Brinkley v. The Great Atlantic & Pacific Tea Company Motion for Preliminary Injunction

    'DC

Ihtpronr (Court of tbr Unttrii §tatra
O ctobeb T eem  1941

Odell W alleb, 

against

Petitioner,

B ice M. Y ouell, S upebintendent of th e  State 
P en itentiaby , R ichm on d , V ibginia ,

Respondent.

NOTICE OF MOTION FOR LEAVE TO FILE 
ORIGINAL PETITION FOR WRIT OF 

HABEAS CORPUS

PETITION FOR WRIT OF HABEAS CORPUS

J oh n  F . F in eety , 
M oeeis S hapieo , 
Counsel for Petitioner.

M aetin  A . M aetin , 
T homas H . S tone,

Of Counsel.



INDEX

PAGE

Motion for Leave to File Petition for an Original 
Writ of Habeas Corpus ..........................................  1

Petition for Writ of Habeas C orpus.............................  3

Exhibit 1 ...........................................................................  15

Exhibit 2 ...........................................................................  15

Exhibit 3 ...........................................................................  16

Exhibit 4 ...........................................................................  19

Exhibit 5 ...........................................................................  22

Exhibit 6 ...........................................................................  24

Exhibit 7 ...........................................................................  27



§>itpr£ttt£ (ttourt of t\\v Unttei* States
O ctober T erm  1941

-------------+ --------------

Odell W aller,

against
Petitioner,

R ice M. Y ouell, S uperintendent of the  S tate 
P en itentiary , R ichm on d , V irgin ia ,

Respondent.
------------------------------+ --------------------- ---------

Motion for Leave to File Petition for an Original 
Writ of Habeas Corpus

To the  H onorable S upreme C ourt of the  U nited S ta t e s :

Your petitioner, O dell W aller, under sentence to die 
June 19, 1942, respectfully moves this Court that leave be 
granted him to file the attached petition for an original 
writ of habeas corpus.

Your petitioner further respectfully moves this Court 
that the petition for rehearing heretofore filed in Waller 
v. Youell, No. 1097 of this term, stand as a brief in sup­
port of the attached petition for an original writ of habeas 
corpus.

For the convenience of this Court in passing upon this 
motion, its attention is respectfully called to the fact that 
the attached petition for habeas corpus is substantially 
identical with the petition for habeas corpus heretofore 
filed with and dismissed by the Supreme Court of Appeals 
of Virginia, certiorari to review such dismissal having 
been denied by this Court on May 4th, 1942 by its order 
in No. 1097. The only changes have been in the following 
respects:



1. There has been deleted from the petition all allega­
tions with reference to the intent and pattern of the Con­
stitution and laws of Virginia, and only those allegations 
have been retained which involve the administration in 
fact of such laws.

2. There has been added:

(a) An allegation, supported by affidavit of petitioner, 
that he was not asked either by his trial counsel or by the 
trial court to waive his constitutional rights, and neither 
intended to, nor did expressly and intelligently consent to 
waive such rights, but relied on his counsel for adequate 
protection thereof.

(b) Affidavits of petitioner’s trial counsel that they 
neither intended to waive, nor were they authorized to 
Waive, petitioner’s constitutional rights or any jurisdic­
tional questions thereby involved, and at all times intended 
and endeavored to protect such rights and questions.

(c) Affidavit of Eleanor Bontecou, based on a survey of 
the poll tax states conducted under the auspices of the 
William C. Whitney Fund, and the New School for Social 
Research to determine the effect of poll taxes upon the 
exercise of the rights of franchise and jury service, with 
particular reference to the economic disabilities prevent­
ing payment of poll taxes by sharecroppers and Negroes.

Odell W aller,
Petitioner.

By J ohn  F . F inerty , 
M orris S hapiro ,

Counsel for Petitioner.
M artin  A. M artin ,
T homas H. S tone,

Of Counsel.



3

SUPREME COURT OF THE UNITED STATES 
O ctober T erm  1941

-----------f ----------
Odell W aller,

against
Petitioner,

R ice M. Y ouell, S uperintendent of th e  S tate 
P enitentiary , R ichm on d , V irginia ,

Respondent.
•------- ---— _ -------+ -------------------------------

Petition for Writ of Habeas Corpus

To the Honorable the Supreme Court of the United States:

The petition of Odell W aller respectfully shows:
1. Petitioner is a citizen of the United States and of the 

State of Virginia, and, prior to his detention, was a resi­
dent of Pittsylvania County, Virginia.

2. Petitioner is now unjustly and unlawfully imprisoned 
and restrained of his liberty and detained under sentence 
of death in the custody of Rice M. Youell, Superintendent 
of the State Penitentiary, Richmond, Virginia.

