B. R E E S E  

(R. 24-25)

“After that time that 
is after these conversa­
tions these two defen­
dants were brought to 
my place of business in 
the custody of officers. 
That night after supper 
we went back over there 
and I  said ‘If  those boys 
done that let’s take them 
back out to the station 
and let them re-act the 
crime.’ And they got in 
the automobile and drove 
out. Nobody threatened 
them or abused them— 
no one offered any re­
ward, or told them it 
would be better for them 
if they made a statement 
or worse for them if they 
did not, nor held out any 
inducement to them. At 
the request of the Solic­
itor, the witness was then 
told to tell the jury what 
was said and done out 
there at the witness place



41

filling station and he 
started me to walking. 
Every light was turned 
out except one light, the 
street light. A ll the fill­
ing station lights were 
turned out, he said he 
didn’t want the public to 
see us, so they started me 
to walking and had me in 
front. He had his gun 
in his hand. I  walked 
where he told me and he 
said ‘Come on, go and 
twist that water some­
thing there.’ He told me 
to twist that, he told me 
— I don’t know what all 
he told me. I  did nothing- 
out there of my own vo­
lition, just done what he 
told me.”

of business by defendant 
Joe Vernon, and L. C. 
Bell, in his presence and 
hearing. And the wit­
ness stated substantially 
stated as follows: When 
we got out there to the 
station they were hand­
cuffed together and I 
told Mr. Weir ‘Let’s un­
hand cuff them and let 
them be separate and 
don’t ask them any ques­
tions’ and we separated 
them and let them walk 
on each side of the offi­
cers and we started out 
and at first walked down 
the railroad track to 
F irst Ave. and that is 
where they had agreed 
on what they would do; 
and Little Joe was doing 
the talking then. And 
we walked on up past the 
station so they could see 
them close up, and walk­
ed back and Little Joe 
told me he did the watch­
ing and L. C. the shoot­
ing, and out there Bell 
made the statement that



42

Joe did the shooting, and 
Joe in the presence of Bell 
made the statement that 
Bell had done the shoot­
ing. The time that they 
were out at my place 
showing me how the 
killing was done was 
during the latter part 
of September 1938 ei­
ther the 26th or 27th 
and was at night after 
dark. The interior and 
exterior of that filling 
station in the latter part 
of Sept. 1938 was not the 
same as in September 
1937; after the first part 
of 1938,1 had had a large 
cabinet and show case 
combined built together 
coming up under the 
side of the wall and had 
covered up the door 
where in 1937 the cracks 
were open. These extra 
cases that I  had built 
covered up the cracks. 
L. C. and Little Joe both 
said that the cabinet 
wasn’t there and L. C. as 
he was telling the story



43

said he saw the deceased 
thru the window and one 
officer said ‘you couldn’t 
have seen him there on 
account of that big high 
desk/ and he said it 
wasn’t there then, that 
there was a flat topped 
desk then with a radio on 
it. In  September, 1937 
there was a flat topped 
desk there and in 1938 
when these defendants 
came out there and were 
making this statement 
there was a roller top 
desk there.”

❖

T E ST IM O N Y  OF 
W. A. JO HNSO N  

(R. 69)

“I  was present when 
Mr. Reese and all of 
them went out to the fill­
ing station where Mr. 
Montgomery was killed. 
I  don’t remember any



4 4

specific thing that I told 
him to do. He was 
around the filling station 
re-enacting the crime and 
he was not told by me 
what to do. There were 
four or five of us togeth­
er all of the time. I 
would not say that I  went 
down in the cut with him. 
I  accompanied him to the 
position he claimed he 
stood. I  did not go with 
him into that fill close to 
the station. We did not 
take him down there. 
Question: Don’t you
know you did and beat 
him up again? Answer: 
No.”

N O T E : Attention is
particularly d i r e c t e d  
to the testimony of Drs. 
H. A. H arris (R. 63, 64) 
and Green Smith (R. 64) 
wherein they unequivo­
cally state that they ex­
amined Vernon while he 
was in jail and found no 
evidence that Vernon had 
been mistreated.



4 5

SUMMARY OF TESTIM O N Y ON CONFESSION.

When the foregoing testimony is carefully exam­
ined, the following information can be drawn there­
from:

Vernon was arrested on other charges on Septem­
ber 15,1937. He was placed in jail on those charges. 
If at any time prior to September 26, 1937, he was 
mistreated, all of which alleged mistreatment is spe­
cifically denied by the officers and others associated 
in the case, such mistreatment was related to offenses 
other than that for which this petitioner now stands 
convicted.

There can certainly be no inference drawn from 
any of the evidence that this petitioner was ever held 
“incommunicado” . In  the first place, the petitioner 
was permitted to see the woman with whom he was 
living, as well as Mr. Reese and others. And again 
it is to be remembered that for almost twelve days 
before the first confession he was being held and 
questioned in connection with the highway robberies 
along the railroad, not with respect to the murder of 
Montgomery. In  short, the trial court, at the time 
of the admission of the various confessions and there­
after, had no evidence indicating that the confessions 
were forced or otherwise illegally obtained other than 
the unsupported statements of the petitioner, who 
repeatedly crossed himself when examined by the 
State’s attorneys, and whose testimony was rebutted 
in every detail, as appears above.



46

Moreover, it appears from the record that the evi­
dence of these purported confessions of petitioner 
was allowed manifestly with his consent and approv­
al as no objections thereto were interposed, and there­
fore no ruling of the trial court invoked (R. 22, 24, 
25).

A s stated in Jones v. State, 23 Ala. App. 384, 125 
So. 898:

“The oft announced rule that evidence of con­
fession is prima facie inadmissible, and in the ab­
sence of proper predicate is incompetent, may be 
waived by the accused by fa iling to interpose time­
ly objections thereto.”

It  thus appears that even assum ing the confes­
sions to be obtained by force or other means at the 
time they were given by the petitioner, which fact 
is earnestly denied, it must be presumed, in the ab­
sence of any objections to their admission based on 
the point now sought to be raised by petitioner, at 
the time of the trial, that when such confessions were 
introduced at the trial, petitioner had determined to 
admit them as voluntary statements. At least this 
is the rule adopted in this jurisdiction.

It  is respectfully submitted, therefore, that in view 
of the fact that it has been shown that the confes­
sions were properly admitted, no reversal should be 
had upon this ground.



47

C.

CASES C ITE D  B Y  PETITIONER,

The cases principally relied upon by petitioner in 
support of his contention that he was denied due 
process of law are those of Brown v. Mississippi, 297 
U. S. 278, and Chaynbers, et al. v. Florida, 84 L. ed. 
417, October Term, 1939, No. 195.

BROWN v. MISSISSIPPI

The inapplicability of the decision in the Broivn v. 
Mississippi case to support the contentions here ad­
vanced readily appears upon a reading of that case.

There the confession was admittedly extorted by 
the officers by brutality and coercion.

Here all brutality and coercion is denied.

There, it was affirmatively found that “aside from 
the confession there was no evidence sufficient to 
warrant the submission of the case to the jury.”

Here no such conclusion can be reached.

There it was found by this Court that:

“ * * * the trial court was sufficiently advised 
by the undisputed evidence of the way in which 
the confession had been procured. The trial court 
knew that there was no other evidence upon which 
conviction and sentence could be based.”



48

Here, the trial court was presented with only the 
evidence of the accused that he had been tortured 
into making the confession and that evidence was 
rebutted upon every point by the testimony of the 
officers who were charged with having mistreated 
petitioner.

In  view of the repeated statements of this Court 
that cases such as this must stand on their own bot­
tom— that in every case the admissibility vel non of 
a confession depends upon the special circumstances 
connected therewith, we cannot believe that this 
Court will apply the rule of Brown v. Mississippi to 
the facts in this case.

CHAMBERS v. FLORIDA

The case of Chambers, et al. v. Florida, supra, is 
likewise distinguishable.

There, as we read the decision of this Honorable 
Court, the record also developed a sharp conflict 
upon the issue of physical violence and mistreatment, 
but, as found by this Court, the record also showed 
without conflict “drag net methods of arrest on sus­
picion without warrant, and the protracted question­
ing and cross questioning of these ignorant young 
colored tenant farmers by State officers and other 
white citizens, in a fourth floor jail room, where as 
prisoners they were without friends, advisers or 
counselors, and under circumstances calculated to 
break the strongest nerves and the stoutest resist-
ance.



