Taylor v. Alabama Record and Briefs

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A L A B A M

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Supreme Court of the United States
October Term, 1948

No. 121 Miscellaneous

SAMUEL TAYLOR,

vs.
Petitioner,

TENNYSON DENNIS, Warden Alabama State 
Penitentiary, Kilby, Alabama,

Respondent.

PETITION FOR REHEARING AND FURTHER RELIEF

N esbitt  E lm o re ,
Montgomery, Alabama,

T hurgood M ar sh a ll ,
New York, New York,

Attorneys for Petitioner.

F r a n k  D. R eeves,
F ra n k lin - H. W il l ia m s ,
C onstance  B ak er  M o tley ,
R obert L. Carter ,

Of Counsel.





TABLE OF CASES

PAGE

Ashcraft v. Tennessee, 322 U. 8. 143 _______________  4
Brisko v. Commonwealth Bank of Kentucky, 33 U. S.

(8 Pet.) 118 ____________________________________  6
Brown v. Mississippi, 313 U. S. 547 _________________  4
Chambers v. Florida, 309 U. S. 227 ___________ _____  4
Ex parte Hawk, 321 U. 8. 114 _____________________  5,
Ex parte Quinn, 317 U. S. 1 .... ___________________
Ex parte Taylor, 249 Ala. 670, 32 So. (2d) 659 ________
Haley v. Ohio, 332 U. S. 596 ______________________
Hirota v. General MacArthur, 93 L. ed. (Adv. Op.)

119_____________________________________________
Holiday v. Johnston, 313 U. S. 342 _________________ _ 5,
Home Ins. Co. of N. Y. v. New York, 119 U. S. 129, 148;

122 U. 8. 636; 134 U. S. 594 ____________________
House v Mayo, 324 U. S 42 _______________________ 4, 5,
Johnson v. Zerbst, 304 U. S. 458 ___________________
Lee v. Mississippi, 332 U. S. 722 ____________________
Lisenba v. California, 314 IT. S. 219 ________________
Malinski v. New York, 324 U. S. 401__________________
Marzani v. United States, — U. S. 93 L. ed .__________
Marino v. Ragen, 332 U. 8. 561_____________________
Mooney v. Hololian, 294 U. 8. 103____________________
New York v. Millan, 33 U. S. (8 Pet.) 120_____________  6
Polack v. Farmers Loan and Trust Co., 157 U. S. 429,

586; 158 U. S. 601_______________________________  6
Price v. Johnston, — U. S. —, 93 L. ed. (Adv. Op.)

993_____________________________________ ..._______ 5
Smith v. O’Grady, 312 U. S. 329 ____________________  8
Taylor v. Alabama, — U. S. —, 92 L. ed. (Adv. Op.)

1394 2 8
Taylor v. State, 249 Ala. 130, 30 So. (2d) 256__________  1

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U. 8. v. Adams, 320 U. S. 220 ________________________  5
Vernon v. Alabama, 313 U. S. 547 __________________ 4
Von Moltke v. Gillies, 332 U. S. 708__________________  5
Wade v. Mayo, 332 U. S. 672 _______________________ 4
Waley v. Johnston, 316 U. S. 101____________________
Walker v. Johnston, 312 U. S. 275 __________________  5,
Ward v. Texas, 316 IT. S. 547 ________________________
White v. Ragen, 324 U. 8. 760 _____...________________
White v. Texas, 310 U. S. 530 _______________________4, 5,
Williams v. Kaiser, 323 U. 8. 471___________________

Statutes and Other Authorities

Title 28, United States Code, Sections 2241-2255 ______ 5
A Memorandum Decision, 40 Harv. L. Rev. 485, Janu­

ary, 1927------1-------------------------------------------------- _____ 10

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Supreme Court of the United States
October Term, 1948

No. 121 Miscellaneous

S a m u e l  T aylob ,

vs.
Petitioner,

T en n yso n  D e n n is , Warden Alabama State Penitentiary, 
Kilby, Alabama,

Respondent.

PETITION FOR REHEARING AND FURTHER RELIEF

To the Honorable Chief Justice of the United States and 
the Justices of the Supreme Court of the United 
States:

Petitioner respectfully presents this petition pursuant 
to Rule 33 of the Rules of this Court for a rehearing of 
the above-entitled cause decided on the 7th day of Febru­
ary, 1949, by an evenly divided Court of eight (8) Justices. 
Petitioner respectfully submits the following reason why 
the relief prayed for should be granted:

On November 19,1946, petitioner was sentenced to death 
by electrocution upon a conviction of rape in the Circuit 
Court of Mobile County, Alabama, which judgment was 
affirmed by the Supreme Court of Alabama on April 24, 
1947. Taylor v. State, 249 Ala. 130, 30 So. (2d) 256. On 
November 13, 1947, that Court denied petitioner permission 
to file a petition for writ of error coram nobis in the trial



2

court, Ex Parte Taylor, 249 Ala. 670, 32 So. (2d) 659, which 
decision was subsequently affirmed by this Court. Taylor 
v. Alabama, — U. S. —, 92 L. ed. (Adv. Op. 1394).

In the majority opinion of this Court it was made clear 
that the review of the judgment was limited to the pro­
cedural question of whether or not the coram nobis remedy 
as used in Alabama denied petitioner due process of law. 
It was held that the procedure was in conformity with the 
due process clause and that the Supreme Court of Alabama 
did not deny petitioner due process by refusing permission 
to file for coram nobis after taking into consideration the 
entire record of the original trial along with certain photo­
graphs produced by the State of Alabama and supported by 
affidavit. The majority opinion, however, was careful to 
point out that: “ If the new petition (seeking permission 
to file petition for writ of error co-ram nobis) and its sup­
porting affidavits stood alone or had to be accepted as 
true, the issue would be materially different from what it 
is.”  Taylor v. Alabama, 92 L. ed. (Adv. Op.) at page 1401.

Mr. Justice F r a n k fu r te r  in concurring pointed out that:
‘ ‘ In reaching such a conclusion the Supreme Court of Ala­
bama was entitled to consider the circumstances of the 
original trial, the manner of its conduct by the trial judge, 
the professional ability with which the defendant was repre­
sented, the behavior of the accused throughout the proceed­
ings, and, in the light of all these circumstances, the weight 
to be attached to the affidavits on which his present peti­
tion is based.’ ’ Mr. Justice F r a n k fu r te r  concluded: “ But 
this merely carries me to sustaining the judgment of the 
Alabama Supreme Court. There is not now before us any 
right that the petitioner may have under the Judicial Code 
to bring an independent habeas corpus proceeding in the 
District Court of the United States.”



3

Mr. Justice M u r p h y  in his dissenting opinion in which 
Mr. Justice D ouglas and Mr. Justice R utledge concurred 
pointed out that “ Fortunately, this Court has not yet made 
a final and conclusive answer to petitioner’s claim. . 
Nothing has been held which prejudices petitioner’s right 
to proceed by way of habeas corpus in a federal district 
court, now that he has exhausted his state remedies. He 
may yet obtain the hearing which Alabama has denied 
him. ’ ’

Thereupon, petitioner filed a verified petition for writ 
of habeas corpus in the United States District Court for 
the Middle District of Alabama (R. 1-5), and a rule to show 
cause was issued by that court. The Attorney General of 
the State of Alabama filed a pleading captioned “ Return 
to Rule”  (R. 8-9). This had the force and effect of a mo­
tion to dismiss and was so recognized by the court and the 
Attorney General of Alabama (R. 12). Under these cir­
cumstances, the allegations of the verified petition had to 
be accepted as true at that stage of the proceedings. A 
hearing was held on the verified petition and the motion to 
dismiss. Under normal procedure, such a hearing is limited 
to legal arguments and was so limited in this case. No 
pleadings were filed by the State of Alabama to bring to 
issue the allegations in the verified petition. It cannot be 
argued that at this stage of the proceeding, petitioner was 
obliged to or should have been prepared to produce testi­
mony.

Orderly procedure permits testimony only after the 
i espondent has made a full and complete return and has 
placed in issue the factual basis for the petition for writ of 
habeas corpus. The record in the original trial was not 
before the district court. Respondents had filed neither a 
return within the accepted meaning of that term, nor an 
answer, nor any denial of the factual basis for the petition.



4

The decision of the district judge was allegedly based upon 
the legal insufficiency of the petition and was admittedly 
determined by: (a) the verified petition, and, (b) the opin­
ions of the Supreme Court of Alabama and of this Court 
in the coram nobis case.

In applying to this Court for a writ of certiorari peti­
tioner relied upon principles of law which heretofore had 
been considered clear and well established:

a. Use by a state of a coerced confession to obtain a 
conviction for a crime is a violation of the due process 
clause of the Fourteenth Amendment.

Lee v. Mississippi, 322 U. S. 722;

Haley v. Ohio, 332 U. S. 596;

Malinski v. New York, 324 U. S. 401;
Ashcraft v. Tennessee, 322 U. S. 143 ;

Ward v. Texas, 316 U. S. 547;
Lisenba v. California, 314 U. S. 219;

Vernon v. Alabama, 313 U. S. 547;

White v. Texas, 310 U. S. 530;

Chambers v. Florida, 309 U. S. 227;

Brown v. Mississippi, 313 U. S. 547.

b. A habeas corpus proceeding in the Federal District 
Court is the proper method of attacking a conviction ob­
tained in a state court in violation of defendant’s consti­
tutional rights, after the exhaustion of state remedies.

White v. Hagen, 324 U. 8. 760;
Wade v. Mayo, 332 U. 8. 672;
House v. Mayo, 324 U. S. 42;



a

Ex parte Hawk, 321 U. 8. 114;

Mooney v. Holohan, 294 U. S. 103;

Title 28, United States Code, Sections 2241-2255.
e. The allegations of a petition for habeas corpus in 

Federal courts must be taken as true in the absence of an 
answer or a hearing.

White v. Hagen, 324 U. S. 760;
House v. Mayo, 324 U. S. 42;
Williams v. Kaiser, 323 U. S. 471;
U. 8. v. Adams, 320 U. S. 220.

d. The Federal District Court is under the duty to 
forthwith award the writ of habeas corpus, unless it ap­
pears from the petition itself that the party is not entitled 
thereto.

Holiday v. Johnston, 313 U. S. 342;

Price v. Johnston, — U. S. — ; 92 L. ed. (Adv. 
Op.) 993;

Von Moltke v. Gillies, 332 U. S. 708;
Marino v. Hagen, 332 U. S. 561;
U. 8. v. Adams, 320 U. S. 220;

Ex parte Quirin, 317 U. S. 1;

Walker v. Johnston, 312 U. S. 275;

Title 28, United States Code, section 2243 (then, 
28 U. S. C. #461).

e. The prior proceedings in this case did not relieve the 
District Court of its duty to afford petitioner a hearing on 
the allegations of the petition for habeas corpus.

House v. Mayo, 324 U. S. 42;
Waley v. Johnston, 316 U. S. 101.



6

These principles of law heretofore considered clear and 
well established are inextricably involved in this case. The 
decision by an equally divided court has cast grave doubt 
and confusion upon these principles.

The case was placed on the summary docket, thereby 
limiting argument to one-half hour by one attorney. This 
Court denied the request of attorneys for petitioner that 
two attorneys be permitted to argue the case for a half 
hour each. The respondent did not appear for argument so 
that the entire argument was limited to one-half hour.

Less than a week after argument, the Court entered its 
per curiam decision, affirming the judgment by an equally 
divided court in this, “ a matter of life and death, a matter 
of constitutional importance” . (Mr. Justice M u r p h y  in 
dissenting opinion.)

This case imperatively requires rehearing and final dis­
position of the case by majority vote of this Court. This 
case reached the Court by petition for certiorari, not on 
appeal. The review thus came to petitioner because a suffi­
cient number of this Court deemed the specific questions 
presented to be of sufficient general importance to require 
decision by this Court. The per curiam, order of affirmance 
by an equally divided court fails to supply that decision. 
Instead it leaves the law of this case in a state of confusion 
and casts doubt on the applicability of the principle involved 
to other cases.

For many decades, the practice has been followed, when­
ever practicable, of having questions of the nature involved 
in this case heard by the full court so that a judgment therein 
might be by a majority of the Court. Brisko v. Common- 
wealth Bank of Kentucky, 33 IT. S. (8 Pet.) 118; New York 
v. Millan, 33 IT. 8. (8 Pet.) 120; Home Ins. Co. of New York 
v. New York, 119 IT. 8. 129, 148; 122 IT. S. 636; 134 U. 8.



7

594; Polack v. Farmers Loan and Trust Co., 157 U. S. 429, 
586; 158 U. S. 601.

Mr. Justice B la ck  did not participate in either the hear­
ing of argument or the decision in this case, and we respect­
fully submit that for the reasons set out above, a rehearing 
should be granted in this case in order to give to Mr. Justice 
B lack  an opportunity to reconsider his position in the light 
of the equally divided Court so that the doubt and confusion 
as to the principles of law involved may be resolved one 
way or the other. The precedent for such action has been 
recognized in the case of Hirota v. General MacArthur, 93 
L. ed. (Adv. Op.) 119 and the granting of a rehearing in 
the case of Marzani v. United States, — U. S. —, 93 L. 
ed. —.

The opinion of this Court in the first Taylor case did not 
pass upon the constitutional question as to whether or not 
the conviction of Samuel Taylor was based upon a denial * 
of due process of law. The decision of this Court in the 
instant case leaves this question as well as the procedural 
question in doubt. Unless these points are clearly decided 
in this case they can never be decided. There is now no 
other judicial remedy open to petitioner to prevent his death 
by electrocution.

The per curiam order of the Court in this case does not 
disclose the reasons for Mr. Justice B l a c k ’s nonparticipa­
tion. Whatever they may be, petitioner is convinced that 
if upon reconsideration Mr. Justice B la ck  were to agree 
to hear and participate in the decision of this case, petitioner 
would thereby be afforded a full and complete hearing and 
the possibility of a definitive determination of the issues 
in this case so as to remove the doubt now existing as a re­
sult of the present per curiam order. If Mr. Justice B lack  
sits and hears argument on this case it might not be neces­
sary for him to participate in the final decision in order to



8

have a majority decision. In the Hirota case, Mr. Justice 
J ackson  while agreeing to hear argument did not partici­
pate in the final determination of the case because a ma­
jority decision was possible without his participation.

Prior to the decision in this case the law was clear that, 
after state remedies had been exhausted by a petitioner 
without a hearing on the merits of claimed violations of the 
Constitution, United States District Courts were prohibited 
from dismissing a petition for habeas corpus sufficiently 
alleging facts to show such constitutional violation without 
a hearing on the merits. Ex Parte Hawk, supra, and White 
v. Ragen, supra, and as modified by House v. Mayo, supra, 
and Wade v. Mayo, supra. The order of this Court in the 
instant case leaves an unresolved doubt, therefore as to the 
present availability of habeas corpus upon the exhaustion 
of state remedies in the process of which no hearing on the 
merits was given. This doubt is particularly strong when 
the opinion of the District Court herein and the opinion of 
this Court in Taylor v. Alabama are considered together.

The order of this Court creates doubt concerning the 
principle of the truth of uncontroverted facts in a Petition 
for Writ of Habeas Corpus. From an examination of the 
cases Walker v. Johnson, supra.; Waley v. Johnston, supra; 
Holiday v. Johnston, supra; Johnson v. Zerbst, 304 U. S. 
458; Smith v. O’Grady, 312 U. 8. 329, it was clear that the 
uncontroverted facts in a petition for writ of habeas corpus 
to a federal court must be taken as true in the absence of 
an answer or a hearing. In response to the rule to show 
cause in the Court below, the State of Alabama did not sub­
mit an answer nor was a hearing granted upon the facts of 
the petition by the Court. There can be no question but 
that the allegations of such petition, if true, sufficiently set 
forth facts constituting a violation of constitutional rights 
by a state court in the trial of the petitioner. The District



9

Judge, however, upon receipt of a motion to dismiss, which, 
for all intents and purposes admits the truth of such allega­
tions, refused to accept the allegations as true and without 
more concluded rather “ that a further hearing is not re­
quired by the Constitution of the United States” . (Italics 
ours.)

The Court’s per curiam order of February 7, it is sub­
mitted, places an unwaranted effect upon the decision in 
Mooney v. Hollahan, supra, insofar as that case requires 
that state courts, equally with federal courts, provide a 
remedy whereby one claiming to have been convicted in 
violation of basic constitutional rights may have such claim 
judicially tested. The effect of the order of affirm­
ance of this Court is to give the courts of Alabama the sole 
jurisdiction for entertaining such applications according 
to Alabama’s coram nobis standard.

The order of the Court in effect further completely bars 
the remedy of and the standards of habeas corpus in the 
federal courts in all circumstances to any person detained 
by authority of an Alabama state court after disposal of 
petition for permission to file for coram nobis. The order 
fuither gives sanction to the Alabama coram nobis prac­
tice of requiring a petitioner to prove his innocence as a 
pi erequisite to obtaining a hearing on his claim of viola­
tion of constitutional rights. Clearly, as pointed out in 
petitioner’s brief and in argument before the Court, no 
such rule had heretofore existed in the federal courts.

The order of the Court further gives sanction to Ala­
bama’s practice of speculating on the verity of the allega­
tions of a petition for coram nobis. While it may be ad­
mitted that Alabama has the right to set up such procedure 
as it may deem appropriate subject to the limitations of due 
process for the consideration of claims such as the one 
which petitioner makes, it is submitted that the intent of 
the Mooney v. Hollahan doctrine was not to bar completely



10

the right to federal habeas corpus by a state prisoner, un­
less he had obtained in the state court, through habeas 
corpus, coram nobis or other similar procedure, a hearing 
on the merits of his petition according to the standards 
which prevail in the federal courts on habeas corpus.

In Waley v. Johnston, 316 U. S. 101, 104, this Court 
stated: “ True, petitioner’s allegations in the circumstances 
of this case may tax credulity. But in view of their spe­
cific nature, . . . and the failure of respondent to deny . . . 
them specifically, we cannot say that the issue was not one 
calling for a hearing within the principles laid down in 
Walker v. Johnston, 312 U. S. 275, 85 L. Ed. 830, 61 S. Ct. 
574. . . .  If the allegations are found to be true, peti­
tioner’s constitutional rights were infringed.”

The decision of the District Court denied a hearing on 
the merits and dismissed the petition on the grounds that 
the issues had been disposed of in the coram nobis proceed­
ings. Thus, instead of applying the standards for disposi­
tion of habeas corpus proceedings in federal courts the Dis­
trict Court substituted the contrary standards for state 
court determination of coram, nobis applications. The fac­
tual basis of the coram nobis proceedings was determined 
by the decision.

The decision in this case now affirmed by an equally 
divided court cannot be rationalized with the former opinion 
of this Court in the coram nobis proceeding. There are 
several clear principles of law involved in this decision which 
cannot be rationalized with existing decisions.1 The equally

1 In a note concerning reversals by memorandum opinions it has 
been stated that “ An opinion is a check on ‘administrative justice’ 
and doubtful reasoning. It makes possible the thoughtful extension, 
limitation or correction of doctrine in subsequent cases. It is a guide, 
in the present instance much needed, to counsel and inferior courts. 
It is a mark of respect in case of reversal, for the court reversed. It 
is submitted that in cases like the present, there are grave objections 
to the Court’s departure from its practice of delivering opinions.” 
A Memorandum Decision, 40 Harv. L. Rev. 485, January, 1927.



11

divided court and the lack of opinion thereby casts doubt 
upon these principles of law. The present decision in this 
case and the resultant confusion will increase rather than 
decrease the applications to this Court for certiorari from 
decisions of district courts.

The effect of the Court’s order is to completely bar peti­
tioner’s right to a hearing with compulsory process and 
right of cross examination in any judicial forum. Such a 
consequence, it is submitted, is in and of itself a denial of 
due process.

It cannot be said that petitioner’s claims are without 
merit. There was a vigorous dissenting opinion in the 
Alabama Supreme Court and in this Court on the coram 
nobis proceeding. If petitioner is now electrocuted there 
will always be grave doubt as to whether or not his life was 
taken without due process of law. Our Constitution re­
quires that due process of law be afforded at every step of 
our judicial proceedings. Is it not more in keeping with our 
principles to grant a full and complete hearing of this peti­
tioner’s claim of denial of rights guaranteed by our 
Constitution?

Conclusion

Petitioner has been seeking a hearing of his claim that 
his conviction is in violation of the United States Consti­
tution—a hearing within the accepted meaning of the word. 
If he had been granted such a hearing the entire matter 
would have been disposed of. If his claims were so un­
believable the State of Alabama would not have opposed 
such a hearing at every stage of both proceedings.

We are not unaware of the large number of petitions 
for writs of habeas corpus in federal courts. On the other



12

hand, we are certain that the present decision by an equally 
divided court will increase rather than decrease applica­
tions to this Court for review of such cases.

Where a man’s life is at stake and constitutional rights 
are involved his life should not be taken as the result of a 
decision by an equally divided court based upon a half hour 
argument.

W h erefore , petitioner prays that this Court grant to 
petitioner a re-hearing by having the case placed on the 
regular docket for a full hearing. Petitioner further prays 
that Mr. Justice B la c k  reconsider his reasons for not par­
ticipating in this case and in the light of the equally divided 
court that he participate in the hearing of argument and 
if necessary the final decision of the case.

Counsel represents to the Court that this petition for 
re-hearing and other relief is not filed for the purpose of 
delay.

N esbitt E lm o re ,
Montgomery, Alabama,

T htjrgood M a r sh a ll ,
New York, New York,

Attorneys for Petitioner.

F r a n k  D . B eeves,
F r a n k l in  H . W il l ia m s ,
C onstance  B aker  M o tley ,
R obert L . Carter ,

Of Counsel.





L a w y e r s  P ress, I n c .. 165 William St., N. Y. C. 7; ?Phone: BEekman 3-2300







SUPREME COURT OF THE UNITED STA TES

OCTOBER TERM, 1947

No. 721

SAMUEL TAYLOR,
Petitioner,

vs.

STATE OF ALABAMA

ON W RIT OF CERTIORARI TO TH E  SUPREM E COURT OF T H E  STATE

OF ALABAM A

BRIEF FOR PETITIONER

E dward R . D u d le y ,

T hurgood  M a r sh a ll , 
N esbitt  E lm o re ,

Counsel for Petitioner.

A r t h u r  D . S h ores ,
F r a n k l in  H. W il l ia m s ,

Of Counsel.



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INDEX

T able of C on ten ts
Page

Opinion of court below .................................................  1
Jurisdiction ................................................................... 1
Summary statement of matter involved...................  2

1. Statement of ca se .............................................. 2
2. Statement of fa c ts ............................................  3

Question presented.......................................................  5
Errors relied upon .......................................................  6
Outline of argument...................................................... 6
Summary of argument.................................................. 6
Argument ....................................................................... 7

I. The Supreme Court of Alabama erred in deny­
ing petitioner’s motion for leave to file a 
petition for a writ of error coram nobis. . . .  7

A. The conviction of petitioner through
the use of a confession extorted by 
force, violence and fear is a violation 
of the Fourteenth Amendment.........  7

B. The refusal to permit petitioner to file
a petition for a writ of error coram 
nobis to raise this question and to 
introduce testimony in support 
thereof at a hearing free from fear
was a denial of due process............... 8

Conclusion ..................................................................... 13

T able of C ases

Ashcraft v. Tennesse, 322 U. S. 143............................  8
Brown v. Mississippi, 297 U. S. 278............................  7
Canty v. Alabama, 309 U. S. 629..................................  7
Chambers v. Florida, 309 U. S. 227............................  7
Carter v. Illinois, 329 U. S. 173....................................  13
Ex Parte Burns, 22 So. (2d) 517..................................  8
Ex Parte Lee, 27 So. (2d) 147......................................  8
Haley v. Ohio, 92 L. E d .— ............................................  8

—6031



11 INDEX

Page
Eysler v. Florida, 315 U. S. 411..................................  12
Johnsons. Williams, 13 So. (2d) 683........................  8
Lee v. Mississippi, 92 L. E d .— ....................................  8
Lisenba v. California, 314 IT. S. 219............................  7
Lomax v. Texas, 313 IT. S. 544....................................  7
Lyons v. Oklahoma, 322 IT. S. 596................................  8
Malinski v. New York, 324 U. S. 401............................  8
Marino v. Ragen, 92 L. Ed. — ....................................  9
Mooney v. Holohan, 294 IT. S. 103................................  8
Pyle v. Kansas, 317 IT. S. 2 13 ......................................  11
Redus v. Williams, 13 So. (2d) 5 6 1 ............................  8
Rice v. Olsen, 324 U. S. 786...........................................  11
Taylor v. State, 32 So. (2d) 659....................................  8
Tompkins v. Missouri, 323 IT. S. 485 ..........................  10
Vernon v. Alabama, 313 IT. S. 547 ..............................  7
Ward v. Texas, 316 IT. S. 547 ........................................ 7
White v. Texas, 309 U. S. 631, 310 IT. S. 530.................  7
Williams v. Kaiser, 323 IT. S. 471................................  10



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 721

SAMUEL TAYLOR,

vs.
Petitioner,

STATE OF ALABAMA,
Respondent.

BRIEF FOR PETITIONER

The majority and dissenting opinions of the Supreme 
Court of Alabama appear in the record filed in this cause 
(R. 16-28) and are reported at------Ala.------ , 32 So. (2d) 659.

Jurisdiction

Jurisdiction of this Court is invoked under Sec. 237(b) 
of the Judicial Code (28 U. S. C. 344(b)), as amended 
February 13, 1925.

The date of judgment was the 4th day of December 1947, 
on which date the Supreme Court of Alabama overruled 
petitioner’s application for rehearing in this cause (R. 30), 
after said court had, on the 13th day of November 1947, 
denied petitioner’s application for leave to file a petition 
for writ of error coram nobis in the Circuit Court of Mobile



2

County, Alabama (R. 28). Petition for certiorari was filed 
on March 3, 1948 and was granted by this Court on April 5, 
1948 (R. 31).

Summary Statement of Matter Involved

1. Statement of Case

Petitioner, Samuel Taylor, an ignorant Negro youth, was 
charged with having committed the crime of rape of a white 
girl; was tried, convicted and sentenced by the Circuit Court 
of Mobile County, Alabama, on the 19th day of November 
1946. Judgment and sentence of death was imposed upon 
petitioner on the 19th day of November 1946. Petitioner is 
now confined in an Alabama state penitentiary under sen­
tence of death, pursuant to the said judgment.

On the 24th day of April, 1947, the Supreme Court of 
Alabama affirmed the judgment of the Circuit Court of 
Mobile County, Alabama.

On September 18,1947, petitioner applied to the Supreme 
Court of Alabama for leave to file an application for writ 
of error coram nobis before the Circuit Court of Mobile 
County, Alabama (R. 1). The petition and supporting 
affidavits alleged that the confession upon which petitioner’s 
conviction was based was extorted by force and violence 
exerted against him by state officers; that he was ignorant 
of his rights at the time of trial and because of fear of 
reprisals did not advise his court-appointed attorney that 
the said confession was so extorted; that petitioner’s new 
attorney was not advised of these facts until after peti­
tioner’s conviction, the preparation and filing of the motion 
for new trial, the overruling of said motion by the Circuit 
Court of Mobile County, Alabama, the appealing of peti­
tioner’s case and the docketing of same and the decision 
of said Supreme Court of Alabama as aforesaid (R. 1-11).



3

The State of Alabama moved to dismiss the said petition 
and the issue was thus submitted for determination of the 
court (R. 11-15). The Supreme Court of Alabama denied 
the application, holding that:

1) The proposed attack on the judgment lacked 
merit; and

2) The allegations of the petition were unreasonable 
and there was no probability of truth therein (R. 16-20).

3) Petitioner did not testify in the original trial and 
the petition did not contain a “ positive statement of 
denial of guilt or present protestation of innocence.”

The dissenting opinion pointed out that the writ of error 
coram nobis was proper to reach facts which were unknown 
to the court when judgment was pronounced and which the 
petitioner was prevented from presenting because of duress, 
fear or other sufficient cause and that in this case “ the 
petition considered in the light of the record shows a reason­
able probability of the truth of the allegations in the peti­
tion and entitles petitioner to leave to seek relief in the trial 
court”  (R. 20-28).

In this Court, petitioner asserts that his constitutional 
right to due process of law was violated by the action of the 
Supreme Court of the State of Alabama in denying him 
permission to file an application for writ of error coram 
nobis in the Circuit Court of Mobile County, Alabama.

2. Statement of Facts
The details surrounding the obtaining of the alleged con-. 

fession from petitioner, upon which his conviction below 
was based, appear in the petition for writ of error coram, 
nobis and the supporting affidavits (R. 1-11). Counsel for 
petitioner representing him on the filing of his petition for 
leave to file an application for writ of error coram nobis did



4
not represent Mm at Ms trial in the Circuit Court of Mobile 
County, Alabama. Petitioner, as alleged in Ms petition 
to the Supreme Court of Alabama, because of fear of bodily 
harm, failed to inform the attorney representing him at 
his trial of the circumstances surrounding the obtaining of 
the said alleged confession (R. 4). The said attorney could 
not have known of these facts by the exercise of reasonable 
diligence in time to have presented them to the trial court 
(R. 4). After final affirmance of his conviction by the 
Supreme Court of Alabama, petitioner’s present counsel 
was requested to intervene. Petitioner’s present attorney 
obtained affidavits supporting petitioner’s allegations of 
cruel and inhuman treatment from three other individuals 
who were arrested and confined at the same time as peti­
tioner. These affidavits were submitted in support of his 
petition to the Supreme Court of the State of Alabama 
(R. 6, 8, 10). The petition and affidavits showed that peti­
tioner and three (3) other Negro youths were arrested by 
police in Prichard, Alabama, near midnight on the night 
of June 29, 1946 (R. 2). They were taken to the City Jail 
at Prichard, Alabama, and subjected to cruel, brutal and 
inhuman treatment by several police officers in an attempt 
to obtain from them a confession to having committed a 
robbery. The other three Negro youths were detained in 
the City Jail without further molestation for several days. 
Petitioner, however, was subjected to continuous beating 
and mistreatment by police officers of the city of Prichard 
for a period of four consecutive nights. The purpose of 
the said beatings and questioning was to force petitioner 
to confess to an alleged rape which the said police officers 
accused him of having committed (R. 2-3).

After this mistreatment continued for a period of four 
nights, petitioner, in great fear for his life, health and 
safety, confessed to having committed the crime of rape. 
He was told at this time by these officers that if he made



5

mention of the fact that he had been beaten and mistreated, 
he would be subjected to even more beatings and mistreat­
ment. After having made such confession, a group of out­
side responsible people of the community, who were without 
knowledge of the gross brutality and mistreatment to which 
petitioner had been subjected, was brought into the jail at 
Prichard, Alabama, at 3 o ’clock on the morning of July 3, 
1946, where petitioner was coerced through fear of further 
reprisals to again confess in the presence of these people 
in a staged, prearranged atmosphere (R. 3).

As stated in his petition, “ Petitioner was put in such 
great fear for his future safety after having been sub­
jected to such mistreatment * * *, and after having been 
threatened with even worse physical mistreatment by the 
police officers # * * if # * * (he) # # * did mention 
said beatings to any person, that he failed and refused by 
reason of such fear to mention this mistreatment and ex­
tortion of said confession from him to his attorney who 
was appointed by the Court to defend him * * * ”  (R. 4).

In spite of the strong prima facie case set forth by the 
petitioner in his petition and supporting papers presented 
to the Supreme Court of Alabama, permission to apply 
for a writ of error coram nobis in the Circuit Court of 
Mobile County, Alabama, was denied by a divided court 
(R. 28).