3. The sole color of authority by which said Rice M. 
Youell, Superintendent of said penitentiary, so restrains 
and detains petitioner is a commitment of the Circuit 
Court of Pittsylvania County, Virginia.

4. Petitioner alleges that said commitment and the pro­
ceedings upon which it is based are wholly null and void 
and without authority in law, and are violative of the



4

Constitution of the United States, in the following re­
spects and by reason of the following facts:

I.

Said commitment is based upon:

1. An indictment by a special grand jury of said Pitt­
sylvania County, charging petitioner with the murder in 
the first degree in said county on July 15, 1940 of one 
Oscar Davis.

2. Petitioner’s plea of not guilty to such indictment.

3. A  trial before the Circuit Court of said county and a 
petit jury thereof.

4. A  verdict against petitioner by said jury of murder 
in the first degree and fixing petitioner’s punishment at 
death.

5. Sentence by said Court on such verdict that peti­
tioner be, on December 27, 1940, electrocuted until dead, 
and commitment of petitioner to the State Penitentiary 
at Richmond, Virginia, pending his execution.

6. On March 4, 1941, the Supreme Court of Appeals of 
Virginia granted a writ of error and supersedeas to re­
view said judgment and sentence of the Circuit Court of 
Pittsylvania County.

7. On October 13, 1941, the Supreme Court of Appeals 
of Virginia affirmed the judgment and sentence of said 
Circuit Court.

A copy of the record before said Court on writ of error 
is attached to petition for certiorari heretofore filed in



5

this Honorable Court at the October 1941 term No. 1097 
made part of this petition, marked Exhibit 1.* Said rec­
ord contains a copy of said indictment (E. 31-32), a state­
ment of petitioner’s plea of not guilty (E. 23), a tran­
script of the evidence upon trial of petitioner before said 
Circuit Court (E. 85-127), the verdict of the jury and 
judgment of the Court, and commitment (E. 23-24).

8. On November 3, 1941, said Court resentenced peti­
tioner to be electrocuted until dead on December 12, 1941. 
A  copy of the order of said Court so resentencing peti­
tioner is attached hereto and made part hereof marked 
Exhibit 2. That the Governor of the State of Virginia 
granted a stay of execution from December 9, 1941 to 
March 20, 1942 in order to permit the petitioner to apply 
to the Supreme Court of Appeals of Virginia for a writ 
of habeas corpus.

9. A petition for writ of habeas corpus was heretofore 
submitted to the Supreme Court of Appeals of the State 
of Virginia, which said Court, on January 22, 1942, issued 
its order dismissing the said petition. That the Governor 
of the State of Virginia granted a further stay of execu­
tion to May 19, 1942 in order to permit the petitioner to 
apply to this Court for certiorari.

10. A petition to this Court for certiorari to review the 
dismissal of the petition for writ of habeas corpus by the 
Supreme Court of Appeals of the State of Virginia was 
denied by order entered on May 4, 1942. That the Gov­
ernor of the State of Virginia granted a further stay of 
execution to June 19, 1942 in order to permit the peti­
tioner to file in this Court a petition for rehearing, and 
this petition for an original writ of habeas corpus.

* The record of petitioner’s trial before the Circuit Court of Pittsylvania 
County is not reprinted herej for the reason that such cost is beyond peti­
tioner’s means, and the funds available for these proceedings contributed by 
interested citizens, are inadequate to meet such additional costs.



6

11. A  petition for rehearing of the order denying cer­
tiorari is being tiled in this Court on May 25, 1942, and 
this petition is contingent upon action to be taken by the 
Court thereon.

II.

The record before the Supreme Court of Appeals of 
Virginia on petitioner’s writ of error shows the following:

1. That upon petitioner’s case being called for trial in 
the Circuit Court of Pittsylvania County, petitioner, by 
his attorneys, moved the Court to quash the indictment

“ on the ground that said indictment had been re­
turned by a grand jury selected from the poll Tax­
payers of Pittsylvania County and that such mode 
of selection deprived the accused of his right to a 
trial by a jury of his peers and denied him due 
process of law and equal protection of the laws in 
contravention of the 8th Section of the Virginia Bill 
of Rights and the 14th Amendment to the Constitu­
tion of the United States”  (R. 31 ).*

The record then shows that no evidence was offered to 
support such motion, that the motion was overruled by 
the Court, and that petitioner’s counsel duly excepted 
(R. 31).

2. That thereupon, petitioner, by his counsel
“ moved the Court to quash the venire facias on the 
ground that said venire facias had been selected from 
a list of poll taxpayers of the County of Pittsylvania 
and that such manner of selection denied him his 
right to a trial by jury of his peers and deprived 
him of due process of law and equal protection of the 
laws, in contravention of the 8th Section of the 
Virginia Bill of Right(s) and the 14th Amendment to 
the Constitution of the United States”  (R. 32).