49

Here, there is no indication that this petitioner was 
taken in a “drag net” or that he was shut off without 
“friends, advisers or counselors”, but, on the con­
trary, there is every evidence that petitioner was 
lawfully arrested on another charge and was only 
questioned concerning this offense after his confed­
erate had implicated him, more than ten days after 
his arrest on such other charge. There is evidence 
here, too, that petitioner was permitted to see his 
wife and that at the time of his first confession, Mr. 
Reese, the owner of the filling station at which the 
murder took place, offered to secure counsel for pe­
titioner, if desired.

There, petitioners were subjected to interrogations 
for five days, culminating in an all-night examina­
tion, concerning the crime with which they were 
charged.

Here, at least ten days of the incarceration was 
bcause of other charges and the interrogations dur­
ing that period were directed to such other charges. 
Here, there was no all-night examination. Neither 
is there to be found any indication of continuous 
questioning relating to the murder of Montgomery.

There, this Court found “the very circumstances 
surrounding their confinement and their questioning 
without any formal charges having been brought 
was such as to fill petitioners with terror and fright­
ful misgivings.”



50

Here, the petitioner was fam iliar with all of the 
officers, had lived with one of them and acted as a 
“stool pigeon” for him, and certainly had no reason 
to fear the officers.

There, this Court found that “the haunting fear 
of mob violence was around them in an atmosphere 
charged with excitement and public indignation.”

Here, the arrest was made more than a year af­
ter the commission of the offense and there is not 
even a remote indication of excitement, mob violence 
or public indignation.

There, it was found that “the undisputed facts 
showed that compulsion was applied”.

Here, there is repeated denial of all compulsion.

The other cases cited by petitioner are also read­
ily distinguishable when considered in the light of 
the rule that each case must be judged upon its own 
facts. Hopt v. Utah, supra.

CONCLUSION

For the reasons hereinabove set forth, i. e., (1) 
this Court should not assume jurisdiction for the 
reason that the Supreme Court of Alabama decided 
no Federal question, but fa irly and substantially, 
and without attempt at evasion, based its opinion 
upon a non-Federal ground, and (2) the Supreme



51

Court of Alabama did not err in holding that the 
trial court had correctly permitted the introduction 
of the several confessions alleged to have been made 
by petitioner, we base our contention that this peti­
tion for writ of certiorari should be denied, or, in the 
alternative, we respectfully suggest that the judg­
ment of the Supreme Court of Alabama be affirmed.

Respectfully submitted,

THOS. S. LAW SO N ,

Attorney General of Alabama.

W IL L IA M  H. LO EB,

Assistant Attorney General,

Counsel for Respondent.

PR IM E S. O SBORN,

Assistant Attorney General,

On the Brief.













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, :  ̂ 1 

* * * * *  t h e  a f f t r t t M t  o f  n U  r « i i * * i ?  h y  t h e  « « * t »

> W *« 8 © w t, | »  t o t  i t  f a t t  a O oolftl o f  t i o  ©on-

&%mc m I  r ig h t *  o f  f f t t t t e a w  w $ » r  t t *  dot f * o »

w»t e lew *  o f  f t #  Ittfc f t t M a t t t  o f  * »  0O»*tltOh> 

Has Of t i e  tjBi toil Otetoaiu *»*i bmM te«tt it mm®, to  A ir





7

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••**«&* #t«fmte% tctS aiia  ae^ee# fro*
«§ g e « i feint petit mol®ly homm* a t  tfeei*
t%m m § m t m t

it) wm%mm m  m% # # U w i  i j l i  m

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•1 1« m  a  a i r * « o l  e s o lo g io a  o f  m&mo it0 0  g ra a i 

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tt^ts *s#«r tfae ltHfe t o  P it ir ja a tttm fio a f

l* Vfat decree a t  tfcia m w t  in t e iy t i t  the

* u  of ©erttam r i  aad la y in g  the r e l ie f  prayed fo r  

dUateeiag the e«a#e i t  a  dental o f m o o f  tie  

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#*••»§ o f few s a i  the t w a i  ftfe teetios o f  the few 

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i^ lfe  anted stew # ia  that, i t  w ife*# tfae M t i f e  •





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l f  * * « $  t o o a o t  o f  * « f  t t s a t o  t o  m t o o l a t *  t o t  d o t
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9

III





-------------------------------------------------------------------------------------------f  —

enable the higher c o u rts  o f  th e  s ta te s  to  become 
a r b it e r s  o f  toe r ig h t s  o f  e i t i s e n *  ©f th e  

Sts te e  under th e  fe d e r a l C o n f u t a t i o n .

3 .  th e  e s s e  a t  mm in v o lv e s  im portant < p »e - 

tooae o f  f e d e r a l  law, a f  f e o t in g  the r ig h t s  o f  aus­

tere  o f  p e o p le  throughout th e  s ta te  o f  Alabama, 

vb ich  should be d ec id ed  by t h i s  O ourt.

%* th e  ©as# a t  Bar in v o lv e s  t b s  im p o rtan t  

qmmti-m o f  whether o r n o t c e r ta in  s ta te  s t a t u t e s , 
(#S®02, C&30, 8b3?« «9$fc (1 2 ) and the R e s e n t  method 
©f s e le c t in g  both p-and and p e t it  g n e is s  when used 

by th e  s ta te  to  Mrnmtmumtrn a g s lx t**  negro defend­
ant e l i t  eseAodiiig f r o *  both g ran d  and p e t it  J u r ie s  

negroes because they a re  n e g ro e s, and th e re b y  uses 
i t s  power in  le g is la t io n  to  a v o id  tn@ Ifckb aaead- 
l i s t  to  toe C o n s titu tio n  o f  the united .S tates, tons 
n u llif y in g  th a t p r o v id e  a , swob a tu e e tio n  i s  ground 
t a r  t h e  w i t ,  and* * «  s a f e s t , when suote c o n d itio n s  
p r e v a il , t h i s  C o u rt i s  in  d u ty  bound to  in v e s tig a te  
the u t t e r  t© see whether su ch  a c tio n  by the s ta te  
is  in  V io la tio n  o f  th e c o n s t! t u t io n a l r i g h t s  o f  t i e  
p e t it io n e r , and when su ch  q u e stio n  i s  p ro p e rly  
ra is e d , as l a  tb s  in s ta n t emss, petitioner i s  en­
t i t l e d  to  the w i t ,  to  la v e  b is  day in  o o u rt on 
such is s u e .





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IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 19*K)

JOE V E R N O N , PETITIONER

VS

STATE OF ALABAMA RESPONDENT

BRIEF AND ARGUMENT

IN SUPPORT OF APPLICATION FOR REHEARING

WALTER S. SMITH 

ATTORNEY FOR PETITIONER

SQRA H . TH O M PS O N

Of C o u n se l



V

.

v" , ia ;: , r  : .n

♦

■
.



page
CASES C IT E D ................................... |

AUTHORITIES CITED . . . . . . . . . . . . . . . ___  B

OPINIONS OF COURTS .............................  1

JURISDICTIONAL STATEMENT....................  1

STATEMENT QF CASE ...............................  3

SPECIFICATIONS OF ERRORS ................... 4

PROPOSITIONS OF LAW AND AUTHORITIES 7 to 15

ARGUMENT ................................. ............ 1 5  11 3 7

PRAYER FOR RELIEF ...............................  37

CODE OF ALABAMA 1 9 2 3 ,Appendix to A p p lic a t io n  20 

H h » it it 20

» » >' 5 2 02  " « 20

" 11 11 8 6 3 0  » » 2 1

" " *< 8 6 3 7  " " 2 1 , 22

" « » 8 9 5 2 ( 1 4 ) » " 2 7

CITY CODE OF BIRMINGHAM Sec 4901 « 22

" « « « 4-902 « 2 2 , 2 3

FEDERAL STATUTES
(Those a lre a d y  cop ied  i n  appendix o f o r ig in a l  
a p p l ic a t io n  not re cop ied  here)

REVISED RULES OF SUPREME COURT OF U S 
Rule # 12 ( Append ix ......................  24

Rule # 3 3  .............................................  3 g

INDEX TO BRIEF OH RE-HEARING





c a s e s  c it e d
A

pages

Brown v s M i s s i s s ip p i  2 9 7  U S 5 8 7 .........  2 3 ,2 5

Brown vs Nexi? Je rse y , 1 7 5  U S 172  ...........  ]_2

Bunca v s  U S o f  America 7 7  l  ed 266 . . . .  9

Carte r v s  Texas, 1 7 7  U S 44-2,447 . . . . . . . .  10,11,13

Chambers vs F lo r id a  g4 Fed 419,476........  IS ,  1 9 ,2 c

C in c in n a t i P B S t.p .p .C o  vs Bay , 50 Fed 428-
433 .................................................. 1 0 , 1 3

Frank v s Iangum ,237 u s  330 31

Farmers & M arine  In s .  Co. vs Dobney,189 U S,
3 0 1 ....... ..................................... . 1 0 ,1 3

G ibson vs M i s s i s s ip p i  162 U.S 565 ..........