Question Presented

Whether, in view of the facts alleged in the petition and 
supporting affidavits submitted to the Supreme Court of 
Alabama, the denial of opportunity to the petitioner to 
apply for a writ of error coram nobis to the court convict­
ing him constituted a violation of petitioner’s constitutional 
rights as guaranteed by the Fourteenth Amendment.



6

Errors Relied Upon

The Supreme Court of Alabama erred:

In denying petitioner’s application for leave to apply 
for a writ of error coram nobis to the Circuit Court of 
Mobile County, Alabama, and:—

a) In bolding that the facts contained in the said 
application and supporting affidavits were not rea­
sonable ; and,

b) In bolding that said allegations lacked the 
probability of truth; and,

c) In giving weight to the failure of petitioner to 
testify at bis trial and to affirmatively allege bis 
innocence in bis petition.

Outline of Argument

I

The Supreme Court of Alabama erred in Denying Peti­
tioner’s Motion for Leave to File a Petition for a Writ of 
Error Coram Nobis.

A. The conviction of petitioner through the use of a 
confession extorted by force, violence and fear is a vio­
lation of the Fourteenth Amendment.

B. The refusal to permit petitioner to file a petition 
for a writ of error coram nobis to raise this question 
and to introduce testimony in support thereof at a 
hearing free from fear was a denial of due process.

Summary of Argument

Petitioner herein asserts that his constitutional right to 
the due process of law has been denied by the action of the 
Supreme Court of Alabama in dismissing his petition for 
permission to file a writ of error coram nobis with the court 
convicting him.



7
Petitioner’s conviction was based upon an alleged con­

fession obtained by officers of the State of Alabama through 
the unlawful use of force, duress and intimidation, as stated 
by this Court in a long line of cases outstanding among 
which is Chambers v. Florida, 309 U. S. 227.

The State of Alabama has recognized the writ of error 
coram nobis as a form of relief available to individuals 
unlawfully confined. The denial of the substance of relief 
to petitioner without opportunity given him to submit proof 
in support of the allegations contained in his petition for 
permission to file a writ of error coram nobis has deprived 
him of his due process of law.

Argument

The Supreme Court of Alabama Erred in Denying Peti­
tioner’s Motion for Leave to File a Petition for a Writ of 
Error Coram Nobis.

A. The Conviction of Petitioner through the Use of 
a Confession Extorted by Force, Violence and Fear is 
A Violation of the Fourteenth Amendment.

The principle referred to by this Court in the case of 
Hysler v. Florida,1 that conviction upon a confession ‘ ‘ wrung 
from an accused by overpowering his will, whether through 
physical violence or the more subtle forms of coercion com­
monly known as ‘ the third degree’ ”  is offensive to our 
constitutional guarantee of due process and violates “ civil­
ized standards for the trial of guilt or innocence”  is funda­
mental in our law. The principle has been reiterated by 
this Court in a long and unbroken line of decisions.2 The

1 315 u. S. 411, 413.
2 B row n  v. M ississipp i, 297 U. S. 278; C ham bers v. F lorid a , 309 U. S. 

227; C anty v. A labam a, 309 U. S. 629; W h ite  v. T exas, 309 U. S. 631, 
310 U. S. 530; L om a x  v. T exa s , 313 U. S. 544; V ern on  v. A labam a, 313 
U. S. 547; L isen ba  v. C aliforn ia , 314 U. S. 219; W a rd  v. T exa s , 316 U. S.



8

principle is controlling even though the alleged confession 
is not the sole basis for the conviction.3

B. The Refusal to Permit Petitioner To File a Peti­
tion for A Writ of Error Coram Nobis to Raise this 
Question and to Introduce Testimony in Support 
Thereof At a Hearing Free from Fear Was a Denial 
of Due Process.

Assuming the truth of the allegations contained in the 
petition before the Supreme Court of Alabama herein 
(E. 1), which assumption was effected by the state’s motion 
to dismiss,4 there can be no dispute that the principle dis­
cussed above is applicable to petitioner’s conviction. The 
validity of this principle was recognized by the Alabama 
Supreme Court (R. 17) yet permission to file application for 
writ of error coram nobis was denied petitioner.

Though the common-law writ of error coram nobis was 
adopted by the State of Alabama,5 6 pursuant to the mandate 
of this Court contained in the case of Mooney v. Holohanf 
its relief has usually been denied to petitioners seeking 
hearings after conviction on alleged constitutional viola­
tions occurring during trial.7

The State of Alabama has established the rule that habeas

547; A sh cra ft v. T ennessee, 322 U. S. 143; L y o n s  v. Oklahom a, 322 U. S. 
596; M alinski v. N ew  Y o rk , 324 U. S. 401; L ee  v. M ississip p i, 92 L. Ed, 
—; H a ley  v. Ohio, —, 92 L. Ed. —.

3 M alinski v. N ew  Y ork , supra , L ee  v. M ississipp i, supra.
4 “The effect of the motion to dismiss is to confess the truth of the allega­

tions of the petition for the purpose of said motion.” Dissenting opinioa. 
T aylor v. S tate, 32 So. (2d) 659 (R. 23).

5 Johnson  v. W illiam s (1943), 13 So. (2d) 683.
6 294 U. S. 103.
1 J ohnson  v. W illiam s, su p ra ; R ed os v. W illiam s (1943), 13 So. (2d) 

561; E x  P a rte B urns (1945), 22 So. (2d) 517; E x  P a rte  L ee  (1946), 21 
So. (2d) 147.



9
corpus will lie only where the invalidity of the judgment 
appears on the face of the record of the trial.8

In Alabama the only procedure available to challenge 
a judgment on the grounds of facts not appearing on the face 
of the record is by means of a petition to the Supreme Court 
of Alabama for leave to petition the Circuit Court where 
the conviction was obtained for a writ of error coram nobis 
to review the judgment.9

If the requirements for the granting of this form of relief 
are so strict as to require refusal of relief in a case where 
the constitutional violation is as clearly alleged as herein, 
then the remedy offers “ no substantial hope of relief.” 10

As stated by this Court in discussing the “ procedural 
labyrinth”  obtaining in the State of Illinois:

“ . . . the remedies available there are inadequate. 
Whether this is true because in fact no remedy exists, 
or because every remedy is so limited as to be inade­
quate, . . .  is beside the point. If the federal 
guarantee of due process in a criminal trial is to have 
real significance, . . .  it is imperative that men con­
victed in violation of their constitutional rights have 
an adequate opportunity to be heard in court. ’ ’ 11 (Ital­
ics ours.)

No such “ adequate opportunity”  for a hearing in court 
has been given petitioner in this case.

The statement contained in the dissenting opinion below 
accurately reflects petitioner’s position before this Court:

“ If the petitioner in his application must affirm his 
innocence and make proof rebutting the implications 
of guilt arising from the judgment of conviction pro­
cured by use of coerced confessions before he can

s V ern on  v. S ta te , 240 Ala. 577, 200 So. 560; John son  v. W illiam s  
supra.

9 Johnson  v. W illiam s, supra.
10 M arino v. H agen , 92 L. Ed. —.
11 M arino v. H agen, supra .



10
obtain leave to file a petition for the writ of error 
coram nobis to establish want of due process under 
the Constitution, as the majority opinion holds, the 
guarantees of the Constitution become as ‘ sounding 
brass and tinkling cymbal’—mere platitudes—without 
force or substance and a defendant put on the ‘ rack’ 
and forced to confess his guilt is without remedy or 
hope.”

There was no direct conflict between the allegations 
contained in the petition before the Alabama Supreme 
Court and the facts of the record. At petitioner’s trial, 
no proof was offered as a predicate for the introduc­
tion of the alleged confession. Eather, there was merely 
a lack of proof of duress because the effect of the same 
coercion and intimidation used to force the confession from 
petitioner still made itself felt upon him.

The petition submitted to the Alabama Supreme Court 
‘ ‘ establishes on its face the deprivation of a federal right. ’ ’ 12 
It is submitted that instead of offering a remedy therefor, 
the Supreme Court of Alabama, through its refusal to grant 
permission for the filing of an application for writ of error 
coram nobis, deprived petitioner of his only avenue of relief 
from this unconstitutional conviction “ without giving peti­
tioner an opportunity to prove his allegations. ’ ’ 13 This 
denial has deprived petitioner of relief even in the federal 
courts as such courts ordinarily do not entertain habeas 
corpus proceedings setting forth substantially the same 
facts as have been previously brought before a state court 
by writ of error coram nobis or in an habeas corpus pro­
ceeding.

The Alabama Court erred in denying petitioner relief 
on the grounds that some testimony appeared in the record 
that the confession was voluntary and that petitioner had

12 W illiam s v. K a iser , 323 U. S. 471.
13 W illiam s v. K a iser , su p ra ; T om pkin s v. M issouri, 323 U. S. 485.



11
failed to testify at the original trial. As stated by Mr. 
Justice Murphy in the case of Lee v. Mississippi, supra.

“ . . . And since our constitutional system permits 
a conviction to be sanctioned only if in conformity with 
those principles, inconsistent testimony as to the con­
fession should not and cannot preclude the accused 
from raising the due process issue in an appropriate 
manner. . . . Indeed, such a foreclosure of the right 
to complain ‘ 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,’ . . . 
would itself be a denial of due process of law.”

Petitioner’s papers were sufficient to constitute a prima 
facie case and require the granting of permission to apply 
for the writ, followed by a hearing in substantiation of the 
allegations.14

14 “Habeas corpus is a remedy available in the courts of Kansas to 
persons imprisoned in violation of rights guaranteed by the Constitution 
of the United States. Petitioner’s papers are inexpertly drawn, but they 
do set forth allegations that his imprisonment resulted from perjured tes­
timony, knowingly used by the State authorities to obtain his conviction, 
and from the deliberate suppression by those same authorities of evidence 
favorable to him. These allegations sufficiently charge a deprivation of 
rights guaranteed by the Federal Constitution, and, if proven, would en­
title petitioner to release from his present custody. They are supported 
by the exhibits referred to above, and nowhere are they refuted or denied. 
The record of petitioner’s conviction, while regular on its face, manifestly 
does not controvert the charges that perjured evidence was used, and 
that favorable evidence was suppressed with the knowledge of the Kansas 
authorities. N o d eterm ination  o f  the v er ity  o f  these a llegations ap pea rs  
to have been  made. The case is therefore remanded for further proceed­
ings. ’ P y le  v. K an sas, 317 U. S. 213 (1942) (italics ours).

Whatever inference of waiver could be drawn from the petitioner’s 
plea of guilty is adequately answered by the uncontroverted statement 
in his position that he did not waive the right either by word or action. 
J’his . . . squarely raised a question of fact . . .  A defendant 
who pleads guilty is entitled to the benefit of counsel, and a request . . .
is not necessary. It is enough that a defendant . . .  is incapable 
adequately of making his defense . . . W h eth er  all th ese conditions
exist is a matter which must be determ ined) b y  ev id en ce w h ere th e  fa c ts  
are in d ispute.”  P ic e  v. Olsen, 324 U. S. 786 (1945) (italics ours).



12
While the majority of this Court in the H ysler15 case 

sustained the state court’s refusal to issue the order, the 
case is easily distinguishable from the instant case, and 
in fact the instant case falls within the offensive violations 
of constitutional guarantees as outlined by Mr. Justice 
Frankfurter for the majority in stating guides for decisions 
of this nature. In the Hysler case, petitioner in alleging 
denial of due process four years after conviction based his 
claim for relief on the recantation of one of the witnesses 
against him. In commenting upon this basis for petitioner’s 
relief, this Court stated:

“  Hysler’s claim before the Supreme Court of Florida 
was that Baker repudiated his testimony insofar as it 
implicated Hysler and that he now named another man 
as the instigator of the crime. Considering the fact that 
this repudiation came four years after leaden-footed 
justice had reached the end of the familiar trail of 
dilatory procedure, and that Baker now pointed to an 
instigator who was dead, the Supreme Court of Florida 
had every right and the plain duty to scrutinize this 
repudiation with a critical eye, in the light of its famil­
iarity with the facts of this crime as they had been 
adduced in three trials, . . . ”

The instant case is clearly distinguishable from the above 
in that, far from presenting a collateral attack upon the 
judgment of the court, petitioner alleges that he personally 
was brutally beaten, intimidated and coerced by state officers 
to the point of not only confessing to a crime which he did 
not commit but to such a degree that the fear for his life 
sealed his lips in communications with his court-appointed 
attorney. In addition, petitioner in his application for 
writ of error coram nobis filed at the earliest possible time

15 H ysler  v. Florida , 315 U. S. 411 (1942).



13
presented the affidavits of three other persons arrested with 
him, all of whom alleged substantially the same set of facts 
surrounding the mistreatment accorded petitioner while in 
the custody of state officers. There is no question of recan­
tation of perjured testimony here but rather a request for 
an opportunity to be heard for the first time at a time and 
a place not permeated with fear, intimidation and threats 
for one’s safety which, in itself, is the very essence of due 
process.

The denial to petitioner of this opportunity for a hearing 
upon his allegations constitutes reversible error requiring 
remedial action by this Court.

Conclusion

The State of Alabama, while purporting to follow the 
requirements of due process as set forth by this Court in 
Mooney v. Holohan, supra, has by practice, effectively 
denied to petitioner the very type of corrective judicial 
process required by this Court.

The life of an American citizen hangs in the balance. 
This Court should, in view of this, “ insist upon the fullest 
measure of due process.’ ’ 16 If the petitioner is denied the 
opportunity to present proof of the denial of his constitu­
tional right to due process, then as stated by Justice Brown 
in his dissenting opinion below:

“ Guarantees of the Constitution become as ‘ sounding 
brass and tinkling cymbal’. ”

It is respectfully requested that this Court reverse the 
decision of the Supreme Court of the State of Alabama 18

18 Carter v. Illinois, 329 U. S. 173.



14
denying petitioner leave to apply for a writ of error coram 
nobis to the Circuit Court of Mobile County, Alabama.

T hurgood  M a r sh a ll , 
N esbitt  E lm o re ,

Attorneys for Petitioner.

E dward E . D udley ,
A rth u r  D. S hores,
F r a n k lin  H . W illiam s ,

Of Counsel.

(6031)



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SUPREME EOURT OF THE UNITED STATES

OCTOBER TERM, 1948 

No. 121 Miscellaneous

SAMUEL TAYLOR, 

vs.
Petitioner,

TENNYSON DENNIS, W a r d e n  A l a b a m a - S t a t e  P e n i ­

t e n t i a r y , K i l b y , A l a b a m a , .

Respondent

BRIEF FOR PETITIONER

N e s b i t t  E l m o r e ,

T h u r g o o d  M a r s h a l l ,

Attorneys for Petitioner.

F r a n k  D. R e e v e s ,

F r a n k l i n  H. W i l l i a m s ,

Of Counsel.





INDEX

C a s e s  C i t e d

P age
Anderson v. United States, 318 U. S. 350.....................  9
Ashcraft v. Tennessee, 322 U. S. 143............................. 6, 9
Brown v. Mississippi, 313 IT. S. 547..............................  6, 9
Chambers v. Florida, 309 U. S. 227..............................  6, 8
Ex parte Hawk, 321 IT. S. 114........................................  7,10
Ex parte Quirin, 317 U. S. 1 ..........................................  7
Ex parte Taylor, 249 Ala. 667, 32 So. 2d 659............  2, 4,16
Frank v. Mangum, 237 U. S. 309....................................  9
Haley v. Ohio, 332 IT. S. 596.......................................... 6, 8
Holiday v. Johnston, 313 IT. S. 342.............................  7, 8, 21
House v. Mayo, 324 IT. S. 42................................... 7, 8,10,19
Lee v. Mississippi, 332 IT. S. 722....................................  6, 8
Lisenba v. California, 314 IT. S. 219............................  6, 9
Malinski v. New York, 324 U. S. 401............................  6, 8
Marino v. Hagen, 332 IT. S. 561......................................  7
McNabb v. U. S., 318 IT. S. 332...................................... 9
Mooney v. Holohan, 294 IT. S. 103................................  7, 9
Moore v. Dempsey, 261 U. S. 86....................................  10
Price v. Johnston, 334 IT. S. 266........................ ■ 7
Re 620 Church St. Building Corp., 299 IT. S. 24.........  8
Steffler v. United States, 319 IT. S. 38..........................  8, 21
Taylor v. Alabama, 335 IT. S. 252 ...............................  3, 5,17
Taylor v. State, 249 Ala. 130, 30 So. 2d 256.................  2
United States v. Adams, 320 IT. S. 220......................... 7,11
Vernon v. Alabama, 313 U. S. 547................................  6, 9
Von Moltke v. Gillies, 332 IT. S. 708............................  7
Wade v. Mayo, 332 U. S. 672........................................ 7,10
Waley v. Johnston, 316 IT. S. 101..................................  8,16
Walker v. Johnston, 312 U. S. 275.............................  7,12,16
Ward v. Texas, 316 U. S. 547 ........................................ 6, 9
Wells v. United States, 318 IT. S. 257............................  8, 21
White v. Hagen, 324 IT. S. 760........................................ 7,10
White v. Texas, 310 U. S. 530........................................  6,9
Williams v. Kaiser, 323 IT. S. 471................................  7,11

S t a t u t e s  C i t e d

Title 28, United States Code, section 1651(a).............  8
Title 28, United States Code, sections 2241-2255.......  7,10

— 339





OCTOBER TERM, 1948

SUPREME COURT OF THE UNITED STATES

No. 121 Miscellaneous

SAMUEL TAYLOR,

vs.
Petitioner,

TENNYSON DENNIS, W a r d e n  A l a b a m a  S t a t e  P e n i ­

t e n t i a r y , K i l b y , A l a b a m a ,

Respondent

BRIEF FOR PETITIONER

Opinion of Court Below

Neither the opinion of the United States District Court 
for the Middle District of Alabama nor the order of the 
United States Circuit Court of Appeals for the Fifth Cir­
cuit has been reported officially. The District Court opin­
ion appears at pages 9 and 10 of the Record and the Order 
of the United States Circuit Court of Appeals appears on 
page 14 of the Record.

Jurisdiction

I
The jurisdiction of this Court is invoked under Title 

28 United States Code, Section 1651 (a).
The date of judgment in the United States District Court 

for the Middle District of Alabama is July 7, 1948 (R. 9-10).



2

The date of the order denying a certificate of probable cause 
for an appeal to the United States Circuit Court of Appeals 
for the Fifth Circuit, issued by the said United States Dis­
trict Court, is July 17, 1948 (R. 12). The date of the 
order of the United States Circuit Court of Appeals for the 
Fifth Circuit denying a petition for a certificate of prob­
able cause for an appeal to that court, is July 12, 1948 (R. 
14). Motion for leave to file petition for writ of certiorari 
and petition for certiorari were duly presented to this 
Court on September 14, 1948 and were granted by this 
Court on December 13, 1948 (R. 15).

Summary Statement of Matter Involved

1 . S t a t e m e n t  o f  t h e  C a s e

Petitioner, an ignorant Negro, nineteen years of age 
at the time of his trial, was convicted of the crime of rape 
and sentenced to death by electrocution by the Circuit Court 
of Mobile County, Alabama on November 19, 1946. Upon 
appeal, the Supreme Court of Alabama on April 24, 1947 
affirmed this judgment. Taylor v. State, 249 Ala. 130, 30 
So. 2d 256.

On September 18, 1947, petitioner through new counsel 
petitioned the Supreme Court of Alabama for permission to 
file a petition for writ of error coram nobis in the trial 
court. This sworn petition with supporting affidavits 
alleged that the conviction was based upon confessions 
obtained through the use of force, duress and intimidation 
by police officers of the state. On November 13, 1947 the 
petition was denied. Ex Parte Taylor, 249 Ala. 667, 32 
So. 2d 659.

Certiorari to the Supreme Court of Alabama was granted 
by this Court on April 5, 1948. Taylor v. Alabama, 333 
U. S. 866.



3
On June 21, 1948, this Court affirmed the judgment of the 

Supreme Court of Alabama. Taylor v. Alabama, 335 U. S. 
252.

On July 6, 1948, petitioner filed a petition for writ of 
habeas corpus in the District Court of the United States 
for the Middle District of Alabama (R. 1-5); a rule to show 
cause was thereupon issued to respondent (R. 5).

On July 7, 1948 respondent filed a motion to dismiss. 
(R. 8-9) On the same day the court dismissed the petition 
without requiring a return, granting a hearing or taking 
testimony, (R. 9-10) and immediately thereafter denied an 
oral motion for a certificate of probable cause (R. 12).

Subsequently, a written petition for a certificate of prob­
able cause, addressed to the United States Circuit Court 
of Appeals for the 5th Circuit, filed on July 16, 1948 (R. 
13) was denied by Leon McCord, one of the judges thereof 
(R, 14).

On July 17, 1948, petitioner filed a written motion for 
a certificate of probable cause in the District Court (R. 
11) which was denied on that same date (R. 12).

Petition for certiorari was granted by this Court on 
December 13, 1948. Taylor v. Dermis, Oct. Term, 1948, No. 
121 Misc., — U. S. —.

2 . S t a t e m e n t  o f  F a c t s

The facts of the case are set out in the petition for writ of 
habeas corpus (R. 1-5). It is therein alleged that peti­
tioner is at the present time detained and imprisoned by 
Tennyson Dennis, Warden of the Alabama State Peniten­
tiary, Kilby, Alabama, under sentence of death by electro­
cution by virtue of a judgment of the Circuit Court of Mo­
bile County, Alabama, rendered on November 19, 1946, on 
a conviction of rape; that the said judgment and conviction 
was affirmed by the Supreme Court of Alabama on April 24,



4
1947, and reported at 30 So. (2d) 256; that petitioner was 
arrested by police officers of the City of Prichard, Alabama, 
on June 29, 1946; that he was beaten, threatened and co­
erced by said officers for a period of three days until he 
made a confession to a rape charge; that said confession 
was later introduced in evidence on the trial of his case in 
the Circuit Court of Mobile County, Alabama, but that due 
to ignorance of his rights and the fear of reprisals in which 
he was placed by the threats of these police officers, he failed 
to mention the coerced nature of said confession to his 
attorney, who was first appointed to represent him at said 
trial, and that consequently no evidence as to the involun­
tary nature of said confession was introduced on his behalf 
in said trial.

The petitioner further alleged that after his conviction 
and the affirmance of the judgment of conviction as afore­
said, petitioner’s family employed new counsel to repre­
sent him, which counsel discovered evidence as to the invol­
untary nature of said confession and on the basis thereof 
filed in the Supreme Court of Alabama a petition for leave 
to file a petition for a writ of error coram nobis in the Cir­
cuit Court of Mobile County, Alabama, to inquire into the 
involuntary nature of said confession; that on the 13th day 
of November, 1947, the Supreme Court of Alabama (one 
justice dissenting) denied said petition, and further denied 
without opinion an application for rehearing on December 
4, 1947 (Ex Parte Taylor, 249 Ala. 667, 32 So. 2d 659). 
The petition alleged that subsequently, petitioner filed a 
timely application to this Court for certiorari claiming 
that due process of law’ had been denied him by virtue of 
the decision of the Supreme Court of Alabama in refusing 
permission to petitioner to file for a wrrit of error coram 
nobis in the Circuit Court of Mobile County, Alabama; that 
certiorari was granted on April 5,1948 (Taylor v. Alabama, 

£66); that on June 21, 1948, this Court affirmed



5
the judgment of the Supreme Court of Alabama, holding 
that petitioner’s rights to due process of law had not been 
violated by the action of the Supreme Court of the State of 
Alabama (Taylor v. Alabama> 335 U. S. 252).

In spite of the uncontroverted allegations of the petition 
for habeas corpus, the District Court dismissed said peti­
tion without requiring a return or a hearing. Petitioner 
has exhausted all of the judicial remedies available to him, 
both in the Alabama courts and in the lower United States 
courts, and has not yet obtained a hearing on the allegations 
set forth in his petition for writ of habeas corpus.

Question Presented

IS A FEDERAL DISTRICT COURT JU STIFIE D , AFTER ISSUING A RULE 

TO SHOW  CAUSE, IN  DISM ISSING AN UNCONTROVERTED PETITION 

FOR HABEAS CORPUS IN  T H E  ABSENCE OF AN  AN SW ER OR A 

HEARING, W H IC H  PE TITIO N  SU F FIC IE N T LY  ALLEGES DEPRIVA­

TION BY A STATE C R IM IN A L  COURT OF P E TIT IO N E R ’ S CONSTI­

TUTIONAL RIGH TS, ON TH E  GROUNDS T H A T  TH E  FACTS AS A L­

LEGED TH E R E IN  W ERE PREVIOUSLY HELD BY TH E  ST A T E ’ S 

HIGHEST COURT TO BE IN SU FFIC IE N T TO INVOKE CORAM NOBIS, 

THE ONLY AVAILABLE STATE REM EDY, AND T H A T  T H IS  COURT 

FOUND TH A T SU C H  REFUSAL TO GRANT CORAM NOBIS W AS NOT 

A DENIAL OF DUE PROCESS ?

Errors Relied Upon 

I

The Federal District Court erred in dismissing the un­
controverted petition for habeas corpus.



6
(

II

The Federal District Court erred in holding that a hear­
ing on the habeas corpus petition was not required by the 
United States Constitution because:

A. The same issues were inquired into by the Su­
preme Court of Alabama on coram nobis proceedings 
and were there found legally insufficient to warrant 
relief; and

B. This Court, on certiorari, found that the proceed­
ings in the Alabama Supreme Court on petitioner’s 
coram nobis application were in compliance with due 
process.

III

The Federal District Court and the Circuit Court of Ap­
peals erred in refusing to issue a certificate of probable 
cause.

Outline of Argument 

I

Use by a state of a coerced confession to obtain a convic­
tion for a crime is a violation of the due process clause of 
the Fourteenth Amendment.

Lee v. Mississippi, 332 U. S. 722;
Haley v. Ohio, 332 U. S. 596 ;
MalinsH v. New York, 324 U. S. 401;
Ashcraft v. Tennessee, 322 U. S. 143;
Ward v. Texas, 316 U. S. 547;
Lisenba v. California, 314 U. S. 219;
Vernon v. Alabama, 313 U. S. 547;
White v. Texas, 310 U. S. 530;
Chambers v. Florida, 309 U. S. 227;
Brown v. Mississippi, 313 U. S. 547.



7

A habeas corpus proceeding in the Federal District 
Court is the proper method of attacking a conviction ob­
tained in a state court in violation of defendant’s constitu­
tional rights, after the exhaustion of state remedies.

White v. Ragen, 324 U. S. 760;
Wade v. Mayo, 332 U. S. 672.
House v. Mayo, 324 U. S. 42;
Ex parte Hawk, 321 U. S. 114;
Mooney v. Holokan, 294 U. S. 103;
Title 28, United States Code, Sections 2241-2255.

III
The allegations of a petition for habeas corpus in Fed­

eral courts must be taken as true in the absence of an an­
swer or a hearing.

White v. Ragen, 324 U. S. 760;
House v. Mayo, 324 U. S. 42;
Williams v. Kaiser, 323 U. S. 471;
17. 8. v. Adams, 320 U. S. 220.

IV
The Federal District Court is under the duty to forth­

with award the writ of habeas corpus, unless it appears 
from the petition itself that the party is not entitled thereto. 

Holiday v. Johnston, 313 U. S. 342;
Price v. Johnston, 334 U. S. 266;
Von Moltke v. Gillies, 332 U. S. 708;
Marino v. Ragen, 332 U. S. 561;
U. S. v. Adams, 320 U. S. 220;
Ex parte Quirin, 317 U. S. 1;
Walker v. Johnston, 312 U. S. 275;
Title 28, United States Code, section 2243 (then, 28 

U. S. C. #461).

I I



8

Y

The prior proceedings in this case did not relieve the Dis­
trict Court of its duty to afford petitioner a hearing on 
the allegations of the petition for habeas corpus.

House v. Mayo, 324 U. S. 42;
Waley v. Johnston, 316 U. S. 101.

VI
This Court has jurisdiction to review by certiorari the 

action of the lower Federal courts in declining leave to 
appeal in this case and such review estends to questions on 
the merits sought to be raised by the appeal.

Title 28, United States Code, section 1651 ( a ) ;
House v. Mayo, 324 U. S. 42;
Re 6 2 0  Church St. Building Corp., 299 U. S. 24;
Steffler v. U. S., 319 U. S. 38;
Wells v. U. S., 318 U. S. 257;
Holiday v. Johnston, 313 U. S. 342.

Argument

I

USE BY A STATE OP A COERCED CONFESSION TO OBTAIN A CONVIC­

TION FOB, A CRIME IS A VIOLATION OF TH E  DUE PROCESS CLAUSE

OF TH E FOURTEENTH AM ENDM ENT.

A conviction based in whole or in part upon a confession 
obtained through fear, intimidation or duress deprives a 
defendant of due process of law guaranteed by the United 
States Constitution.1 This principle has been reiterated by

1 L ee v. M ississippi, 332 II. 8. 772; H a ley  v. Ohio, 332 U. S. 596; 
M alinski v. N ew  Y o rk , 324 U. S. 401; Cham bers v. F lorid a , 309 U. S. 227.



9
this Court in a long line of cases,2 and is applicable both to 
convictions in state 3 and Federal courts,4 whether the co­
ercion was physical or mental.5

The petition for writ of habeas corpus herein set out 
in detail the facts and circumstances surrounding the ob­
taining of an involuntary confession from petitioner which 
was subsequently used as the basis of his conviction (E. 
1-5). These facts, if true, set out a violation of the due 
process clause of the Fourteenth Amendment to the United 
States Constitution.6

II

A HABEAS CORPUS PROCEEDING IN  T H E  FEDERAL DISTRICT COUBT 

IS THE PROPER M ETH OD OP A TTACKIN G A CONVICTION OBTAINED 

IN A STATE COURT IN  VIOLATION OP D E PE N D A N T’ S CONSTITU­

TIONAL RIGH TS, AFTER TH E  EXH AU STION  OP STATE REMEDIES

Since Frank v. Mangum, 237 U. S. 309, this Court has 
recognized that habeas corpus in the federal courts is 
necessary “ to safeguard the liberty of all persons within 
the jurisdiction of the United States against infringement 
through any violation of the Constitution,”  even though 
the events alleged to infringe do not appear upon the face of 
the record of conviction.7

Power to issue writs of habeas corpus have been con­

2 Lee v. M ississipp i, s u p ra ; H a ley  v. Ohio, s u p ra ; M alinski v. N ew  Y o rk , 
su pra ; A sh cra ft v. T en n essee, 322 U. S. 143; W a rd  v. T exa s , 316 U. S. 
547; Lisenba v. C aliforn ia , 314 U. S. 219; V ern on  v. A labam a, 313 U. S. 
547; W h ite  v. T exa s , 310 U. S. 530; B row n  v. M ississipp i, 313 U. S. 547.

3 See footnote 2, supra.

4 A nderson  v. U n ited  S ta tes , 318 U. S. 350; M cN abb  v. U nited  S ta tes , 
318 U. S. 332.

5 A nd erson  v. U nited  S ta tes , 318 U. S. 350; M cN abb  v. U nited  S ta tes , 
su pra ; W a rd  v. T exa s , supra .

6 Chambers v. F lorid a , supra.
7 M oon ey  v. H oloh an , 294 U. S. 103.



10
ferred upon the federal courts by statute,8 and includes the 
authority to issue the writ where petitioner is detained by 
state authority in violation of his constitutional rights. 
This Court has limited this authority by holding that resort 
to federal courts for the writ, except in extraordinary cir­
cumstances,9 may be had only if all state remedies have 
been exhausted.10 Where such state remedies have been 
pursued to no avail, however, the defendant may petition 
the federal court for habeas corpus relief, where he makes 
a substantial showing of violation of his constitutional 
rights by a state court.11

In the instant case, petitioner previously applied to the 
Supreme Court of Alabama for leave to file a petition for 
writ of coram nobis in the state trial court, setting up in 
his application specific details surrounding the making of 
an alleged confession which was used by the state to obtain 
his conviction in the trial court. The Alabama Supreme 
Court denied the permission sought and upon certiorari 
this Court found that the action of the Alabama Supreme 
Court was not in violation of the due process clause of the 
Fourteenth Amendment. Petitioner, thus had exhausted 
to no avail the only state remedy provided by Alabama 
procedure and accordingly presented his petition for 
habeas corpus in the District Court of the United States 
for the Middle District of Alabama.