* Record references in this petition are as previously stated to Record be­
fore this Court on certiorari in No. 1097, October 10, 1941.



The record further shows that no evidence was offered in 
support of this motion, that the motion was overruled by 
the Court, and that petitioner’s counsel duly excepted (R. 
32).

3. That although said motions to quash the indictment 
and the venire facias were made upon the ground that the 
grand jury indicting petitioner and the venire facias from 
which was drawn the petit jury trying him were selected 
from poll tax payers of Pittsylvania County, nevertheless, 
the Supreme Court of Appeals of Virginia, upon writ of 
error from the judgment of conviction, specifically con­
strued such motions as based on the systematic exclusion 
of non-poll tax payers. Waller v. Commonwealth, 178 Va. 
294.

4. Thus, upon the calling of his cause for trial in the 
Circuit Court of Pittsylvania County, and before such 
trial was entered upon, petitioner’s counsel seasonably 
moved to quash the indictment and to quash the venire 
facias upon the ground that persons unable to pay their 
poll taxes were systematically excluded from grand and 
petit juries in such County, and had been so excluded from 
the grand jury indicting petitioner, and from the venire 
facias from which was drawn the jury before whom peti­
tioner was subsequently tried.

5. That, at the time the foregoing motions were made, 
petitioner’s counsel specifically stated that petitioner was 
of the same general social and economic category as those 
persons so barred from grand and petit jury service be­
cause unable to pay their poll taxes but no evidence was 
offered in support of this statement (R. 18-19, Exhibit 1,
p. 60).

6. That petitioner’s counsel in support of such motions, 
did not offer evidence of such systematic exclusion, being

i



8

then of the opinion as shown by their statements of rec­
ord before the said Circuit Court of Pittsylvania County, 
and by their affidavits hereto annexed as Exhibits 3 and 
4 that the Constitution and statutes of Virginia made the 
payment of poll taxes a prerequisite to both grand and 
petit jury service, and while the question had never been 
expressly decided by the Supreme Court of Appeals of 
Virginia, counsel believed, as likewise shown by their 
statements of record to the said Court that their con­
struction of the law was sustained by the decision in Craft 
v. Commonwealth, 65 Va. 602.

7. That in failing to offer evidence of such actual ex­
clusion, counsel did not intend to waive the constitutional 
and jurisdictional questions thereby presented, and were 
neither asked nor authorized by petitioner to make such 
waiver; on the contrary, as shown by the petition for writ 
of error to the Supreme Court of Appeals of Virginia, 
counsel continued to be of the foregoing opinion as to the 
law of the State of Virginia, and urged it upon the said 
Court until, in affirming petitioner’s conviction, that Court 
for the first time expressly held to the contrary.

8. That petitioner’s counsel failed to mak,e such proof 
of exclusion before the Circuit Court of Pittsylvania 
County due to a bona fide misapprehension as to the law 
of the State of Virginia and a bona fide mistake there­
fore as to the procedure necessary to establish the juris­
dictional and constitutional questions there raised on be­
half of your petitioner.

III.

1. Petitioner alleges that, on the record before the Su­
preme Court of Appeals of Virginia upon petitioner’s 
writ of error, no question therefore was presented to said 
Court as to whether non-payers of poll tax were in fact



uu

systematically barred from grand and petit jury service 
in Pittsylvania County, or were in fact so barred from 
the grand jury indicting petitioner, or from the petit jury 
trying petitioner, or from the venire facias or petit jury 
list from which such petit jury was drawn.

2. Petitioner further alleges that the opinion of said 
Court on the writ of error affirming petitioner’s convic­
tion, consequently did not pass on the question whether 
non-payers of poll tax were barred in fact from jury 
service in the respects alleged in the preceding paragraph, 
but held merely that, under the Constitution and laws of 
Virginia, non-payers of poll tax were not barred in law 
from either grand or petit jury service. Waller v. Com­
monwealth, supra.

3. Said opinion further shows that said Court held that, 
on the record before it upon such writ of error, there was 
no evidence that petitioner had or had not paid a poll tax, 
and that, therefore, petitioner was in no position to com­
plain of any discrimination, had any discrimination 
existed. Waller v. Commonwealth, supra.

IV.

That petitioner has exhausted all remedies available to 
him in the courts of the State of Virginia, first, by ap­
plication to the Supreme Court of Appeals of that State 
for a writ of error to review petitioner’s judgment of 
conviction and second, by application to that Court for a 
writ of habeas corpus following affirmance of petitioner’s 
conviction upon such writ of error. That application to 
this Court for certiorari to review the affirmance of peti­
tioner’s conviction upon writ of error to the Supreme 
Court of Virginia would have been useless, since the facts 
of exclusion, constituting denial of petitioner’s constitu­
tional rights, did not appear of record upon such writ of



10

error to the Supreme Court of Appeals of Virginia and, 
therefore, would not have appeared of record upon peti­
tion for certiorari to this Court.