.......... '.......................... ............................................. 8 ,9 ,1 7 ,2 4

Johnson vs Z e rb st  314 U S 4-57 ................  12

Jordan vs Alabama 51 So 620 . . . . . . . . . . . . .  11,13

Moore vs Dempsey 2 6 l U S J86 .......... . 31

Heal vs D e law a re ,IO 3 U S 370 ........... *8>9>11>17
2h ,25

.................................... 31Re N e ils o n  1 3 1  U S 176

New York, ex r e l  Rosedale  Rea lty  Co vs 
K le in e r t ,  26S U S 646,650 ..................

N o rr is  vs Alabama 79 Fed 1110 . . . . . .  .9,10,11,17
2 5 , 3 ^

P ie r re  v s  Lo u isa n a , 3 O6 U S 354 ....... 2 3 ,2 5 ,3 2

Powell vs A labam a,77 1 158 ••••*• *9 ,11 ,13 , ‘zP2 b , 3'+
Republican  R iv e r  Co. vs Kansas R.R.Co.9c U S

315 13

Rogers v s  Alabama 4g L ed 4 1 7 ,4 1 9 ,•• .8,9,17,24,2!;





B

CASES CITED (cont»d)
page

Sm ith vs Texas (no t yet in  p r in t )  -----S , 9 ,17,2^
25

Straude r v s  West V i r g in ia ,  100 U S 303 8 ,9 ,1 7
2k

Tw inn ing vs New Je rse y ,  211 U S 7 S ....... 1 2 ,2 5

Va.ndalin R.Co vs In d ia n a  207 U S 359 13

?/hitney v s  C a l i f o r n ia ,  71 Fed IO 95 ............ 12

AUTHORITIES CITED

R ev ised  R u le s  o f  U S Supreme Court,
A rt  2 3 7  (h )  ....... A ppendix to o r ig in a l
A p p lic a t io n  .............. ...................... . 25

R ev ised  R u le s  o f  U S Supreme Court # 33 • • •

12 O .J. 6 9 5  A r t  37 ....................................... 12

5^ Fed U S 153 ( n o te s) ..............................9 > H

63 L R A 5 7 1 - 5 8 2  ....................................... 1 0 ,1 1





in the

StPRS&E QOIRT OF THE UNITED STAT f̂f 

OCTOBER TERM, 19*K).

JOE VERNON, )

petitioner. )
vs | Ho. 44-9

THE STî TB OF ALABAMA. j

Respondent. )

BRIEF AND ARGUMENT IN SUPPORT OF PETITION FOR 

REHEARING FOR WRI T OF CERTIORARI.

I .

The opinion of the supreme Court of Alabama 
has been heretofore set out in fu ll  on page 1 of 
the Appendix to the application for writ of cer­
tiorari; the opinion of this court rendered 
Nov. 12th, 19*10, denying the writ, is  set out 
in full on page 4 of the application for re­
hearing.

I I .

The jurisdiction of this court is  invoked on 
this petition for re—hearing under the Act of Congre
gress



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of February 1 3 , 1 9 2 5 , amending the judicial code , 
Sections 2 3 7 (b) and 240(a); Also act of March g, 
193̂ 5 And, R e vise d  R u le s of the Supreme court 
of the u n ite d  s ta te s , adapted February 1 3 , 1939 ,
Rule # 12, 26,27,33(re-heaxing) and 3g(review 
on writ of certiorari o f decisions of the 
State courts par 1,2,3) and Act of January 3 1 , 
l928chap 14, 45 Stat 54; Act of February 1 3 , I925 

Chap 229 43 stat 9 3 6 . as shown in Appendix to 
Rules.

On May 2 lst, 1940, appellant's petition for 
are-hearing in the Sterne Court of Alabama was 
denied; a 9 ° day stay was granted on petition by 
the Supreme court of Alabama for the purpose of 
making application to this Court for a writ of 
certiorari for review of the decree by the 
State supreme court; within the 90 days, applicatinr 
was made to the Hon. Hugo Black an Associate 
Justice o f this Court for further time within which 
to file  said application, which application was 
granted and petitioner given untijl September 21st, 
39*K) to f i le  said application. Said application 
was filed within the time, together with brief 
and certified  copy of record. That since that time 
this court has rendered its  opinion ( see page 4





3

of t h is  a p p lic a t io n  for re -h e a rin g  ) ,  denying 

the w r it  fo r c e r t i o r a r i .  Wherefore, petitio ner  

is  a p p ly in g  fo r a re -h e a rin g  ( r u le  33 re v ise d  : 

ru le s  of supreme Court) and w ith in the time 

p re scrib e d  by s a id  r u le ,  the a p p licatio n  for re­

hearing was f i l e d .

I I I .

STATEMENT OF THE CARE. 

petitioner claims that his constitutional 
rights under the 14th amendment in respect to 
due process, right to counsel, and equal protec­
tion of the law, has been violated by the state 
of Afehema, under ordinances of the City of Bir­
mingham (,see page 22 & 23 of appendix of appli­
cation for tex t); and under Sections 5202,56 30 , 
8952(14) o f the Code of Alabama I 923 ,  thru its 
administrative department and the present system 
of selection of juries ( substantially set out on 
Pages 33,34,35 of brief for application of writ) 
has denied to this petitoner his constitutional 
rights and he is  being deprived of his life  thru 
this denial of his constitutional rights, and 
that this Court, should on review, reverse said 
decree.





SPECIFICATION OF ERRORS.

1. This Court e rre d  in  h o ld in g  that «^on  

examination o f the papers herein submitted 

the co u rt f in d s  no ground upon which w rits  of 

c e r t io r a r i  should be issu e d  *ln that i t  held  

there was no d is c r im in a t io n  shown against  

negroes in  e x c lu d in g  them from the grand jury  

which in d ic t e d  t h is  defendant.

2. T h is c o u rt  e rre d  in  holding that " upon 

examination o f the papers herein  submitted 

the Court f in d s  no ground upon which w rits  of 

c e r t io r a r i  sh o id  be issu e d Bin  that i t  held

there was no v io la t io n  o f p e t it io n e r ‘ s constitution 

a l r ig h t s  shwon when he was denied counsel at  

or before the time at which c e rta in  confessions  

were made by him.

3* T his c o u rt  e rre d  in  ho ld ing  that " upon 

examination o f the papers herein submitted the 

Court f in d s  no ground upon which w r it f s  of cer­

t io ra ri should be issu e d  » in  that there was no 

v io la tio n  o f h is  c o n s t it u t io n a l r ig h t s  as there 

*as no d is c r im in a t io n  a g in s t  negroes in  the 

r atio summoned fo r p e t it  ju ry  from which th is

I V .





5

petitioner wae forced to select the jury that 
jfeied and convicted him.

Ij-. This Court erred in holding that " ipon ex­
amination of the papers herein submitted the 
Court finds no ground upon which writs of oer- 
tiorari should be issued" in that; the use 
by the state of Alabama of certain conCssions on 
tria l of petitioner for homicide, was no denial 
of his constitutional rights even though he 
was denied the advise of counsel at or before 
the time they were alleged to have been made.
5. This Court erred in holding that " upon ex­
amination of the papers herein submitted the 
Court finds no ground upon which writs of cer­
tiorari should be issued " in that; The supreme 
Court of Alabama has not decided a Federal question 
of substance contra to or in conflict with the 
former decisions of this court.
6 , This Court erred in holding that " upon ex­
amination o f the papers herein submitted the 
Court finds no ground upon which write ol certi­
orari should be issued" in that; Use by the State 
of certain confessions on trial of petitioner for



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6.
homicide, was no denial of his constitutional 

rightB even though he was denied the advise of 

counsel at or before the time they were alleged 

to have been made.