8 Title 28 United States Code, sections 2241-2265.
9 M oore v. D em p sey , 261 U. S. 86.
10 W h ite  v. H agen, 324 U. S. 760; H ou se v. M a yo, 324 U. S. 42; E x  parte  

H aw k, 321 U. S. 114; M oon ey  v. H olohan , supra.
11 W ade v. M a yo, 332 U. S. 672.



11

III

THE ALLEGATIONS OF A PETITION  FOR HABEAS CORPUS IN  FEDERAL 

COURTS M UST BE TA K E N  AS TRUE IN  T H E  ABSENCE OF A N  A N ­

SWER OR A H EARING

111 the instant case, the Federal District Court dismissed 
the petition for habeas corpus without requiring an answer 
and without a hearing. Upon the issuance of its rule to 
show cause, the Attorney General of the State of Alabama, 
acting for the respondent filed a pleading characterized by 
the district court as a “ motion to dismiss”  the petition (R. 
12). In view of this, therefore, as stated by this Court in 
the case of House v. Mayo: “ Since the petition for habeas 
corpus was denied without requiring respondent to answer 
and without a hearing, we must assume that the petitioner’s 
allegations are true. ’ ’ 12

IV

THE FEDERAL DISTRICT COURT IS UNDER TH E  DU TY TO F O R TH W IT H  

AWARD TH E  W RIT OF HABEAS CORPUS, UNLESS IT  APPEARS FROM 

THE PETITION ITSELF T H A T  T H E  PA RTY IS NOT ENTITLED 

THERETO

The act of the District Judge in issuing an order to show 
cause to the Attorney General of the State of Alabama and 
in thereafter dismissing the petition without an answer 
or a hearing thereon constituted reversible error.

The statutes controlling the procedure to be followed 
upon the filing of a petition for habeas corpus at the time 
of the commencement of the present proceedings were

12 324 U. S. 42, 45; see also: W h ite  v. H agen, su p r a ; S o u s e  v. M a yo , 
su pra ; W illiam s V. K a iser , 323 U. S. 471; TJ. S', v. A dam s, 320 U. S. 220.



12
found in Title 28, U. S. C., Section 455 and Section 461, 
which provided:

“ Allowance and Direction. The Court, or Judge to 
whom such application is made shall forthwith award 
a writ of habeas corpus, unless it appears from the 
petition itself that the party is not entitled thereto . . .

“ Summary Hearing; Disposition of a Party. The 
Court, or Justice or Judge shall proceed in a sum­
mary way to determine the facts of the case by hearing 
the testimony and arguments, and thereupon to dispose 
of the party as law and justice require.”  (Italics 
ours.) 13

It thus appears that, although the Judge to whom the writ 
is presented may justifiably refuse to issue the writ or to 
issue an order to show cause if it appears from the petition 
itself that the party is not entitled thereto, once he decides 
to exercise jurisdiction by ordering the respondent to 
show cause, he adjudges that the petition is sufficient.14 
Having made such judicial determination, the Court was, 
accordingly, under the duty to require a return or an an­
swer to the order, for the purpose of ascertaining whether 
or not issues of fact were involved, and, if such issues were 
found, to hold a hearing thereon and dispose of the case as 
law and justice require.

In the case of Walker v. Johnston, 312 U. S. 275, an order

13 Cf. new Title 28, United States Code, Section 2243: “A Court, Justice 
or Judge entertaining an application for a writ of habeas corpus shall 
forthwith award the writ or issue an order directing the respondent to 
show cause why the writ should not be granted, unless it appears from the 
application that the applicant or person detained is not entitled thereto.

The person to whom the writ or order is directed shall make a return 
certifying the true cause of the detention. . . .

“The Court shall summarily hear and determine the facts, and dispose 
of the matter as law and justice require.”

14H oliday v. Johnston, 313 U. S. 342, where the Court stated: “In the 
present instance, moreover, the Judge, by calling on the respondent to show 
cause, adjudged that in his view the petition was sufficient. . . .”



13
to show cause was issued to the respondent after the peti­
tion for writ had been presented. The respondent filed an 
answer with supporting affidavits and the Court proceeded 
thereupon to dispose of the case upon the petition and an­
swer. This Court, upon review, after setting forth that the 
only acceptable procedure under the statute was to grant 
the petitioner a hearing on the facts once the Court had 
decided to entertain the petition, stated:

“ Nothing less (than a hearing) will satisfy the com­
mand of the statute that the Judge proceed ‘ to deter­
mine the facts of the case by hearing the testimony and 
arguments’ ”  (312 U. S. 285).

This Court further said, in commenting upon the failure of 
the District Judge to grant petitioner a hearing in that case:

“ The Government properly conceived that if the 
petition, the return and the traverse raise substantial 
issues of fact, it is the petitioner’s right to have those 
issues heard and determined in the manner the statutes 
prescribe”  (312 U. S. 286).

The District Judge, herein by issuing the rule to show 
cause, indicated his determination that the petition was suf­
ficient ; accordingly, his own judicial act shows that this case 
does not come within the exception of Title 28, U. S. C., Sec­
tion 555,15 providing that the writ shall forthwith be awarded 
“ unless it appears from the petition itself that the party is 
not entitled thereto.”  The respondent, instead of filing an 
answer denying the allegations of fact in the petition, or of 
filing a return setting out the true cause of the detention, 
filed his pleading making a special appearance “ without 
admitting even for the purpose of argument the allegations 
of the petition”  (R. 8-9). The District Judge, therefore, 
did not have discretion to refuse to issue the writ, or to

lo Presently Title 28, United States Code, Section 2243.



14
require an answer to the order to show cause or to hold a 
hearing on the merits of the uncontroverted petition, after 
having found it was sufficient to justify the issuance of the 
order to show cause.

y

T H E  PRIOR PROCEEDINGS IN  TH IS CASE DID NOT RELIEVE THE 

DISTRICT COURT OP ITS DUTY TO AFFORD PETITIONER A HEARING 

ON TH E  ALLEGATIONS OF TH E  PETITION FOR HABEAS CORPUS

In its order granting respondent’s motion to. dismiss the 
petition for writ of habeas corpus filed herein, the District 
Judge stated the following reason for his action.

“ The court is of the opinion that the identical issues 
sought to. be raised by the allegations of the petition 
have been raised in the Supreme Court of Alabama in 
coram nobis proceedings by this petitioner; the court 
further finds that those issues were inquired into by 
the Supreme Court of Alabama and for reasons and 
upon proof satisfactory to the State Supreme Court 
relief was denied to the petitioner; further that the said 
judgment of the Supreme Court of Alabama was af­
firmed by the Supreme Court of the United States, and 
said United States Supreme Court having found that 
the remedy afforded petitioner in the State Supreme 
Court was in compliance with the Fourteenth Amend­
ment to the United States Constitution,

“ In the exercise of its discretion to grant or refuse 
the writ of habeas corpus, this court has given weight 
to the judgments, opinions, and the matters referred 
to in the opinions of the Supreme Court of Alabama 
and of the United States Supreme Court in this case, 
and this court is of the opinion that in view of said 
opinions and judgments, and the history of said case 
that a further hearing is not required by the Constitu­
tion of the United States”  (R. 9-10).

Actually, neither in the coram nobis proceedings in the 
Supreme Court of Alabama, nor in the review of said pro­



15
ceedings by the United States Supreme Court has there been 
a hearing and determination of the issues sought to be raised 
in the habeas corpus petition before the District Court.

In the coram nobis proceedings in the Supreme Court of 
Alabama, the petitioner sought leave to file the said petition 
for writ of error coram nobis in the trial court to inquire into 
the legality of his conviction on the grounds that his trial, 
conviction and sentence in said trial court were based upon 
an alleged confession obtained from him by the use of force, 
fear and intimidation threatened and inflicted upon him 
and that, by reason of fear occasioned by threats made 
against him, he did not inform his attorney first appointed 
by the court of the involuntary nature of the said alleged 
confession, nor did he object to its introduction in evidence 
at the trial. This petition was supported by affidavits which 
were attached and submitted therewith.

The State of Alabama moved to dismiss the petition, 
attaching affidavits and exhibits to this motion. The Su­
preme Court of Alabama, one justice dissenting, without 
hearing denied leave to file the petition.

Although the Supreme Court of Alabama considered and 
analyzed the affidavits and exhibits submitted by petitioner 
and the State in denying the application for leave to file 
the petition for writ of error coram nobis, the petitioner 
was never afforded a hearing upon the issues which would 
have been raised if leave had been granted to file in the trial 
court.

It was error for the District Court herein to measure the 
availability of habeas corpus under federal procedure by 
the same standards as were applied to coram nobis by the 
Alabama Supreme Court. The coram nobis petition was 
denied by the Alabama Supreme Court on two grounds: 
(1) that the allegations thereof lacked the probability of



16
truth,16 and (2) that the evidence apart from the alleged 
coerced confession was sufficient to sustain the conviction 
and that petitioner had presented no meritorious defense 
thereto.17 In commenting upon the requirements for 
coram nobis, the Alabama Supreme Court, after discussing 
the fact that petitioner’s conviction had not rested alone 
upon the alleged coerced confession stated:

‘ ‘ The court should also hear in mind this writ is only 
due to be granted where it is made clearly to appear 
that petitioner has a valid defense.”  18

Clearly, no such strict requirements are necessary for 
relief by habeas corpus in a federal court and the giving of 
“ controlling weight”  to the judgment and opinion of the 
Supreme Court of Alabama was reversible error. As 
stated by this Court in a recent case: “ Habeas corpus is 
presently available for use by a district court within its 
recognized jurisdiction whenever necessary to prevent an 
unjust and illegal deprivation of human liberty.”  (Italics 
ours.)19

This Court in its review of the decision of the Supreme 
Court of Alabama, specifically refrained from adjudicating 
the merits of petitioner’s case. The Court stated in its 
opinion: “ The question in this case is whether the State of 
Alabama deprived the petitioner of due process of law . . . * 316

" \ Gm**
/ T aylor, 249 Ala. 667, 32 Ko, 2d 659; # . W a ley  v. Johnston,
316 U. S. 101, 104, where this Court -ss&li “True, petitioner’s allegations 
m the circumstances of this case may tax credulity. But in view of their 
specific nature, . . . and the failure of respondent to deny . . . 
them specifically, we cannot say that the issue was not one calling for a 
hearing within the principles laid down in W a lk er  v. J oh n ston , 312 U. S. 
-i75, 85 L. Ed. 830, 61 S. Ct. 574. . . .  If the allegations are found 
to be true, petitioner’s constitutional rights were infringed.”

11 Cf. M alinski v. Neu> Y ork , supra, and authorities cited under Point I. 
18 E x  p a rte T aylor, supra.
10 W ad e v. M ayo, supra.



17
when the Supreme Court of that State denied him permis­
sion to file a petition for writ of error coram nobis”  
(.Taylor v. Alabama, 335 U. S. 252).

A close analysis of the majority opinion reveals that the 
Court was concerned primarily with two questions. First, 
whether or not Alabama procedure for coram nobis consti­
tuted due process of law under the Fourteenth Amendment 
and the case of Mooney v. Holohan, supra; and second, 
whether or not the denial of the petition by the Alabama 
court constituted such an arbitrary action as to amount to 
a deprivation of due process.

In its opinion, this Court discussed the merits of petition­
er’s claims but it is important to note that this discussion 
was for the sole purpose of ascertaining whether or not the 
Alabama Supreme Court’s action was arbitrary. Immedi­
ately prior to discussing the merits, this Court stated:

“ The issue before us is not the issue which would 
have faced the trial court in the event that the Supreme 
Court of Alabama had granted permission to the pe­
titioner to file his petition for writ of error coram 
nobis in that court. The proceeding here is not even a 
review de novo, of the merits of the request made to the 
Supreme Court of Alabama. The issue before us is 
limited to a determination of whether, under all the 
circumstances, the action of the Supreme Court of 
Alabama . . . not merely had committed error
but had deprived the petitioner of life or liberty with­
out due process of law”  (Taylor v. Alabama, 335 IT. S. 
252, 261-262).

The Court then proceeded to discuss the merits of the 
petition for the purposes set forth above. Immediately fol­
lowing its discussion of the merits, the Court stated: 
“ For these reasons we conclude . . . that the denial by 
the Supreme Court of Alabama of the permission thus 
sought by the petitioner . . . was not, under all the



18
circumstances, such an arbitrary action as in itself 
to amount to a deprivation of due process of law.”

This analysis of the Court’s opinion is substantiated 
by the concurring opinion by Mr. Justice Frankfurter 
who stated that since he cannot deem the Alabama court’s 
mode of reasoning as “ unsustainable in reason,”  he is not 
entitled to reject it and therefore agrees with the majority 
opinion. But he further stated: “ There is not now before 
us any right that the petitioner may have under the Judicial 
Code to bring an independent habeas corpus proceeding in 
the District Court of the United States.”

The dissenting opinion by Mr. Justice Murphy also sub­
stantiated the analysis of the majority opinion and con­
cluded with this observation:

“ Fortunately, this Court has not yet made a final 
and conclusive answer to petitioner’s claim. All that 
has been decided here is that the Supreme Court of 
Alabama did not err in declining to permit him to file a 
petition for writ of error coram nobis in the Alabama 
courts. Nothing has been held which prejudices pe­
titioner’s right to proceed by way of habeas corpus 
in a federal district court now that he has exhausted 
his state remedies. He may yet obtain the hearing 
which Alabama has denied him”  (335 U. S. 279-280).

The aspects of the present petition were not unlike those 
in the case of Waley v. Johnston?0 where this court on 
certiorari reviewed a district court’s denial of a writ for 
habeas corpus on the ground that an earlier decision of 
the trial court denying petitioner’s application for a writ 
of coram nobis was res judicata; this Court stated in its 
opinion:

‘ ‘ The earlier application was denied for insufficiency 
upon its face and without a hearing. There is thus no 
basis for the holding of the district court that the 20

20 316 U. S. 101.



19
denial is res judicata of the present petition.”  (316 
U. S. 101, 105)

As argued above the Alabama Supreme Court denied 
petitioner’s coram nobis application because of its insuffi­
ciency upon its face and without a bearing. Consequently, 
the present case comes within the principle thus laid down 
in the Waley case.

In House v. Mayo, 324 U. S. 42, the procedural issues 
involved were substantially the same as those here pre­
sented. There, as here, the district coui't was of the opinion 
that “ petitioner has had a full, complete, and competent 
consideration and decision in the Supreme Court of Florida 
of all the various matters here sought again to be pre­
sented,”  and was of the opinion that a denial by this Court 
of a petition for certiorari, filed here after the denial by 
the Florida Supreme Court of one of the applications for 
habeas corpus was an expression “ of the opinion that 
no meritorious question is presented by the matters of 
which petitioner here complains.”

This Court puts its decision in the House case, granting- 
certiorari, reversing the order of the Court of Appeals and 
judgment of the District Court, and remanding the case to 
the District Court, upon the following grounds:

“ But as we have often said, a denial of certiorari 
by this Court imports no expression of opinion upon 
the merits of a case. (Cases cited) It is true that 
where a state court has considered and adjudicated the 
merits of a petitioner’s contentions, and this Court 
has either reviewed or declined to review the state 
court’s decision, a federal court will not ordinarily re­
examine upon writ of habeas corpus the questions thus 
adjudicated, (cases cited) But that rule is inapplica­
ble where, as here, the basis of the state court decision 
is that the particular remedy sought is not one allowed 
by state law, for in such a case this Court lacks juris­
diction to review the decision (cases cited)”



20

In the instant case we submit that the rule stated above 
also is inapplicable in that, by its denial of the coram nobis 
proceedings, the Supreme Court of Alabama made un­
available to petitioner a consideration and adjudication 
of the merits of his contentions. Such a consideration and 
adjudication could be afforded only by the hearing and de­
termination in the trial court of the merits of petitioner’s 
allegations, which hearing and determination became un­
available to petitioner by denial of his application for 
coram nobis proceedings.

Further, it would appear that this Court’s previous 
judgment in the instant case, contrary to the effect imputed 
to it by the District Court, specifically removed the case 
from application of the rule when it stated: “ The issue 
before us is not the issue which would have faced the trial 
court in the event that the Supreme Court of Alabama had 
granted permission to the petitioner to file his petition 
for writ of error coram nobis in that court. The proceed­
ing here is not even a review, de novo, of the merits of the 
request made to the Supreme Court of Alabama.”  

Therefore, we conclude, as did this Court in the House 
case:

“ The decision of the district court is thus not sup­
ported by the grounds assigned for it, and should have 
been reversed by the court of appeals.”  21

21 324 U. S. 42, 48.



2 1

VI

T h is  c o u r t  h a s  j u r i s d i c t i o n  t o  r e v i e w  b y  c e r t i o r a r i  t h e

ACTION OF TH E  LOW ER FEDERAL COURTS IN  DECLINING LEAVE TO

APPEAL IN  T H IS  CASE AN D SUCH REVIEW  EXTENDS TO QUESTIONS

ON THE M ERITS SOUGHT TO BE RAISED BY T H E  APPEAL

In view of the errors committed by the Federal District 
Court herein, the Circuit Court of Appeals and the District 
Court were under an obligation to issue to petitioner a cer­
tificate that probable cause for an appeal exists. Both courts 
refused such certificate (R. 12, 14) and this refusal may 
properly be reviewed by this Court upon certiorari.

Title 28 United States Code, section 1651(a) 22 pro­
vides in part that this Court may issue “ all writs necessary 
or appropriate”  in aid of its jurisdiction. In interpreting 
this provision, this Court has held that it extends to a 
review of lower federal court proceedings of the type that 
obtained in this case.23

In the case of House v. Mayo, supra, a petition for habeas 
corpus in the United States District Court was denied with­
out a return or a hearing and a certificate of probable 
cause for an appeal to the Circuit Court of Appeals was 
likewise denied both by the district and circuit courts. 
Petitioner thereafter applied to this Court for writ of 
certiorari to review the action of the lower federal courts. 
This Court, under section 262 of the United States Code 24 
granted a writ of certiorari to review the action of the Court 
of Appeals in declining to allow an appeal to it. This Court 
stated that their review extended not only to a determina­

22 Formerly 28 United States Code, section 262.
23 H ouse v. M a yo , s u p ra ; B e  620 Church St. B u ilding C orp ., 299 U. S. 

24; Steffler v. U. S ., 319 U. S. 38; W ells  v. U. S ., 318 U. S. 257; H olida y  
v. Johnston, 313 U. S. 342.

24 Presently Title 28 United States Code, section 16518.



22

tion of whether the Circuit Court of Appeals abused its 
discretion in refusing to allow the appeal hut extended also 
to “ questions on the merits sought to be raised by the 
appeal.”  25

The procedure in the instant case was substantially iden­
tical with that in the House case and accordingly the present 
proceedings are within the jurisdiction of this Court.

Conclusion

To date, petitioner has unsuccessfully sought a hearing 
at which he could present evidence in support of his con­
tentions that his conviction and detention are in violation 
of the Federal Constitution. As required by the procedure 
in the Federal courts, he exhausted all state remedies avail­
able to him without securing a hearing. This Court re­
viewed the procedure by which petitioner had unsuccess­
fully sought a hearing and found that the procedure did 
not violate the Fourteenth Amendment. The United States 
District Court has, by an ironic twist of reasoning, found 
that the very procedures which the petitioner was required 
to follow before applying to the District Court for a writ 
of habeas corpus have deprived petitioner of his right to 
a hearing in the federal courts.

The record is plain that petitioner has had no hearing 
on the merits and whatever the pre-conceived notion of 
the District Judge as to the validity of petitioner’s conten­
tions, no prior refusal of a state court to grant petitioner 
a hearing upon the same issue could relieve the District 
Court of its duty to inquire into the merits for itself.

This Court must once more reaffirm the fundamental role 
of the writ of habeas corpus in the scheme of human liberty 
by establishing that a federal district court may not refuse

25 H ou se v. M a yo, supra , H olid a y  v. J ohnston , su pra , S teffler v. V ■



23

to make an independent investigation into the merits of a 
petition with the excuse that a state court has found the 
claim of right so insubstantial as not to require a hearing.

N e s b i t t  E l m o r e ,

Montgomery, Alabama; 
T h t j r g o o d  M a r s h a l l ,

New York, New York, 
Attorneys for Petitioner.

F r a n k  D .  R e e v e s ,

F r a n k l i n  H .  W i l l i a m s ,

Of Counsel.

(339)









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IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1948 

NO. 121 MISCELLANEOUS

SAMUEL TAYLOR,
Petitioner

VS.

TENNYSON DENNIS, WARDEN, 
ALABAMA STATE PENITENTIARY, 

KILBY, ALABAMA,
Respondent

BRIEF AND ARGUMENT 
IN OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

A. A. CARMICHAEL
Attorney General

BERNARD F. SYKES
Assistant Attorney General

Counsel for Respondent





I N D E X

SUBJECT INDEX

Page
Opinions of the Court Below...................................    1
Jurisdiction.....................................................................  2
Statement of the Case...................................................  3
Brief and Argument....................................................... 4

I. On habeas corpus proceedings, the petition 
includes those facts of which the court may 
take judicial cognizance..... ..........................;...  4

II. It is not improper for a federal district court 
to issue a rule to show cause when petition 
for writ of habeas corpus is filed... ........ ........... 5

111. Where a state court has considered and ad­
judicated the merits of a petitioner’s conten­
tions, and the United States Supreme Court 
has reviewed the state court’s decision, a 
federal court will not ordinarily re-examine 
upon writ of habeas corpus the questions thus
adjudicated ...................................................... 5
It is not the function or purpose of habeas 
corpus proceedings to serve as an appeal or 
writ of error, nor to retry issues of fact or 
law previously adjudicated...............................  5

IV. Although the doctrine of res judicata does 
not apply in habeas corpus cases, the district 
judge may exercise his discretion and give
controlling weight to prior proceedings........... 6

Argument ......................................................................  7
Conclusion ....................................................................  18
Certificate...................................................................   18

i



TABLE OF CASES AND STATUTES CITED

Page
Andersen v. Treat,

172 U. S. 24, 29, 31, 43 L. Ed. 351..........................5, 7

Beard v. Bennett,
114 F. 2d 578............. .............................................. 5, 7

Cramer v. Washington,
168 U. S. 124, 42 L. Ed. 407....................................5, 7

Dorsey v. Gill,
148 F. 2d 857, cert. den. 325 U. S. 890
89 L. Ed. 2003, 65 S. Ct. 1580. ........................ .....I...6, 14

Glasgow v. Mayer,
225 U. S. 420, 429, 32 S. Ct. 753,
56 L. Ed. 1147.................. .....................................6, 14

Harlan v. McGowin,
218 U. S. 442, 54 L. Ed. 1101,
31 S. Ct. 44, 21 Ann. Cas. 849................................6, 14

Hawk, Ex Parte,
321 U. S. 114, 88 L. Ed. 572......................6, 11, 12, 14

House v. Mayo,
324 U. S. 42, 89 L. Ed. 739,
65 S. Ct. 517.... .............. ..... .... ............. 3, 6, 12, 13, 14

Hysler v. Florida,
315 U. S. 411, 86 L. Ed. 932,
62 S. Ct. 688............................. .................... .......14, 16

Lincoln, Re James,
202 U. S. 178, 50 L. Ed. 984,
26 S. Ct. 602.......................................................... 6, 14

Mooney v. Holohan,
294 U. S. 103, 111, 79 L. Ed. 791, 793...................... 5, 8

ii



Rookard v. Huff,
145 F. 2d 708....................................... .................... • 5

Salinger v. Loisel,
265 U. S. 224, 68 L. Ed. 989..................................6, 16

Slaughter v. Wright,
135 F. 2d 613....................... ,................................... 5, 7

Taylor, Ex Parte. Taylor v. State,
249 Ala. 667, 32 So. 2d 659................................ 2, 3, 10

Taylor v. Alabama,
Supreme Court of the United 
States, No. 721, October Term,
1947, rendered June 21, 1948,
92 L. Ed. 1394.......................... 2, 3, 9, 11, 12, 13, 14, 16

Taylor v. State,
249 Ala. 130, 30 So. 2d 256........................ ............. 2, 3

Walker v. Johnson,
312 U. S. 275, 85 L. Ed. 830 .................................... 5, 8

Wells v. United States,
318 U. S. 257, 87 L. Ed. 746....................................5, 7

White v. Ragen,
324 U. S. 760, 89 L. Ed. 1353................................6, 12

Wong Doo v. United States,
265 U. S. 239, 68 L. Ed. 999................................6, 17

Yarbrough, Ex Parte,
110 U. S. 651, 653, 28 L. Ed. 274............................5, 8

United States Code Annotated,
Title 28, Section 1651(a).:....................................  2

Page

iii





IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1948 

NO. 121 MISCELLANEOUS

SAMUEL TAYLOR,
Petitioner

VS.

TENNYSON DENNIS, WARDEN, 
ALABAMA STATE PENITENTIARY, 

KILBY, ALABAMA,
Respondent

BRIEF AND ARGUMENT 
IN OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

I.

OPINIONS OF THE COURT BELOW

We do not find that the opinion or judgment of 
the United States District Court for the Middle Dis­
trict of Alabama, Northern Division, rendered on July 

1948, has been officially reported. Neither do we 
find that the order of the United States Circuit Court 
of Appeals made on July 16, 1948, has been officially 
reported. We are informed that copies of the following 
are in the record:

1. Judgment and opinion of District Court dismiss­
ing petition for habeas corpus dated July 7, 
1948.



2. Order of District Court denying certificate of 
probable cause dated July 17, 1948.

3. Order of Judge of United States Circuit Court 
of Appeals (C. C. A. 5th) denying petition for 
certificate of probable cause dated July 16, 1948.

Opinions rendered prior to this proceeding are re­
ported as follows:

Taylor v. State, 249 Ala. 130, 30 So. 2d 256, affirm­
ing conviction for rape.

Ex parte Taylor. Taylor v. State, 249 Ala. 667, 32 
So. 2d 659, denying leave to petition for writ of 
error coram nobis.

Taylor v. Alabama, Supreme Court of the United 
States, No. 721, October Term, 1947, rendered June 
21, 1948, 92 L. Ed. 1394, affirming coram nobis 
proceedings, supra.

II.

JURISDICTION

The petitioner has applied for writ of certiorari 
from this Court under provisions of Title 28, U. S. C. A., 
Section 1651(a), to review the judgment of the United 
States District Court for the Middle District of Alabama, 
Northern Division, rendered July 7, 1948, dismissing 
petitioner’s petition for writ of habeas corpus, and the 
order of said District Court made on July 17, 1948, deny­
ing a certificate of probable cause for appeal; also to 
review the order made July 16, 1948, by a judge of the 
United States Circuit Court of Appeals, Fifth Circuit, 
denying a certificate of probable cause for appeal. See

2



House v. Mayo (1944), 324 U. S. 42, 89 L. Ed. 739, 65 
S. Ct. 517, rehearing denied 324 U. S. 886, 89 L. Ed. 1435, 
65 S. Ct. 689.

III.

STATEMENT OF THE CASE

Petitioner, Samuel Taylor, was convicted in the Cir­
cuit Court of Mobile County, Alabama, for rape. He 
appealed to the State Supreme Court where his con­
viction was affirmed. Taylor v. State, 249 Ala. 130, 30 
So. 2d 256. Taylor then applied to the State Supreme 
Court for leave to petition the trial court for a writ of 
error coram nobis, alleging for the first time that a 
confession used in evidence at his trial was obtained by 
force. The State Supreme Court denied leave to file 
a petition in the trial court. Ex parte Taylor. Taylor v. 
State, 249 Ala. 667, 32 So. 2d 659. On said coram nobis 
proceedings in the Supreme Court of Alabama, the peti­
tioner submitted three affidavits in support of his peti­
tion alleging that the confession was obtained by force. 
The State, in opposition to this evidence, presented eight 
photographs of petitioner’s body showing that petitioner 
was not mistreated at the time of the confession. The 
Alabama Supreme Court, in considering this evidence, 
together with other facts contained in the trial record, 
which contradicted petitioner’s allegations of an involun­
tary confession, found that petitioner’s allegations

(1) did not contain the probability of truth, 
and

(2) were unreasonable.

On certiorari, the United States Supreme Court affirmed 
the decision of the State Supreme Court. Taylor v. Ala-

3



bama, No. 721, October Term, 1947, decided June 21, 
1948. — _  U. S.------, 92 Ed. 1394.

Taylor then filed petition for writ of habeas corpus 
in the United States District Court. The allegations of 
this petition were substantially the same, if not identical, 
with the allegations in his former petition for writ of 
coram nobis. The petition was dismissed on motion of 
the State (representing the respondent, Warden of Kilby 
Prison). The grounds for dismissing the petition are 
stated in the judgment and opinion of the District Court 
dated July 7, 1948 (District Court Record). Certificate 
of probable cause for appeal was denied by the District 
Court, and later by a judge of the Fifth Circuit Court 
of Appeals.

Petitioner applied for certiorari in the United States 
Supreme Court to review:

1. The dismissal of his petition for habeas corpus 
in the District Court.

2. The denial of a certificate of probable cause by 
said District Court and the Circuit Court of 
Appeals.

The United States Supreme Court granted certiorari 
on December 13, 1948.

BRIEF AND ARGUMENT

I.

On habeas corpus proceedings, the petition includes 
those facts of which the court may take judicial cog­
nizance. ,

4



Cramer v. Washington,
168 U. S. 124, 42 L. Ed. 407.
Andersen v. Treat,
172 U. S. 24, 29, 31, 43 L. Ed. 351.
Wells v. United States,
318 U. S. 257, 87 L. Ed. 746.
Rookard v. Huff,
145 F. 2d 708.
Slaughter v. Wright,
135 F. 2d 613.
Beard v. Bennett,
114 F. 2d 578.

II.
It is not improper for a federal district court to 

issue a rule to show cause when petition for writ of 
habeas corpus is filed.

Walker v. Johnson,
312 U. S. 275, 85 L. Ed. 830.
Ex Parte Yarbrough,
110 U. S. 651, 653, 28 L. Ed. 274.
Mooney v. Holohan,
294 U. S. 103, 111, 79 L. Ed. 791, 793.

III.

Where a state court has considered and adjudicated 
the merits of a petitioner’s contentions, and the United 
States Supreme Court has reviewed the state court’s 
decision, a federal court will not ordinarily re-examine 
upon writ of habeas corpus the questions thus adjudi­
cated.

5



House v. Mayo, : ’/ . ’"1;
324 U. S. 42, 89 L. Ed. 739, 65 S. Ct. 517.
White v. Ragen,
324 U. S. 760, 89 L. Ed. 1353.

Ex Parte Hawk,
321 U .S. 114, 88 L. Ed. 572.

It is not the function or purpose of habeas corpus 
proceedings to serve as an appeal or writ of error, nor 
to retry issues of fact or law previously adjudicated.

Glasgow v. Mayer, ...■
225 U. S. 420, 429, 32 S. Ct. 753, 56 L. Ed 1147.
Re James Lincoln,
202 U. S. 178, 50 L. Ed. 984, 26 S. Ct. 602.

Harlan v. McGowin,
218 IT. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44,
21 Ann. Cas. 849.

Dorsey v. Gill,
148 F. 2d 857, cert. den. 325 U. S. 890,
89 L. Ed 2003, 65 S. Ct. 1580.

IV.

Although the doctrine of res judicata does not apply 
in habeas corpus cases, the district judge may exercise 
his discretion and give controlling weight to prior pro­
ceedings.

