Shuttlesworth v Birmingham AL Petition for Writ of Certiorari

    3tt %  (Eouri of Appeals of ilje 
Sistrirt of (Eolumhta

S pecial  Calendar

W illiam  L an ey , Appellant,

vs.

U nited  States of A merica , Appellee.

No. 4000.

BRIEF FOR A PPE LLA N T

Jam es A. Cobb, 
W il l ia m  L. H ouston, 
R oyal  A. H ughes.



Jtt tin (Enuri of Appals of %  
Histrict of (Eolumbia

S pecial Calendar

W illiam  L an ey , Appellant, 

vs.

U nited States of A merica , Appellee. 

No. 4000.

BRIEF FOR A PPE LLA N T

The indictment contained one count, charging the de­
fendant with “ Murder in' the First Degree” (R. 1 & 2 ). 
On March 10, 1920, a jury was empaneled and sworn and 
on March 23, 1920, after the defendant had been on trial 
for thirteen days, a juror was withdrawn and a mistrial de­
clared. On June 20, 1921, a jury was sworn and on June 
30, 1921, the jury found the defendant guilty o f man­
slaughter. On October 28, 1921, .after overruling o f de­
fendant’s motions in arrest of judgment and for a new trial, 
the defendant was sentenced to eight years in the peniten­
tiary. (R. 2, 3, & 4 .)



STA TE M E N T OF FACTS.

On Monday night, July 21, 1919, between the hours o f 
10 and 11 o ’clock, one Kenneth Grail was shot through the 
head by a .32 calibre pistol, from which he died at the 
Emergency Hospital (R . 26) . The shooting which caused 
the death of Kenneth Crall occurred in and around 617 and 
619 Massachusetts Avenue N. W., where Crall was said to 
be standing. (R. 25, 27 and 81). A  few minutes prior to 
the shooting, in front, back, and around 617 and 619 Massa­
chusetts Avenue N. W., a mob of white men and boys, vary­
ing all the way from fifty to two thousand, chased the de­
fendant, William Laney, down Massachusetts Avenue to the 
area way in front of 617 and 619 of the same Avenue. The 
mob was throwing stones and bricks at the defendant Laney 
and hollering “ Catch the Nigger.” The mob was chasing 
every colored man it saw. (R . 18, 19, 20, 21, 22, 23, 57, 66, 
68 and 74). The defendant stopped the mob long enough 
to escape into the areaway of the house of one Ferguson 
at 617 Massachusetts Avenue N. W ., by drawing his pistol 
and pointing at the mob. The pistol would not fire and the 
defendant went into the backyard of the said premises and 
adjusted the safety on the pistol, at which time it went off 
accidentally. (R . 68). Meanwhile the mob was making a 
tumultuous demonstration against a colored family across 
the street at 620 and 624 Massachusetts Avenue (R. 66). 
Upon Laney’s returning to the front of the house the mob 
started across the street to 617 Massachusetts Avenue. The 
testimony was undisputed that the street was in an uproar 
at this time; but there was a conflict of evidence whether 
there was any shooting before the defendant shot. (For 
example, R. 18, 23, 66,. 74). The defendant shot his pistol 
about three times, testifying that he did so in self-defense, 
only after he had heard shooting from the direction of the 
mob and had been feloniously attacked by it. (R. 68).

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After he had shot his pistol as stated, the defendant escaped 
the scene through the rear of the premises. The mob then 
overran the premises (R . 18).

The defendant was apprehended in his rooms in the West­
minster Apartment House, July 27, 1923, by a detachment 
o f the Metropolitan Police Force, headed by Lieutenant 
Burlingame. On this occasion the officers illegally searched 
for and seized certain articles of clothing belonging to the 
defendant, which on or about March 23, 1923, were ordered 
returned by the Court to the- defendant, because of said 
illegal search and seizure. (R. 69, 70).

ARGUM ENT.

Assignments of error are thirty-two (32) in number; but 
may be grouped under four (4 ) headings, as follows:

(1 ) The Court erred in the admission and rejection of 
evidence in the instances specifically to be indicated later.

(2 ) The Court throughout the trial made an erroneous 
application of the law of self-defense as applied to the facts 
o f the case.

(3 ) The Court failed to state the law properly and fully 
to the Jury in its charge.

(4 ) The defendant, viewing the record as a whole, did 
not have a fair and impartial trial.

The Court erred in the admission and rejection of evi­
dence in the following instances:

A. (Exception 3) The admission of the evidence of 
Government witness, John Ramsey Nevitt, relative to the 
disinterment o f the body o f Kenneth Crall without proof 
that the defendant had been notified of such proposed dis­
interment and given an opportunity to attend, violates that 
fundamental ideal of fairness and openness which lies at 
the root of the Sixth Amendment to the Constitution of 
the United States, and is opposed to the practice o f the 
Government of the District of Columbia in criminal prose­
cutions, wherein the defense is notified and given access to

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all Government witnesses before trial. No notice of the 
disinterment or opportunity to inspect the results o f the 
same was given the defendant before this expeotea testi- 
mony was offered and received in Court.