7. This Court erred in holding that "upon ex­

amination of the papers herein submitted, this 

Court finds no ground upon which writs of cdr- 

tiorari should be issued" in that j i t  affirmative 

ly appeals on the face of the record that a 

Federal question constituting an appropriate 

ground for review by this Court was presented 

in, and expressly or necessarialy decided by 

such court.

S. This Court erred in holding that « upon ex­

amination of the papers herein submitted, this 

Court finds no ground upon which writs of cer­

tiorari sho&d be issued " in that; when i t  is

shown on the record that the validity of state 
i  e

legislation/as to whether the legislation violates  

the constitution o f the united States is  in ­

volved This court has the rig h t to determine 

for it s e lf  the existence, construction and validity  

°f the question, as w ell as the further question 

of whether the impairment has been affected by 

State leg isla tio n , and when so presented petitioner



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7 .
is entitled to review by this court, and to re­
fuse such review is error.

9. The court erred in holding that » upon exam­
ination of the papers herein submitted, it finds 
no ground upon which writs of certiorari should 
be issued'* in that; under Sec. 2 37 (a) of the 
Act of February 1 3 , I9 2 5 , this court is given 
the right to review any cause wherein a final 
judgment or decree has been rendered or passed 
upon by the highest court of a state in which a 

decision could be had where is drawn in question 
the validity of a statute of any state on the 
ground o f  its  being regugnant to the constitution 
treaties or laws o f the United States; or where 
any t it le , righ t, privilege or immunity is specially 
Bet up or claimed by either party under the con­
stitution of the united States; such claim having 
been so set up, to deny the writ is error.

V.

PROPOSITIONS OF Law AMD AUTHORITIES..

1 .

Whenever by any action  of a State, whether thru it  

legislature, thru i t s  courts, or thru i t s  execu-



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s .

tive or ad m in istrative  o f f ic e r s , a l l  persons of 

the A frican  r a c e , are excluded, solely  because of 

their race  or c o lo r , from serving as grand jurors 

in the c r im in a l prosecution o f  a person of the 

African r a c e , the equal protection  of the law is  

denied him con tra  to the 14th Amendment to the 

C onstitution o f  the united States, and such action 

by a State i s  review able by th is  Court, and to 

refuse such review  i s  to deny to  him the equal 

protection  o f  the law as guaranteed by the 

Federal c o n s titu tio n ,

Strauder vs West Va. 100 U S 3^3 
25 L ed 664

N eal vs Delaware 303 US 370; 26 L ed
5 6 7 - 572+ „ ,

Gibson vs Miss. 162 U S 5^5; 4)
L ed 30 75; *6 S Ct 904.

Rogers vs Ala 912 U S 226, 231; 42 
L ed 417 ,419 ; 25 S Ct. 257

Smith vs Texas ( not yet in print)

I I .

Whenever by any action  o f a state whether thru its 
le g is la tu r e , th ru  i t s  courts, or thru its execu­

tive or administrative o ff ic e r s , a l l  persons of 

the A frican  race are excluded, solely  because 

of th eir race or color from serving as p e t it  jurors 

in the c r im in a l prosecution of a person of the



o J i l  rr i  S

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African race, the equal protection of the laws 
is denied to him contra to the Uj-th amendment 
to the constitution of the United states, and 
such action by a State is reviewable by this 
Court, and to refuse such review is to deny 
to him the equal protection of the law as 
guaranteed by the Federal constitution.

(see citations above)

I I I .
Though the state statutes defining the qualifies 
tions of jurors may be valid on its face, the 
Constitutional provisions of the l^th amendment 
to the Federal constitution affords protection 
against action of the state thru its  administra­
tive o fficers  in effecting the prohibited dis­
crimination, and when such violation is claimed, 
it is the duty of this Court, to determine for 
itself whether in truth and in fact such dis­
crimination is  or has been made, therefore 
oertiorari should have been granted.

morris vs Alabama 79 1 e<! H10 
James Bunca vs Uhited States
of America 77 1 ed
See notation 5  ̂ 1 e<̂   ̂ S 153 
Powell vs state of Alabama

7 7  L ed 15S

9.



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10.

IV .

When a F ederal r ig h t  has been specia lly  claimed 

in a State Court, i t  i s  w ithin the province of this 

Court to in qu ire  not merely whether i t  was denied 

in express term s, but a lso  whether i t  was denied 

in substance and e f f e c t ,  therefore the writ 

should hatfe been granted for such sp e cific  

inquiry.

N orris  vs Alabama, 79 L ed 1076 
Carter vs Texas I 77 u S 442 ,447 ;

44 L ed 839,84-1;20 s c t . 687.
63 L R A 5 7 1 -5 3 2 .

C incinnati p B S t. p .p .c o . vs Bay,
50 Fed. 428 , 4-33
Farmers & Marine in s . Co. vs Dobney
139 U S 301; 4-7 L ed 821;

23 Sup Ct Rep 565

V.

The t r i a l  o f p e t it io n e r  before ju r ie s  from which 

quqlified members o f  their own race were system­

a tic a lly  exclu ded , and the conviction  by such jury 

is a d en ia l o f the equal protection  of the law, 

objection to  the exclusion  being made, allowance 

being had for the circum stances, seasonably taken. 

Such con d ition s being shown, the p etitio n er was 

entitled to the w rit for further consideration  

by this co u rt.



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Powell vs Alabama, 77 l ed 15s 
Norrds vs Alabama 79 L ed 10 76 . 
Neal vs Delaware IQ3 u S 3 7 0 ;

w

VI.

Where a Federal Right is set up in the state 
Court under an act of Congress any matter of 
law found in the record decided by that court 
regarding a federal right, can be reviewed by 
the supreme Court of the United states

6 3  L R a 571-532
51 S 620 Jordan vs state of a la.
Cincinnati p B S+.B P Co. vs Bay 

50 Fed. teS-^33( see pg. 432)
Farmers & Marine Ins. Co. vs Bobney

139 u s 3 0 1
See Notes 5  ̂ L ed u S 153 
Carter vs Texas 177 U S ^2.
V I I .

The state of Alabama has fu ll power over its 
proceedure in its  courts, subject only to the 
qaalification that such proceedure must not work 
a denial of fundamental rights, or conflict with 
special and applicable provisions of the Federal 
Constitution, and when such proceedure does so 
deny or con flict with special and applicable pro 
visions o f the Federal constitution, this court 
is charged with the duty and power to review and



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12

correct such proceedure, either hy review or hy 

cer tioraTi.
Brown vs New je rse y  I75 u S I72;

20 Sup Ot Rep 37

Whitney vs C a lifo r n ia  7 1 Fed IO95 
27^ U S 3 5 6 -7

H Y ex r e l  Rosevale R ealty co.
v s  K le in e r t  26S u S 6 4 6 ,6 5 0 ;

69 L ed 1 1 5 5 ,1 3 7 ,
45 Sup Ct Rep 61g

1 2  c . J . 6 9 5  j f f t  # 37
Twining v s New je rse y  211 u s 76
Johnson vs Zerbst 304 U S 457

V I I I .
A writ of certiorari shoM he allowed when the de­
cree of the supreme Court of Ala bam shows that 
the objection was relied  upon, that i t  really 
wae considered, and made a part of the record 
hy that court in its  decree, and by that decree 
shows that i t  was treated as not having been 
raised too late under the local proceedure in a 

point upon whicfr the state court is  the judge, i t  
is enough for review by this Court that the Fed­
eral question was raised and neoessarialy decidedb 
hy the highest court of the state of Al^bam 
wherefore, certiorari shoihd hafe been granted, as 
etch facts are borne out by the record, and the 
application for certiorari.



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13

Cincinnati p b St.PB Co. vs Bay 
50 Fed 42&-i|*33 ( see pg 4 3 2 ) 

Farmers & Marine ins. co. vs Dobnev 
1 9̂ U S 301; 2 3  siap ct Rep 565

Jordan ve state of ^la. 5 1  so.620 
lo rr is  vs Ala 79 L ed I0 7 6  
Carter vs Texas I77 u S 4*12,1̂ 14.7 
powell vs Alabama 7 7  L ed I5 S 

Republican River 0 0 . vs Kansas R.R.ca 
92 U S 315; 23 L ed 515

IX .

Wftere there is  enough in the case to justify a 
suspicion that the Federal questions were sought 
to be avoided and avoided by giving an unreason­
able construction to the pleading, the writ 
shoM be granted.

Vandalin R.co. vs Indiana
2 0 7  u s 359 ; 2g s ct 130.