Salinger v. Loisel, v ;
265 U. S. 224, 68 L. Ed. 989. *■ -
Wong Doo v. United States,
265 U. S. 239, 68 L. Ed. 999. y

6



L
When the petition for writ of habeas corpus was 

filed in the District Court, it could not be considered 
solely on the allegations included on the face of the 
petition. Besides those allegations reciting that peti­
tioner was convicted by the use of an involuntary con­
fession, and that he failed to disclose such alleged facts 
because of ignorance, are the further allegations reciting 
prior proceedings in the case including:

1. A trial in the Circuit Court of Mobile County, 
Alabama.

2. An appeal to the Supreme Court of Alabama.
3. Coram nobis proceedings in the Supreme Court 

of Alabama.
4. A review of said coram nobis proceedings by 

the United States Supreme Court.
Since these prior proceedings in the same case are 

referred to in the petition itself, the District Court could 
consider the record and opinions in such prior proceed­
ings. Cramer v. Washington, 168 U. S. 124, 42 L. Ed. 407. 
The District Court was authorized to take judicial cog­
nizance of all prior proceedings. Anderson v. Treat, 172 
U. S. 24, 43 L. Ed. 351; Wells v. United States, 318 U. S. 
257, 87 L. Ed. 746; Beard v. Bennett, 114 F. 2d 578; 
Slaughter v. Wright, 135 F. 2d 578.

In considering the action of the District Court, there­
fore, it should be kept in mind that the court was cog­
nizant of all prior proceedings in the case.

II.
When a petition for writ of habeas corpus is filed 

in a district court, it is permissible for the court to

A R G U M E N T

7



issue a rule to show cause instead of issuing the writ 
forthwith. Walker v. Johnson, 312 U. S. 275, 85 L. Ed. 
830; Ex Parte Yarbrough, 110 U. S. 651, 28 L. Ed. 274; 
Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791.

In Walker v. Johnson, supra, it was stated:

“Since the allegations of such petitions are often 
inconclusive, the practice has grown up of issuing 
an order to show cause, which the respondent may 
answer. By this procedure the facts on which the 
opposing parties rely may be exhibited, and the 
court may find that no issue of fact is involved. 
In this way useless grant of the writ with conse­
quent production of the prisoner and of witnesses 
may be avoided where from undisputed facts or 
from incontrovertible facts, such as those recited in 
a court record, it appears, as a matter of law, no
cause for granting the writ exists.........This practice
has long been followed by this court and by the 
lower courts.”

The procedure adopted by the District Court in 
issuing a rule to show cause was not without precedent.

III.

Where a state court has considered and adjudicated 
the merits of a petitioner’s contentions, and the United 
States Supreme Court has reviewed the state court’s 
decision, a federal court will not ordinarily re-examine 
upon writ of habeas corpus the questions thus adjudi­
cated.

It is not intended here to argue that the doctrine 
of res judicata applies in habeas corpus cases. Neither 
do we intend to argue that the Federal District Court

8



was without jurisdiction to hear and determine this case. 
On the contrary, we do argue that in exercising a sound 
discretion, the District Court did not abuse such discre­
tion in giving controlling weight to the prior proceedings 
in this case and in dismissing the petition for habeas 
corpus.

The allegations in the petition for writ of habeas 
corpus in the District Court were substantially the same 
allegations appearing in the prior petition to the Supreme 
Court of Alabama in coram nobis proceedings. Both 
petitions alleged in substance (1) that Taylor was con­
victed on the basis of a confession, (2) that the confes­
sion was obtained by force, and (3) that because of 
ignorance Taylor failed to disclose the facts to his trial 
counsel. (See District Court Record.) It should be 
added that, in the prior petition for coram nobis in the 
State Supreme Court, there were included the further 
allegations that, during the entire time of the trial and 
imprisonment, petitioner failed to disclose the fact of 
his mistreatment, not only because of ignorance but also 
because of fear of further reprisals. These specific alle­
gations, together with an allegation concerning perjured 
testimony, which this Court found to be unsupported 
(Taylor v. Alabama, No. 721, October Term, 1947), were 
deleted from the petition filed in the District Court.

When this petition for habeas corpus was filed, it 
appeared from the face of the petition that there had 
been prior proceedings, coram nobis proceedings, in the 
State Supreme Court. The petition itself shows that 
Taylor had already presented the same grounds to the 
State Supreme Court and that the United States Supreme 
Court had affirmed the State Supreme Court’s denial of 
relief. Under such circumstances, the District Court 
issued a rule to show cause why the writ of habeas corpus 
should not issue. We have shown that this procedure is 
not improper (respondent brief, p. 6, 7).

9



In response to the rule to show cause, the respondent 
filed a motion in the nature of a plea of res judicata. 
The motion simply called on the District Judge to take 
judicial cognizance of prior proceedings, to consider the 
results and findings of the prior proceedings in exer­
cising his discretion to grant or refuse the discharge of 
Taylor. The District Judge decided to give controlling 
weight to the prior proceedings and refused to discharge 
the petitioner.

We contend that the District Court did not err in 
dismissing the petition. The District Court was presented 
with the same allegations which had been presented to 
the State Supreme Court. The State Court had already 
held a hearing on the merits. At that hearing, counsel 
had the opportunity to be heard. Petitioner’s counsel 
submitted affidavits as proof in support of the allega­
tions of his petition for coram nobis while the State 
introduced proof, consisting of photographs, in opposi­
tion to the allegations of the petition. The State Supreme 
Court, in considering the coram nobis case, referred to 
the trial record for further facts. There was nothing 
to prevent petitioner in that proceeding from presenting 
the State Court with more proof or evidence supporting 
the allegations of his petition.

As to the allegations in the petition for coram nobis, 
the Alabama Supreme Court concluded that “ . . . the 
averments of the petition are unreasonable and that 
there is no probability of truth contained therein . . .” 
Ex Parte Taylor. Taylor v. State, 249 Ala. 667, 32 So. 2d 
659. After a full review of this State decision, the 
United States Supreme Court held that:

1. Alabama did not deprive petitioner of due process 
of law in this case.

10



2. Alabama coram nobis procedure is adequate and 
constitutes due process of law in this case (Taylor 

■ v. Alabama, No. 721, October Term, 1947).

Clearly, the opinion of the United States Supreme 
Court decided that Taylor was not held by Alabama in 
violation of his rights under the due process clause of 
the Constitution. Bjr what process of reason could the 
District Judge decide otherwise?

In the case of Ex Parte Hawk, 321U. S. 114, 88 L. 
Ed. 572, it was stated:

; “Where the state courts have considered and 
adjudicated the merits of his contentions, and this 
court has either reviewed or declined to review the 
state court’s decision, a federal court will not ordi­
narily re-examine upon writ of habeas corpus the 
questions thus adjudicated. Salinger v. Loisel, 265 
U. S. 224, 230-232, 68 L. Ed. 989, 996, 997, 44 S. Ct. 
519. But where resort to state court remedies has 
failed to afford a full and fair adjudication of the 
federal contentions raised, either because the state 
affords no remedy, see Mooney v. Holohan, supra 
(294 U. S. 115, 79 L. ed. 795, 55 S. Ct. 340, 98 
A. L. R. 406), or because in the particular case the 
remedy afforded by state law proves in practice 
unavailable or seriously inadequate, cf. Moore v. 
Dempsey (261 U. S. 86, 67 L. Ed. 543, 43 S. Ct. 265); 
Ex parte Davis, 318 U. S. 412, 87 L. ed. 868, 63 S. Ct. 
679, a federal court should entertain his petition for 
habeas corpus else he would be remediless. In such 
a case he should proceed in the federal district court 
before resorting to this Court by petition for habeas 
corpus.” '  ,

Although the Hawk case, supra, was decided on the 
grounds that the petitioner had not exhausted his state

11



remedies, the above rule states that federal courts, on 
habeas corpus proceedings involving state prisoners, re­
examine questions adjudicated only in two instances: 
(1) Where there is no state remedy. (2) Where the 
state remedy is unavailable or inadequate.

This Court, in Taylor v. Alabama, supra, excluded 
both of those instances. Taylor was not denied relief 
by Alabama because there was no remedy—-the remedy 
of coram nobis was open to him. He was not denied 
relief because this remedy was inadequate—it was held 
to be adequate. He was denied relief because he could 
not convince the Alabama court that he alleged true facts. 
Relief was denied to Taylor not because of an infirmity 
in Alabama remedies, but because of infirmities in Tay­
lor’s allegations.

If the rule announced in Ex Parte Hawk, supra, is 
followed, the District Court did not err in refusing to 
re-examine the issues.

The rule was restated in White v. Ragen, 324 U. S. 
760, 89 L. Ed. 1353, as follows:

“If this Court denies certiorari after a state 
court decision on the merits, or if it reviews the 
case on the merits, a Federal district court will not 
usually re-examine on habeas corpus the questions 
thus adjudicated.”

The case of House v. Mayo, 324 U. S. 42, 89 L. Ed. 
739, 65 S. Ct. 517, rehearing denied 324 U. S. 886, 89 L. 
Ed. 1435, 65 S. Ct. 689, bears a close analogy to the 
present case. In that case, House, a state prisoner, ap­
plied for habeas corpus in a United States district Court 
after the state courts had denied relief on application 
for habeas corpus and coram nobis and after the United

12



States Supreme Court had denied certiorari without 
opinion.

The District Court did not require a return and 
dismissed the petition without a hearing holding that 
the State Supreme Court had given consideration to the 
issues raised by the petition; further that the United 
States Supreme Court, in denying certiorari, indicated 
that no meritorious question was presented. As in the 
present case, certificate of probable cause was denied.

When this Court reversed the ruling of the District 
Court on certiorari, it pointed out that the decision of 
the District Court was not supported by the grounds 
assigned for it. This Court found that the State Court 
dismissed both habeas corpus and coram nobis proceed­
ings without considering the merits and because the state 
remedy sought was not the appropriate one under state 
law.

In the case now before this Court, the decision of 
the Alabama Supreme Court was on the merits after a 
hearing and the consideration of evidence. Taylor’s 
petition for coram nobis was not denied because it was 
not the appropriate one under state law, but because 
the State Court found that said petition did not contain 
a probability of truth.

In the present case, therefore, the District Court’s 
decision is supported by the grounds assigned, namely, 
that the issues have been decided.

Neither can it be said that the District Court gave 
undue weight to the opinion of this Court in Taylor v. 
Alabama, supra, for that was a decision on the merits 
and unlike the mere denial of certiorari which occurred 
in the House case, supra.

is



Thus the rule recited in the Hawk case, supra, and 
restated in the House case, supra, is applicable to the 
present case:

“It is true that where a state court has consid­
ered and adjudicated the merits of a petitioner’s 
contentions, and this Court has either reviewed or 
declined to review the state court’s decision, a fed­
eral court will not ordinarily re-examine upon writ 
of habeas corpus the questions thus adjudicated.”

It is not the function or purpose of habeas corpus 
proceedings to serve as an appeal or writ of error nor to 
retry issues of fact or law’ previously adjudicated. Glas­
gow v. Mayer, 225 U. S. 420, 429, 56 L. Ed. 1147, 32 S. Ct. 
753: Re James Lincoln, 202 U. S. 178, 50 L. Ed. 984, 26
S. Ct. 602; Harlan v. McGowin, 218 U. S. 442, 54 L. Ed. 
1101, 31 S. Ct. 44, 21 Ann. Cas. 849; Dorsey v. Gill, 148 
F. 2d 857, cert. den. 325 U. S. 890, 89 L. Ed. 2003, 65 S. 
Ct. 1580.

If this Court reverses the District Court and directs 
the District Court to hear evidence in this case, such a 
ruling will have the effect of overruling two well con­
sidered opinions of this Court: Hysler v. Florida, 315
U. S. 411, 86 L. Ed. 932, 62 S. Ct. 688; Taylor v. Alabama, 
supra. Those cases decided that due process is not vio­
lated when a state requires a prisoner to satisfy a bench 
of judges that he has a meritorious claim when such 
prisoner challenges the essential justice of his conviction. 
In both of those cases, this Court refused to interfere 
when a state prisoner, after trial and after appeal in 
state courts, could not convince the State Supreme Court 
that his claim or challenge to the essential justice of his 
conviction was meritorious. In both of those cases, 
this Court explored the very foundation of the State 
Court’s denial of relief. In each case this Court found

14



that the State Supreme Court was justified, on reason­
able grounds, in refusing a retrial. Essentially, the 
holding in each case is that after trial, establishment of 
guilt, appeal, and affirmance a petitioner should not be 
allowed to “ trifle with justice” by attempting to prove 
allegations in coram nobis proceedings when those alle­
gations are patently unreasonable, insubstantial and lack 
the probability of truth. Certainly, a review of the very 
foundation of the State Court’s decision by this Court 
affords ample assurance that petitions for coram nobis 
will not be arbitrarily dismissed. Something must be 
left to the State and the discretion of its Supreme Court.

If Taylor’s petition for coram nobis in the Ala­
bama Supreme Court was insubstantial, in view of the 
trial record, the affidavits to the petition, and the photo­
graphs shown as exhibits—if that petition was unrea­
sonable and lacked a probability of truth—if "that peti­
tion was another example of “trifling with justice,” then 
the same is true of the later petition for habeas corpus 
in the District Court. Nothing new has been added— 
the petitions are substantially identical. Both the State 
Supreme Court and this Court have rejected the one. 
Will the District Court be compelled to hear evidence on 
the other?

Should the District Court be ordered by this Court 
to hear evidence on this petition for habeas corpus, 
such a proceeding will amount to an appeal from or re­
trial of the Alabama coram nobis proceedings. The issues 
are identical.

If the finality or conclusiveness of the judgment of 
the State Supreme Court on denial of relief in coram 
nobis proceedings hi ay be re-litigated in a federal district 
court, then in fact the State Supreme Court has no 
power to reject a petition for coram nobis regardless of 
its false and insubstantial allegations. The power of the

15



State Supreme Court to deny such petitions without vio­
lating due process is asserted in both the Hysler case, 
supra, and the Taylor case, supra. A re-trial of the 
issue in the District Court would make both decisions 
ineffective.

IV.

Although the doctrine of res judicata does not apply 
in habeas corpus proceedings, the district judge may 
exercise his discretion and give controlling weight to 
prior proceedings.

The opinion of the District Judge, dismissing the 
petition for habeas corpus recites that:

“In the exercise of its discretion to grant or 
refuse the writ of habeas corpus, this court has 
given weight to the judgments, opinions and the 
matters referred to in the opinions of the Supreme 
Court of Alabama and of the United States Supreme 
Court in this case, and this Court is of the opinion 
that in view of said opinions and judgments, and 
the history of said case that a further hearing is not 
required by the Constitution of the United States.”

This Court has held that on habeas corpus proceed­
ings a court should not apply the strict rule of res 
judicata, and that each petition should be disposed of 
in the exercise of a sound judicial discretion, guided and 

controlled by a consideration of whatever has a rational 
bearing on the propriety of the discharge sought. Among 
the matters which may be considered, and even given 
controlling weight, are . . . (b) a prior refusal to dis­
charge on a like application.” Salinger v. Loisel, 265

16



U. S. 224, 68 L. Ed. 989; Wong Doo v. United States, 265 
U. S. 239, 68 L. Ed. 999.

It is urged that the District Court was entitled to 
give much, and even controlling, weight to the decision 
of the Alabama Court denying petition for coram nobis 
and the decision of this Court reviewing that decision. 
We have already pointed out that the petition in the 
State Court and that in the Federal Court were sub­
stantially the same.

17



C O N C L U S I O N

Samuel Taylor has been tried, convicted of rape, 
and has been given the death penalty. His conviction 
has been affirmed by the Supreme Court of Alabama. 
The conviction has not been reversed. Taylor has, by 
proper state procedure, claimed that his conviction was 
in violation of civilized standards, in that a confession 
extorted by force was used against him. Alabama has 
decided that the claim is not worthy of belief. The 
United States Supreme Court has decided that Alabama’s 
rejection of the claim was not unreasonable. We re­
spectfully submit that the Fourteenth Amendment re­
quires no further inquiry, and that this Court should 
affirm the judgment of the District Court dismissing 
the petition for habeas corpus.

Respectfully submitted,

A. A. CARMICHAEL,
Attorney General of Alabama,

BERNARD F. SYKES,
Assistant Attorney General,
Counsel for Respondent.

I hereby certify that I have forwarded a copy of 
the foregoing brief to Thurgood Marshall, 20 West For­
tieth Street, New York, N. Y., attorney for petitioner, 
on this the 6th day of January, 1949.

A. A. CARMICHAEL,
Attorney General of Alabama,
Counsel for Respondent.

18









2742 JAN24’/|9



TR A N SC R IPT  O F RECO RD

Supreme Court of the United States

OCTOBER TERM, 1948

N o .  1 2 1 ,  M i s c e l l a n e o u s

SAMUEL TAYLOR, PETITIONEE,

vs.

TENNYSON DENNIS, WARDEN, ALABAMA STATE 
PENITENTIARY, KILBY, ALABAMA

ON WRIT OF CERTIORARI

PETITION FOR CERTIORARI FILED SEPTEMBER 14, 1948. 

CERTIORARI GRANTED DECEMBER 13, 1948.





SUPREME COURT O F T H E U N ITED  STATES
OCTOBER TERM, 1948

N o .  1 2 1 ,  M i s c e l l a n e o u s

SAMUEL TAYLOR, PETITIONER,
vs.

TENNYSON DENNIS, WARDEN, ALABAMA STATE 
PENITENTIARY, KILBY, ALABAMA

vs.

ON W RIT OP CERTIORARI

INDEX
Original Print

Record from D. C. U. S., Middle District of Alabama.......  1 1
Petition for writ of habeas corpus...............................  1 1
Rule to show cause.................................................  6 5
Affidavit and motion for leave to proceed in forma

pauperis..................................................... 7 g
Order granting leave to proceed in forma pauperis. . .  9 7
Return to rule......................................................... 10 8
Order dismissing petition for writ of habeas corpus. . 13 9
Order of U. S. Court of Appeals denying petition for

certificate of probable cause for an appeal......... 15 11
Motion for certificate of probable cause for an appeal. 16 11
Order denying motion for certificate of probable cause

for an appeal....................................................... 17 12
Clerk’s certificate.................... (omitted in printing). . 18

Proceedings in U. S. C. C.»A., Fifth Circuit..................  19 13
etition for certificate of probable cause for an appeal. . . .  19 13
r er denying petition for certificate of probable cause for
an appeal.................................................. 21 14

Clerk s certificate........................... (omitted in printing). . 22
r er granting motions for leave to proceed in forma pau­
peris and for leave to file petition for writ of certiorari, 
and granting petition for certiorari....................... 23 15

J udd & D e t w e il e r  ( I n c . ) ,  P r in t e r s , W a s h in g t o n , D . C ., D e o . 21, 1948. 

—9985





1

[fol. 1]
IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAMA, 
NORTHERN DIVISION

Civil Action No. 533-N

S a m u e l  T a y l o e , Petitioner,

vs.

T e n n y s o n  D e n n i s , Warden, Alabama State Penitentiary, 
Kilby, Alabama, Respondent

P e t i t i o n  f o b  W e i t  o f  H a b e a s  C o r p u s —Filed July 6, 1948

[fol. 2] Your Petitioner, Samuel Taylor, respectfully 
represents and shows unto this court that he is a citizen 
of the United States of America and of the State of Ala­
bama; that he is at the present time unjustly and unlawfully 
detained and imprisoned at the State Penitentiary, Kilby, 
Alabama by Respondent, Tennyson Dennis as Warden of 
said prison by virtue of a judgment and sentence of death 
by electrocution pronounced upon him by the Circuit Court 
of Mobile County, Alabama on November 19, 1946 on a 
charge of rape, from which judgment Petitioner prosecuted 
an appeal to the Supreme Court of Alabama where the said 
judgment was affirmed on the 24th day of April, 1947, the 
style of the cause being Samuel Taylor versus the State of 
Alabama, First Division #279 and reported in Vol. 30, 
Southern Reporter, Second Series, at page 256.

On September 18, 1947, Petitioner filed in the Supreme 
Court of the State of Alabama a petition for Writ of Error 
Coram Nobis on the grounds that his said conviction and 
sentence was based on a confession which was introduced in 
evidence on the trial of said cause against Petitioner, which 
said confession was coerced and was not freely and volun­
tarily made by your Petitioner. The Supreme Court of 
Alabama on November 13, 1947 denied the petition of your 
Petitioner and on December 4, 1947 overruled Petitioner’s 
application for rehearing, the opinion of said court being re­
ported in Volume 32, Southern Reporter, Second Series, at



2

page 659. On March 3, 1948, Petitioner applied to the Su­
preme Court of the United States for a Writ of Certiorari to 
review the judgment of the Supreme Court of Alabama in 
denying him leave to file a petition for Writ of Error Coram 
Nobis in the Circuit Court of Mobile County, Alabama. 
Certiorari was granted by the United States Supreme Court 
[fol. 3] on April 5, 1948 and the judgment of the Alabama 
Supreme Court affirmed on June 21, 1948. (Taylor v. Ala­
bama, Oct. 1947 Term, No. 721).

Your Petitioner further shows that said judgment, ver­
dict and sentence of death were based on an alleged confes­
sion which was introduced as evidence on the trial of said 
cause by the State of Alabama. That said confession was 
obtained by the use of force, fear, intimidation, and threat 
inflicted on and against your Petitioner; that said confes­
sion was not freely and voluntarily made by your Petitioner, 
and that as a consequence thereof, his said conviction and 
sentence as aforesaid is void by virtue of the due process 
clause of the Fourteenth Amendment to the Constitution 
of the United States.

That these specific facts relating to the involuntary and 
coerced nature of said confession are as follows: That Peti­
tioner was arrested by police officers of the City of Prichard, 
Alabama at 11:30 P.M. on June 29, 1946. That there were 
arrested at the same time as your Petitioner, three other 
Negro men, to-wit: Lawrence H. Franklin, Johnnie Kim­
brough and Calvin Jones. That your Petitioner and these 
three men were taken into the City Jail at Prichard, Ala­
bama. That before they were docketed or placed in a cell, 
the police officers on duty at that time whose names are un­
known to your Petitioner, beat, kicked and bruised Peti­
tioner and said three men in an effort to obtain a confes­
sion of a robbery.

That after Petitioner and the three other prisoners were 
docketed they were taken by said police officers one at a 
time in a small room in said jail. That all four of said 
men were brutally beaten, kicked and bruised in an effort 
to obtain said confession. That your Petitioner did, m 
fact, confess to said robbery but that after he had made 
this confession, he was retained in said room in the Prichard, 
Alabama jail by said police officers and told that he must 
make a confession of the rape for which he was later con­



3
victed and sentenced by tbe Circuit Court of Mobile County 
as aforesaid. That be was further beaten, kicked and 
bruised by said police officers but refused to make a con­
fession of said rape. That he was thereafter returned to 
his cell in the said City Jail at Prichard, Alabama by said 
police officers at an early hour in the morning of Sunday, 
June 30,1946. That he was no further molested throughout 
the day of said Sunday but that during the late hours of 
Sunday night, June 30, 1946, and early morning July 1, 
1946, he was further beaten, bruised and threatened as 
aforesaid. That said mistreatment and questioning by the 
[fol. 4] police officers of the City of Prichard continued 
for a period of several hours and upon Petitioner’s failure 
to confess to said crime he was again returned to his cell 
where he was left unmolested throughout the day of Mon­
day, July 1,1946. That on the night of Monday, July 1, 1946 
and the early morning of Tuesday, July 2, 1946, Petitioner 
was again subjected to similar mistreatment and question­
ing as on the previous night. Again your Petitioner main­
tained his innocence of said crime and after several hours 
was returned to his cell where he was left unmolested until 
the night of Tuesday, July 2 and early morning of Wednes­
day, July 3, 1946. On that night he was again visited by 
the police officers of the City of Prichard as aforesaid and 
was subjected to more brutal and cruel beatings and mis­
treatment. He was told unless he did confess to the crime of 
rape as aforesaid he would be continually subjected to such 
brutal mistreatment and intimidation until he did, in fact, 
confess to said crime. That your Petitioner was so fearful 
for his life, health and safety that he made a confession of 
said crime in the early morning hours of Wednesday, July 
3, 1946. He was told by said police officers of the City of 
Prichard that if he made any mention of the fact that he 
was beaten and mistreated as aforesaid that he would be 
subjected to even more cruel beatings and mistreatment. 
That at approximately three o ’clock in the morning of 
July 3, 1946, Petitioner was brought in to a carefully 
selected and arranged group for a formal confession of 
said crime of rape. That none of the persons who wit­
nessed said formal confession which was later introduced 
m evidence on the trial of said cause as aforesaid had any 
knowledge of the fact that Petitioner had been beaten,



4

threatened, abused and mistreated by the said police officers 
of the City of Prichard as aforesaid, in order to obtain said 
confession, with the exception of Prichard Police Sergeant 
“ Buster”  Wilkes who had participated in the beatings of 
Petitioner since his arrest on Saturday, June 29, 1946.

That your Petitioner is a Negro who at that time was 
nineteen years of age and had very little schooling and was 
ignorant of his rights and priviledges as a citizen of the 
United States and more particularly was unaware of the 
protection guaranteed to him by the due process laws of 
the Constitution of the United States and the Fourteenth 
Amendment thereof, and as a consequence thereof, Peti- 
[fol. 5] tioner failed to mention the cruel and inhumane 
treatment to which he was subjected by the said police of 
the City of Prichard, Alabama to his attorney who repre­
sented him on the trial of said cause in the Circuit Court of 
Mobile County, Alabama, being ignorant of his rights as 
aforesaid and of court procedure. That your Petitioner’s 
present counsel was not advised of the above facts until 
after the Petitioner’s conviction and the preparation and 
filing of the motion for a new trial and the overruling of 
said motion by the said Circuit Court of Mobile County, 
Alabama and the appealing of the Petitioner’s cause and 
the docketing of same and the decision of the Supreme 
Court of Alabama as aforesaid.

Your Petitioner further avers that his imprisonment, 
conviction and sentence of death and his present imprison­
ment is the result of a deprivation of due process of law 
and of his rights guaranteed to your Petitioner by the 
Constitution of the United States of America, in that the 
law enforcement officers of the State of Alabama obtained 
his conviction by the introduction in evidence at the trial 
of said cause of a confession which was forceably extorted 
from your Petitioner as aforesaid, thereby denying to him 
due process of law and the rights guaranteed to him by and 
under the Fourteenth Amendment of the Constitution of the 
United States of America.

Wherefore, to be relieved of said unlawful detention, im­
prisonment and sentence of death, your Petitioner prays that 
a Writ of Habeas Corpus, directed to the said Tennyson 
Dennis, Warden of the Alabama State Penitentiary, Kilby, 
Alabama, may issue in his behalf so that your Petitioner



5

may be forthwith brought before this Court, to do, submit 
to and receive what the law may direct.

Samuel Taylor.
Nesbitt Elmore, Attorney for Petitioner.
Duly sworn to by Samuel Taylor. Jurat omitted in 

printing.
[File endorsement omitted.]
Respondent accepts service of this petition.
7-7-48 Bernard F. Sykes.

[fol. 6] In t h e  D i s t r i c t  C o u r t  o e  t h e  U n i t e d  S t a t e s  

[Title omitted]
R u l e  t o  S h o w  C a u s e — Filed July 7, 1948

Petitioner, Samuel Taylor, filed in this court, on July 
6, 1948, his petition for a writ of habeas corpus for his 
release from imprisonment from Kilby Prison and the 
custody of Tennyson Dennis, as Warden of said Kilby 
Prison.

It is now ordered that a rule of this court issue, and the 
same is now issued, to Honorable Albert Carmichael, At­
torney General of the State of Alabama, commanding him 
as such Attorney General of the State of Alabama, to ap­
pear at 2:30 pan., Wednesday, July 7, 1948, in the United 
States Court Room, at Montgomery, Alabama, if he deems 
proper to do so, and show cause, if any there be, why said 
writ of habeas corpus should not issue.

This rule shall be served on Albert Carmichael, as At­
torney General of the State of Alabama, and he, or one of 
bis duly authorized assistants may accept service of the 
same.

Done at Montgomery, Alabama, this 7th day of July, 
1948.

C. B. Kennamer, United States District Judge.
I hereby accept service of the foregoing rule on this the 

7tk clay of July, 1948, at Montgomery, Alabama.
Bernard F. Sykes, Assistant Attorney General of 

the State of Alabama.
[File endorsement omitted.]



[fol. 7] In t h e  D i s t r i c t  C o u r t  o f  t h e  U n i t e d  S t a t e s  

[Title omitted]

A f f i d a v i t  a n d  M o t i o n  f o r  L e a v e  t o  P r o c e e d  i n  F orma 
P a u p e r i s — Filed July 7 , 1 9 4 8

To The Honorable, Charles Kennamer, Judge of the United
States District Court for the Middle District of Alabama:
Petitioner, Samuel Taylor, respectfully moves this Court 

for leave to proceed in forma pauperis for and by such relief 
as in the opinion of the Court his case may properly entitle 
him, and in support of such motion shows:

1. That he is a citizen of the United States of America 
and a resident of Mobile County, Alabama, and is a Negro. 
That he is under sentence of death, having been convicted in 
the Circuit Court of Mobile County, Alabama, on the 19th 
day of November, 1946, and on appeal his conviction was 
affirmed by the Supreme Court of Alabama on the 24th 
day of April, 1947. That subsequently on the 13th day of 
November, 1947, the Supreme Court of the State of Alabama 
denied petitioner leave to file an Application for Writ of 
Error Coram Nobis before the Circuit Court of Mobile 
County, Alabama, and on the 4th day of December, 1947, 
denied petitioner’s application for rehearing of his petition 
for leave to file his said application for Writ of Error 
Coram Nobis. On March 3, 1948, Petitioner applied to the 
Supreme Court of the United States for a Writ of Certiorari 
to review the judgment of the Supreme Court of Alabama 
in denying him leave to file a petition for Writ of Error 
Coram Nobis in the Circuit Court of Mobile County, Ala­
bama. Certiorari was granted by the United States 
[fol. 8] Supreme Court on April 5, 1948 and the judgment 
of the Alabama Supreme Court affirmed on June 21, 1948. 
(Taylor v. Alabama, Oct. 1947 Term, No. 721).

2. Petitioner avers that on his trial in the Circuit Court of 
Mobile County, Alabama he was denied due process of the 
law guaranteed by the Fourteenth Amendment to the 
United States Constitution.

Petitioner now shows that there is no other Court to 
which he can appeal for relief save to the District Court of 
the United States for the Middle District of Alabama and

6



7

that he cannot proceed in that Court unless he is allowed 
to do so under Pauper’s Oath.

3. Petitioner further avers that he has no property, real, 
personal or mixed; that he is now, and has been since his 
arrest, destitute; that his parents have no funds or property 
out of which the costs of this proceeding could be paid; and 
that neither he nor his parents have been able to, nor can 
they, obtain the money to pay for the costs and expenses of 
this review, being wholly dependent upon gratuitous charity 
for any assistance on this proceeding for review of his con­
viction.

4. Petitioner avers further that in his trial below, the 
State of Alabama denied him due process of law by ad­
mitting in the evidence a confession obtained from petitioner 
by officers of Mobile County, Alabama, through the use of 
cruel, brutal and inhuman treatment.

5. Petitioner has been informed by Counsel that it is his 
belief that he has been tried, convicted and sentenced with­
out due process of law, and this petitioner verily believes. 
Petitioner likewise says that he is entitled to the relief he 
seeks in this proceeding, being so informed by Counsel, and 
he avers that he does not proceed herein for purpose of 
delay.