V.

Petitioner alleges that he is a negro and that at the 
time of his trial he was twenty-three years of age, and 
had been for several years preceding, a sharecropper; 
that, as such, his economic circumstances prevented him 
from paying a poll tax, and that he had not in fact at any 
time paid a poll tax and at all times was unable to do so. 
Petitioner’s affidavit in this respect is attached to and 
made part of this petition, marked Exhibit 5.

VI.

1. Petitioner alleges that persons otherwise eligible for 
grand and petit jury service under the laws of Virginia, 
who have not paid poll taxes, are, in fact, systematically 
barred in Pittsylvania County, Virginia, from serving 
either as grand or petit jurors, and were, in fact, so 
barred from the grand jury indicting petitioner and 
from the petit jury before which petitioner was tried.

2. Petitioner alleges that, of the seven persons serving- 
on the special grand jury by which petitioner was in­
dicted, all had paid poll taxes, and all except one had 
paid poll taxes for the years 1938, 1939 and 1940, which 
such one, though apparently in default in his poll taxes 
for said years, had paid poll taxes for the year 1937.

3. Petitioner alleges that all persons on the petit jury 
before whom defendant was tried and all persons upon 
the venire facias from which said petit jury was drawn, 
had paid their poll taxes in full for the years 1938, 1939 
and 1940.



11

4. Petitioner further alleges that the persons sum­
moned by said venire facias were taken from a jury list 
compiled by the jury commissioners of Pittsylvania 
County in purported compliance with Section 4895 of the 
Code of Virginia; that said jury list contained the name 
of no person who had not paid a poll tax; that all names 
appearing on said jury list were names of persons ap­
pearing on the poll tax list of Pittsylvania County and 
no others; that said poll tax list contained the names of 
all persons who had paid poll tax for the year 1940 and 
within a period of two years preceding 1940, and of no 
other persons; that such poll tax lists were the exclusive 
source from which said jury commissioners drew the 
names appearing on said jury list; and that jury lists in 
Pittsylvania County are habitually so compiled, and there­
by non-payers of poll taxes are habitually and sys­
tematically excluded from juries in said County.

Petitioner further alleges that, for the purpose of ob­
taining like information as to the jury list of Pittsylvania 
County for 1939, counsel for petitioner attempted to ex­
amine the list compiled by the jury commissioners of 
Pittsylvania County for said year, which, petitioner is in­
formed and believes, is in the custody of the Clerk of the 
Circuit Court of Pittsylvania County; that said Clerk re­
fused counsel access to such jury list, stating that he so 
refused by direction of the judge of said Circuit Court, 
the Honorable J. T. Clement.

5. The affidavit of Martin A. Martin, setting forth the 
facts alleged in this section of the petition, is attached to 
and made a part hereof marked Exhibit 6.

VII.

1. Petitioner alleges that the Constitution and laws of 
Virginia, although construed by the Supreme Court of 
Appeals of that State not in law to require such exclusion,



have been administered in fact to exclude systematically 
from service as grand and petit jurors, a numerous and 
wide-spread class of citizens otherwise qualified, who, be­
cause of the disabilities common to the economic status 
of their class, have been unable to and have not paid poll 
taxes as required by such Constitution and laAvs.

2. Petitioner alleges that, while negroes and share­
croppers are not, as such, so barred from service as grand 
and petit jurors, they, because of their similar economic 
status, constitute a large proportion of the class of per­
sons so barred as grand and petit jurors, and that peti­
tioner himself is of such economic class so barred.

3. Petitioner alleges that such economic class who are 
unable and do not pay poll taxes and who are thereby 
barred from serving as grand and petit jurors, is so 
numerous and widespread that, in Pittsylvania County, 
Virginia, with a population for the year 1940 of approx­
imately 30,000 persons over 20 years of age, only ap­
proximately 6,000 were able to pay and did pay their poll 
taxes, and were thereby eligible in law to vote, and in fact 
to serve and grand and petit jurors. That of the remain­
ing 24,000 persons, non-payment of poll taxes was due 
principally and primarily to the economic status of such 
persons.

4. See affidavit of Martin A. Martin, setting forth the 
facts alleged in this section of the petition, attached to 
and made part hereof marked Exhibit 6. (See also affi­
davit of Eleanor Bontecou, attached to and made part of 
this petition marked Exhibit 7.)

VIII.