X.

Where the decree o f the state Supreme court
is in con flict with or contra to the decisions
°f this Court upon a question of the invasion
or decision of substantial Federal rights,
this court shoM see whether or not, for its e lf
such conflict has occurred; and to the end
of 50 adjudicating such rights, should grant the
W i t .



trv-T

*

x

- ** i

J,



I t  s h a ll  be competent fo r the supreme court 

by c e r t io r a r i  to r e q u ir e  th a t there be c e r t if ie d  

to i t  fo r re v ie w  and determ inatio n, w ith the 

same power and a u th o rity  and w ith l ik e  e f f e c t  

as i f  brought up by w r it  o f  e r r o r ,  any cause 

wherein a. f i n a l  judgment or decree has been 

rendered or p assed toy the h ig h e st co u rt of a 

State in  w hich a d e c is io n  co u ld  be had where 

is  drawn in  q u e stio n  the v a l id it y  o f a statute  

of any state  on the ground o f  i t s  being repugnant 

to the c o n s t it u t io n  of the united  s t a te s ; or 

where any r ig h t ,  t i t l e ,  p r iv i le g e  or immunity 

is  e s p e c ia lly  set up or claim ed by e it h e r  p arty  

tinder the c o n s t it u t io n ,o r  any tre a ty  or statute  

of, or commission held or a u th o rity  e x e rc is e d  

under the U hited S ta te s. Hence, the v io la t io n  

of the c o n s t it u t io n a l  r ig h t s  o f p e t it io n e r  hav­

ing been V io la t e d  toy and th ru  the a d m in istra tio n  

by the sta te  o f  Alabama th ru  sta tu te s  # 5202, 

8630,8637, 3952( 1^-), code o f Alabama 1923 ( see 

Appendix pgs 20, 21, 22, 27) fo r  te x t) and Ordinances 

# ^901,^902 o f the C it y  o f  Birmingham Alabama 

( see Appendix to o r ig in a l  a p p lic a t io n  pgs 22 &



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23 for te x t)  having been shown to this court 

on the a p p lic a tio n  for the w rit, the writ should 

have been granted.

Appendix to rev ised  rules of Supreme 
Court o f united states, Act of Feb. 
13th , I925, sec 237(b)

VI.
ARGUMENT.

The case at bar turns upon the constitutionality 
of two city  ordinances of the City of Birmingham 
pertaining to the arrest of citizens without 
warrant and holding them until the offioers are 
satisfied that no crime has been committed by 
that person -  a l l  without warrant; and certain 
state statutes, pertaining to the present jury 
system in operation thruout the state of Alabama, 
and the selection of both grand and petit jurors; 
also as to whether or not thru these ordinances 
and statutes the state of Alabama denies to 
negroes, solely because they are negroes certain 
federal right guaranteed them by the l^th amend­
ment to the Federal Constitution of the united 
States ■— a ll  of which is subject to whether or 

&ot these facts have been set up and properly



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etow5_ to. tM e co u rt In the anull -rl||
of cer tior ar i ,

fe in sist that these contentions wereprop -  
ly set xp in the application for certiorari, and 
more than that, show that i t  is the fixed policy 
of this State to use this method to avoid the 
prohibitions set up o n  in the 14-th amendment to 
the Federal constitution; and that this policy 
of the State of tetma not only affects this 
petitioner, but many others who stand in the 
same predicament , some too poor and ignorant 
to know or unable to obtain help to appeal to 

this Court for protection,AND THIS STATE OF 
AFFAIRS W ILL CONTINUE UNLESS THIS COURT INTER* 
VENES FOR THE PROTECTION OF SUCH POOR AND
h e  ip l e s s  p e o p l e .

As to whether or ndt this question was
e»

presented to this court on the application 
for the writ, look at pg. 17 of the application 
question 3 . Question 4- deals with the same s it ­
uation ( pg lg of application) Question 5 on 
Pg I9 presents the same question. But on page 21 

of the application, Question 7 Is identical,
(pg 21 ) Revised Ru&es of the Supreme Court 

Pg. 3 of appendix, sets out that when the validity

16



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17

of A state statute is  drawn in question, on 
the ground that it  is  repugnant to the consti­
tution of the United States, or any right 
immunity or privilege is  special^ set up or 
claimed under the Constitution, that this 
Court is  given the power to review such claim.

Therefore theree should be no hesitancy of 
this court in recalling its opinion previously 
rendered and issuing the writ, (proposition of 
law 1 and authorities cited thereunder) and 
proposition 2»)

In addition to what has been said regarding 
the grand jury, as the same w ill hold true 
in regard to the petit jury as well, the only 
argument added to same w ill be in regard to 
the ratio summoned on petit juries.

This question was set up in question 5 PS*
19 of the application, and argued in the brief 
as proposition of law 1 and 6 . in fact, a read­
ing of the application and brief w ill disclose 
that the whole of the application is related to 
a discussion of these same principles. Wherefore 
it is  error for this court to hold that it  could 
find no ground for the issuance of the writ*



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second Assignment of error.

petitioner assigns as error that this 

Court found no ground for issuance of the writ 

when in fa c t , the application clearly set out 

that petitioner was denied « prooeedural due 

process of law in that he was denied the 

advise of counsel, at or before the signing of 

the alleged confessions; that the use by these 

State of these confessions was a denial of 

"prooeedural due process*»and such facts were so 

set out and shown in the original application. 

Question 1 (pg.16 of application), Reason 1 

pg 21 & 22 of application; proposition of law 2 

pg 27 of b r ie f ; proposition of S> pg 31 of brief; 

and argument on the brief par 2 pg 39 -*J0.

This subject was the sole and only reversible 

cause shown in the recent case decided by this 

Court from Florida, i e Chambers vs Florida 

(decided feb . 19*10 by this court) The cg.se__is 

identical with the one at bar in this instance. 

Petitioner in that case, were incarcerated in 

a city ja il '-  so in the instant case, under the 

same kind of ordinance -  without warrant other 

than that an officer decided they were guilty



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19.
something -  and re p e a te d ly  questions regard­

ing a c e r t a in  event -  u n t i l  broken ty th is  

treatm ent -  they confessed, THEEE IS  THE 

SAME SET OFFACT SHOW HERE IN THE INSSANT 
APPLICATION. p e t it io n e r  was in cerated  in  the 

Oity J a i l  here -  h e ld  w ithout bond without 

w arrant and w ith o ut the p r iv ile g e  o f seeing 

any one- a tto rn e y  or otherw ise, w hile so held 

he was re p e a te d ly  questioned, taken in  and out 

of the j a i l  day and n ig h t, and as he says beaten 

u n t il  he was w i l l i n g  to co n fe ss. Even then, i t  

took s e v e r a l days longer, ,&id as one of these 

se ssio n s took p la c e  in  the o f f ic e  of the s o l ic it  

or o f t h is  County- t h is  s o l ic it o r  was w e ll aware 

of the f a c t  that he had not been allow ed to see 

an a tto rn ey and Was a lso  charged w ith knowing 

that such proceedure a g a in st him, without allow  

ing him the a d v is e  o f an attorney was c e rt a in ly  

in  co n tra v e n tio n  o f h is  c o n s t it u t io n a l r ig h t s .  

WAS THERE NO FACTS SHOWN FOR WHICH THE WRIT 
WOULD LIE?

IN  THE FLO R ID A CASE, i t  was stated in  the 
opinion ; * as the record f a i l s  to show that

p e titio n e r was allow ed the advise of counsel



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would materially a ffect the result, then the 
writ should issue. The matter of arrests and 
such treatment under arrest has become so 
flagrant in this county and City, that an in­
vestigation has been held by the F B I on the 
circumstances regarding arrests under these 
two statutes or ordinances. This is not just 
an isolated case, but hundreds occur in the cour® 
of a few months, putting in jeopardy the rights 
of many people arrested under similar circum­
stances with no regard for the constitutional 
rights of these people, i t  is  going to take 
strong action by this court to stop such abuse 
of citizens in ontravention of the rights guar­
anteed them under the 14th amendment to taring 
about due regard for this amendment in this 
City county and State* Let us hope that this 
court w ill see that this state o f affairs cannot 
and w ill not continue. The only hope of people 
so arrested, is  action by this court under these 
same circumstances* Have not the facts and 
laws been properly set up for the reca ll of 
the decree denying to this petitioner the writ 
a 6 failing to show just ground as to why i t  should 
have been granted?