Wherefore, the premises considered, Petitioner now re­
quests this Honorable Court to enter a proper order that 
he may proceed in the prosecution of this cause in forma 
pauperis, by such procedure as by law he may be entitled; 
and for such other and different relief to which he may be 
entitled.

Samuel Taylor, Petitioner.

[fol. 9] Duly sworn to by Samuel Taylor, jurat omitted in 
printing.

I n  t h e  D i s t r i c t  C o u r t  o e  t h e  U n i t e d  S t a t e s

O r d e r  G r a n t i n g  L e a v e  t o  P r o c e e d  i n  F o r m a  P a u p e r i s —  
Filed July 7, 1948

The foregoing affidavit and motion for leave to proceed 
m forma pauperis having been considered and understood 
by the court,



8

It is ordered that the same he, and is, granted, and the 
Petitioner may proceed in this court in the prosecution of 
his petition for a writ of habeas corpus in forma panperis. 

This 7th day of July, 1948.
C. B. Kennamer, United States District Judge. 

[File endorsement omitted.]

[fol. 1 0 ]  l x  t h e  D i s t r i c t  C o u r t  o f  t h e  U x i t e d  S t a t e s  

[Title omitted]

R e t u r n  t o  R u l e — Filed July 7, 1948
Comes the State of Alabama, by and through its Attorney 

General, in behalf of the respondent, Warden of Kilby 
Prison, and appears specially and for no other purpose, 
and, without admitting even for the purpose of argument 
the allegations of the petition, says that the United States 
District Court should not issue a writ of habeas corpus in 
the above styled cause for the following separate and several 
reasons:

1. For that the issues sought to be raised by said peti­
tion have been raised in the Supreme Court of Alabama and 
in the Supreme Court of the United States, and have been 
decided adversely to the petitioner.

2. For that said petition presents no exceptional nor 
unusual circumstances of peculiar urgency calling for the 
exercise of federal jurisdiction over a state prisoner.

o. For that the issue sought to be raised by said petition, 
to-wit, whether or not a confession or confessions, which 
were introduced in evidence on petitioner’s trial, were 
voluntary or involuntary, has been raised in the Supreme 
Court of the State of Alabama on coram nobis proceedings 
[fol. 11] and there decided adversely to the petitioner, and 
that after said adverse decision said issue was also deter­
mined adversely to the petitioner in the Supreme Court of 
the Unite'd States. 4

4. For that this court in this proceeding should not re­
examine the questions and issues already adjudicated.



9

5. For that in the exercise of its discretion orderly pro­
cedure requires that the District Court should not issue 
the writ of habeas corpus.

6. For that it has been decided both by the Supreme 
Court of Alabama and the Supreme Court of the United 
States that petitioner has been accorded due process of law, 
and has not been deprived of his life or liberty without due 
process of law.

7. For that said petitioner has not applied to the United 
States Supreme Court for a writ of habeas corpus, nor 
has he applied to said court for leave to apply to the 
District Court of the United States for a writ of habeas 
corpus.
[fol. 12] Wherefore, respondent prays that this court 
should not issue a writ of habeas corpus, and further that 
said respondent should not be required to answer further 
or make return to said petition, and that the petition should 
be dismissed and petitioner remanded to the custody of 
respondent.

A. A. Carmichael, Attorney General; Bernard F. 
Sykes, Assistant Attorney General; James L. 
Screws, Assistant Attorney General, Attorneys for 
Respondent.

[File endorsement omitted.]

[ f o l .  1 3 ]  l x  t h e  D i s t r i c t  C o u r t  o f  t h e  U n i t e d  S t a t e s  f o r  
t h e  M i d d l e  D i s t r i c t  o f  A l a b a m a , N o r t h e r n  D i v i s i o n

Civil Action No. 533-N

S a m u e l  T a y l o r , Petitioner
v s .

T e n n y s o n  D e n n i s , W a r d e n , A l a b a m a  S t a t e  P e n i t e n t i a r y , 
K i l b y , A l a b a m a , Respondent

O r d e r  D i s m i s s i n g  P e t i t i o n  f o r  W r i t  o f  H a b e a s  C o r p u s — - 
Filed July 8, 1948

This cause coming on to be heard on this the 7th day of 
July, 1948, and the petitioner, Samuel Taylor, being pres­
ent in open court and being represented by counsel, the



10

i

court proceeds to hear argument of counsel on the petition 
for writ of habeas corpus, the. rule heretofore issued by this 
court to the respondent to show cause why the writ of habeas 
corpus should not issue and the motion filed by the respond­
ent; and,

The court is of the opinion that the motion is well taken,
It is therefore considered, ordered, adjudged, and de­

creed that the motion of respondent be granted and that 
said petition for writ of habeas corpus be dismissed, and the 
petitioner is remanded to custody of the Warden of Kilby 
Prison.

The court is of the opinion that the identical issues 
sought to be raised by the allegations of the petition have 
been raised in the Supreme Court of Alabama in coram 
nobis proceedings by this petitioner; the court further finds 
that those issues were inquired into by the Supreme Court 
of Alabama and for reasons and upon proof satisfactory to 
the State Supreme Court relief was denied to the petitioner; 
further that the said judgment of the Supreme Court of 
Alabama was affirmed by the Supreme Court of the United 
[fol. 14] States, and said United States Supreme Court 
having found that the remedy afforded petitioner in the 
State Supreme Court was in compliance with the Fourteenth 
Amendment to the United States Constitution,

In the exercise of its discretion to grant or refuse the 
writ of habeas corpus, this court has given weight to the 
judgments, opinions, and the matters referred to in the 
opinions of the Supreme Court of Alabama and of the 
United States Supreme Court in this case, and this court is 
of the opinion that in view of said opinions and judgments, 
and the history of said case that a further hearing is not 
required by the Constitution of the United States.

Dated this the 7th day of July, 1948.
C. B. Kennamer, United States District Judge.

[ F i l e  e n d o r s e m e n t o m i t t e d .]



11
[ f o l .  1 5 ]  I n  U n i t e d  S t a t e s  C i r c u i t  C o u r t  o f  A p p e a l s , 

F i f t h  C i r c u i t

O r d e r  D e n y i n g  P e t i t i o n  f o r  C e r t i f i c a t e  o f  P r o b a b l e

C a u s e

It is ordered that the Petition for a certificate of probable 
cause for an appeal to this court, from the judgment of the 
United States District Court for the Middle District of 
Alabama, denying Petitioner a Writ of Habeas Corpus in 
the above styled cause be, and the same is hereby denied, 
Samuel Taylor, Petitioner, v. State of Alabama, United 
States Supreme Court, decided June 21, 1948; Taylor v. 
State, 249 Ala. 130; Ex Parte Taylor, 249 Ala. 667; 28 
USCA, Sections 452 and 466.

Leon McCord, U. S. Circuit Judge, Fifth Circuit 
Court of Appeals.

Filed July 12, 1948. 0. D. Street, Jr., Clerk.

[fol. 16] In t h e  D i s t r i c t  C o u r t  o f  t h e  U n i t e d  S t a t e s  

[Title omitted]

M o t io n  f o r  C e r t i f i c a t e  o f  P r o b a b l e  C a u s e — Filed July 17,
1948

To the Honorable Charles B. Kennamer, Judge of Said 
Court:
Comes now the Petitioner in the above styled cause and 

moves the Court for a certificate of probable cause for an 
appeal to the United States Circuit Court of Appeals for 
the Fifth Judicial Circuit from the judgment of this Court 
dismissing Petitioner’s application for Writ of Habeas 
Corpus, which said judgment was rendered by this Court on 
July 7, 1948.

Nesbitt Elmore, Attorney for Petitioner.

[ F i l e  e n d o r s e m e n t  o m i t t e d .]



[ f o l .  1 7 ]  I n  t h e  D i s t r i c t  C o u r t  o f  t h e  U n i t e d  S t a t e s  

[Title omitted]

O r d e r  D e n y i n g  M o t i o n  f o r  C e r t i f i c a t e  o f  P r o b a b l e  C ause  
—Filed July 17, 1948

On the 7th day of July, 1948, when the petition of the 
petitioner Samuel Taylor, for the issuance of a writ of 
Habeas Corpus, was heard by this court on a rule issued 
to the Attorney General of Alabama to show cause why 
such writ of habeas corpus should not issue, and the At­
torney General of Alabama having appeared and filed a 
piotion to dismiss the said petition for the issuance of said 
wrltofTaabeas corpus, ana the court, after a full hearing 
of counsel for the petitioner and for the Attorney General, 
was of the opinion, and so found, that the motion to dismiss 
the petition for said writ of habeas corpus was well founded, 
and this court entered an order and judgment dismissing 
said petition, and stated orally that this court would de­
cline to make a certificate of probable cause for an appeal 
to the circuit court of appeals for the fifth circuit, the 
Attorney for the petitioner made application to Honorable 
Leon McCord, one of the judges of the fifth circuit court 
of appeals for a certificate of probable cause for such appeal, 
and said application was denied by Judge McCord. There­
after a formal written petition was presented to this court 
for a certificate of probable cause. This petition having 
been understood and considered by the court, it is ordered 
that the same be, and is, denied.

This 17th day of July, 1948.
C. B. Kennamer, United States District Judge.

[File endorsement omitted.]

12

[ f o l .  1 8 ]  C l e r k ’ s C e r t if i c a t e  t o  f o r e g o i n g  t r a n s c r i p t  omitted
i n  p r i n t i n g .



13

[fol. 19] [File endorsement omitted.]

I n t h e  U n i t e d  S t a t e s  C i r c u i t  C o u r t  o f  A p p e a l s  f o r  t h e  
F i f t h  C i r c u i t

No. 12441

S a m u e l  T a y l o r , Petitioner,
vs.

T e n n y s o n  D e n n i s , Warden, Alabama State Penitentiary, 
Kilby, Alabama, Respondent

P e t i t i o n  f o r  C e r t i f i c a t e  o f  P r o b a b l e  C a u s e — Filed July
16, 1948

To the Honorable Judges of said Court:
Your Petitioner, Samuel Taylor, respectfully shows unto 

the Court as follows:
1. That on July 6, 1948 he filed with the United States 

District Court for the Middle District of Alabama a peti­
tion for Writ of Habeas Corpus by Virtue of a process 
issued out of an Alabama State Court, to-wit: the Circuit 
Court of Mobile County, Alabama and the Supreme Court 
of Alabama, which said petition averred in substance that 
Petitioner is at the present time imprisoned and under 
sentence of death by virtue of a conviction and judgment 
by the Circuit Court of Mobile County, Alabama for the 
crime of rape; that there was introduced in evidence 
against Petitioner on the trial of said cause in the Circuit 
Court of Mobile County, Alabama a confession which was 
extorted from him by the use of threats and violence, which 
said confession was not freely and voluntarily made by 
your Petitioner; that your Petitioner had exhausted his 
state remedites and prayed the United States District 
Court for a hearing on the issued raised in his said peti­
tion. 2

2. The said United States District Court for the Middle 
District of Alabama upon filing of said petition issued to 
the State of Alabama a rule to show cause why the Writ of 
Habeas Corpus should not be granted. The State of Ala­
bama filed a motion to dismiss the petition on substantially 
the grounds that the issues raised had been adjudicated by



14

the Supreme Court of Alabama and the Supreme Court 
[fol. 20] of the United States. The said United States 
District Court for the Middle District of Alabama dismissed 
on said motion of the State of Alabama the petition for the 
Writ of Habeas Corpus without a hearing, and further 
denied to Petitioner certificate of probable cause to this 
Honorable Court existed.

Wherefore, Petitioner prays that there be issued by this 
Court a certificate that there exists probable cause for an 
appeal to this Court from the judgment of the United 
States District Court for the Middle District of Alabama.

(Signed) Nesbitt Elmore, Attorney for Petitioner.

[ f o l .  2 1 ]  I n  U n i t e d  S t a t e s  C i r c u i t  C o u r t  o e  A p p e a l s  for 
t h e  F i f t h  C i r c u i t

[Title omitted]

O r d e r  D e n y i n g  P e t i t i o n  f o r  C e r t i f i c a t e  o f  P r o b a b l e

C a u s e

It is ordered that the Petition for a certificate of probable 
cause for an appeal to this court, from the judgment of the 
United States District Court for the Middle District of 
Alabama, denying Petitioner a Writ of Habeas Corpus in 
the above styled cause be, and the same is hereby denied. 
Samuel Taylor, Petitioner, v. State of Alabama, United 
States Supreme Court, decided June 21, 1948; Taylor v. 
State, 249 Ala. 130; Ex Parte Taylor, 249 Ala. 667; 28 
USCA, Sections 452 and 466.

(Signed) Leon McCord, United States Circuit Judge, 
Fifth Circuit.

[ f o l .  2 2 ] C l e r k ’ s C e r t if ic a t e  t o  f o r e g o i n g  t r a n s c r i p t  om itted
i n  p r i n t i n g .



[fol. 23] S u p r e m e  C o u r t  o f  t h e  U n i t e d  S t a t e s , O c t o b e r

T e r m , 1948

No. 121, Misc.

On Motion for Leave to file petition for writ of certiorari.

O r d e r  G r a n t i n g  M o t i o n s  f o r  L e a v e  t o  P r o c e e d  i n  F o r m a  
P a u p e r i s  a n d  f o r  L e a v e  t o  F i l e  P e t i t i o n  f o r  W r i t  o f  
C e r t i o r a r i , a n d  G r a n t i n g  P e t i t i o n  f o r  C e r t i o r a r i — • 
December 13, 1948

On Consideration of the motion for leave to proceed herein 
in forma pauperis and of the motion for leave to file peti­
tion for writ of certiorari, it is ordered by this Court that 
the said motions be, and they are hereby, granted.

The Petition for Certiorari is also granted and the case 
is transferred to the summary docket.

It Is Further Ordered that the duly certified copy of the 
transcript of the proceedings below which accompanied 
the motion and petition shall be treated as though filed in 
response to such writ.

15

(9985)













SUPREME EOURT OF THE UNITED STA TES

OCTOBER TERM, 1947

No. 5 3 4

LOYD KENNEDY,
Petitioner,

vs.

STATE OF TENNESSEE,
Respondent

MOTION TO DISPENSE W ITH  PRINTING OF RECORD; 
PETITION FOR CERTIORARI AND BRIEF IN SUP­
PORT THEREOF.

Maurice W eaver ,

T hurgood  M a r sh a ll ,
W . R obert M in g ,
Z. A lexan der  L ooby, 
Attorneys for Petitioner.

Edward R. D u d i êy ,
F ranklin  H. W il l ia m s ,

Of Counsel.



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INDEX

S u b je c t  I ndex
Page

Motion to dispense with printing record.....................  1
Petition for writ of certiorari......................................  3

Jurisdictional statement ......................................  4
Statement of fa c ts ..................................................  5
Errors below relied upon here............................... 7
Facts in support of e rrors ....................................  8
Prayer for writ........................................................ 10

Brief in support of petition..........................................  11
Opinion of court below ..........................................  11
Jurisdiction ...........................................................  11
Statement of case.................................................... 13
Errors relied upon.................................................. 14
Argument ...............................................................  15
Conclusion...............................................................  27

Appendix A—Excerpt from population bulletin for 
Tennessee ...................................................................  28

T able  of Cases C ited

Bush v. Kentucky, 107 U. S. 110....................................  16
Carter v. Texas, 177 U. S. 442.....................................  5,13,16
Hale v. Kentucky, 303 U. S. 613..................... 5,13
Hill v. Texas, 316 U. S. 400............................................  5
Hollis v. Oklahoma, 295 U. S. 395................................  5,13
Heal v. Delaware, 103 IT. S. 370............................ 5,13,16, 27
Norris v. Alabama, 294 U. S. 587.......................... 5,13, 22, 27
Patterson v. Alabama, 294 IT. S. 600............................. 16
Patton v. Mississippi, — IT. S. —, decided December

8, 1947 ....................................................................  5,13,16
Pierre v. Louisiana, 306 IT. S. 354........................ 5,13,19, 27
Rogers v. Alabama, 192 U. S. 226..............................  5,13,16
Smith v. Texas, 311 U. S. 128.....................................5,13,16
State v. Logan, 341 Mo. 1164, 111 S. W. (2d) 110. . 23
State v. Thomas, 250 Mo. 189,157 S. W. 330.. . . 23

—4408



Page
State v. Turner, 133 La. 555, 63 So. 169....................... 23
Strauder v. West Virginia, 100 U. S. 303..................... 13,16

S tatu tes  C ited

Judicial Code, Section 237(b), as amended February
13,1925, 43 Stat. 937, 28 U. S. C. 344(b)............... 4,10,11

Williams, Tenn. Code Annotated (1934), 10006..........  16
10009 ....... 16
10010 .......  19

ii  INDEX



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 5 3 4

LOYD KENNEDY,

vs.
Petitioner,

STATE OF TENNESSEE,
Respondent

MOTION TO DISPENSE W ITH  PRINTING OF RECORD

To the Honorable the Chief Justice of the United States and 
the Associate Justices of the Supreme Court of the United 
States:

Petitioner respectfully moves this Court for permission 
to dispense with the printing of the record in the instant 
case.

Counsel for petitioner is in possession of approximately 
$400 representing the balance of monies received for this 
case from voluntary contributors, the said money having 
been contributed for the purpose of defending petitioner 
and other individuals who were jointly and severally in­
dicted for crimes arising out of interracial disturbances 
occurring in Columbia, Tennessee, on the 25th day of Feb­
ruary, 1946. Counsel for petitioner has been advised by

lfc



2

the Clerk of this Court that the said sum of $400, which is 
all that is available to petitioner’s counsel to cover expenses 
involved in this cause, will not be sufficient to pay for the 
printing of the record herein.

W herefore , petitioner respectfully prays leave to dis­
pense with the printing of the record herein and permis­
sion to file a typewritten record with this Court.

Respectfully submitted this 16th day of January, 1948.
L oyd K e n n e d y ,

By T hurgood  M a r sh a ll ,
20 West 40 Street,

New York 18, New York;
W . R obert M in g ,

Chicago, Illinois;
Z. A lexander  L ooby,

Nashville, Tennessee, 
Attorneys for Petitioner.

M aurice  W eaver,
Chattanooga, Tennessee;

E dward R . D u d ley ,
F r a n k l in  H. W il lia m s ,

20 West 40 Street,
New York 18, Neiv York,

Of C owns el.



SUPREME EUURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 5 3 4

LOYD KENNEDY,

vs.
Petitioner,

STATE OF TENNESSEE,
Respondent

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF TENNESSEE

To the Honorable the Chief Justice of the United States and 
the Associate Justices of the Supreme Court of the United 
States:

Petitioner respectfully prays that a Writ of Certiorari 
issue to review a judgment of the Supreme Court in the 
State of Tennessee, affirming a judgment and sentence of 
the Circuit Court of Maury County, Tennessee, wherein 
petitioner, a Negro, was sentenced to not more than five 
years imprisonment for unlawfully and feloniously com­
mitting an assault with intent to commit murder in the first 
degree on the body of one Kay Austin, a white man, and to 
reverse such judgment and sentence or to obtain a new 
trial.



4

I

Jurisdictional Statement

Petitioner presents this petition pursuant to Section 
237(b) of the United States Judicial Code as amended Feb­
ruary 13,1925, 43 Stat. 937, 28 U. S. C. 344(b).

Petitioner prays that a Writ of Certiorari issue to review 
the decree entered on June 24, 1947, in the Supreme Court 
of Tennessee, which is the highest court of said State, in 
the cause in that court entitled Loyd Kennedy v. State of 
Tennessee; Suggestion of Error having been duly filed in 
said Supreme Court of Tennessee and overruled on Octo­
ber 21, 1947, and petitioner now being at liberty on $5,000 
bond pending the action of this Court upon this petition.

The nature of the case and the rulings below which bring 
the case within the jurisdictional provision of Section 
237(b), supra, appear from the following:

The claim of Federal constitutional rights is specifically 
raised in the Plea in Abatement (R. lOa-lOj), the motion to 
quash the several panels of veniremen (R. 321), and upon 
the exceptions taken to the rulings of the trial judge in 
refusing petitioner the opportunity to introduce testimony 
in evidence concerning the systematic and long continued 
custom and practice of exclusion of Negroes from juries in 
Maury County (R. 326-327). These Federal questions were 
substantially passed upon by the Supreme Court of Ten­
nessee in its opinion and the claim of Federal rights denied.

The claim so made and denied is that the conviction of 
petitioner, a Negro, by a trial jury upon an indictment found 
and returned by a grand jury, from which juries all quali­
fied Negroes were and have been for a long period of years 
systematically excluded solely because of their race and 
color, was in contravention and violation of the equal pro­
tection and due process clauses of the Fourteenth Amend-



5
ment to the Constitution of the United States. The further 
claim made and denied is that the refusal of the trial court 
to allow the introduction of evidence of the systematic and 
long continued exclusion of Negroes from juries in Maury 
County, Tennessee, denied petitioner due process of law 
in violation of the Fourteenth Amendment to the Constitu­
tion of the United States.

The following cases, among others, sustain the jurisdic­
tion of this court to determine the invalidity of a conviction 
by a trial jury found upon an indictment returned by a 
grand jury when from both juries Negroes were and have 
been systematically excluded in that county over a long 
period of years solely because of race: Neal v. Delaware, 
103 U. S. 370; Norris v. Alabama, 294 U. S. 587; Hollis v. 
Oklahoma, 295 U. S. 395; Hale v. Kentucky, 303 U. S. 613; 
Rogers v. Alabama, 192 U. S. 226; Pierre v. Louisiana, 306 
U. S. 354; Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 
U. S. 400; Patton v. Mississippi, — U. S. —, No. 122, Oct. 
Term, 1947. These cases established clearly that the sys­
tematic exclusion of Negroes from juries solely because of 
race may be established and proved by testimony concern­
ing the composition of juries within a county over a long- 
period of years prior to the immediate case. Neal v. Dela­
ware, supra; Norris v. Alabama, supra; and Pierre v. Lou­
isiana, supra; Carter v. Texas, 177 U. S. 442; Patton v. 
Mississippi, supra.

Statement of Facts
On Monday, February 25,1946, in Columbia, Tennessee, a 

Negro youth struck a white store proprietor because of the 
proprietor’s having slapped the Negro’s mother. Immedi-. 
ately, the white community became aroused and rumors of 
lynching spread throughout the Negro community. The 
State Highway Patrol was ordered to Columbia at about 
9 o’clock that night along with units of the State National



6
Guard. A cordon of patrolmen was thrown around the 
Negro area known as “ Mink Slide.”  The sheriff and 
Commissioner of Safety agreed to keep the police surround­
ing this area for the purpose of preventing anyone from 
coming in or going out; and, further agreed to enter the 
area about daylight and arrest everyone found therein. 
From midnight until daybreak, intermittent firing occurred 
throughout the town. About sunrise on the morning of the 
26th, the order was given to the patrolmen to “ move in” 
on the area. The police and National Guardsmen, working 
in units, went from house to house and business establish­
ment to business establishment, arresting all individuals 
found. They wantonly destroyed property and brutalized 
the Negro citizens. Terror reigned throughout the Negro 
community. One group of policemen, headed by the Sheriff 
and including about twenty-five (25) officers and civilians 
and armed with riot guns and submachine guns proceeded 
down the street, going from door to door, ordering all in­
dividuals therein to come out with their hands up. The 
only buildings so approached were those occupied by 
Negroes.

Upon arrival in front of the Blair Barber Shop, the 
Sheriff allegedly called out for anyone inside to come out 
quietly. At this point, it is alleged, a shotgun blast fired 
from inside the barber shop through the plate glass window 
struck one of the officers, Bay Austin, hitting him in the leg. 
The wound was minor in nature for the officer continued on 
duty for the rest of the week. Only one person, in the 
group, a policeman, could describe in any way the person 
inside the barber shop who allegedly fired the shotgun. 
This witness stated emphatically that such person was 
larger than petitioner but about the size of his co-defendant. 
The group then fired hundreds of machine gun bullets into 
the shop, burst inside, found petitioner pressed against the 
wall, apparently “ scared to death”  and arrested him and



7

his co-defendant, William A. Pillow, a Negro, who was also 
found within the barber shop. They were charged with 
having committed assault and battery with intent to com­
mit murder in the first degree on the body of Patrolman 
Ray Austin, a white man. They were subsequently indicted 
on the 21st day of March, 1946, and having pleaded “ Not 
Guilty,”  were tried in the Circuit Court of Maury County, 
Tennessee, at the February, 1946 Term. The jury acquitted 
petitioner’s co-defendant and convicted petitioner of assault 
with intent to commit murder in the second degree, fixing 
his punishment at not more than five (5) years in the State 
Penitentiary. The Supreme Court of Tennessee affirmed 
the conviction on the 26th day of June, 1947, and overruled 
Assignments of Error on the 21st day of October, 1947.

Errors Below Relied Upon Here

Petitioner relies upon the following points:

I. The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro, upon an in­
dictment found and returned by the grand jury of a county 
where all qualified Negroes were and have been for a long 
period of years systematically excluded from service on 
grand juries solely because of race or color in contravention 
of the equal protection and due process clauses of the Four­
teenth Amendment to the Constitution of the United States.

II. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, by a trial 
jury in a county where all qualified Negroes were and have 
been for a long period of years systematically excluded 
from trial juries solely because of race or color in contra­
vention of the equal protection and due process clauses of the 
Fourteenth Amendment to the Constitution of the United 
States.

2k



8

III. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, where the 
trial court denied him due process of the law as guaranteed 
by the Fourteenth Amendment to the United States Consti­
tution in refusing to allow the introduction of evidence of 
the systematic exclusion of Negroes from its juries over a 
long period of years prior to petitioner’s trial.

Facts in Support of Errors

Petitioner’s proof showed overwhelmingly by the testi­
mony of more than 200 white and Negro resident-witnesses, 
from all walks of life in Maury County, that for more than 
fifty years no Negro had ever served on a grand or petit 
jury in that county d as one sixty-one year old, life resident 
of the county stated, “ I have been here all my life and never 
heard of one- (R. W. 656). Petitioner’s proof also estab­
lished by testimony of such witnesses that there were large 
numbers of Negroes, citizen-residents of Maury County, 
possessing all of the legal qualifications for jury service, 
none of whom had ever been called to serve or served or 
who knew of any Negro having been called or had served on 
a grand or petit jury in Maury County, Tennessee, prior to 
the instant trial although approximately 9,000 white males 
over twenty-one and 3,000 Negro males over twenty-one 
resided therein, according to the 1940 Federal census.1 2

Petitioner’s proof established clearly that such absence 
of Negroes from juries in Maury County was the result of 
a systemaic exclusion based solely upon race or color and

1 See: Testimony contained in Wayside Bill of Exceptions, S tate v. Blair, 
which by stipulation of counsel was made part of the record of the instant 
case. Page references to testimony from the Wayside Bill is referred to 
herein by the letters “RW” ; page references to the instant record are 
marked as usual “R.”

2 See: Certified copy of “Population Breakdown” attached hereto and 
marked “Exhibit “A.”



9
pursuant to an established custom and usage of county 
officials within the meaning of decisions of this Court. This 
testimony was uncontradicted and in the face thereof the 
trial court overruled petitioner’s Plea in Abatement. The 
affirmance of the decision by the Supreme Court of the 
State of Tennessee and the subsequent holding therein that 
no Federal rights had been denied petitioner by such exclu­
sion constitutes grounds upon which petitioner appeals to 
this Court.

Petitioner subsequently moved to quash the several 
panels of veniremen from which the trial jury was drawn. 
In such motion, he alleged, among other things, that all of 
the persons whose names were drawn and who were sum­
moned for jury service in the instant case were white; that 
there are numerous colored citizens in the county, qualified 
for jury service; that the administrative officers responsible 
for selecting jurors systematically excluded Negroes from 
juries over a long period of years solely on account of race 
pursuant to custom and practice; that to circumvent recent 
decisions of this Court a conspiracy or common understand­
ing obtained to call one or two Negroes “ whenever it should 
appear that such systematic exclusion would be challenged ’ ’ ; 
that such calling was never in good faith as no Negroes are 
ever permitted to serve on juries in the county; all in viola­
tion of petitioner’s constitutional rights (E. 321).

Petitioner then requested the opportunity to offer proof 
in support of his motion—“ to show that for more than half 
a century Negres have been excluded from jury service in 
Maury County.”  At the time of such request, the following 
occurred:

“ The Court: We could hear proof only as to the 
formation of the panel or panels which were formed 
in the selection of this trial jury.

“ Mr. Looby: If the Court please, let the record show 
that we are prepared to offer proof in support of the



1 0

allegations prior to that time and that the proof is 
not offered merely in obedience to your Honor’s ruling.

“ The Court: You can except to the action of the 
Court.

“ Mr. Looby: Very well, your Honor, we so except.
“ The Court: All right”  (R. 326-327).

This ruling was substantial error and in violation of peti­
tioner’s constitutional right to due process. Numerous 
decisons of this Court have held that systematic exclusion 
of Negroes from juries can be established by a showing of 
the non-service of Negroes over a long period of years and 
the existence of many Negroes qualified for jury service in 
a particular county. The refusal of the trial court to allow 
the introduction of such proof and the approval of this 
ruling through affirmance by the Supreme Court of Tennes­
see constitutes error upon which petitioner relies and pro­
vides further grounds upon which petitioner appeals to this 
Court.

W herefore , petitioner prays that this Court, pursuant 
to Section 237(b) of the United States Judicial Code, as 
amended February 13,1925, 43 Stat. 937, 28 U. S. C. 344(b), 
issue a Writ of Certiorari to review the judgment of the 
Supreme Court of the State of Tennessee affirming your 
petitioner’s conviction for assault with the intent to commit 
murder in the second degree as aforesaid.

All of which is respectfully submitted this 16 day of
Januarv, 1948. T „

L oyd K e n n e d y ,
By Thurgood Marshall,

W. R obert Mixg,
Z. A lexan der  L ooby,

M aurice  W eaver, Attorneys for Petitioner.
E dward R. D u d ley ,
F r a n k lin  H. W il lia m s ,

Of Counsel.



SUPREME EOURT OF THE UNITED STATES

OCTOBER TERM, 1947

N o .  5 3 4

LOYD KENNEDY,
Petitioner, vs. ’

STATE OF TENNESSEE,
__________  Respondent

BRIEF IN SUPPORT OF PETITION FOR W RIT OF 
CERTIORARI

I

Opinion of Court Below

The opinion lias not been recorded officially. It appears 
at pages 416-426 of the record. Suggestion of Error (Peti­
tion to Rehear) was overruled on the 21st day of October, 
1947, without opinion.

II

Jurisdiction

1

The statutory provision is United States Judicial Code, 
Section 237(b), as amended February 13, 1925, 43 Stat. 937, 
28 U. S. C. 344(b).



1 2

2

The date of the judgment in the Circuit Court of Maury 
County, Tennessee, is November 19, 1946, affirmed by the 
Supreme Court of Tennessee on June 24, 1947. Suggestion 
of Error was overruled on the 21st day of October, 1947.

3

That the nature of the case and the rulings below bring 
the case within the jurisdictional provisions of Section 
237(b), supra, appears from the following:

The claim of Federal constitutional rights was timely 
raised in petitioner’s Plea in Abatement (R. 10 A), 
petitioner’s Motion to Quash the several panels of 
veniremen (R. 321); and, upon the exceptions taken to 
the rulings of the trial judge in refusing petitioner the 
opportunity to introduce evidence of exclusion beyond 
the instant panel (R. 326-327).

These questions were expressly considered and the 
rights ruled against by the trial court (R. 18-37, 327).

The questions were specifically passed upon by the 
Tennessee Supreme Court in its opinion (R. 416-426).

The claim so made and denied is that the conviction of 
petitioner, a Negro, by a trial jury upon an indictment 
found and returned by a grand jury, from which juries all 
qualified Negroes were and have been for a long period of 
years systematically excluded solely because of their race 
and color, was in contravention and violation of the equal 
protection and due process clauses of the Fourteenth 
Amendment to the United States Constitution.