B. (Exception 6) The refusal of the Court to allow
Government witness, William Ferguson, to answer the 
question propounded by counsel for the defendant: “ And
there was a riot going on in the street that night, was there 
not?”  excluded a vital item of evidence clearly admissible 
under the principle of res gestae. The defense, for the pur­
pose of showing that the defendant was not the aggressor 
in the fatal incident, had a right to show hostile acts and 
conduct against him individually and, under the circum­
stances, against him generally as a Negro, where such hos­
tile acts and conduct were near enough to the principal act 
to color and explain it. 30 Corpus Juris 197, 235. See 
also 16 Corpus Juris 573, 574. Any objection to the form 
of the question as being too indefinite is removable by ref­
erence to the record (p. 21) showing the narrow scope of 
the whole examination.

C. (Exception 9 ) The refusal of the Court to allow the 
defendant to impeach Government witness, William Far­
rell, by ascertaining what he read in the papers concern­
ing the race riots on the morning of the homicide, pre­
vented the defendant from showing its version o f the rea­
son for the witness’s- presence with the mob in the neigh­
borhood at the time o f the homicide and thereby attack­
ing his right to credibility as an impartial witness. Further, 
the question was to prepare the way for an attack on the 
credibility of the witness by bringing out inconsistent state­
ments as to his movements following the homicide.

D. (Exception 12) The admission o f testimony by 
Government witness, Jacob Peterson,: relative to certain 
clothing alleged to have been found in the defendant’s room 
upon the occasion of an unlawful search and seizure vio­
lates the principle of the Fourth Amendment to the Con­

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stitution of the United States, as announced by the case of 
Gouled vs. United States, 255 U. S. 298, and also by the 
Silverthorne Lumber Company case, 251 U. S. 385. In 
In the instant case the search, and seizure was not the indi­
vidual unlawful act of a single police officer, but the act of 
a whole detachment of the District Police Force, acting on 
a Governmental mission.

E. (Exception 14) The refusal to permit the defendant 
to question the same witness, Jacob Peterson, as to an omis­
sion to testify at the former trial, which occurred a year 
closer to the homicide than the instant trial, concerning a 
matter testified to at the instant trial was erroneous, even 
though the witness in his answer might satisfactorily have 
accounted for the omission. See Underhill, Criminal Evi­
dence, Par. 242.

F. (Exceptions 17 and 20) The admission o f the pis­
tols and bullets and the demonstrations and experiments 
with the same before the jury by Government witness, 
George Cornwell, went beyond the sound discretion resi­
dent in the trial court because o f the inflammatory and 
generally excitive effect that such demonstrations and 
experiments were bound to have on the jury to the preju­
dice of the accused. See Underhill, supra. ; .

G. (Exception 26) The refusal to let the defendant’s 
witness, William Manuel, testify to what the mob did to 
him in his room deprived the defendant of one of the indis­
pensable items of evidence necessary to combat the theory 
of the case entertained by the Government. The theory of 
the .Government (R. .91) was that the previous attack, by 
the mob on the defendant had come to a close; that the de­
fendant had gotten to a place of safety by running into the 
Ferguson lot and that he had had a sufficient cooling time 
to make the subsequent shooting malicious. This testi­
mony proferred went directly to contradict the contention 
that the walls of a house are a place of safety against the 
assault of a mob. (R. 66 and 69).

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H, (Exception 27) The refusal to permit the defendant 
to testify that he read about, the race riots in the daily 
papers was not cured by the subsequent admission, o f the 
papers themselves into evidence (R. 71, and 72), because, 
it closed all inquiry, into the effect of such reading on the 
mind of the defendant, as to whether it made him appre­
hensive of any attacks by rioters, and irremediably crippled, 
his plea of self-defense as excluding relevant evidence o f 
an .apprehensive state of mind, continuing from,the reading 
of the papers down to and inclusive of the time o f the homi­
cide. See Corpus Juris, 203.

II.

The Court failed to make the proper application o f the 
law of self-defense in the instant trial, in that :

At It never contradicted the theory of the prosecution 
which treated the case as a conflict between individuals 
whereas a proper understanding o f the case is impossible 
unless it is brought out that it grew out o f a race riot involv­
ing the whole community with continuous apprehension and 
clashes running over clays. This attitude on the part of the 
prosecution and .the Court-can be seen in the charge of the 
Court, especially pp. 87 and 91 o f the Record. It is admitted 
with , the Court that the sole, issue of the case is the guilt 
ors innocence, of the defendant of the death of the deceased, 
but it-is the.contention ,of : the defendant that this issue can­
not- be.. resolved without projecting it against■ the general 
and immediate; background o f the riots.