Petitioner alleges that, by reason of all the foregoing 
facts and circumstances, petitioner’s commitment and the 
proceedings upon which it is based are wholly null and



13

void and without authority in law, and are violative of 
the Constitution of the United States in the following 
respects:

1. In violation of the Fourteenth Amendment of the 
Constitution of the United States in that petitioner has 
been deprived of his liberty, and would be deprived of 
his life, without due process of law and without equal pro­
tection of the laws in the following respects:

(a) By reason of the fact that there were unlawfully 
and systematically excluded from the grand jury indict­
ing petitioner a numerous and widespread class of citizens 
of Virginia and residents of Pittsylvania County, other­
wise qualified, solely because of their non-payment of poll 
taxes, such non-payment arising out of the disabilities 
common to the economic status of their class, of which 
class petitioner is one.

(b) By reason of the fact that there were unlawfully 
and systematically excluded from the petit jury trying 
petitioner a numerous and widespread class of citizens of 
Virginia and residents of Pittsylvania County, otherwise 
qualified, solely because of their non-payment of poll 
taxes, such non-payment arising out of the disabilities 
common to the economic status of their class, of which 
class petitioner is one.

W herefore, by reason of the foregoing allegations, your 
petitioner prays that a writ of habeas corpus issue from 
this Honorable Court, to be directed to Rice M. Youell, 
Superintendent of the State Penitentiary, Richmond, Vir­
ginia, aforesaid, and whomever may hold your petitioner 
in custody, commanding him and them to have the body 
of your petitioner before this Honorable Court on a date 
to be fixed by said Court, for the purpose of inquiring 
into the cause of the commitment and detention of your



14

petitioner, and to do and abide such order as this Court 
may make in the premises.

Your petitioner further prays this Court that there­
upon your petitioner should be granted a discharge from 
such custody.

O dell W aller,
Petitioner.

B y  J ohn  F . F in erty , 
M orris S hapiro , 

Counsel for Petitioner.

M artin  A. M artin ,
T homas H. S tone,

Of Counsel.



15

(Refer to footnote on page 5.)

Exhibit 1.

Exhibit 2.
V irginia :

I n  the  S upreme C ourt of A ppeals held at the  C ourt 
L ibrary B uilding  in  the  C ity  of R ichm ond  on 
T hursday the  22nd day of J anuary , 1942.

This day cama Odell Waller, by counsel, and presented 
to the court his petition that a writ of habeas corpus issue 
directed to Rice M. Youell, Superintendent of the State 
Penitentiary, and whomever may hold said petitioner in 
custody, commanding him and them to have the body of 
petitioner before this court for the purpose of inquiring 
into the cause of the commitment and detention of said 
petitioner, with which petition were filed certain exhibits, 
to-wit: the record of the trial and conviction of petitioner 
in the Circuit Court of Pittsylvania county, the judgment 
in which was affirmed by this court on the 13th day of 
October, 1941; copy of order of the Circuit Court of Pitt­
sylvania county, dated the 11th day of November, 1941, 
resentencing the petitioner; affidavit of petitioner dated 
the 3rd day of December, 1941; and affidavit of Martin A. 
Martin, dated the 3rd day of December, 1941; and the 
court having maturely considered the said petition and 
exhibits therewith, is of opinion that the said writ of 
habeas corpus should not issue as prayed. It is therefore 
considered that the said petition be dismissed.

A copy, Teste:

(Signed) M. B. Watts Clerk



16

SUPREME COURT OF THE UNITED STATES 

O ctober T erm  1941

-----------------------4-----------------------

Odell W aller ,
Petitioner,

against

R ice M. Y ouell, S uperintendent  oe the  S tate 
P en iten tiary , R ichm on d , V irginia ,

Respondent.
-------------- --------- 4------ -----------------

Exhibit 3.

S tate oe V irginia |
C ity  of R ichm ond  J

T homas H. S tone, being  du ly sw orn, deposes and sa y s :

That your deponent is an attorney-at-law, duly licensed 
to practice in the State of Virginia and that he maintains 
an office and resides at Richmond, Virginia.

That your deponent has read the annexed petition and 
affidavit of Odell Waller and verily believes the same to be 
true and correct in all respects.

That your deponent, together with J. Byron Hopkins, 
Esq., also an attorney duly admitted to practice in the 
State of Virginia, acted as counsel for said Odell Waller 
at the time of his indictment and trial in the Circuit Court 
of Pittsylvania County, State of Virginia.

That, upon calling of the cause for trial and before such 
trial was entered upon, such counsel seasonably moved to 
quash the indictment and to quash the venire facias upon



IT

the grounds that persons unable to pay their poll taxes 
were systematically excluded from grand and petit juries 
in such county, and had been so excluded from the grand 
jury indicting petitioner, and from the venire facias from 
which was drawn the jury before whom the petitioner 
was subsequently tried; that petitioner himself was of the 
same general social and economic category as those ex­
cluded and similarly unable to pay his poll taxes; that 
thereby petitioner would be denied equal protection of the 
law and due process of law, in violation of the 14th 
Amendment to the Constitution of the United States.