The further claim made and denied is that the refusal of 
the trial court to allow the introduction of evidence of the 
systematic and long-continued exclusion of Negroes from 
juries in Maury County, Tennessee, denied petitioner due



13
process of law in violation of the Fourteenth Amendment to 
the Constitution of the United States.

The following cases, among others, sustain the jurisdic­
tion of this Court, as to the invalidity of a conviction by a 
trial jury upon an indictment returned by a grand jury, 
from which juries Negroes were and have been systemati­
cally excluded in that county over a long period of years 
solely because of race: Strauder v. West Virginia, 100 U. S. 
303; Neal v. Delaware, 103 U. S. 370; Carter v. Texas, 177 
U. S. 442; Rogers v. Alabama, 192 U. S. 226; Norris v. Ala­
bama, 294 U. S. 587; Hollis v. Oklahoma, 295 U. S. 395; 
Hale v. Kentucky, 303 U. S. 613; Pierre v. Louisiana, 306 
U. S. 354; Smith v. Texas, 311 U. S. 128; Patton v. Mis­
sissippi, — U. S. —, No. 122, October Term, 1947.

Neal v. Delaware, supra; Norris v. Alabama, supra; 
Pierre v. Louisiana, supra; Carter v. Texas, supra, and 
Patton v. Mississippi, supra, establish clearly that the sys­
tematic exclusion of Negroes from juries solely because of 
race may be established and proved by testimony concern­
ing the composition of juries within the county over a long- 
period of years prior to the immediate case.

Statement of Case

The petitioner, and another Negro, William A. Pillow, 
residents of the City of Columbia, State of Tennessee, were 
arrested on the 26th day of February, 1946, by members of 
the Tennessee State Highway Patrol. They were charged 
with having committed assault and battery with intent to 
commit murder in the first degree on the body of a Patrol­
man Pay Austin, a white man, during a recent interracial 
disturbance in that city. They were subsequently indicted 
on the 21st day of March, 1946, and having plead “ Not 
Guilty’ ’ were tried in the Circuit Court of Maury County, 
Tennessee, at the February, 1946 Term. The jury ac­
quitted petitioner’s co-defendant and convicted petitioner 
of assault with intent to commit murder in the second de-



14

gree and fixed his punishment at not more than five years 
in the state penitentiary. The Supreme Court of Tennessee 
affirmed the conviction on the 26th day of June, 1947 and 
overruled Assignments of Error on the 21st day of Octo­
ber, 1947.

Errors Relied Upon

The points urged are in summary form as follows:

P o in t  I
The Supreme Court of the State of Tennessee erred in 

affirming the conviction of petitioner, a Negro, by a trial 
jury of white persons, upon an indictment found and re­
turned by a grand jury of white persons in Maury County, 
Tennessee, in which county all qualified Negroes were and 
have been for a long period of years systematically ex­
cluded from all jury service solely because of their race 
or color in contravention of the equal protection and due 
process clauses of the Fourteenth Amendment to the Con­
stitution of the United States.

A. The systematic and deliberate exclusion of Negroes 
from jury service solely because of their race or color denies 
a Negro defendant charged with crime the equal protection 
of the laws and due process of law guaranteed by the 
Fourteenth Amendment to the Constitution of the United 
States.

B. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, upon an 
indictment found and returned by a grand jury of a county 
where all qualified Negroes were and have been for a long 
period of years systematically excluded from service on 
grand juries solely because of race or color in contraven­
tion of the equal protection clause of the Fourteenth Amend­
ment to the Constitution of the United States.

C. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, by a trial



15
jury in a county where all qualified Negroes were and have 
been for a long period of years systematically excluded 
from trial juries solely because of their race or color in 
contravention of the equal protection clause of the Four­
teenth Amendment to the Constitution of the United States.

P o in t  II

The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro, where the 
trial court denied him due process of the law as guaranteed 
by the Fourteenth Amendment to the Constitution of the 
United States in refusing to allow the introduction of evi­
dence of systematic exclusion of Negroes from its juries 
over a long period of years prior to petitioner’s trial.

ARGUMENT

P o in t  I

The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro, by a trial 
jury of white persons, upon an indictment found and re­
turned by a grand jury of white persons in Maury County, 
Tennessee, in which County all qualified Negroes were and 
have been for a long period of years systematically excluded 
from all jury service solely because of their race or color 
in contravention of the equal protection and due process 
clauses of the Fourteenth Amendment to the Constitution 
of the United States.

A. The systematic and deliberate exclusion of Negroes 
from jury service solely because of their race or color denies 
a Negro defendant charged with crime the eqioal 'protection 
of the laws and due process of law guaranteed by the Four­
teenth Amendment to the Constitution of the United States.

The principle that state exclusion of Negroes from juries 
solely because of their race or color denies Negro defend-



16

ants in criminal cases the equal protection of the laws re­
quired by the Fourteenth Amendment was enunciated by 
this Court over a half century ago.3

The principle applies whether the discrimination was by 
virtue of a statute,4 * or by action of administrative officers,6 
and whether the exclusion is from service on petit juries6 
or grand juries.7

The discrimination complained of by petitioner was not 
embodied in the Tennessee statutes,8 but rather resulted 
from a systematic, intentional, deliberate and invariable 
practice on the part of administrative officers of Maury 
County, Tennessee, to exclude Negroes from jury service 
within the county.

3 S trau der v. W e s t V irg in ia , 100 U. S. 303 (1880).
4 Bush v. K e n tu ck y , 107 U. S. 110.
s N eal v. D elaw are, 103 U. S. 370; C a rter  v. T exa s , 177 U. S. 442;

R og ers  v. A labam a, 192 U. S. 226.
6 Strauder v. W e s t  V irg in ia , s u p ra ; N orris v. A labam a, 294 U. S. 587.
7 C arter v. T exas, su p ra ; P a tterson  v. A labam a, 294 IJ. S. 600; Smith v.

T exas, 311 U. S. 128; P a tton  v. M ississipp i, — U. S. —.
8 Williams, Term. Code Annotated (1934)— 10006 who may be a Juno®:

Every male citizen who is a freeholder or householder, and twenty- 
one years o f age, is legally qualified to act as a grand or petit juror, 
i f  not otherwise incompetent under the express provisions of this 
Code.

10009--W H O  M AY N OT BE :
Persons convicted o f certain infamous offenses, specially designated 

in this code, persons of unsound mind, persons not in the full posses­
sion of the senses o f hearing and seeing, and habitual drunkards, aie 
incompetent to act as jurors.



17

B. The Supreme Court of the State of Tennessee erred in 
affirming the conviction o f petitioner, a Negro, upon an 
indictment found, and returned by a grand jury of a, county 
where all qualified Negroes were and have been for a long 
period of years systematically excluded from service on 
grand juries solely because of race or color in contravention 
of the equal protection clause of the Fourteenth Amendment 
to the Constitution of the United States.

Petitioner tiled a Plea in Abatement to the indictment 
returned against him alleging among other things that 
members of his race were systematically excluded from 
grand jury service in Maury County, Tennessee.9 In sup-

9 The Plea in Abatement alleged among other things that:
The grand jury and all persons comprising the panel from which said 

grand jury was selected were white persons.
That long prior to the selection of names for the then current jury list 

or jury box and at that time there had been and were numerous colored 
citizens of the State of Tennessee and residents of said county who in 
every respect had been and were qualified to serve as petit and grand 
jurors in civil and criminal trials in said county including trials of 
felonies.

That the county court or Board of Jury Commissioners or the person 
or persons who by law is or are authorized to select or appoint the persons 
from whom the jury is or are to be chosen unlawfully and in violation of 
their respective oaths of office and of the Constitution of the State of 
Tennessee and that of the United States and the law of the land did exclude 
and always have excluded from jury service all qualified Negroes, members 
of the colored race and of African descent, solely on account of their race 
and color.

That at all times it had been and was at that time the custom in said 
Maury County to use white men exclusively for petit and grand jury serv­
ice in any and all cases including trials of felonies and in selecting the 
jury at that time and the supplement or supplements thereto this custom 
was followed by those charged with the duty of appointing or selecting 
those from whom the jury was to be drawn for this case.

That all qualified Negroes were thereby excluded from the possibility 
of sitting as grand jurors.

That by the reason of this unlawful exclusion of all qualified Negroes 
from the current jury list or box, defendant has been greatly prejudiced



18
port, thereof 20.6 white and Negro residents of the county 
were called and testified.10 Evidence showed the population 
of Maury County to consist of approximately 30,000 white 
people and 10,000 Negroes (R. 159).11

The approximately 200 Negro witnesses, were with only 
one or two possible exceptions, fully qualified for jury 
service. They represented a true cross section of the 
county’s Negro population, ranging in age from 86 (RW. 
144) down to 23 years (RW. 578) and janitors, (RW. 150, 
162, 301, 470, 566), railroad workers (RW. 456, 554), 
post office employees (RW. 561), churchmen (RW. 495) 
and chemical workers (RW. 500), miners (RW. 318), 
peddlers (RW. 213), printers (RW. 367), grocers (RW. 
I l l ,  119, 237), farmers (RW. 131,134,192, 244, 257, 273, 405, 
423), bricklayers (RW. 100), carpenters (RW. 21), elec­
tricians (RW. 103), barbers (RW. 18, 64, 170, 262, 321), 
businessmen (RW. 15, 137, 233, 533), teachers (RW. 28, 
114, 127, 144, 208, 241, 542), dentists (RW. 35), ministers 
(RW. 87), retired men (RW. 127, 301, 398), and veterans 
of World War I (RW. 555, 589) and II (RW. 315, 338, 454, 
504, 517, 542, 594). Not one witness had ever known or 
heard of a Negro being called for or serving on a jury in 
the criminal courts of Maury County prior to February 
2 5 ,  1 9 4 6 .

and has been denied due process and the equal protection of the laws in 
violation of the Constitution of the United States and of the State of 
Tennessee.

That this custom of excluding Negroes from jury service has continued 
in said county for more than fifty years (E. 10A-10J).

10 By stipulation entered in this case on July 7, 1946, the proof offered 
on hearing on Pleas in Abatement in the ease of S ta te  o f  Tennessee v. 
Sol. B lair, e t al., was accepted as proof in this case and was preserved by 
a Wayside Bill of Exceptions (R. 19).

11 The official count of the returns of the Sixteenth Census of the 
United States filed as an exhibit in this case showed the white male popula­
tion over 21 to be 8,817 and the Is egro male population over 21 to be 2,918 
(See Exhibit “A” attached hereto).



19
The testimony of one eminently qualified witness12 suc­

cinctly sums up the facts concerning the service of Negroes 
on juries in Maury County. From 1901 to the present, 
this former county officer had not heard of any Negro being 
on a grand or petit jury in the county though, “ undoubt­
edly,”  there were “ a number”  of Negroes qualified to 
serve (RW. 159).

This testimony remained uncontradicted, and made out 
a prima facie case of systematic and deliberate exclusion 
of Negroes from jury service.13 The state attempted to 
overcome such proof by testimony of more than fifty white 
witnesses to the effect that not one of them had ever been 
called or served.14 It is noteworthy, however, that not one 
of these state’s witnesses had ever heard or known of a 
Negro being called or serving on a jury in Maury County, 
prior to petitioner’s trial.

Two members of the Maury County Jury Commission 
testified. Both emphatically denied that race was a con­
sideration in making up the jury list (RW. 858, 869).

Witnesses for the state testified that there were approxi­
mately thirteen Negroes whose names appeared upon the 
panel from which the grand and trial juries in the instant 
case were drawn. It is clear from an examination of the 
record that such names were purposely placed upon the 
instant panel in an attempt to circumvent the clear consti-

12 W. C. Whitshire, a practicing attorney, justice of the peace, county 
attorney and judge of County Criminal Court for various periods of time 
following his admission to the bar of Maury County in 1888 (RW. 153).

13 Neal v. D elaw are, su pra , 397; N orris v. A labam a, su pra , 591; P ierre  
v. Louisiana, 306 U. S. 354, 361; P a tto n  v. M ississip p i, ■— U. S. —.

14 Of these white witnesses called, three were ministers, four teachers, 
eleven officers of state, city or county, one in the military service twenty- 
two years, and seven professional men, three neither taxpayers nor prop­
erty owners—more than half, therefore, were either ineligible to serve or 
eligible for exemption under the statute (Wm.’s Tenn. Code Ann. No. 
10010). Undoubtedly this was an important factor tending to show why 
they were never called.



20

tutionai requirement as enunciated by this court not to 
have Negroes systematically excluded from juries in a 
criminal trial involving a Negro defendant. In any event, 
the record makes it eminently clear, and the state did not 
dispute the fact, that no Negroes served on either the grand 
or petit jury involved in this case.

James D. Carruthers, whose name was allegedly prop­
erly upon the jury list, in testifying concerning his receipt 
of a card ordering him to appear for service, stated, “ I 
really didn’t know whether they meant to subpoena a 
Negro. That was the trouble about it. I thought perhaps 
it was a mistake about my name”  (EW. 24). This witness 
was excused by the court. Three other Negroes testified 
for the state to the effect that they had received cards 
allegedly intended for them calling them to appear for jury 
service: Earnest Lipscomb, a taxpayer registered as resid­
ing at Route 2, Mount Pleasant, Tenn., received a card 
forwarded to “ Earnest Lipscomb, Hampshire, Tenn.”  (EW. 
917). This witness was not available at the time the trial 
jury was chosen. Another witness, Maxie Perryman, who 
testified to being commonly known as “ Moxie,”  received a 
card addressed to “ Max.”  He approached his “ boss”  and 
requested to be excused from service. His employer subse­
quently informed him that he would not have to appear for 
service-—this in spite of the fact that the said employer 
was not a county official (RW. 929, 939, 940). This witness 
never reported to any official of the court or the county. 
The third Negro witness testifying for the state is one 
Tom Kittrell who could neither read nor write and he 
stated that upon the receipt of the card and upon ascertain­
ing its contents, he also arranged through his boss, like­
wise not a county official, “ to be excused”  from jury serv­
ice (RW. 955). This witness also failed to appear at any 
time before the court. In both of these latter two in­
stances, the witness’ employer apparently had a close re-



2 1

lationsliip with the sheriff or judge or some other person 
authorized to excuse jurors or who would assume such au­
thority. Three other names on the jury list, L. E. Buford, 
John Griggs, Louis Nicholson, were stated to be names of 
Negroes by witnesses claiming to know them. All three 
were deceased at the time of their alleged call for service 
(RW. 898, 948 and 975). The names of two other Negroes 
allegedly appearing on the list were Edgar Brown and 
J. R. Martin. Cards sent to their addresses as registered in 
the tax books were returned to the sheriff by the post office 
marked “ Addressees Unfound”  (RW. 898, 899). Two more 
names were identified as belonging to Negroes by white 
members of the community who were not sure whether there 
were other individuals not Negroes in the county bearing 
the same name. These were Henry Howard and Will James 
(RW. 950, 970). In any event, neither of these persons 
appeared for jury service. The last name, allegedly that 
of a Negro, on the list was Ewell Lowry. This person, it 
was testified, had gone “ North”  some two years before 
(RW. 980).

Thus, giving the state’s testimony the greatest credence 
possible, it would appear that on the panel from which 
the grand jury herein was drawn, the names of thirteen 
Negroes appeared. Of this number three were dead, (RW. 
898, 975, 914, 980) only three actually received cards, of 
which number two had incorrect spelling or addresses and 
two of these three were excused by their “ bosses” ; one 
of the individuals allegedly on the list could not read; one 
remained unaccounted for and the last, the only Negro 
of whom any number of other witnesses had heard of hav- 
mg been called, one Carruthers, believed it was a mistake 
and was excused by the sheriff. These circumstances which 
operated in each instance to prevent any Negro from being 
available for service on the grand jury, when considered 
together clearly show a pattern, design or method of pre-



22

arranged conspiracy to prevent Negroes from actually 
serving while attempting to place an aura of legitimacy 
around the jury panel. The appearance of most of these 
names in the taxbooks adds to the belief that such a con­
spiracy was in effect (RW. 1002-1016). These facts make 
the state’s attempted proof impotent to offset the showing 
that Negroes were systematically excluded. As stated 
in Norris v. Alabama, 294 U. S. 587, 1935:

“ We are of the opinion that the evidence required 
a different result from that reached in the state court. 
We think that the evidence that for a generation or 
longer no Negro had been called for service on any 
jury in Jackson County, that there were Negroes quali­
fied for jury service, that according to the practice of 
the jury commission their names would normally ap­
pear on the preliminary list of male citizens of the 
requisite ages but that no names of Negroes were 
placed on the jury rolls, and the testimony with re­
spect to the lack of appropriate consideration of the 
qualifications of Negroes, established the discrimina­
tion which the Constitution forbids.”  Norris v. Ala­
bama, 294 U. S. 587 (1935)

C. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, by7 a trial 
jury in a county where all qualified Negroes were and have 
been for a long period of years systematically excluded 
from trial juries solely because of their race or color in 
contravention of the equal protection clause of the Four- 
teenth Amendment to the Constitution of the United States.

Petitioner, at the outset of his trial, moved to quash 
the trial jury panels.15 To sustain his contention of delib-

15 See Petition ( su pra) .



23

erate discrimination, petitioner called only one witness 16 
as the court had erroneously restricted petitioner’s evidence 
of discrimination to the formation of the panel for the 
instant case (E. 326-7—see: Point II, herein).17

The witness testified that at the beginning of that term 
of court, one hundred names were selected for a panel 
of veniremen for the term (R. 329); that the grand jury 
was selected from this list (R. 330); following which the 
judge excused the fifteen individuals whose names remained 
thereon, (R. 331). None of these was tendered for serv­
ice on the trial jury. One Negro allegedly was on this 
list and was excused (R. 332).18 Another panel of seventy- 
five was selected on November 12 (R. 332) and exhausted 
the next day. The witness testified that she could not 
remember whether or not there were any Negroes thereon. 
Seventy-five more names were selected the next day, thirty- 
five appearing (R. 333). In this latter group, there was 
allegedly one Negro who was immediately challenged by the 
State and dismissed by the court (R. 334). The judge then 
apparently prepared a list of business and professional 
men from the community (R. 334-337), to which list the

16 Miss Dabney Anderson, Circuit Clerk of Maury County, Tennessee, 
E. 328.

The view that the exclusion of Negroes from jury service in prior years 
is no evidence on the question of discrimination against them in the par­
ticular case before the court—which apparently was the position taken by 
fte state court herein—has found some support in other jurisdictions. 
State v. Turner, 133 La. 555, 63 So. 169 (1913); S ta te  v. Thom as, 250 Mo. 
189,157 S. W. 330 (1913).

This view, however, has been definitely overruled by this Court’s decisions 
in such cases as N orris  v. A labam a, su pra , and P a tton  v. M ississipp i, supra, 
"herein exclusion in previous years was one of the principal facts relied 
°n by this Court in support of its conclusion that the evidence clearly 
snowed discrimination. The effect of such decisions in this respect was 
expressly recognized in S ta te  v. L og a n , 341 Mo. 1164: 111 S. W. (2d) 
HO (1937).

18Apparently this refers to witness Carruthers.



2 4

names of three or four Negroes known personally to the 
court were subsequently added (E. 336).

Judge Ingram then testified for the State as follows: 
That there were no Negroes on the jury selected to try this 
case (R. 356);19 that he added the names of several 
Negroes to his list of professional men after three white 
men on the first list were not found. He testified that 
Henry McGlothin, a Negro, appeared on one list, and that 
the name of Albert Wright, another Negro, appeared on 
a second list (R. 357). He further testified that the list 
of business and professional men which he prepared was 
compiled from the membership of the following organiza­
tions in the community: Rotary Club, Kiwanis Club, Lions 
Club, and the Junior Chamber of Commerce, all of which 
were organizations whose membership was restricted to 
white persons. Not one of these Negroes, however, served 
on the jury or was available at the time of actual choosing 
the jury. They either had not appeared or had been 
excused by the court or peremptorily challenged by the 
state.

A consideration of this testimony and the evidence 
adduced on petitioner’s plea in abatement clearly shows 
that Negroes were systematically excluded pursuant to cus­
tom and practice from trial jury service at the trial of 
petitioner and for a period of almost fifty years prior 
thereto in Maury County, Tennessee, solely because of 
their race or color in contravention of the guarantees con­
tained in the Fourteenth Amendment to the Constitution 
of the United States. The calling of one or two Negro 
citizens allegedly for jury service and then summarily cbal-

19 It is to be noted that the witness—the judge sitting in this case appar­
ently excused the fifteen remaining individuals on the jury panel only after 
knowledge that petitioner was moving to quash the panel (R. 361).



25

lenging ox- dismissing them does not obviate the basic er­
ror.20 As this court has pointed out at this term :

“ When a jury selection plan, whatever it is, operates 
in such a way as always to result in the complete and 
long-continued exclusion of any representative at all 
from a large group of Negroes 21 or any other racial 
group, indictments and verdicts returned against them 
by juries thus selected cannot stand.” 22

P oint II

The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro where the 
trial court denied him due process of the law as guaranteed 
by the Fourteenth Amendment to the Constitution of the 
United States in refusing to allow the introduction of evi­
dence of systematic exclusion of Negroes from its juries, 
over a long period of years prior to petitioner’s trial.

At various times during the hearings on petitioner’s 
plea in abatement and throughout the hearing on the motion 
to quash the trial jury panels, the court restricted petition­
er’s proof of exclusion to the panel drawn for the present

20 Even assuming that the placing of a few Negroes’ names on the lists 
of individuals called after the original panel herein was exhausted should 
sufficiently satisfy the constitutional requirements, the arbitrary and im­
mediate challenging by the State and excusing of such individuals by the 
court was obviously still motivated by a desire to conform to the custom 
and practice of denying Negroes the right to serve on trial juries in the 
county.

21 The census figures showing 6,021 Negroes to 17,815 white persons in 
the community were submitted upon this motion. In the faee of this 
proof, the lower court overruled petitioner’s motion (R. 37) to which 
petitioner duly excepted. The Supreme Court, in affirming the eonvic- 
twn, sustained the action of the lower court, thereby denying petitioner 
the equal protection of the laws.

22 Patton  v. M ississipp i, supra.



26

term of court,23 nor would the court on either hearing allow 
the jury box to be brought into court for examination to 
ascertain if the names of any Negroes appeared therein 
(BW. 297).

Numerous decisions of this Court reversing convictions 
of Negro petitioners on the ground that their constitutional 
rights had been violated through the systematic exclusion 
of members of their race from juries solely because of race

23 On the plea in abatement, the following occurred:
“Q. Before the present term of court, or up until the 20th of March, 

do you know of any Negro who has been summoned to serve on a 
jury?

“Gen. Bumpus: The State objects to that.
“Court: Sustained.
“Mr. Looby: We except, just for the record, may I ask if he knows 

if one has ever been summoned?
“Court: I sustained the objection” (BW. 14).

This restriction was repeated by the court upon the examination of 
numerous witnesses (RW. 16, 18, 20, 22).

On the motion to quash, the following occurred:
“Mr. Looby: Very well, sir.

Now, if your Honor, please, as stated in this original motion, the 
objection was raised to the panel is predicated upon a long series of 
events which we contend constitute a custom, usage and method that 
has existed over a long period of time.

We are now prepared and ready to offer proof in support of our 
contention. We understand your Honor to have ruled earlier in this 
case, to have made a ruling as to the time concerning which proof 
would be allowed. We now want to offer proof, if your Honor please, 
to show that for more than half a century Negroes have been excluded 
from jury service in Maury County. Tour Honor has made a ruling 
thereon, but now the motion is up for a hearing, we want to offer that 
proof subject to your Honor's ruling then, unless that ruling is modi­
fied, so as to permit us to introduce proof.

“The Court: We could hear proof only as to the formation of the 
panel or panels which were formed in the selection of this trial jury.

“Mr. Looby: If the Court please, let the record show that we are 
prepared to offer proof in support of the allegations prior to that time 
and that the proof is not offered merely in obedience to your Honor’s 
ruling.

“The Court: You can except to the action of the Court.
“Mr. Looby: Very well, your Honor, we so except.
“The Court: All right” (R. 326-327).



2 7

have been based upon a consideration of the existence of 
such exclusion over a long continuing period of years.24

Conclusion
Petitioner was indicted and tried by juries from which 

members of his race were systematically excluded solely 
because they were Negroes. This not only violates our 
Constitution and the laws enacted under it but is at war 
with our basic concepts of a democratic society and a repre­
sentative government.

The court’s refusal to quash the indictment herein and 
its subsequent refusal to quash the various panels from 
which the trial jury convicting petitioner were drawn thus 
raise important issues under the Constitution and laws of 
the United States.

W herefore, it is respectfully submitted that this Court 
should issue its Writ of Certiorari to review the judgment 
of the Supreme Court of the State of Tennessee and that 
judgment should he reversed.

Respectfully submitted,
T hurgood  M a r sh a ll ,
W. R obert M ing ,
Z. A lexan der  L ooby, 

Attorneys for Petitioner.

Maurice W eaver ,
Edward R. D u d ley ,
Franklin  H. W il l ia m s ,

Of Counsel. 2

2iNeal v. D elaw are, 103 U. S. 370; N orris  v. A labam a, 294 U. S. 587; 
Pierre v. Louisiana, 306 U. S. 354.



TENNESSEE 01

T ab le  2 2 — A G E , R A C E , A N D  S E X , B Y  C O U N T IE S : 1940 A N D  1930— Con.
[Figures for white population in 1930 have been revised to include M e l o n s  who were classified with "Other race.”  in the 1930 reports. 1930 total, include unknown age]

1940 POPULATION 1930 POPULATIO sr

COUNTY AND All classes Native white For.-bom white Negro Other races All Native white For.-bon white Negro Other races

Total Male 'emale Male remale Male Female Male 'emale Male 'emale
classes

Male female Male Female Male 'emale Male female

7 ,569 7 ,3 3 5  | 7 ,447 7,229 - - 122 106 - - 13,872 6 ,819 6 ,7 4 0 - " 162 151 - -

1 ,493 767 726 | 754 711 - - 13 15 - - 1,648 831 787 - “ 13 17 " -
1 ,656 845 8 1 1 1 832 798 “ “ “
1 ,652 852 800 836 789 - - 16 “ ”

1 ,4 4 9
1,201

702
568

23 20
1 ,5 5 0 757 793 746 787 - “ 6 “ _ 701

594 22
10

17
1 ,2 6 5 664 6011 654 594 • ”
1,120 546 574 540 566 - ” 6

10 871 416 439983 498 485 482 475 ~ “ 16

938 450 4 8 8 1 443 483 - - 7 5 - - 1 ,5 2 8  I 775 727 _ _ 16 10 - -
819 404 415 397 410 - - 5 “ ~
754 382 372 377 368 - - 5 “ - 1 ,2 2 1  [ 596 596 - - 10 19 - -

345 3001 341 294 - - 4 6 “ ■
541 253 288 251 286 - - 2 " - 890 453 416 - - 14 7 - -

' 477 255 222 254 218 - - 1 “ -
427 233 194 231 190 - - 2 4 “ - 536 291 235 - - 5 5 - -
287 147 140 142 138 - - 5 - " _

171 126 167 122 - - 4 “ 106

277 150 127 147 123 - - 3 4
60

" 349 190 155* " - 2
86

2
73

“ “
8 ,2 9 9 4,220 4 ,0 7 9 4 ,1 5 3 4 ,019 - - ** ,16k 3 ,4 u i

16,897 17,639 53 32 9 ,323 L0.171 - - 51,059 15,955 16,347 69 43 9,021 9,622 2 -

4,701 2 ,3 5 8 2,343 1,422 1,366 - - 936 977 - - 4,911
5,657
5,167

1,556 1,493 1 943
1 ,1 1 8

977
1 ,0 6 2

941

918 - *
4 ,7 7 4 2,395 2,379 1,459 1 ,4 2 3 - - 956 “ 1 ,5 6 8

1 ,6 0 0
1 ,422

1,597
1 ,6 2 0
1 ,667
1 ,425
1 ,161

1*024
1,137
1,121

10 to 14 years----------
15 to 19 years----------

2,619 2,555 1,555 1 ,541 2 - - -
1
15',364 

4 ,765
2 ,6 3 3
2,236

2,731
2,529

1 ,6 2 2
1 ,371

1 ,614
1 ,5 4 9 _ 1

1 ,0 1 1
865

1,117
979 - -

5 ,4 2 1
5,157 4 1 -

4 ,5 5 8 2,165 2,393 1 ,391 1 ,457 - “ “
3,361 1 ,023 2 539 632

4 ,3 6 1 2,005 2,356 1,343 1,529 3 1 659 “ 4

4 ,0 3 2 1,867 2 ,1 6 5 1 ,249 1 ,3 8 5 3 1 615 779 - 6,557 2,109 2 ,2 3 4 9 6 996 1 ,2 0 3 _ -
3 ,174 1,507 1 ,667 976 1,096 2 4 529 “
3 ,099 1 ,4 4 8 1 ,651 977 1,084 5 2 466 “ “ 5 ,2 9 4 1,836 1 ,6 9 2 15 15 877 859 - -
2 ,744 1 ,391 1 ,3 5 3  | 953 946 2 2 436 ~ “

55 to 59 years------------ 2 ,268
1 ,7 7 4

1 ,1 6 8
843

1 ,1 0 0 1 
931

859
607

807
688

6
11

5
5

303
225

288
238 - . 3 ,04s 1,086 989 17 3 585 418 - _

800 7441 535 498 4 3 261 243 - \ 1 ,* M 542 514 7 5 210 216 - -
906 455 4511 312 308 12 2 131 141 -

246

283
9,596

7,784

75 years and over------- 877

907

383

464

4 9 4 1 
443

266

287

348

264

3 3 114

177

143

179 _ _
668
929 318

67

22

41

15

168
4 ,7 1 8

747

160 - -

21 years and over------ 33 ,090  | 15,786

9,762

1 7 ,3 0 4

9,378

10,536

9 ,0 6 2

11,380

8 ,644

51

12

32

6

5 ,199
688

5 ,892

728 _ _ 17,549 8 ,2 0 4 777 -

1,079 1 ,0 5 0 1 ,0 2 4 987 - - 55 63 - - 2,232 1 ,0 7 8 1,005
1,051

* - 67 82 -
2 ,2 7 3  | 1 ,144 1,129 1 ,0 5 9 1,067 - - 85 62 “ - “ _

97
1,185 1,066 1,125 1,000 - — ~ -

905 870
90

2 ,1 2 8 1 ,1 2 1 1,007 1 ,042 921 - - 79 86 - - 1 ,9 6 2 “ “
64
52
35

66831 791 768 704 - - 63 87 - - 1 ,6 5 0 ”
1 , 4801 753 727 701 680 - - 52 47 - - 1 ,248 ”

41
“

661 712 620 664 1 1 40 47 - - 997 455 “ “ “

1 ,1 7 8 563 610 519 556 - - 44 54 - - | 1 ,8 0 3 805 2 2 98 99 _ _
960 497 463 461 429 - - 36 34 - “

451 425 412 386 - - 39 39 - - j> 1 ,478 702 623 1 81 67 _ _
398 374 353 331 - 1 45 42 - -
331 291 303 270 3 - 25 21 - - }  1 ,030 522 427 44 26 . _
253 238 233 224 1 2 19 12 - -

228 205 204 2 - 22 24 - - 230 211 18 23 _
152 108 140 99 1 1 11 8 - - ;

139 97 122 4 1 13 16 - - 223 97 ” “

392 202 190 186 176 - - 16 14 - - 441 | 207 203 - - 14 17 -
21 years and over----- 9,994 5,062 4 ,9 3 2 4,649 4 ,5 2 5 12 6 401 401 “

8 ,011 8 ,0 1 9 6 ,9 5 4 6,965 10 2 1,047 1,052 - - 15 ,574 6 ,650 6 ,533 7 4 1,163 1 ,217 ~

1,263 655 608 558 526 - - 97 82 - - 1 ,467
1 ,7 3 4
1 ,628

613
767

599 - - 127 128 “ "
1 ,3 1 8 678 640 580 538 - - - * 177742 737 617 622 - - 115 - “

679
C4G
597 127 149838 773 709 651 - - 129 122 - - 1 , 552 “ “

1 ,471 740 731 635 627 1 104 - -
1 ,051

990
76 1 & i

*25 to 29 years--------- 1,318 671
576

647
579

582

511
555
508 : 65 71 - - 410 453 - 1 64 62 - -

461 538 395 470 63 67 - - \  1 ,869 808 802 3 1 103 152 _ -
431 448 385 396 46 “ “ J 5

472 36e 410 - 4C 62 - | 1 ,680 719 748 2 _ 96 115 - -
41C 39: 56 45 •

55 to 59 years-------- 797 404 393 37 £
26£

351
30e

31
24

42
33

“ | 1 ,246 561 523 “ 91 71 - ”

26 26c se 24 - | 755 324 334 _ 43 54 - -
16 155 2 23

14C
106

3,906

20
22

568

75 years and over.._ 36
25

16
12.