2?



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20

at the time these confessions were given, or be­
fo re  i t  was made th a t the intpoduntion 0f  these 

as evidence in  the t r i a l  o f the~cauie, 
c o n fe ssio n s /c o n s titu te d  a v io la tio n  of PRQo ee d u RaL
DUE PROCESS OF LAW ,  and for th at reason i t  would 
have to be re v e rs e d , as a person charged with 
crime was e n t it le d  to the advise from the time 
o f h is  a rre s t u n t i l  t r i a l .

THE INSTANT CASE IS  ID ENTICAL, p e titio n e r 
was n o t allow ed to  see or obtain counsel, u n til  
a fte r  h is  tra n s fe r to the county J a i l .  This is  
shown by the re c o rd , and also in  the testimony 
o f Joe Vernon, when he stated that he was not 
allow ed to see any one except the o ffic e r s , or 
those they brought w ith  them. THE RECORD IN 
THE INSTANT CASE SHOWS THAT IT  IS  SILENT ON 
THE ADVISE OF AN ATTORNEY AT OR BEFORE THE TIME 
HE WAS SAID TO HAVE MADE THE CONFESSIONS. In 
other w ords, i t  f a i l s  to show that he had the 
advise o f an a tto rn e y or could have had one i f  
he had wanted one, or tr ie d  to get one.^HAT CHANCE 
DO YOU THINK HE WOULD HAVE HAD EVEN HAD HE DE­
MANDED ONE? IS  THAT NOT GROUND FOR THE WRIT?

I f  there is  no Dgound here for the w r i t , 
then ju s t what is  the difference between the 

circumstances in  the two cases?



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This matter was e s p e c ia lly  c a lle d  to the at­

tention o f the s ta te  Suprerne Court o f Alabama 

and as t h is  case ( chambers vs F lorid a) was 

not y et in  p r in t ,  a copy o f  t h is  opinion was 

obtained from the o lerk  o f  t h is  cou rt, and

attached to the p e t it io n  for r e -h e a r in g , and 
ed

was so rev iew /b y  them on the r e -h e a r in g , and 

passed on by them when they overruled the pe­

titio n  for a r e -g e a r in g  -  such fa c ts  were so s 

stated and s e t  up in  the a p p lic a tio n  for the 

writ to th is  c o u rt, se t  up in  the q u estion s  

(see th is  argument supra for number and page) 

and argued to  t h is  cou rt in  the b r i e f .  H ating  

been passed on by the sta te  supreme co u rt, 

we wgreen t i t l e d  to  the w rit on th is  ground a lo n e . 

While th is  co u rt i s  not bound by i t s  own d e c is io n s , 

yet, i t  w i l l  not a r b itr a r ia ly  go contra to them, 

without rime or rea so n . Hence we say , th a t , 

under your most reeen t r u lin g  on th is  p o in t ,  

the 2nd assignm ent o f e r r o r , we are e n t it le d  to 

have your decree o f  November 12th , r e c a l le d ,  

aad the w rit p a n t e d .

How would t h is  have a ffe c te d  the v e r d ic t?  

WITHOUT THESE CONFESSIKTS THE S7AE OF ALABAMA 

COLD NOT OBTAIN A CONVICTION, as th is  question



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Assignment o f error # 3,

This assignment of error charges that this 

court erred in denyingthe writ, and holding 

that the Sta£ of Alabama thru these statutes was 

not discrim inating againstnegroes on the grand 

and p e tit  ju r ie s .

The ru lingof this Court in denyingthe writ 

to petitioner i s  contra to the ruling of this 

court in the following cases; Brown vs Mississippi 

(297  U S 5^7) Pierre vs Louisana (306 u s  35^) 

lo r r is  vs Alabama 2$k u S 5 7̂) • The testimony 

as to this discrimination in Alabama is  in the 

record in the b i l l  of exceptions embodied in the 

showing offered in support of the motion for a 

new t r ia l  in the tr ia l  court; passed on by the 

State supreme Court and embodied as above stated 

in the application for the writ.

How then can there he no ground for the 

granting of the writ in the instant case i f  these 

express the law as seen by this court? The ratio  

in the instant case is  much less, the discriminar- 

tion much greater than in any of the above named 

cases -  y e t, this court holds there was no denial 

of the constitutional rights of petitioner on 

this discrimination, is the ratio in iiie in-

23 •



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s t a n t  c a s e  a n y  l e s s  t h a n  i n  t h e  o t h e r  c a s e s ?

On t h e  c o n t r a r y  -  i t  i s  m u ch  g r e a t e r ,  w hy t h e n  

should t h e  w r i t  n o t  i s s u e ?

S e e  p r o p o s i t i o n s  1  a n d  2  a n d  a u t h o r ­
i t i e s  c i t e d  t h e r e u n d e r .

A s s i g n m e n t  #  5 & 7*

I f  t h i s  c o ^ t  w i l l  r e - e x a m i n e  t h e  q u e s t i o n s  

s e t  upc i n  t h e  a p p l i c a t i o n  f o r  t h e  w r i t  ( p g s  16 

t o  2 1  i n c l u s i v e )  t h e y  w i l l  f i n d  t h a t  t h e  f o l l o w ­

i n g  q u e s t i o n s  w e r e  s e t  u p  —  a n d  a l l  o f  t h e m  

q u e s t i o n s  r e g a r d i n g  v i o l a t i o n s  o f  F e d e r a l  r i g h t s  

a l l  o f  w h i c h  h a s  b e e n  p r e v i o u s l y  d e c i d e d  b y  t h i s  

C o u r t ,  a n d  t h a t  t h e  d e c i s i o n  o f  t h e  s t a t e  s u p r e m e  

C o u r t  i n  t h e  c a s e  a t  b a r  i s  c o n t r a  t o  a l l  o f  

th em , h e n c e  t h e  w r i t  s h o u l d  b e  g r a n t e d .

1 . D i s c r i m i n a t i o n  a g a i n s t  n e g r o e s  o n  t h e  g r a n d  

j u r y -  i n  f a c t  e x c l u s i o n  o f  th e m  b y  m e a n s  o f  t h e  

a d m i n i s t r a t i v e  o f f i c e r s  o f  t h e  s t a t e ,  a c t i n g  

thr^i t h e  o r d i n a n c e s  a n d  s t a t u t e s  s h o w n  i n  t h e  

a p p e n d i x  t o  t h e  a p p l i c a t i o n ;

2 .  D i s c r i m i n a t i o n  a g a i n s t  n e g r o e s  o n  p e t i t  

j u r i e s  -  t o  s u c h  a n  e x t e n t  a s  t o  b e  a  v i r t u a l  

e x c l u s i o n  o f  t h e m  f r o m  p e t i t  j u r y  s e r v i c e .

3 .  D e n i a l  o f  p r o c e e d u r a l  d u e  p r o c e s s  o f  

law i n  d e n y i n g  t o  p e t i t i o n e r  w h i l e  i n  t h e  c i t y





ja il , the advise of counsel at the time or before 
the confessions were made by him.

A ll of these questions were presented to 
the state supreme court, as shown by the record, 
and on motion for re-hearing especially called to 
their attention and passed upon by i t  -  and pass­
ed upon conta to the recent decisions of this court 
as set out in the following cases:

powell vs Ala lama 77 1 ed 158 
Norris vs Alabama 294 u S 587-590 
pierre vs Louisana 30b U S 354 
Brown vs Mississippi 297 U S 278 
Neal vs Delaware 103 U S 370 
Rogers vs Alabama 9 12 u S 226- 2 3 I 
Twining vs New jersey 29 Sup Ct Rep 14 
Chambers vs Florida 8 4 L ed 419 -  476 
Smith vs Texas ( not yet in print) 

Therefore, this court having been given 
the power to have certified  to i t  reviews to 
ascertain the fact that a Federal question has 
been decided by a State court contra to the 
decisions of this court, should recall the 
decree previously rendered, and grant the w rit 

to petitioner,

25



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Assignment o f  Error #  g .

An Act o f Congress, passed February 1 3 , 1925, 
including sec. 2 3 7  b provides that whenever a 

Federal right has been specially claimed in a 

State court, i t  is  within the province of this 
Cour t that i t  inquire not merely whether it  was 
denied in express terms, but also, whether i t  
was denied in substance and effect, and that this 
Court should see and determine for itse lf wheter 
in truth and in fact such denial had been ao- 
eomp lished.