That counsel, however, in support of such motions, did 
not offer evidence of such systematic exclusion, being 
then of the opinion, as shown by their statements of rec­
ord before said Court, that the Constitution and statutes 
of Virginia made the payment of poll taxes a prerequisite 
to both grand and petit jury service; that, while the ques­
tion had never been expressly decided by the Supreme 
Court of Appeals of Virginia, counsel believed, as likewise 
shown by their statements of record to said Court, that 
their construction of the law was sustained by the deci­
sion in Craft v. Commonwealth, 65 Va. 602.

That, neither in failing to offer evidence of such actual 
exclusion nor otherwise, did counsel intend to waive the 
constitutional and jurisdictional questions thereby pre­
sented, and were neither asked nor were authorized by 
said Waller to make such waiver.

That, on the contrary, as shown by the petition for writ 
of error to the Supreme Court of Appeals of Virginia, 
counsel continued to be of the foregoing opinion as to the 
law of Virginia, and urged it upon said Court, until, in 
affirming petitioner’s conviction, that Court expressly and, 
for the first time, held to the contrary.

Exhibit 3.



Exhibit 3.

That, therefore, counsel failed to make such proof of 
exclusion before the Circuit Court of Pittsylvania County, 
due to a bona fide mistake as to the law of Virginia and to 
a bona fide mistake as to the procedure necessary to estab­
lish the constitutional and jurisdictional questions there 
raised on behalf of petitioner.

T homas H . S tone

Sworn to before me this 
22nd day of May, 1942.

V. M. S terling , Notary Public. 
My Commission expires 
January 21, 1945

(Seal)



19

SUPREME COURT OF THE UNITED STATES 
O ctober T erm 1941

Exhibit 4.

♦

Odell W aller, 

against
Petitioner,

R ice M. Y ouell, S uperintendent of the  S tate 
P en itentiary , R ichm ond , V irginia,

Respondent.

A

S tate of V irginia 
C ounty  of H enrico

J. B yron H opkins, being duly sworn, deposes and says:
That your deponent is an attorney-at-law, duly licensed 

to practice in the State of Virginia and that he maintains 
an office and resides at Richmond, Virginia.

That your deponent has read the annexed petition and 
affidavit of Odell Waller and verily believes the same to 
be true and correct in all respects.

That your deponent, together with Thomas H. Stone, 
Esq., also an attorney duly admitted to practice in the 
State of Virginia, acted as counsel for said Odell Waller 
at the time of his indictment and trial in the Circuit Court 
of Pittsylvania County, State of Virginia.

That, upon calling of the cause for trial and before such 
trial was entered upon, such counsel seasonably moved to 
quash the indictment and to quash the venire facias upon



20

the grounds that persons unable to pay their poll taxes 
were systematically excluded from grand and petit juries 
in such county, and had been so excluded from the grand 
jury indicting petitioner, and from the venire facias from 
which was drawn the jury before whom the petitioner 
was subsequently tried; that petitioner himself was of the 
same general social and economic category as those ex­
cluded and similarly unable to pay his poll taxes; that 
thereby Waller would be denied equal protection of the 
law and due process of law, in violation of the 14th 
Amendment to the Constitution of the United States.

That counsel, however, in support of such motions, did 
not offer evidence of such systematic exclusion, being then 
of the opinion, as shown by their statements of record 
before said Court, that the Constitution and Statutes of 
Virginia made the payment of poll taxes a prerequisite to 
both grand and petit jury service; that, while the question 
had never been expressly decided by the Supreme Court 
of Appeals of Virginia, counsel believed, as likewise shown 
by their statement of record to said Court, that their con­
struction of the law was sustained by the decision in 
Craft v. Commonwealth, 65 Va. 602.

That, neither in failing to offer evidence of such actual 
exclusion or otherwise, did counsel intend to waive the 
constitutional and jurisdictional questions thereby pre­
sented and were neither asked nor were authorized by said 
Waller to make such waiver.

That, on the contrary, as shown by the petition for writ 
of error to the Supreme Court of Appeals of Virginia, 
counsel continued to be of the foregoing opinion as to the 
law of Virginia, and urged it upon said Court, until, in 
affirming petitioner’s conviction, that Court expressly and, 
for the first time, held to the contrary.

Exhibit If.



Exhibit

That, therefore, counsel failed to make such proof of 
exclusion before the Circuit Court of Pittsylvania County, 
due to a bona tide mistake as to the law of Virginia and to 
a bona tide mistake as to the procedure necessary to estab­
lish the constitutional and jurisdictional questions there 
raised on behalf of petitioner.