205
13C

14,

10
18'
11

1£
1

16
15

606
280

8 ,926
124 

J 3,806
28

635
- -

21 years and over.... -  .10 ,03 4 ,9 3 5,096 4 ,3 6 4,486 1

1 15 ,02 15,13 3 2 4 .9 4 5 .18 . 34.016 I 12.104 12.045 35 24 4 ,7 2 8 5,080 - -

1 ,87 1,84] 1 ,4 2 1 ,3 9 - 45 45] 3,492 I 1.292 1,24= - 464 487 “
1 ,9 4 1,94 J  1 ,45 1 ,4 4 - 48 50
2,06 1,99 1 1 ,5 5 1 ,4 8 50 50< b /2

2,07 3| 1 ,49 1 ,57 L 49 50
372
242II 1 ,3 6 1 1,46 44 52 2,847 966

319
296L 1 ,3 0 8 1 ,34 0 2 44 50 2,197

0 1 ,5 0 L 1,118 1 ,1 1 5 36 38 1,993 67£ "
1 1 ,2 6 1 1,301D 960 99 8 3 29 8 30 j  3,963 1 ,42 ] 436 629 _

0 1 ,0 5 9 1,22.I 797 90 3 25 31
... 2 ,01 4 990 1,02-4| 76 0 74 3 5 225 28 1 ,2 4 586 555 -

2 938 93 4 709 69 3 22 23 J  *
55 to 59 years .... 1 ,5 0 9 [ 75 

3 II 71
4  75 
1 62

5]  56 
2 52

5 55 
9 47

5 2
5

1 18 
17

7 19 
14 | 2 ,575 94] 89 406 324 ”

9I 645 57 4 458 42 1 2 18 14 } 1*474 53 241 206 -
5 35 L 268 26 4 -  9 8

23
28

75 years and over.'.. _  74 
70

5|j 36 
28 36

7 37 
33

3 26
J 27

0 26 
26

3 10
9

4 11
0 7 721 25 8 9 -

21 years and over... _  2 3 ,8 3 81 11 ,771  12,067|| 8 ,8 1 8 ,9 4 36 18 2 ,9 1 8 3 ,1 0

Taken from  a sec ond s e r i e s  p o p u la t io n  b u l l e t i n  f o r  T e n n e s s e e , 1940

26



-v ' Q  VJ^^jTFigures for whil

CHARACTERISTICS OF THE POPULATION

T able 22.— A G E , R A C E , A N D  S E X , B Y  C O U N T IE S : 1940 A N D  1930— Con.
i in 1930 have been revised to include Mexicans who were classified with “ Other races”  in the 1930 reports. 1930 totals include unknown age]

1940 POPULATION

All classes Native white For.-bom white Negro Other races All Native white For.-bom white Negro Other races

Total Male Female Male Female Male Female Male Female Male Female
classes

Male Female Male Female Male Female Male Female

6,S93 3,322 3,071 3,131 2,907 2 3 189 161 _ _ 6 ,127 2,977 2,757 2 - 198 193 - ■ -

824 418 406 394 382 24 24 826 370 25 24
24
3027

27
18
15

15 to  19 years
16 548

363
318

267
167
144

C 262

246
170
158

17
1117

199 204
369 13 J 566 271 - - 15 18 -

45 to 49 years
17 15538 261 244 L - -

8
164 82 77

80
53
32

79
76
37
43

| 348 190 131 - - 14 13 -

8 -
42
45

1 195 85 100 1 - 3 -
75 years and over____ 79 34 1 - 1 2 - - 77 43 28 - _ 3 - -

• 243
:

21,377

4
•

24,275
Jft

452

r* * v f m 2 r J m * *

12,438 11,837 11.978 11,383 8 5 449 _ 10,384 10,004 8 8 48T <•*» 487 2 2
49
39
54
65
39
45
21

2,719
3,007
2,721
2 ,454
1,805
1,320
1 ,189

1,249
1,399

44
69 
60
70 
46 
32 
31

2^885
2,821

47
45 
57
46 
40 
29

1,459
1,363
1 ,200

847
577
555

80
61
57
35
18
27

1^322
1,126

876
692
576

ljo 3 6 1,087
856
742

*990
1*,826
1,535
1,347

763 772 742

25 29
17
21

| 2 ,160 9.94 1,057 1 1 52 55 - -

50 to 54 years------------ 922 449 473 432 452 1 16
18

- -
| 1 ,865 933 845 1 1 47 37 1

321 346
316
197
180

309 11 > 1 ,171 .608 508 5 - 25 25 - -

13
204
190

163
165

160
157

f 674 342 311 - - 11 9 1 -
75 years and over____ 355 1 - 9 8 - _ 290 141 129 - - 11 _

565 281 271
4,79721 years and over____ 12,380 6,267 6,113 6,023 5 ,87 4 8 5 236 234 - - 10,048 4,793 8 3 215 230 1 1

MONTGOMERY............ 33,346 16,365 16,981 11,603 11,833 41 30 4,720 5,118 1 - 30,882 10,364 10,323 42 32 4,899 5,210 3 -

1 ,551 1,462
1,646

449
499
502

1,135
1,263

1,109
1,247

483
576

554
559457 3^645

1,205
1,245
1 ,104
1,009

1,651 1,182
975
943
855

529
509
435

3 ‘,301  
2,684  
2,046  
1,872

1*080 1^044
907

<-nr
1 ,614
1,447
1,189

396
404
304

*895 3 59?
405 1^1

2,797
2,351
2,100

1,350  
1 ,162 3 2

1
359

604 692 2 242 1
364
298
269
257
188
145
162

91
116

40 to 44 years------------ 1 ,844 893 951 648 650 .2 3 243
258
241
184
140
175
103
102

- -
f 3 ,574 1 ,181 1,238 11 6 512 626 "

571
466
370
369
218
253

575 1 3,120 998 967 6 6 575 567 1 -

355
330
197
224

> 2 ,147 746 691 8 5 385 311 1 -

2
290
340

> 1 ,219 456 404 5 3 190 161 - -
75 years and over____ _ 698 358 3 - - -

J
573 209 183 2 6 88 85 _

75
2,715

89
3,032

613
16,652

217
5,562

212
5,634

89
2,597

95
78321 years and over------- 19,549 9,548 10,001 6,793 6,940 39 29 1 - 41 32 2 8 _

MOORE.......................... 4,093 2,062 2,031 1,931 1,911 - - 131 120 - - 4,037 1,870 1,863 - - 155 149 - -

12
11

451
476

214
199

206
234

12
25

19
18186 17

~

411 
„ 4*L

293
274

186 
_ -12L. 

137 
133

196
XOA.
132
126'

17 1? 429 211

116
125

172
W *
133

99

s ‘ ‘"T “
-180-
152
141

JLW.
141
133

-a.
15

A *.
9

- 13 12 -

237 6

[ 446 204 207 - - 20 15 - _

94
}> 401 184 197 - - 10 10 - -

82
6782

78
52
38

73
72
43
43

81 1 6 \  309 157 127 _ _ 15 10 _

150
48
37

39
41

4
1

)  165 80 74 _ _ 7 4
75 years and over___ 81 - _ 2 _ _ J

77 35 36 _ I 3 3 _ _
94 45 2

21 years and over------ 2,401 1,222 1,179 1,148 1,110 - - 74 69 - - 2,162 1,008 1,011 - - 79 64 - -

MORGAN........................ 15,242 8,296 6,946 7,880 6,886 31 31 385 29 - - 13,603 6,992 6,035 56 42 427 51 _ _
878 811

849
865
815
580
477
435

1,789
1,874
1,602
1,390

906
963
824
739
680
527
401

869
901

Q ,
g “

947
914
793
664
525

5 9
16

104
100

71

2
7

10
816
582
480
439

27 1 628
892
74c
594

495
390
345

1,025
829

85
69

454 409
316
289
257
240
191
150
88

114

39
40 t o  44 years_ ..  ̂ 1,416 721 608 9 10 62 6 - -

294 326
311
281
186
192
117

77

16

* 2 > 1,125 558 502 11 11 37 6 - _

247
196
158

90
115

. _
194
196
122
80

3 3 5 * }  720 405 284 11 9 10 1 _ _
2
5
3

70 to 74 years------------
75 years and over___

212
195

2 -

g

1
- -

J 371 

165

181

83

172

70

13

6

4

4
1
2

“ “ ~

152
3,425

. 356
6,666

183
3,402

172
2,76421 years and over____ | 7,950 4,476 3,474 | 4,124 31 30 321 19 - - 56 42 371 31 - -

1930 POPULATION

27











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* i



SUPREME EQURT OF THE UNITED STA TES

OCTOBER TERM, 1947

No. 5 3 4

LOYD KENNEDY,
Petitioner,

vs.

STATE OF TENNESSEE,
Respondent

MOTION TO DISPENSE W ITH  PRINTING OF RECORD; 
PETITION FOR CERTIORARI AND BRIEF IN SUP­
PORT THEREOF.

Maurice W eaver ,

T hurgood  M a r sh a ll ,
W . R obert M in g ,
Z. A lexan der  L ooby, 
Attorneys for Petitioner.

E dward K . D u d le y ,
F ranklin  H. W il l ia m s ,

Of Counsel.



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INDEX

S u b je c t  I ndex
Page

Motion to dispense with printing record.....................  1
Petition for writ of certiorari......................................  3

Jurisdictional statement ......................................  4
Statement of fa c ts .................................................. 5
Errors below relied upon here............................... 7
Pacts in support of errors ....................................  8
Prayer for writ.......................................................  10

Brief in support of petition..........................................  11
Opinion of court below ..........................................  11
Jurisdiction ...........................................................  11
Statement of case...................................................  13
Errors relied upon.................................................. 14
Argument ...............................................................  15
Conclusion...............................................................  27

Appendix A—Excerpt from population bulletin for 
Tennessee ................................................................... 28

T able  op C ases C ited

Bush v. Kentucky, 107 U. S. 110....................................  16
Carter v. Terns, 177 U. S. 442.....................................  5,13,16
Hale v. Kentucky, 303 U. S. 613....................................  5,13
Hill v. Terns, 316 U. S. 400............................................ 5
Hollis v. Oklahoma, 295 U. S. 395................................  5,13
Heal v. Delaware, 103 U. S. 370............................ 5,13,16, 27
Norris v. Alabama, 294 U. S. 587.......................... 5,13, 22, 27
Patterson v. Alabama, 294 U. S. 600............................. 16
Patton v. Mississippi, — U. S. —, decided December

8, 1947 ...................................................................... 5,13,16
Pierre v. Louisiana, 306 U. S. 354........................ 5,13,19, 27
Rogers v. Alabama, 192 U. S. 226..............................  5,13,16
Smith v. Texas, 311 U. S. 128.....................................5,13,16
State v. Logan, 341 Mo. 1164, 111 S. W. (2d) 110. . 23
State v. Thomas, 250 Mo. 189,157 S. W. 330...........  23

4408



Page

State v. Turner, 133 La. 555, 63 So. 169....................... 23
Strauder v. West Virginia, 100 U. S. 303..................... 13,16

S tatu tes  C ited

Judicial Code, Section 237(b), as amended February
13,1925, 43 Stat. 937, 28 U. S. C. 344(b)............... 4,10,11

Williams, Tenn. Code Annotated (1934), 10006..........  16
10009 ....... 16
10010 ....... 19

ii  INDEX



SUPREME EQURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 5 3 4

LOYD KENNEDY,

vs.
Petitioner,

STATE OF TENNESSEE,
Respondent

MOTION TO DISPENSE W ITH  PRINTING OF RECORD

To the Honorable the Chief Justice of the United States and 
the Associate Justices of the Supreme Court of the United 
States:

Petitioner respectfully moves this Court for permission 
to dispense with the printing of the record in the instant 
case.

Counsel for petitioner is in possession of approximately 
$400 representing the balance of monies received for this 
case from voluntary contributors, the said money having 
been contributed for the purpose of defending petitioner 
and other individuals who were jointly and severally in­
dicted for crimes arising out of interracial disturbances 
occurring in Columbia, Tennessee, on the 25th day of Feb­
ruary, 1946. Counsel for petitioner has been advised by

lk



2

the Clerk of this Court that the said sum of $400, which is 
all that is available to petitioner’s counsel to cover expenses 
involved in this cause, will not be sufficient to pay for the 
printing of the record herein.

W herefore , petitioner respectfully prays leave to  dis­
pense with the printing of the record herein and permis­
sion to file a typewritten record with this Court.

Respectfully submitted this 16th day of January, 1948.
L oyd K e n n e d y ,

By T httrgood M a r sh a ll ,
20 West 40 Street,

New York 18, New York;
W. R obert M in g ,

Chicago, Illinois;
Z. A lexan der  L ooby,

Nashville, Tennessee, 
Attorneys for Petitioner.

M aurice  W eaver,
Chattanooga, Tennessee;

E dward  R. D u d le y ,
F r a n k l in  H. W il l ia m s ,

20 West 40 Street,
New York 18, Netv York,

Of Counsel.



SUPREME EOURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 5 3 4

LOYD KENNEDY,

vs.
Petitioner,

STATE OF TENNESSEE,
Respondent

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF TENNESSEE

To the Honorable the Chief Justice of the United States and 
the Associate Justices of the Supreme Court of the United 
States: ,

Petitioner respectfully prays that a Writ of Certiorari 
issue to review a judgment of the Supreme Court in the 
State of Tennessee, affirming a judgment and sentence of 
the Circuit Court of Maury County, Tennessee, wherein 
petitioner, a Negro, was sentenced to not more than five 
years imprisonment for unlawfully and feloniously com­
mitting an assault with intent to commit murder in the first 
degree on the body of one Ray Austin, a white man, and to 
reverse such judgment and sentence or to obtain a new 
trial.



4

I

Jurisdictional Statement

Petitioner presents this petition pursuant to Section 
237(b) of the United States Judicial Code as amended Feb­
ruary 13,1925, 43 Stat. 937, 28 U. S. C. 344(b).

Petitioner prays that a Writ of Certiorari issue to review 
the decree entered on June 24, 1947, in the Supreme Court 
of Tennessee, which is the highest court of said State, in 
the cause in that court entitled Loyd Kennedy v. State of 
Tennessee; Suggestion of Error having been duly filed in 
said Supreme Court of Tennessee and overruled on Octo­
ber 21, 1947, and petitioner now being at liberty on $5,000 
bond pending the action of this Court upon this petition.

The nature of the case and the rulings below which bring 
the case within the jurisdictional provision of Section 
237(b), supra, appear from the following:

The claim of Federal constitutional rights is specifically 
raised in the Plea in Abatement (R. lOa-lOj), the motion to 
quash the several panels of veniremen (R. 321), and upon 
the exceptions taken to the rulings of the trial judge in 
refusing petitioner the opportunity to introduce testimony 
in evidence concerning the systematic and long continued 
custom and practice of exclusion of Negroes from juries in 
Maury County (R. 326-327). These Federal questions were 
substantially passed upon by the Supreme Court of Ten­
nessee in its opinion and the claim of Federal rights denied.

The claim so made and denied is that the conviction of 
petitioner, a Negro, by a trial jury upon an indictment found 
and returned by a grand jury, from which juries all quali­
fied Negroes were and have been for a long period of years 
systematically excluded solely because of their race and 
color, was in contravention and violation of the equal pro­
tection and due process clauses of the Fourteenth Amend­



5

ment to the Constitution of the United States. The further 
claim made and denied is that the refusal of the trial court 
to allow the introduction of evidence of the systematic and 
long continued esclusion of Negroes from juries in Maury 
County, Tennessee, denied petitioner due process of law 
in violation of the Fourteenth Amendment to the Constitu­
tion of the United States.

The following cases, among others, sustain the jurisdic­
tion of this court to determine the invalidity of a conviction 
by a trial jury found upon an indictment returned by a 
grand jury when from both juries Negroes were and have 
been systematically excluded in that county over a long 
period of years solely because of race: Neal v. Delaware, 
103 U. S. 370; Norris v. Alabama, 294 U. S. 587; Hollis v. 
Oklahoma,, 295 U. S. 395; Hale v. Kentucky, 303 U. S. 613; 
Rogers v. Alabama, 192 U. S. 226; Pierre v. Louisiana, 306 
U. S. 354; Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 
U. S. 400; Patton v. Mississippi, — U. S. —, No. 122, Oct. 
Term, 1947. These cases established clearly that the sys­
tematic exclusion of Negroes from juries solely because of 
race may be established and proved by testimony concern­
ing the composition of juries within a county over a long- 
period of years prior to the immediate case. Neal v. Dela­
ware, supra; Norris v. Alabama, supra; and Pierre v. Lou­
isiana, supra; Carter v. Texas, 177 U. S. 442; Patton v. 
Mississippi, supra.

Statement of Facts
On Monday, February 25, 1946, in Columbia, Tennessee, a 

Negro youth struck a white store proprietor because of the 
proprietor’s having slapped the Negro’s mother. Immedi­
ately, the white community became aroused and rumors of 
lynching spread throughout the Negro community. The 
State Highway Patrol was ordered to Columbia at about 
9 o’clock that night along with units of the State National



6
Guard. A cordon of patrolmen was thrown around the 
Negro area known as “ Mink Slide.”  The sheriff and 
Commissioner of Safety agreed to keep the police surround­
ing this area for the purpose of preventing anyone from 
coming in or going out; and, further agreed to enter the 
area about daylight and arrest everyone found therein. 
From midnight until daybreak, intermittent firing occurred 
throughout the town. About sunrise on the morning of the 
26th, the order was given to the patrolmen to “ move in” 
on the area. The police and National Guardsmen, working 
in units, went from house to house and business establish­
ment to business establishment, arresting all individuals 
found. They wantonly destroyed property and brutalized 
the Negro citizens. Terror reigned throughout the Negro 
community. One group of policemen, headed by the Sheriff 
and including about twenty-five (25) officers and civilians 
and armed with riot guns and submachine guns proceeded 
down the street, going from door to door, ordering all in­
dividuals therein to come out with their hands up. The 
only buildings so approached were those occupied by 
Negroes.

Upon arrival in front of the Blair Barber Shop, the 
Sheriff allegedly called out for anyone inside to come out 
quietly. At this point, it is alleged, a shotgun blast fired 
from inside the barber shop through the plate glass window 
struck one of the officers, Bay Austin, hitting him in the leg. 
The wound was minor in nature for the officer continued on 
duty for the rest of the week. Only one person, in the 
group, a policeman, could describe in any way the person 
inside the barber shop who allegedly fired the shotgun. 
This witness stated emphatically that such person was 
larger than petitioner but about the size of his co-defendant. 
The group then fired hundreds of machine gun bullets into 
the shop, burst inside, found petitioner pressed against the 
wall, apparently “ scared to death”  and arrested him and



7

his co-defendant, William A. Pillow, a Negro, who was also 
found within the barber shop. They were charged with 
having committed assault and battery with intent to com­
mit murder in the first degree on the body of Patrolman 
Ray Austin, a white man. They were subsequently indicted 
on the 21st day of March, 1946, and having pleaded “ Not 
Guilty,”  were tried in the Circuit Court of Maury County, 
Tennessee, at the February, 1946 Term. The jury acquitted 
petitioner’s co-defendant and convicted petitioner of assault 
with intent to commit murder in the second degree, fixing 
his punishment at not more than five (5) years in the State 
Penitentiary. The Supreme Court of Tennessee affirmed 
the conviction on the 26th day of June, 1947, and overruled 
Assignments of Error on the 21st day of October, 1947.

Errors Below Relied Upon Here

Petitioner relies upon the following points:

I. The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro, upon an in­
dictment found and returned by the grand jury of a county 
where all qualified Negroes were and have been for a long 
period of years systematically excluded from service on 
grand juries solely because of race or color in contravention 
of the equal protection and due process clauses of the Four­
teenth Amendment to the Constitution of the United States.

II. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, by a trial 
jury in a county where all qualified Negroes were and have 
been for a long period of years systematically excluded 
from trial juries solely because of race or color in contra­
vention of the equal protection and due process clauses of the 
Fourteenth Amendment to the Constitution of the United 
States.

2 k



8

III. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, where the 
trial court denied him due process of the law as guaranteed 
by the Fourteenth Amendment to the United States Consti­
tution in refusing to allow the introduction of evidence of 
the systematic exclusion of Negroes from its juries over a 
long period of years prior to petitioner’s trial.

Facts in Support of Errors
Petitioner’s proof showed overwhelmingly by the testi­

mony of more than 200 white and Negro resident-witnesses, 
from all walks of life in Maury County, that for more than 
fifty years no Negro had ever served on a grand or petit 
jury in that county as one sixty-one year old, life resident 
of the county stated, “ I have been here all my life and never 
heard of one- (E. W. 656). Petitioner’s proof also estab­
lished by testimony of such witnesses that there were large 
numbers of Negroes, citizen-residents of Maury County, 
possessing all of the legal qualifications for jury service, 
none of whom had ever been called to serve or served or 
who knew of any Negro having been called or had served on 
a grand or petit jury in Maury County, Tennessee, prior to 
the instant trial although approximately 9,000 white males 
over twenty-one and 3,000 Negro males over twenty-one 
resided therein, according to the 1940 Fecleral census.1 2

Petitioner’s proof established clearly that such absence 
of Negroes from juries in Maury County was the result of 
a systemaic exclusion based solely upon race or color and

1 See: Testimony contained in Wayside Bill of Exceptions, S tate v. Blair, 
which by stipulation of counsel was made part of the record of the instant 
case. Page references to testimony from the Wayside Bill is referred to 
herein by the letters “RW” ; page references to the instant record are 
marked as usual “R.”

2 See: Certified copy of “Population Breakdown” attached hereto and 
marked “Exhibit “A.”



9
pursuant to an established custom and usage of county 
officials within the meaning of decisions of this Court. This 
testimony was uncontradicted and in the face thereof the 
trial court overruled petitioner’s Plea in Abatement. The 
affirmance of the decision by the Supreme Court of the 
State of Tennessee and the subsequent holding therein that 
no Federal rights had been denied petitioner by such exclu­
sion constitutes grounds upon which petitioner appeals to 
this Court.

Petitioner subsequently moved to quash the several 
panels of veniremen from which the trial jury was drawn. 
In such motion, he alleged, among other things, that all of 
the persons whose names were drawn and who were sum­
moned for jury service in the instant case were white; that 
there are numerous colored citizens in the county, qualified 
for jury service; that the administrative officers responsible 
for selecting jurors systematically excluded Negroes from 
juries over a long period of years solely on account of race 
pursuant to custom and practice; that to circumvent recent 
decisions of this Court a conspiracy or common understand­
ing obtained to call one or two Negroes “ whenever it should 
appear that such systematic exclusion would be challenged” ; 
that such calling was never in good faith as no Negroes are 
ever permitted to serve on juries in the county; all in viola­
tion of petitioner’s constitutional rights (E. 321).

Petitioner then requested the opportunity to offer proof 
in support of his motion—‘ ‘ to show that for more than half 
a century Negres have been excluded from jury service in 
Maury County.”  At the time of such request, the following 
occurred:

“ The Court: We could hear proof only as to the 
formation of the panel or panels which were formed 
in the selection of this trial jury.

“ Mr. Looby: If the Court please, let the record show 
that we are prepared to offer proof in support of the



10
allegations prior to that time and that the proof is 
not offered merely in obedience to your Honor’s ruling.

“ The Court: You can except to the action of the 
Court.

“ Mr. Looby: Very well, your Honor, we so except.
“ The Court: All right”  (E. 326-327).

This ruling was substantial error and in violation of peti­
tioner’s constitutional right to due process. Numerous 
decisons of this Court have held that systematic exclusion 
of Negroes from juries can be established by a showing of 
the non-service of Negroes over a long period of years and 
the existence of many Negroes qualified for jury service in 
a particular county. The refusal of the trial court to allow 
the introduction of such proof and the approval of this 
ruling through affirmance by the Supreme Court of Tennes­
see constitutes error upon which petitioner relies and pro­
vides further grounds upon which petitioner appeals to this 
Court.

W h erefore , petitioner prays that this Court, pursuant 
to Section 237(b) of the United States Judicial Code, as 
amended February 13,1925, 43 Stat. 937, 28 U. S. C. 344(b), 
issue a Writ of Certiorari to review the judgment of the 
Supreme Court of the State of Tennessee affirming your 
petitioner’s conviction for assault with the intent to commit 
murder in the second degree as aforesaid.

All of which is respectfully submitted this 16 day of 
January, 1948. L oyd K e x x e d Y ;

By T hurgood  M a r sh a ll ,
W. R obert M in g ,
Z. A lexan der  L ooby,

„ r ,TT Attorneys for Petitioner.
M aurice  W eaver,
E dward  E . D u d le y ,
F r a n k l in  H. W il l ia m s ,

Of Counsel.



SUPREME EDURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 5 3 4

LOYD KENNEDY,

vs. Petitioner,

STATE OF TENNESSEE,
Respondent

BRIEF IN SUPPORT OF PETITION FOR W RIT OF 
CERTIORARI

I

Opinion of Court Below

The opinion has not been recorded officially. It appears 
at pages 416-426 of the record. Suggestion of Error (Peti­
tion to Rehear) was overruled on the 21st day of October, 
1947, without opinion.

II

Jurisdiction

1

The statutory provision is United States Judicial Code, 
Section 237(b), as amended February 13, 1925, 43 Stat. 937, 
28 U. S. C. 344(b).



12

2

The date of the judgment in the Circuit Court of Maury 
County, Tennessee, is November 19, 1946, affirmed by the 
Supreme Court of Tennessee on June 24, 1947. Suggestion 
of Error was overruled on the 21st day of October, 1947.

3

That the nature of the case and the rulings below bring 
the case within the jurisdictional provisions of Section 
237(b), supra, appears from the following:

The claim of Federal constitutional rights was timely 
raised in petitioner’s Plea in Abatement (R. 10 A), 
petitioner’s Motion to Quash the several panels of 
veniremen (R. 321); and, upon the exceptions taken to 
the rulings of the trial judge in refusing petitioner the 
opportunity to introduce evidence of exclusion beyond 
the instant panel (R. 326-327).

These questions were expressly considered and the 
rights ruled against by the trial court (R. 18-37, 327).

The questions were specifically passed upon by the 
Tennessee Supreme Court in its opinion (R. 416-426).

The claim so made and denied is that the conviction of 
petitioner, a Negro, by a trial jury upon an indictment 
found and returned by a grand jury, from which juries all 
qualified Negroes were and have been for a long period of 
years systematically excluded solely because of their race 
and color, was in contravention and violation of the equal 
protection and due process clauses of the Fourteenth 
Amendment to the United States Constitution.

The further claim made and denied is that the refusal of 
the trial court to allow the introduction of evidence of the 
systematic and long-continued exclusion of Negroes from 
juries in Maury County, Tennessee, denied petitioner due



13
process of law in violation of the Fourteenth Amendment to 
the Constitution of the United States.

The following cases, among others, sustain the jurisdic­
tion of this Court, as to the invalidity of a conviction by a 
trial jury upon an indictment returned by a grand jury, 
from which juries Negroes were and have been systemati­
cally excluded in that county over a long period of years 
solely because of race: Strauder v. West Virginia, 100 U. S. 
303; Neal v. Delaware, 103 U. S. 370; Carter v. Texas, 177 
U. S. 442; Rogers v. Alabama, 192 U. S. 226; Norris v. Ala­
bama, 294 U. S. 587; Hollis v. Oklahoma, 295 U. S. 395; 
Hale v. Kentucky, 303 U. S. 613; Pierre v. Louisiana, 306 
U. S. 354; Smith v. Texas, 311 U. S. 128; Patton v. Mis­
sissippi, — U. S. —, No. 122, October Term, 1947.

Neal v. Delaware, supra; Norris v. Alabama, supra; 
Pierre v. Louisiana, supra; Carter v. Texas, supra, and 
Patton v. Mississippi, supra, establish clearly that the sys­
tematic exclusion of Negroes from juries solely because of 
race may be established and proved by testimony concern­
ing the composition of juries within the county over a long 
period of years prior to the immediate case.

Statement of Case

The petitioner, and another Negro, William A. Pillow, 
residents of the City of Columbia, State of Tennessee, were 
arrested on the 26th day of February, 1946, by members of 
the Tennessee State Highway Patrol. They were charged 
with having committed assault and battery with intent to 
commit murder in the first degree on the body of a Patrol­
man Ray Austin, a white man, during a recent interracial 
disturbance in that city. They were subsequently indicted 
on the 21st day of March, 1946, and having plead “ Not 
Guilty”  were tried in the Circuit Court of Maury County, 
Tennessee, at the February, 1946 Term. The jury ac­
quitted petitioner’s co-defendant and convicted petitioner 
of assault with intent to commit murder in the second de­



14

gree and fixed Ms punishment at not more than five years 
in the state penitentiary. The Supreme Court of Tennessee 
affirmed the conviction on the 26th day of June, 1947 and 
overruled Assignments of Error on the 21st day of Octo­
ber, 1947.

Errors Relied Upon
The points urged are in summary form as follows:

P o in t  I
The Supreme Court of the State of Tennessee erred in 

affirming the conviction of petitioner, a Negro, by a trial 
jury of white persons, upon an indictment found and re­
turned by a grand jury of white persons in Maury County, 
Tennessee, in which county all qualified Negroes were and 
have been for a long period of years systematically ex­
cluded from all jury service solely because of their race 
or color in contravention of the equal protection and due 
process clauses of the Fourteenth Amendment to the Con­
stitution of the United States.

A. The systematic and deliberate exclusion of Negroes 
from jury service solely because of their race or color denies 
a Negro defendant charged with crime the equal protection 
of the laws and due process of law guaranteed by the 
Fourteenth Amendment to the Constitution of the United 
States.

B. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, upon an 
indictment found and returned by a grand jury of a county 
where all qualified Negroes were and have been for a long 
period of years systematically excluded from service on 
grand juries solely because of race or color in contraven­
tion of the equal protection clause of the Fourteenth Amend­
ment to the Constitution of the United States.

C. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, by a trial



1 5

jury in a county where all qualified Negroes were and have 
been for a long period of years systematically excluded 
from trial juries solely because of their race or color in 
contravention of the equal protection clause of the Four­
teenth Amendment to the Constitution of the United States.

P o in t  II

The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro, where the 
trial court denied him due process of the law as guaranteed 
by the Fourteenth Amendment to the Constitution of the 
United States in refusing to allow the introduction of evi­
dence of systematic exclusion of Negroes from its juries 
over a long period of years prior to petitioner’s trial.