B. ( Exception 26). The: argument hereon,in its connec­
tion- with the contention, of the. Government that the de­
fendant had reached a place of: safety has already been 
made: (See. above?I; G ),

C. (Exception 27) (See I, I I ).
D. The, charge of the Court misstated the law so spe­

cifically on page 92 of the Record to the effect that:: “ Now,

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what is the truth of the matter? Is Laney’s story true, or 
did Laney go hunting for trouble? * * * I f Laney’s
story is not true, then you must make up your minds on 
the evidence o f what, offense he is guilty”  was not cured 
by the subsequent correction o f the Court in general lan­
guage. (R . pp. 94, 95). Language as conclusive as that 
quoted must be corrected by language equally as pointed 
in. order to preserve to the defendant a fair and impartial 
trial within the meaning o f the Sixth Amendment to the 
Constitution of the United States, especially where, as in 
the instant case, there is other evidence sustaining the claims 
o f self-defense. (R. pp. 28, 29, 57, 66, 67, 74) State vs. 
Jacketl, 81 Kan. 168:

E. . (Defendant's Prayer No. 2 ) The refusal o f the 
Court to give the defendant’s prayer noted, or otherwise 
to point: out to the jury the relative difference in strength 
and physical advantage between the collective mob and the 
single defendant was an unlawful restriction o f the defend­
ant’s claim o f ; self-defense. See 30 Corpus Juris 243. 
Smith vs. United States, 161 U. S. 85: 40 L. ed. 626.

F. (Defendant’s Prayers 4 and 7) The refusal o f the 
Court to give these prayers further eliminated all considera­
tion of the relative differences between the mob and the 
defendant. In addition, it lay an erroneous stress on the 
old doctrine, of retreat to the wall. See Brown vs. United 
States, 256 U. S. 335, 65 L. ed. 961; State vs. Gardner 
(M inn.) 2 L. R. A. (N . S.) 49, 63; Kerr, Homicide, 203. 
See also 48 Central Law Journal, 5, 10. There can be no 
equality of terms between a mob and a single individual, 
and it is a mockery o f justice to attempt to insist upon such. 
The instruction is not misleading as giving the defendant 
an opportunity to commit murder under the color o f self- 
defense, but clearly and fairly deals with the actual sit­
uation. Moreover: the refusal casts aside any consideration 
as to the apparent immediate peril to life, as reasonably it 
would have appeared, to an ordinary prudent man in the

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position of the defendant, See 30 Corpus Juris, 68. 
Marshall vs. United States, 45 App. D. C., 373, 384. See 
also the refusal of the defendants prayer No. 9.

G. (Defendant’s Prayers 6 and 18) The refusal of the 
Court to. give these prayers was erroneous, when read in 
connection with Goverjim&nt’s Prayer No.. 11, given by the
Court (R . p. 90), as some confusion in the minds 
of the jury as to the extent to which the presumption of 
innocence follows the accused and as to just what was meant 
by proof beyond a reasonable doubt. 57 University of 
Pennsylvania Law Review 318-320 (1909 ); and Wharton, 
Homicide (3rd edition, p. 550). The jury should have been 
instructed as prayed by the defendant in order that all ele­
ments, oni.this none too clear proposition should have been 
before them. Tjje following quotation from Wharton, as , 
cited above, wijl show in a measure the prejudice sustained 
by the,def^pdapj: in.having nothing before the jury, but the 
Government Prayer No. 11: “ The rule is well supported
that the burden rests with the state in a, prosecution for 
homicide, fo show that the killing was not justifiable or 
excusable,Ipy reason of self-defense; and, that it is.sufficient 
if the qyj.dence raises in the minds of the jury a, reasonable 
doubt pf his guilt. Within the purview of this rule, that 
the kilj,i,ng was not done in self-defense is an element of the 
crimp,which must be proved by the state beyond a reason­
ably, doubt. Nor is the accused limited to the benefit, of 
evidence adduced on his behalf on this question. He may 
avail himself, of any evidence in the case tending to show 
that the homicide,was justifiable, and require a submission 
of the question to the jury, whether introduced by him or 
the prosecution. It is a reasonable doubt,of guilt, however, 
to the benefit of which the accused is entitled, and not a 
material doubt upon any material fact involved in the case. 
And an instruction is erroneous where it applies the reason­
able doubt to that particular element of the proof, instead 
of requiring it to arise out of all the evidence in the 
case. * *