J. B yron H opkins

Sworn to before me this 
22nd day of May, 1942.

B. A. Cepnas, Notary Public.
My Commission expires August 7, 1943

(Seal)



22

Exhibit 5.

SUPREME COURT OF THE UNITED STATES

O ctober T erm  1941

------------ 4------------

Odell W aller, 

against
Petitioner,

R ice M. Y ouell, S uperintendent  oe th e  S tate 
P en itentiary , R ichm on d , V irginia ,

Respondent.

♦

S tate of V irginia 
C ounty  of H enrico

ss.:

Odell W aller, being duly sworn, deposes and says as 
follows:

That he is a citizen of the United States and of the 
State of Virginia, and prior to his detention, was a resi­
dent of Pittsylvania County, State of Virginia. That your 
deponent is now imprisoned and detained under sentence 
of death, in the custody of R ice M. Y ouell, Superintend­
ent of the State Penitentiary, Richmond, Virginia. That 
your deponent is a Negro. That prior to his detention, his 
occupation was that of a sharecropper. That at the time 
of his indictment and trial, your deponent was upwards 
of twenty-three years of age. That your deponent has not 
now or at any time heretofore, paid his poll taxes, and has 
been unable so to do by reason of his economic status.



211

That, at the time petitioner’s counsel moved before the 
Circuit Court of Pittsylvania County to quash petitioner’s 
indictment and to quash the venire facias from which was 
drawn the jury before whom deponent wms subsequently 
tried, deponent was not asked either by his counsel or by 
the Court to waive the constitutional and jurisdictional 
questions presented by such motions, nor did he authorize 
such waiver, nor intend that any such waiver should be 
made, but, at all times, desired and intended that all of his 
constitutional rights should be fully protected, including 
any jurisdictional questions thereby involved.

Odell W aller

Exhibit 5.

Sworn to before me this 
22nd day of May, 1942.

W illiam  J. B ryan  
Notary Public,

City of Richmond, Ya.
My Commission expires Oct. 25, 1942.

(Seal)



24

Exhibit 6.

I n  THE

SUPREME COURT OF APPEALS OF VIRGINIA

M artin  A. M artin , being  du ly  sw orn, deposes and says 
as fo llo w s :

That your deponent is an attorney at law, duly licensed 
to practice in the State of Virginia, and maintains an office 
and resides at Danville, Virginia. That your deponent has 
read the annexed petition of Odell W aller, and verily 
believes the same to be true and correct in all respects.

That your deponent examined the records in the office 
of the Clerk of the Circuit Court of Pittsylvania County, 
with respect to the payment of poll taxes by the grand 
and petit jurors who indicted and tried the petitioner 
herein. That such examination disclosed that of the seven 
persons serving on the special grand jury by which peti­
tioner was indicted, all had paid poll taxes, and all except 
one had paid poll taxes for the years 1938, 1939 and 1940, 
while such one, though apparently in default for his poll

Odell W aller,
Petitioner,

against

R ice M. Y ouell, S uperintendent  of the  S tate 
P en iten tiary , R ichm on d , V irginia ,

Respondent.

S tate of V irginia 
C ounty of H enrico



25

taxes for said years, had paid his poll tax for the year 
1937. That such examination further disclosed that all 
persons on the petit jury before whom the defendant was 
tried, and all persons upon the venire facias from which 
the said petit jury was drawn, had paid their poll taxes 
in full for the years 1938, 1939 and 1940. That the per­
sons summoned upon the said venire facias were taken 
from a jury list compiled by the Jury Commissioners of 
Pittsylvania County; that said jury list contained the name 
of no person who had not paid a poll tax; that all names 
appearing on said jury list were names of persons appear­
ing on the poll tax list of Pittsylvania County, and no 
others; that the said poll tax list contained the names of 
all persons who had paid poll tax for the year 1940, and 
within a period of two years preceding, and no other per­
sons; and upon information and belief that such poll tax 
list was the exclusive source from which the said Jury 
Commissioners drew the names appearing on said jury 
list, and such jury lists in Pittsylvania County are habitu­
ally and regularly so compiled.

That for the purpose of obtaining like information as 
to the jury list of Pittsylvania County for the year 1939, 
your deponent attempted to examine the list compiled by 
the Jury Commissioners of the said County, which depo­
nent is informed and verily believes is in the custody of 
the Clerk of the Circuit Court of Pittsylvania County; 
that said Clerk refused your deponent access to such jury 
list, stating that he so refused by direction of the Judge 
of said Circuit Court, the Honorable J. T. Clement.

That your deponent further examined the records in the 
office of the Treasurer of Virginia and in the branch office 
of the United States Bureau of Census at Richmond, Vir­
ginia, and ascertained therefrom that in Pittsylvania

Exhibit 6.