WHEN THIS IS  SHOWN THIS PETITIONER IS EN­

TITLED TO THE WRIT OF CERTIORARI.

AID THIS WE CLAIM IN THE CASS AT BAR

This cla im  i s  se t up f i r s t ,  by the amend­

ments to  the motion for a new t t t a l  in the t r i a l  

court -  these amendments ware struok by the t r i a l  

court s o le ly  because i t  claimed they came too 

la te , WERE THEY TOO LATE? NOT ACCORDING TO 

THE RULE LADD DOWN BY THIS COIRT IN THE CASE OF 

POWELL VS ALABAMA (77 L e <* 15g) Th-9.  oase at -  

fo llo w s, on th is  question , ident ia a lly  in the

fo o tstep s o f  the pow ell case .

26



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In  the powe 11 ease, as in  the in sta n t case, 

a l l  c o n s t it u t io n a l  q u estio ns were presented fee 

the f i r s t  time in  the amendment to the motion for 

a new t r i a l ,  on c e r t io r a r i  t h is  court held; 

that the c o n s t it u t io n a l q u estio n s were properly  

presented and p re se rv e d  fo r t h e ir  a tte n tio n .

Then, i f  th a t d ecree i s  c o rre c t , and i s  the decree 

of t h is  c o u rt  on the way c o n s t it u t io n a l questions  

can be p re se rv e d  fo r a tte n tio n  by t h is  co urt, i s  

not the r u l i n g  o f t h is  Court in  e rro r on the 

id e n t ia l  q u e stio n , presented in  the same way in  

the in s t a n t  case? i s  there not ground for the 

w rit?

On a p p e a l to the state  supreme Court, that 

court a ffirm e d  the decree o f *fche lower oourt- 

e x p l ic i t l y  and d is t in c t ly  p a ssin g  on such questions 

And ag a in  passed  on the same question, a ft e r  i t  

had been c a l le d  to t h e ir  a tte n tio n  that the de­

cree in  the P o w e ll case was contra to th e ir  

decree, and again  the supreme Court o f Alabama, 

re -a ffirm e d  t h e ir  decree.

That b ein g  the case, A F ed eral question o f_  

substance was passed on the state supreme

27

Court, not once but tw ice , contra to tbe decrees



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2g

of th is  Court (se e  p ro p o sitio n s of law 4 & 6 

and c it a t io n s  thereunder)

THEREFORE, as congress, under the statu te  

aforem entioned, has given th is  Court the power 

by c e r t io r a r i ,  to inquire in to  such matters when 

presented to them, the w rit o f c e rtio ra r i should 

have been granted , and th is  court i s  in  error 

when i t  fornd " no ground on which to issue  

c e r t io r a r i . 8

By the opinion rendered by the supreme court 

of Alabama i t  was c le a r ly  shown that the constitUr* 

tio n a l q u e st i cns were r e l ie d  on by p e tit io n e r ,  

and passed on by that cou rt, th e re fo re , having 

been r e l i e d  on and passed on by that court, cer­

tio ra ri should H e  for th is  court to inquire as 

to whether or n o t the sta te  has thru i t s  admin­

is tr a tiv e  b o d ie s , and s ta tu te s  heretofore enumerar- 

ted denied to  t h is  p e tit io n e r  h is  c o n s titu tio n a l  

rig h ts guaranteed to him by the 14th Amendment to 

the Federal c o n s titu tio n  ( see p ro p o sitio n  o f  

law g and c i t a t io n s  thereunder) PARTICULARLY IN 

VIEW OF THE FACT THAT PETITIONER'S LIFE IS  AT 

STAKE.

Y e t yau might say, that as th is  i s  purely  

state proceedure over which only the sta te  courts



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have c o n tr o l, so we cannot grant the w rit for 

th at re a so n . AGAIN I REFER YOU TO THE POWELL 

CASE.

W hile the State  of Alabama has f u l l  power 

over i t s  proceedure in  i t s  co u rt, th is  power 

i s  su b ject only to the r e s tr ic t io n  that suoh 

proceedure must n ot in te r fe r e , c u r ta i l  or re ­

s t r i c t  in  any way the r ig h t  guaranteed to p eti­

tioner uner the 14-th Amendment to the Federal 

C o n s t itu t io n  see prop osition  o f  law VII and 

c ita t io n s  thereunder) and when such proceedure 

does in  fa c t  and in  tru th  so deny to th is  pe­

t it io n e r  h is  c o n stitu te  n a l r ig h ts  so guaranteed 

Congress has, by sectio n  237 b o f the Act of 

February 13,  I925, and i t s  amendments, granted 

to t h is  Court the r ig h t  by c e rtio ra r i to review  

such proceedure, and therefore th is  court has 

ground to  issu e  the w rit on the said ap p lication , 

and i t s  fa ilu r e  to do so , and deny the w rit to 

th is  p e t it io n e r  i s  error.

Under the Alabama law o f  proceedure, the 

Supreme court on appeal i s  not bound to consider 

or p ass upon a motion for a new tr ia l ,_ e x c e £ t—



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30

when testim ony i s  presented in  support th e r e o f, 
and when such testim ony i s  re fu s e d  by the t r i a l  
court ( as in  the in s ta n t c a s e ), a showing may be 
made in  l ie u  th e re o f -  and then such motion must 
be considered by the a p p e lla t c o u rt on the ap­

p e a l. SUCH ARE THE CIRCUMSTANCES HERE* The showing 
was placed in  the b i l l  o f e xc e p tio n s  in  f u l l ,  
and eoiqprise the testim ony as to the d is c rim in a ­
tio n s ag ain st t h i s  negro p e t i t i o n e r , by the 
exclusion o f negroes from he grand jiffy  and p e t i t  
ju ry th a t t r ie d  him, s o le ly  because they are 

negroes, so, as the t r i a l  c o u rt passed upon the 
m otion, considered the testim ony as shown, and 
the sta te  Supreme court passed upon i t ,  and a lso  
considered i t  again upon the p e t i t  on fo r re ­
h e a rin g , we I n s i s t  . as i t  was s p e c ific a lly  shown 
by the o p in io n  rendered by the s ta te  Supreme Court 
th a t i t  was considered by them, placed in  the 
re c o rd , and so shown to  be r e l i e d  upon by th is  pe­
t i t i o n e r , that t h i s  q u estio n  presents to t h i s  
Court the q u estio n  o f  such s ta te  a c tio n ; and 
hence i t  is  e rro r  to  say th a t there i s  no ground 
shwn fo r the w r i t .  These fa c ts  are borne o u t by 
the re c o rd , set upra^the app i ic a tio n  fo r oer t i o r a r i



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31

and the w r it  sh o u ld  have been granted.

(See p ro p o sit io n s  o f law 6 ,7 ,g  and 
c it a t io n s  th ereu n d er)

Aot o f  co n g ress Feb 13th , 1925 
( Sec. 237 b) See pg. 25 o f  

Appendix to A p p lic a t io n  for  
Text)

Assignment # 9,

Where a Federal r ig h t  iB  in v o lv e d , th is  

Court can review  a d e c is io n  o f a State Court 

w ith r e sp e c t to a qu estion  a r is in g  under the 

C o n stitu tio n  o f the United s ta t e s  ( Hebert v s  

Louisana 272 u S 316) arid i t  i s  open to t h is  

Court vpon a p p lic a tio n  fo r  w r it  o f  c e r t io r a r i  

to look beyond forms and in q u ire  in to  the very  

substance of the matter ( Frank v s  Man gum,

2 37 U S 330) ; Moore vs Bempseji 261  u S 2 6 ;

Re N eilson  I3I u S 17&) and i t  i s  the duty o f  

th is  Court, under the Act of congress passed Feb 

13, I925 ( sec 237 6) not only to  review  such  

a ctio n s ty the s ta te  supreme c o u rts , but to  

decide for i t s e l f  th ru  exam ination o f  th e  e n tir e  

record , i f  n ecessa ry , whether or n ot these a c tio n s  

of the s ta te  i s  in  v io la t io n  o f the llj-th amendment, 

and e s p e c ia lly  i s  t h is  true in  regard  to the



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r a c i a l  q u estio n s in  the sou th , i t  i s  no news to  

th is  cou rt th at the s ta te  o f  Alabama seeks to  

deny to  negroes th e ir  c o n s t itu t io n a l r i g h t s ,  

guaranteed by the 14th amendment. The l i s t  o f  de­

c is io n s  from th is  sta te  to t h is  tr ib u n a l stands  

as a memorial to th a t . Therefore th is  Court, 

because o f  th is  w e ll  known f a c t ,  should be e s ­

p e c ia lly  c a r e fu l in  i t s  r e fu s a l  o f  th is  w r it  to 

th is  p e t it io n e r  a n egro .