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H. (Defendant’s Prayer No. 8) The refusal of the
Court to give this prayer when read in connection with the 
following language of the Court used in its charge (p. 92) 
was clearly prejudicial to the defendant: “ Now, what is
the truth of the matter? Is Laney’s story true, or did Laney 
go hunting for trouble? He says he had a weapon with 
him? What for? He says that two weeks before this 
occurrence he had been attacked or assailed by four or five 
men at the corner of 14th and Corcoran Streets N. W ., and 
that it was in fear that he had been carrying this weapon 
from that time on because he feared, I suppose, a renewal 
o f the attack. Well, he had the gun, he said, he had the 
gun, he said that he fired it. He says that he fired it in self- 
defense, as the law of self-defense has been given you. 
What do you say is the truth of the matter on the facts?” 
State vs. Evans, 124 No. 397; Gourko vs. U. S. 153 U. S., 
183; Thompson vs. U. S„ 155 U. S. 271; Allen vs. U. S„ 
164 U. S. 492.

I. (Defendant’s Prayer No. 16) The refusal of this 
prayer left on the defendant the onus of remaining con­
cealed on the Ferguson premises, assuming that said pre­
mises were a safe place of refuge, which the evidence re­
futes (R. pp. 21, 57, 74, 75), while the mob roamed the 
street at will. The defendant does not contend he had a 
right to go out into the street or areaway to provoke a 
fight with the mob, but does maintain his right to be there 
without such purpose and be freed of the inference o f the 
charge (R . pp. 91, 92) that he was hunting for trouble. 
See cases cited under G above. Also Allen vs. United 
States, 157 U. S. 675, 39 L. ed. 854; Gray vs. State (Texas) 
22 L. R, A. (N. S.) 513; 30 Corpus Juris 50-51, and 
Beale, Plomicide in Self-Defense, 3 Col. L. Rev. 526-543. 
Moreover, granted for the sake of the argument that the 
defendant was willing to enter into a fight with the mob 
with deadly weapons, as he may still plead self-defense if 
in shooting he acted solely for the protection o f his own 
life and not to inflict harm on the mob. State vs. Pollard 
(N. C.) 1915 B. L. R. A. 529.

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J. (Defendant’s Prayers 20 and 21) The refusal to 
give these prayers was error because there was nothing in 
the charge of the Court, making it sufficiently clear to the 
jury that the jury was to judge the defendant not by the 
actualities o f the case, but by the reasonable appearances 
to a man of ordinary prudence situated as the defendant 
was, to justify this refusal. 30 Corpus Juris 59; 25 Ameri­
can and English Encyclopedia o f Law, 259; Finder vs. 
State 27 Fla. 370; United States vs. Lewis, 111 Fed. 630; 
and see also Defendant’s Prayer No. 15.

K. (Defendant’s Prayer No. 22) The refusal o f the 
Court to give this prayer was erroneous when the said 
prayer is read in connection with the charge of the Court 
(p. 92) specifically holding out to the jury whether, the 
defendant was hunting for trouble. The whole tenor of the 
charge on page 92 was damaging to the character of the 
defendant, and it was a violation o f the Constitutional, 
rights of the defendant for the Court not to show the jury 
the other side o f  the situation, as covered in this prayer. 
Jones vs. United States Court of Appeals, D. C., Mav 
7,1923.

III.

The Court erred in its charge to the jury as follow s:
A. On self-defense, see II A, D, E, F, G, FI, I, and J.
B. The statement of the Court in its charge on page 92, 

already noted, that if the defendant's story was not true, the 
jury.was to find on the evidence what offense he was guilty 
of “ was prejudicial error not cured by any other part of 
the charge, in that it concentrated the attention o f the jury 
on the element of self-defense and diverted the attention 
o f  the jury away from the necessitating of finding first, 
that the defendant did in fact kill the deceased. The very 
theory of the prosecution as adopted by the Court in its 
charge on page 87 was that the defendant shot in the gen­

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eral direction o f the mob. There was evidence from other 
witnesses than the defendant both that there was firing 
before the defendant shot and immediately afterward. 
(R . pp. 21, 59, 75). Further, there was some conflict 
among the Government witnesses as to the identification of 
the bullet which killed the deceased and its connection with 
the defendant (R. pp. 49-55). The attention of the jury 
was directed away from this evidence by the portion o f the 
charge noted and this error was not cured by the subsequent 
correction by the Court in general language on Pages 94 
and 95. This portion of the charge deprived the defendant 
o f his Constitutional right to a fair and impartial jury trial.

IV.

Even if there be no specific errors grave enough to war­
rant a reversal of the conviction of the defendant, yet the 
whole record discloses that throughout the trial the de­
fendant was laboring under restrictions and rulings, the 
cumulative effect of which was to deprive him of a fair 
and impartial trial, as Constitutionally guaranteed' to him. 
Eagan vs. United States, 51 Wash. L. Rep. 242.

We respectfully submit that the judgment should be 
reversed.

James A. Cobb,
W illiam  L. H ouston, 
R oyal A. H ughes,

, For Appellant.

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