26

County, with a population for the year 1940 of 28,989 per­
sons over twenty years of age, only 5,929 persons were 
able to and did pay their poll taxes and were thereby 
eligible in law to vote.

M artin  A. M artin

Exhibit 6.

Sworn to before me this 
22nd day of May, 1942.

a
B. A. C epnas, Notary Public.

My Commission expires August 7, 1943

(Seal)



27

Exhibit 7.

City of Washington 
District of Columbia

E leanor B ontecou, being duly sw orn, deposes and s a y s :

That for the past two years she has been engaged in a 
study of the operation of the suffrage laws in the South­
ern states. This research was financed by the William C. 
Whitney Fund and conducted under the auspices of the 
New School for Social Research of New York City. The 
field work in this study was planned and carried on in co­
operation with the Carnegie Foundation which vas con­
ducting a study of the Negro in America.

Particular attention was paid to the operation of the 
poll tax laws in the eight states where the tax is made a 
prerequisite to the right to vote. Statistics show that in 
poll tax states only about 20 per cent of the adult popula­
tion vote, as against about 70 per cent in adjoining non­
poll tax states. In this connection all available written 
data was consulted relating to wages and income of 
share-croppers and agricultural laborers in those states 
in order to determine the extent to which the poll tax 
operates as an economic as well as a political bur­
den upon these groups. The field worker for the stud}, 
who travelled for six months in the poll tax states was 
also requested to collect all possible data as to cm rent 
rates of wages and income levels in the counties visited. 
To this end he interrogated county officials and local rep­
resentatives of the Federal Department of Agriculture and 
of the Works Progress Administration, and also ques­
tioned members of the groups, selected at random.

Deponent further states that in the present affidavit she 
relies principally upon the following for the statistical 
data presented: The United Btates Census of Popclatx® 
of 1930, the United States Census of Agriculture for M * .  
the reports of the National Resources Committee of tfc*



28

Federal Government on Consumer Incomes in the United 
States, and Consumer Expenditures in the United States, 
and the testimony submitted by the United States Depart­
ment of Agriculture to the Senate Committee on Educa­
tion and Labor at Washington, in May 1940. No other 
statistical reports have been found which contradict or 
radically differ from the above.

Deponent further states the following, upon information 
and belief:

All statistical studies reveal that income in the poll tax 
states, whether measured by per capita or family receipts, 
is far below the average for the United States. Further 
analysis of the more general studies indicates that these 
low income averages are due in large part to the extreme 
poverty of certain groups who constitute a large part of 
the population in these states; that is, the share-croppers 
and agricultural laborers.

In the South white families with less than $750 annual 
income and Negro families with less than $500 annually 
have usually had to spend more than their incomes upon 
the necessities of living. 47.5% of all farm families in the 
South and 53.1% of all Negro families in Southern rural 
communities have received less annual income than the 
amount found to be required for solvency.

The range of income of share-croppers and agricultural 
wage laborers is as follows:

Share-croppers received in the years 1932 to 1937 inclu­
sive from $193 income annually to $608. This high figure 
was received in only one area, the South Carolina coastal 
Plain. Cash income for this group varied in the same 
period from $119 annually for each family to $367.

Wage laborers in the same areas in those years received 
family income of from $193 to $405 annually. Cash in­
come for this group was from $126 to $292 a family.

Exhibit 7.



29

In 1935 there were at least 1,035,921 share-croppers and 
agricultural wage laborers in the poll tax states. In many 
of the counties where the plantation system still prevails 
these groups constitute a large majority of the popula­
tion. The large majority of negroes are unable to pay 
poll taxes, and a large proportion of non-poll tax payers 
are negroes.

The reports of the field worker referred to above cor­
roborated and supplemented the generalities of statistical 
data. In many of the counties visited agricultural wages 
were found to be from 50 to 75 cents a day for a ten hour 
day. Work was not available at all times of the year. In 
a number of the counties the number of families receiving 
an income of less than $400 a year was reported to be 
from 1000 to 3000. Examination of voters lists and other 
county records showed that very few share-croppers or 
wage laborers had in fact paid the poll tax, and interviews 
with individuals confirmed the statistical data which in­
dicated that in many cases such payment was a financial 
impossibility or could be made only by the sacrifice of 
some need of decent living. Where the poll tax was cumu­
lative many of the members of these groups found them­
selves permanently barred not only from voting but from 
participation in local government, including the right to 
serve on juries, since either by statute or administrative 
practice poll tax payment is made the prerequisite to par­
ticipation in these activities.

E leanor B ontecou

Subscribed and sworn to before me at
Washington, D. C., on May 21st, 1942.

Geo. B. E arnshaw  
Notary Public, D. C.

My Commission Expires Sept. 17, 1943.

(Seal)

Exhibit 7.