And le t  me herequote the words o f  t h is  

Court in  the case o f p ie rre  vs Louisana ( JOG 

U S 254) and N o rris  v s Alabama 29^ U S 5&7: "The 

14th amendment in t r u s t s  those who, because o f  

r a c e , are denied e q u a l p r o te c t io n  o f  the laws 

in  a s t a t e , f i r s t  " to the r e v is o r y  power o f  the 

higher co u rts  o f  th a t S ta te , and u lt im a te ly  to 

the review  o f  th is  C o u rt."

WE ARE NOW ASKING THIS COURT IN  IT S  
REVISORY POWER TO GRANT THE WRIT? and r e c a l l  i t s  

decree o f  Nov 12th , l9 4 0 ,a n d  grant to th is  pe­

t i t io n e r , the r ig h t s  so p ro te c te d  in  such quota­

tio n , so th a t he may not be deprived o f  h is  

l i f e  and lib e r ty  w ithout due p ro c ess  o f  law,

in  view o f  the p a st d e c is io n s  of the 
Supreme court o f  Alabama which have been rev ersed

3 2.



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33 .

by this court, and the fixed policy o f this 
State to deprive negro citizens of their consti- 
tutuional rights, the opinion as expressed by 
the atate Supreme Court that " i t  is  not permissi­
ble for defendant, who has not been so misled, 
to participate in the selection of the jury with­
out objections, speculate on winning a favorable 
verdict and fa ilin g  to do so, allow him to raise 
such questions on a motion for new tr ia l"  -- -  
such an opinion could not have been rendered 
except as a subterfuge to avoid the federal 
questions by giving an unreasonable construction 
to the pleadings. And where there is  more than 
a right to a suspicion here that such was the 
case, such opinions are subject and should be 
subject to sharp scrutiny by this court, par­
ticularly is  this true, in view o f the fact that 
the same Court which renderdd this opinion, has 
on every occasions where it  occurs, sustained 
any and a l l  objections to the formation of grand 
and petit jurfcrs, in what ever form presented 
In a ll  cases brought to their attention on appeal.
In other words, you gamble i f  you dont f i l e  such 
pleadings, and i f  you do f i le  them , be wont





34,

uphold them. Thug are these statutes so used to 
defeat the 14-th amendment in Alabama.

Before this opinion was rendered, the s^reme 
Court o f Alabama was well aware o f the decisions 
of this court in reversing, among others, the 
case o f powell vs Alabama ( supra) hence it s  de­
cision in the instant case, d ea rly  indicates the 
desire of that court to side step the Federal 
questions involved in the case, in the hope that 
that would be the end of the matter.

We sincerely trust th* such is  not the case. 
This petitioneras a matter of law, uader principles 
laid sown in decisions previously rendered by this 
Court has the right, under the 14th amendment to 
the Federal Constitution, to proceed with his case, 
and under these decisions previously rendered, 
is  entitled to the writ, i f  the decisions of this 
court are to remain in conformity with those 
previously rendered.

We are asking this court to re ca ll it s  
former decree and grant the writ in conformity and 
harmony with the same identia.1 questions raised
in the same way as have teen decided by this
court in the last five cases on what is  termed 
H racial questions.B





35

And let us here remind the court of its  latesl 
decision on one o f these questions ~ the case of 
Edgar Smith vs State of Texas, which is so late 
and decided since the decree of this Court in 
the instant case, denyingto this petitoner 
the writ, that there is  no copy in the books as 
yet, yet this same case, is  the same as the 
one at her- i  e the exclusion of negroes from 
grand juries, solely because of their race and 
color,

Which brings us to this one fact: that 
statutes tho fair on their face, can be uncon-

I
stitutional and repugnant to the constitution.

The test is  not what is  done under them, 
but what can be done under them. ( See porposition 
of Law i n  and citations there under) we in­
sist that in each case in Alabama, in which these 
statutes have been questioned, the invariable 
rule has been laid down, that no objection in any 
form to theformation of grand or petit juries 
( excepting the exceptions outlined in statutes, 
which have no bearing on the instant case) 
either by motion or plea in abatement w ill lie . 
Threfore, this is  a most effective way to avoid





36
the p o h ib itio n s  o f the 14th amendment.

Thus you can see the workings o f  these 

s ta tu te s  -  and in  case of doubt as to the use 

to which th ese s ta tu te s  are put -  ju s t  take a 

look at the d e c is io n s  o f th is  cou rt in  regards  

to  t h is  r a c i a l  q u estio n . There i s  a long lin e  

o f  d e c is io n s  where o b je c tio n s  have been f i l e d  

both by p le a  in  abatement and by m otion- and 

in  a l l  o f these c a se s , THE STATE SUPRE’D COURT 

HAS OVERRULED EACH AND EVERY ONE. SO, when th is  

cou rt now says in  i t s  op in ion , that the proper 

way to take advantage o f  th is  p o in t , i s  by p lea  

in abatem ent, what does i t  mean? I t  ju s t  means 

that whether you f i l e  any o b je c tio n  or n o t, 

these s ta tu te s  stand in  the way o f  any and a l l  

o b je c t io n s , and so the 14th amendment of the 

Federal Icon s t i  tu t ion i s  avoided.

I s  a person going to lo se  h is  l i f e  because 

the Court o f Alabama i s  not w illin g  to

face f a c t s ,  and uphold the 14th Amendment to  

the F ed eral C o n stitu tio n ? or w i l l  the sta te  be 

allow ed to use i t s  ad m in istrative  fo r c e s  to 

f lo u t  the Federal C on stitu tion ? I hope n o t.

Why not say to th is  Court, as in  the p a st , 

that the 14th Amendment i s  to be obeyed and when



- 0

'  nx

: H:? r ■

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37
you d e c is io n s  on a Federal su b sta n tia l r i g i t  

axe con tra  to the d e cisio n s o f th is  Court that 

we w i l l  hold you to  s t r i c t  account? i f  th is  

Court w i l l  do t h is ,  r e le g a tin g  a l l  te c h n ic a lit ie s  

to the ound, then we w i l l  indeed have

won a b a t t le  -  a b a tt le  th at has been waging 

since the c i v i l  war, and no le s s  r e a l  because 

i t  i s  waged thru  the cou rts in stea d  o f by- 

b u lle t s .

I f  you can get th  p ic tu re  o f  the use o f  

these s t a t u t e s , then whether a statu te  i s  un­

c o n s t itu tio n a l on i t s  fa c e , or c o n s titu tio n a l  

on i t s  fa c e , but u n e o n stitu ti anal in  the manner 

in which i t  i s  used by the s ta te , then r e - c a l l  

your d e c is io n  h eretofore  rendered and grant 

to th is  p e t it io n e r  the w rit o f c e r t io r a r i .

(See p ro p o sitio n s  9 ,1 0 ^ 1 1  for c ita t io n s  ) 

R e sp e c tfu lly  subm itted,

Counsel for p e titio n e r

Of Counsel,



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r e v is e d  ru le s

o f

SUPREME COURT OF THE UNITED STATES

RULE #  T5 -  RE-HEARIIIGr 

A p e t i t i o n  f o r  rehear ing  may be f i l e d  with 

the c l e r k ,  in  term time or  in  v a c a t io n ,  w ith in  

t w e n t y - f i v e  days a f t e r  judgment i s  entered ,  

u n le s s  the time i s  shortened  or  enlarged by 

order  o f  the  c o u r t ,  or  o f  a j u s t i c e  t h e r e o f  when 

the court  i s  not in  s e s s i o n ;  and must tee p r in te d  

b r i e f l y  and d i s t i n c t l y  s ta te  i t s  grounds, and 

be supported  by a c e r t i f i c a t e  o f  counse l  t o  

the e f f e c t  that i t  i s  presented  i n  good f a i t h  

and not f o r  d e la y .  Such a p e t i t i o n  i s  not 

s u b j e c t  to  o r a l  argument, and w i l l  not be 

gran ted ,  un less  a j u s t i c e  who concurred  in  the 

judgment d e s i r e s  i t ,  and a m a jo r i ty  o f  the 

c o u r t  so determines.



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