ARGUMENT

P o in t  I

The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro, by a trial 
jury of white persons, upon an indictment found and re­
turned by a grand jury of white persons in Maury County, 
Tennessee, in which County all qualified Negroes were and 
have been for a long period of years systematically excluded 
from all jury service solely because of their race or color 
in contravention of the equal protection and due process 
clauses of the Fourteenth Amendment to the Constitution 
of the United States.

A. The systematic and deliberate exclusion of Negroes 
from jury service solely because of their race or color denies 
a Negro defendant charged with crime the equal protection 
of the laws and due process of law guaranteed by the Four­
teenth Amendment to the Constitution of the United States.

The principle that state exclusion of Negroes from juries 
solely because of their race or color denies Negro defend­



16
ants in criminal cases the equal protection of the laws re­
quired by the Fourteenth Amendment was enunciated by 
this Court over a half century ago.3

The principle applies whether the discrimination was by 
virtue of a statute,4 * or by action of administrative officers,8 
and whether the exclusion is from service on petit juries6 
or grand juries.7

The discrimination complained of by petitioner was not 
embodied in the Tennessee statutes,8 but rather resulted 
from a systematic, intentional, deliberate and invariable 
practice on the part of administrative officers of Maury 
County, Tennessee, to exclude Negroes from jury service 
within the county.

3 S tra u d er  v. W e s t  V irg in ia , 100 U. S. 303 (1880).
4 B ush  v. K e n tu c k y , 107 U. S. 110.
8 N ea l v. D ela w a re , 103 U. S. 370; C a rter  v. T exa s , 177 U. S. 442;

R o g ers  v. A labam a, 192 U. S. 226.
6 S tra u d er  v. W e s t  V irg in ia , s u p r a ; N orris v. A la ba m a , 294 U. S. 587.
7 C a rter  v. T exa s , s u p r a ; P a tte r so n  v. A la ba m a , 294 U. S. 600; Smith v.

T exa s , 311 U. S. 128; P a tto n  v. M ississ ip p i, — U. S. —.
8 Williams, Term. Code Annotated (1934)—10006 w h o  m a t  be a juror:

Every male citizen who is a freeholder or householder, and twenty- 
one years of age, is legally qualified to act as a grand or petit juror, 
if not otherwise incompetent under the express provisions of this 
Code.

10009—WHO MAT NOT BE:
Persons convicted of certain infamous offenses, specially designated 

in this code, persons of unsound mind, persons not in the full posses­
sion of the senses of hearing and seeing, and habitual drunkards, are 
incompetent to act as jurors.



17

B. The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro, upon an 
indictment found, and returned by a grand jury of a county 
where all qualified Negroes were and have been for a long 
period of years systematically excluded from service on 
grand juries solely because of race or color in contravention 
of the equal protection clause of the Fourteenth Amendment 
to the Constitution of the United States.

Petitioner filed a Plea in Abatement to the indictment 
returned against him alleging among other things that 
members of his race were systematically excluded from 
grand jury service in Maury County, Tennessee.9 In sup­

9 The Plea in Abatement alleged among other things that:
The grand jury and all persons comprising the panel from which said 

grand jury was selected were white persons.
That long prior to the selection of names for the then current jury list 

or jury box and at that time there had been and were numerous colored 
citizens of the State of Tennessee and residents of said county who in 
every respect had been and were qualified to serve as petit and grand 
jurors in civil and criminal trials in said county including trials of 
felonies.

That the county court or Board of Jury Commissioners or the person 
or persons who by law is or are authorized to select or appoint the persons 
from whom the jury is or are to be chosen unlawfully and in violation of 
their respective oaths of office and of the Constitution of the State of 
Tennessee and that of the United States and the law of the land did exclude 
and always have excluded from jury service all qualified Negroes, members 
of the colored race and of African descent, solely on account of their race 
and color.

That at all times it had been and was at that time the custom in said 
Maury. County to use white men exclusively for petit and grand jury serv­
ice in any and all cases including trials of felonies and in selecting the 
jury at that time and the supplement or supplements thereto this custom 
was followed by those charged with the duty of appointing or selecting 
those from whom the jury was to be drawn for this case.

That all qualified Negroes were thereby excluded from the possibility 
of sitting as grand jurors.

That by the reason of this unlawful exclusion of all qualified Negroes 
from the current jury list or box, defendant has been greatly prejudiced



1 8

port thereof 206 white and Negro residents of the county 
were called and testified.10 Evidence showed the population 
of Maury County to consist of. approximately 30,000 white 
people and 10,000 Negroes (R. 159).11

The approximately 200 Negro witnesses, were with only 
one or two possible exceptions, fully qualified for jury 
service. They represented a true cross section of the 
county’s Negro population, ranging in age from 86 (RW. 
144) down to 23 years (RW. 578) and janitors, (RW. 150, 
162, 301, 470, 566), railroad workers (RW. 456, 554), 
post office employees (RW. 561), churchmen (RW. 495) 
and chemical workers (RW. 500), miners (RW. 318), 
peddlers (RW. 213), printers (RW. 367), grocers (RW. 
I l l ,  119, 237), farmers (RW. 131,134,192, 244, 257, 273, 405, 
423), bricklayers (RW. 100), carpenters (RW. 21), elec­
tricians (RW. 103), barbers (RW. 18, 64, 170, 262, 321), 
businessmen (RW. 15, 137, 233, 533), teachers (RW. 28, 
114, 127, 144, 208, 241, 542), dentists (RW. 35), ministers 
(RW. 87), retired men (RW. 127, 301, 398), and veterans 
of World War I (RW. 555, 589) and II (RW. 315, 338, 454, 
504, 517, 542, 594). Not one witness had ever known or 
heard of a Negro being called for or serving on a jury in 
the criminal courts of Maury County prior to February 
2 5 ,  1 9 4 6 .

and has been denied due process and the equal protection of the laws in 
violation of the Constitution of the United States and of the State of 
Tennessee.

That this custom of excluding Negroes from jury service has continued 
in said county for more than fifty years (R. 10A-10J).

10 By stipulation entered in this case on July 7, 1946, the proof offered 
on hearing on Pleas in Abatement in the case of S ta te  o f  Tennessee v. 
Sol. B lair, e t al., was accepted as proof in this case and was preserved by 
a Wayside Bill of Exceptions (R. 19).

11 The official count of the returns of the Sixteenth Census of the 
United States filed as an exhibit in this case showed the white male popula­
tion over 21 to be 8,817 and the Negro male population over 21 to be 2,918 
(See Exhibit “A” attached hereto).



19
The testimony of one eminently qualified witness12 suc­

cinctly sums up the facts concerning the service of Negroes 
on juries in Maury County. From 1901 to the present, 
this former county officer had not heard of any Negro being 
on a grand or petit jury in the county though, “ undoubt­
edly,”  there were “ a number”  of Negroes qualified to 
serve (EW. 159).

This testimony remained uncontradicted, and made out 
a prima facie case of systematic and deliberate exclusion 
of Negroes from jury service.13 The state attempted to 
overcome such proof by testimony of more than fifty white 
witnesses to the effect that not one of them had ever been 
called or served.14 It is noteworthy, however, that not one 
of these state’s witnesses had ever heard or known of a 
Negro being called or serving on a jury in Maury County, 
prior to petitioner’s trial.

Two members of the Maury County Jury Commission 
testified. Both emphatically denied that race was a con­
sideration in making up the jury list (EW. 858, 869).

Witnesses for the state testified that there were approxi­
mately thirteen Negroes whose names appeared upon the 
panel from which the grand and trial juries in the instant 
case were drawn. It is clear from an examination of the 
record that such names were purposely placed upon the 
instant panel in an attempt to circumvent the clear consti­

12 W. C. Whitshire, a practicing attorney, justice of the peace, county 
attorney and judge of County Criminal Court for various periods of time 
following his admission to the bar of Maury County in 1888 (RW. 153).

13 Neal v. D elaw are, su pra , 397; N orris  v. A labam a, su pra , 591; P ierre  
v. Louisiana, 306 U. S. 354, 361; P a tto n  v. M ississ ip p i, — U. S. —.

14 Of these white witnesses called, three were ministers, four teachers, 
eleven officers of state, city or county, one in the military service twenty- 
two years, and seven professional men, three neither taxpayers nor prop­
erty owners—more than half, therefore, were either ineligible to serve or 
eligible for exemption under the statute (Wm.’s Tenn. Code Ann. No. 
10010). Undoubtedly this was an important factor tending to show why 
they were never called.



20

tutional requirement as enunciated by this court not to 
have Negroes systematically excluded from juries in a 
criminal trial involving a Negro defendant. In any event, 
the record makes it eminently clear, and the state did not 
dispute the fact, that no Negroes served on either the grand 
or petit jury involved in this case.

James D. Carruthers, whose name was allegedly prop­
erly upon the jury list, in testifying concerning his receipt 
of a card ordering him to appear for service, stated, “ I 
really didn’t know whether they meant to subpoena a 
Negro. That was the trouble about it. I thought perhaps 
it was a mistake about my name”  (RW. 24). This witness 
was excused by the court. Three other Negroes testified 
for the state to the effect that they had received cards 
allegedly intended for them calling them to appear for jury 
service: Earnest Lipscomb, a taxpayer registered as resid­
ing at Route 2, Mount Pleasant, Tenn., received a card 
forwarded to “ Earnest Lipscomb, Hampshire, Tenn.”  (RW. 
917). This witness was not available at the time the trial 
jury was chosen. Another witness, Maxie Perryman, who 
testified to being commonly known as “ Moxie,”  received a 
card addressed to “ Max.”  He approached his “ boss”  and 
requested to be excused from service. His employer subse­
quently informed him that he would not have to appear for 
service—this in spite of the fact that the said employer 
was not a county official (RW. 929, 939, 940). This witness 
never reported to any official of the court or the county. 
The third Negro witness testifying for the state is one 
Tom Kittrell who could neither read nor write and he 
stated that upon the receipt of the card and upon ascertain­
ing its contents, he also arranged through his boss, like­
wise not a county official, “ to be excused”  from jury serv­
ice (RW. 955). This witness also failed to appear at any 
time before the court. In both of these latter two in­
stances, the witness’ employer apparently had a close re­



2 1

lationship with the sheriff or judge or some other person 
authorized to excuse jurors or who would assume such au­
thority. Three other names on the jury list, L. E. Buford, 
John Griggs, Louis Nicholson, were stated to be names of 
Negroes by witnesses claiming to know them. All three 
were deceased at the time of their alleged call for service 
(RW. 898, 948 and 975). The names of two other Negroes 
allegedly appearing on the list were Edgar Brown and 
J. R. Martin. Cards sent to their addresses as registered in 
the tax books were returned to the sheriff by the post office 
marked “ Addressees Unfound”  (RW. 898, 899). Two more 
names were identified as belonging to Negroes by white 
members of the community who were not sure whether there 
were other individuals not Negroes in the county bearing 
the same name. These were Henry Howard and Will James 
(RW. 950, 970). In any event, neither of these persons 
appeared for jury service. The last name, allegedly that 
of a Negro, on the list was Ewell Lowry. This person, it 
was testified, had gone “ North”  some two years before 
(RW. 980).

Thus, giving the state’s testimony the greatest credence 
possible, it would appear that on the panel from which 
the grand jury herein was drawn, the names of thirteen 
Negroes appeared. Of this number three were dead, (RW. 
898, 975, 914, 980) only three actually received cards, of 
which number two had incorrect spelling or addresses and 
two of these three were excused by their “ bosses” ; one 
of the individuals allegedly on the list could not read; one 
remained unaccounted for and the last, the only Negro 
of whom any number of other witnesses had heard of hav­
ing been called, one Carruthers, believed it was a mistake 
and was excused by the sheriff. These circumstances which 
operated in each instance to prevent any Negro from being 
available for service on the grand jury, when considered 
together clearly show a pattern, design or method of pre-



22

arranged conspiracy to prevent Negroes from actually 
serving while attempting to place an aura of legitimacy 
around the jury panel. The appearance of most of these 
names in the taxbooks adds to the belief that such a con­
spiracy was in effect (EW. 1002-1016). These facts make 
the state’s attempted proof impotent to offset the showing 
that Negroes were systematically excluded. As stated 
in Norris v. Alabama, 294 U. S. 587, 1935:

“ We are of the opinion that the evidence required 
a different result from that reached in the state court. 
We think that the evidence that for a generation or 
longer no Negro had been called for service on any 
jury in Jackson County, that there were Negroes quali­
fied for jury service, that according to the practice of 
the jury commission their names would normally ap­
pear on the preliminary list of male citizens of the 
requisite ages but that no names of Negroes were 
placed on the jury rolls, and the testimony with re­
spect to the lack of appropriate consideration of the 
qualifications of Negroes, established the discrimina­
tion which the Constitution forbids.”  Norris v. Ala­
bama, 294 U. S. 587 (1935)

C. The Supreme Court of the State of Tennessee erred 
in affirming the conviction of petitioner, a Negro, by a trial 
jury in a county where all qualified Negroes were and have 
been for a long period of years systematically excluded 
from trial juries solely because of their race or color in 
contravention of the equal protection clause of the Four­
teenth Amendment to the Constitution of the United States.

Petitioner, at the outset of his trial, moved to quash 
the trial jury panels.15 To sustain his contention of delib­

15 See Petition ( supra).



23

erate discrimination, petitioner called only one witness 16 
as the court had erroneously restricted petitioner’s evidence 
of discrimination to the formation of the panel for the 
instant case (R. 326-7—see: Point II, herein).17

The witness testified that at the beginning of that term 
of court, one hundred names were selected for a panel 
of veniremen for the term (R. 329); that the grand jury 
was selected from this list (R. 330); following which the 
judge excused the fifteen individuals whose names remained 
thereon, (R. 331). None of these was tendered for serv­
ice on the trial jury. One Negro allegedly was on this 
list and was excused (R. 332).18 Another panel of seventy- 
five was selected on November 12 (R. 332) and exhausted 
the next day. The witness testified that she could not 
remember whether or not there were any Negroes thereon. 
Seventy-five more names were selected the next day, thirty- 
five appearing (R. 333). In this latter group, there was 
allegedly one Negro who was immediately challenged by the 
State and dismissed by the court (R. 334). The judge then 
apparently prepared a list of business and professional 
men from the community (R. 334-337), to which list the

16 Miss Dabney Anderson, Circuit Clerk of Maury County, Tennessee, 
R. 328.

17 The view that the exclusion of Negroes from jury service in prior years 
is no evidence on the question of discrimination against them in the par­
ticular case before the court—which apparently was the position taken by 
the state court herein—has found some support in other jurisdictions. 
State v. T urner, 133 La. 555, 63 So. 169 (1913); S ta te  v. Thom as, 250 Mo. 
189, 157 S. W. 330 (1913).

This view, however, has been definitely overruled by this Court’s decisions 
m such cases as N orr is  v. Alabama,, su p ra , and P a tto n  v. M ississip p i, supra , 
wherein exclusion in previous years was one of the principal facts relied 
on by this Court in support of its conclusion that the evidence clearly 
showed discrimination. The effect of such decisions in this respect was 
expressly recognized in S ta te  v. L og a n , 341 Mo. 1164; 111 S. W. (2d) 
110 (1937).

18Apparently this refers to witness Carruthers.



24

names of three or four Negroes known personally to the 
court were subsequently added (R. 336).

Judge Ingram then testified for the State as follows: 
That there were no Negroes on the jury selected to try this 
case (R. 356 );19 that he added the names of several 
Negroes to his list of professional men after three white 
men on the first list were not found. He testified that 
Henry McGrlothin, a Negro, appeared on one list, and that 
the name of Albert Wright, another Negro, appeared on 
a second list (R. 357). He further testified that the list 
of business and professional men which he prepared was 
compiled from the membership of the following organiza­
tions in the community: Rotary Club, Kiwanis Club, Lions 
Club, and the Junior Chamber of Commerce, all of which 
were organizations whose membership was restricted to 
white persons. Not one of these Negroes, however, served 
on the jury or was available at the time of actual choosing 
the jury. They either had not appeared or had been 
excused by the court or peremptorily challenged by the 
state.

A consideration of this testimony and the evidence 
adduced on petitioner’s plea in abatement clearly shows 
that Negroes were systematically excluded pursuant to cus­
tom and practice from trial jury service at the trial of 
petitioner and for a period of almost fifty years prior 
thereto in Maury County, Tennessee, solely because of 
their race or color in contravention of the guarantees con­
tained in the Fourteenth Amendment to the Constitution 
of the United States. The calling of one or two Negro 
citizens allegedly for jury service and then summarily chal­

19 It is to be noted that the witness—the judge sitting in this case appar­
ently excused the fifteen remaining individuals on the jury panel only after 
knowledge that petitioner was moving to quash the panel (R. 361).



25
lenging or dismissing them does not obviate the basic er­
ror.20 As this court has pointed out at this term:

“ When a jury selection plan, whatever it is, operates 
in such a way as always to result in the complete and 
long-continued exclusion of any representative at all 
from a large group of Negroes 21 or any other racial 
group, indictments and verdicts returned against them 
by juries thus selected cannot stand.” 22

P o in t  II

The Supreme Court of the State of Tennessee erred in 
affirming the conviction of petitioner, a Negro where the 
trial court denied him due process of the law as guaranteed 
by the Fourteenth Amendment to the Constitution of the 
United States in refusing to allow the introduction of evi­
dence of systematic exclusion of Negroes from its juries, 
over a long period of years prior to petitioner’s trial.

At various times during the hearings on petitioner’s 
plea in abatement and throughout the hearing on the motion 
to quash the trial jury panels, the court restricted petition­
er’s proof of exclusion to the panel drawn for the present

20 Even assuming that the placing of a few Negroes’ names on the lists 
of individuals called after the original panel herein was exhausted should 
sufficiently satisfy the constitutional requirements, the arbitrary and im­
mediate challenging by the State and excusing of such individuals by the 
court was obviously still motivated by a desire to conform to the custom 
and practice of denying Negroes the right to serve on trial juries in the 
county.

21 The census figures showing 6,021 Negroes to 17,815 white persons in 
the community were submitted upon this motion. In the face of this 
proof, the lower court overruled petitioner’s motion (E. 37) to which 
petitioner duly excepted. The Supreme Court, in affirming the convic­
tion, sustained the action of the lower court, thereby denying petitioner 
the equal protection of the laws.

22 P a tton  v. M ississip p i, supra .



TENNESSEE o'<

T a b le  2 2 — A G E , R A C E , A N D  S E X , B Y  C O U N T IE S : 1940 A N D  1930— Con.
[Figures for white population in 1930 have been revised to include Mexicans who were classified with "Other races" in the 1930 reports. 1930 totals include unknown agel

1940 POPULATION 1930 POPULATIO ■4

COUNTY AND A ll classes N ative white F or .-b om  white N egro Other races A ll I N ative  white F or .-b om  white N egro Other races

T ota l | M ale fem ale M ale remale M ale Female M ale female M ale fem ale
classes 1"

M ale Female M ale Female M ale fem ale M ale Female

L4.904 7 ,569 7 ,3 3 5 7,447 7 ,229 _ _ 122 106 - - 13 ,872  1 6 ,8 1 9 6 ,7 4 0 - - 162 151 - -

U nder 5 years------------
5 t o  9 years
10 to  14 years------------
15 to  19 years------------

1 ,4 9 3 767
845

726 1 
811

754
832

711
798

- - 13
13

15
13 :

1 ,6 4 8  | 
1 ,762

831
857

787
866

" " 13
18

17
21

-

1 ,6 5 2
1 ,5 5 0
1 ,2 6 5

852
757
664

800
793
601

836
746
654

789
787
594 : -

16
11
10

11
6
7

:
1 ,592  
1 ,4 4 9  |
1 , 2 0 1  y

755
702
568

799
704
594
468
439

: _

21
23
22
10

17
20
17 _ :

1 ,120 546 574 540 566 - - 6 “ ~
416

“
983 498 485 482 475 - - 16 “ - “ 8 8

35 t o  39 years------------ 938 450 4 8 8 1 443 483 - - 7 5 - - 1 ,5 2 8  I 775 727 _ _ 16 10 _
40 to  44 years------------ 819 404 4 1 5 1 397 410 ~ ” ” ”

754 382 372 377 366 - - 5 “ - 596 596 _ _ 10 19 _ -
50 t o  54 years------------ 645 345 300 341 294 - “ 4 6 ” -

541 253 288 251 286 - - “ . 890 | 453 416 _ _ 14 7 - -
255 222 254 218 - - 1 4 -
233 194 231 190 - - 2 4 - - 536 |

238

5 5 _ _
70 t o  74 years.-----------
75 years and over------

287
297

147
171

140
126

142
167

138
122

- 5
4

2
4 - : 124 108 - - 2 4 - -

277 150 127 147 123 - - 3 4 - - 349 | 190 155,
3,451k

** 2
86

2
78

“ “

21 years and over------- 8 ,2 9 9 4 ,2 2 0 4 ,0 7 9 4 ,1 5 3 4,019 - “ 67 - - 7 ,166 3,556 “

54 ,115 26,273 27,842 16,897 17,639 53 32 9.323 1.0,171 - - 51 ,059 15 ,955 16,347 69 43 9 ,021 9 ,622 2 "

4 ,701 2 ,358 2,343 1 ,4 2 2 1,366 _ - 936 977 - 4 ,9 1 1  ( 1 ,556 1 ,493 - 1 943
1 ,1 1 8

977

918
1 ,1 4 2
1 ,0 2 4

- -
4 ,774 2,395 2,379 1,459 1 ,423 - - 936

1 ,0 6 2
956 - * “ “ ~ ”

2 ,619 2 ,5 5 5  I 1 ,555 1 ,541 2 - 1 ,014 - - 1 ,5 6 8 “ “ “
5^364 2 ,633 2,731 1,622 1 ,6 1 4 - - 1 ,0 1 1 1,117 - - 5 ,421 1 ,6 0 0 1 ,620 1 ,0 6 2

941
708
539

1,121
830
632

“ "

20 to  24 years—  . 4 ,7 6 5
4 ,5 5 8

2 ,236
2,165

2,529
2,393

1 ,3 7 1
1 ,3 9 1

1 ,5 4 9
1 ,457

“ 1
3

865
774

979
933 _ - 4 ,2 3 3 1,259 1 ,4 2 5 6 4 1 -

30 to  34 years------------ 4 ,3 6 1 2 ,0 0 5 2,356 1 ,343 1 ,529 3 1 659 826 “ 1 ,161

4 ,0 3 2 1,867 2 ,1 6 5 1 ,2 4 9 1 ,3 8 5 3 1 615 779 - -  ̂ 6 ,557 2 ,1 0 9 2 ,2 3 4 9 6 996 1 ,2 0 3 _ _
40 to  44 years------------ 3 ,174 1,507 1,667 976 1,096 2 4 529 567 -

1 ,4 4 8 1 ,6 5 1 977 1 ,0 8 4 5 466 565 - - • 5 ,2 9 4 1,836 1 ,6 9 2 15 15 877 859 _ _
1 ,3 9 1 1 ,3 5 3 953 946 2 2 436 405 - -
1 ,1 6 8 1 ,1 0 0 859 807 6 5 303 288 - - j> 3 ,048 1,086 989 17 585 418

843 931 607 688 11 5 225 238 - -
800 744 535 498 4 3 261 243 - - - 1 .4 9 4 542 514 210 216

906 455 451 312 308 12 2 131 141 - -
877 383 494 266 348 3 3 114 143 - - 668 5 4 - -

464 443 287 264 _ - 177 179 - _ 929 318 283 - - 168 160 - -
15 ,786 1 7 ,3 0 4 10,536 11 ,380 51 32 5 ,1 9 9 5,892 - - 28 ,789 9,219 9,596 67 41 4 ,7 1 8 5 ,146 2 -

1 9 ,1 4 0 9 ,762 9,378 9 ,0 6 2 8 ,6 4 4 12 6 688 728 - - 17 ,549 8 ,2 0 4 7 ,7 8 4 22 15 747 777 - -

1 ,079 1 ,0 5 0 1 ,0 2 4 987 - - 55 63 - - 2 ,2 3 2 1 ,0 7 8 1,005 - - 67 82 - -
2 ,2 7 3 ! 1 ,144 1,129 1 ,0 5 9 1 ,067 - - 85 62 - - 2 ,3 7 5 1 ,1 2 9 1,051 “ ” ” “

1,086 1 ,1 2 5 1,000 - - 60 86 - -
1,007 1 ,0 4 2 921 _ - 79 86 - - 1 ,9 6 2 905 870 - - 82 105 - -

l ',6 2 2 831 791 768 704 - - 63 87 . - - 1 ,650 734 784 1 1 64 66 “ “
727 701 680 _ - 52 47 - - 1 ,248 568 569 1 - 52 58 - -
712 620 664 1 1 40 47 - - 997 455 466 - - 35 41 - -

1 ,1 7 3 568 610 519 556 _ _ 44 54 - -
805 797 99

960 497 463 461 429 - - 36 34 - -
876 451 425 412 386 - - 39 39 - - j. 1 ,478 702 81 67

398 374 353 331 - 1 45 42 - -
331 291 303 270 3 _ 25 21 - - }  1 ,030 522 427 26

238 233 224 1 2 19 12 - -
205 204 2 _ 22 24 - - | 488 230 211 18

108 140 99 1 1 11 8 - -
75 years and over------ 253 114 139 97 122 4 1 13 16 - - 228 97 98 4 4 9 11 - “

392 202 190 186 176 _ - 16 14 - - 441 207 203 - - 14 17 - -
21 years and over------ 9 ,9 9 4 5 ,0 6 2 4 ,9 3 2 4,649 4 ,5 2 5 12 6 401 401 - - 8 ,5 9 1 3 ,9 6 8 3,823 22 15 388 “

16 ,030 8 ,0 1 1 8 ,0 1 9 6 ,9 5 4 6,965 10 2 1 ,047 1 ,052 - - 15 ,574 6 ,6 5 0 6,533 7 4 1,163 1 ,2 1 7 - -

1 ,263 655 608 558 526 - - 97 82 - - 1 ,467 613 599 - - 127 128 - -
1 ,3 1 8 678 640 580 538 - - 98 102 - - 1 ,7 3 4 676 “ “ “ •

742 737 617 622 - - 125 115 - - 1 ,6 2 8 646 ~ ~ “ ~
838 773 709 651 - - 129 122 - - 1 ,552 679 “ “ “ "

635 627 1 - 104 104 - - - “ - ~
671 647 582 555 - - 89 92 - - 1 ,051 415 473 2

62
“ -

576 579 511 508 - - 65 71 - - 990 ” "

461 538 395 470 3 1 63 67 _ -
j  1 ,869 802 103 152

385 396 _ - 46 52 - -
472 368 410 3 - 40 62 - - 719 748 96 115

410 391 1 1 56 45 - -
373 351 _ 31 42 - - | 1 ,246 561 523 91 71
263 309 24 33 - -

269 36 24 - | 755 324 334 43 54
155 26 2] -

75 years and over.— 366 I I  161
20E I 143 187 18 18 - - 351 170 140 1 “ ”

253 123 13C 109 115 14 15 - 280 124
3,806

106
3,906

_ 22
568 635

21 years and over----- .10 ,034 4,938 5,09 4,363 4,488 1C 565 - 4

20 ,34 ! 15 ,029 15,135 3r 2C 4,947 5.183 - 2 34.016 12,104 12,045 35 24 4 ,7 2 8 5 ,0 8 0 - -

1,876 1,84] 1 ,425 1,39C 451 451 - 3 ,492 1 ,2 9 2 1,249 - - 464 487 - -
1,942 1 ,9 4 1 ,459 1,44C 483 503 - - 3 ,806 1,387 1,334 ” ■

1,99 1,556 1,481 : 505 506 - 3 ,716 1,348 1,234 561 “
1,993 2,07 1,496 1,574 : 496 504 3,525 1 ,2 1 6 1,212 1 “ 561 ”

1,361 1,46C 448 526 2,847 966 1,044 2 1 ”
1,306 1 ,34 ( 44Z so: 2,197 764 867 3 2

1 ,5 0 1,116 1,11C 367 386 1 1,993 673 794 2 226 296 -

_ 2 ,5 6 1 ,26 ] 1 ,3 0 96C 99£ 296 30] | 3,963 1,421 1,466 438 629 - _
1 ,0 5 1 ,2 2 79r 90 25c 31C

2,01 99( 1 ,0 3 76C 74 22E 28] J 3 ,693 1,304 1 ,2 4 ] 586 555 _
936 93 70c 69 22 23

75 56E 55 18 19 \ O 941 89 406 324 _
71 62 2 52c 47 17r 14 j

65 to  69 years ..... _ l ’,21 64 57 45E 42 186 146 1 1 .4 7 4 536 47 242 206 -
35 l 26i 26 l 9

114 12.75 years and over_'„_ 74 36 37 8 26C 26 10- 11 734 256 23 “

2 36 33 27 £ 26 9( 7 721 25c 28 83
2,536

9
2,78-

“
21 years and over— _ 23,8313| 11 ,77 1 2 ,0 6 7 8 ,8 1 r 8 ,94- 3 l 2 ,9 1 3 ,1 0 18 ,324 6,646 6 ,7 9

Taken from a second series population bulletin for Tennessee: 1940

26



CHARACTERISTICS OF THE POPULATION

T ab le  22.— A G E , R A C E , A N D  S E X , B Y  C O U N T IE S : 1940 A N D  1930— Con.
ition in 1930 have been ir™ ed  to include Mexican, who were daiwified with "Other races" in the 1930 reports. _ 1930 total, indude unknown age)

1940 POPULATION

All classes Native white For.-bom white Negro Other races All Native white For.-born white Setfro Other races

Total Male female Male Female Male Female Male Female Male Female
classes

Male Female Male Female Male Female Male Female

6,893 8,322 3,071 3,131 2,907 2 3 189 161 _ 6 ,127 2,977 2,757 2 - 198 193 - -

824 418 406 394 382 _ _ 24 24 - - 826 407 370 - 25 24 ■- -
765 392 373 368 349 - - 24 24 - - 856 426 379 - - 24 ~ "
755 382 373 358 353 _ _ 24 20 - - 800 380 363 - - 27 30 - “
710 385 325 359 310 _ _ 26 15 - - 692 345 297 - - 27 23 ■

280 282 271 266 _ _ 9 16 - - 548 267 246 - - 18 17 - -
269 228 251 218 1 1 17 9 - - 363 167 170 - - 15 11 - -

211 199 204 _ 8 7 _ - 318 144 158 - - 7 9 - -

369 203 166 192 153 _ _ 11 13 - -
566 C 262 271 15 18

156 136 148 133 _ 8 3 - -
104 121 96 _ 2 12 6 -

538 261 244 L 17 15
116 117 113 _ _ 4 3 -

111 95 _ 4 8 _ - 190 131 14 13
77 79 _ 5 3 _ -
80 76 _ 8 3 - - 1 100

37 _ 4 5 _ _ ’ 1 9j 85

75 years and over------ 79 34 45 32 43 1 - 1 2 - - 77 43 28 ~ 3 3 “

153 79 74 74 68 _ _ J8 6 - - 243 n < > 115
A 4

* 4

H j r a m u B i B - J .AQA. 4 V . » 0 * * *4

48724,275 12,438 11,837 11,978 11,383 8 5 452 449 _ - 21,37 n 10,384 10,004 8 3 **“ 487 2 2

l t535 1,446
1,361
1,367

1,486 1,391 _ 49- 55 _ _ 2,719 1,363 1,249 - T fib 44 - -
1 ,524
1 ,454

1,485 1,314- _ _ 39 47 - - 3 ,007 1 ,459 1,399 - - 80 “
1 ,400 1,322 _ 54 45 - - 2,721- 1 ,363 1,236 - 61 “
1,379 1,276 _ 65 57 _ - 2 ,454 1 ,200 1,126 - 57 1 -
1,087 990 1 _ 39 46 _ - 1 ,805 847 876 - 1 35 46 “ -

1^826 885 45 40 _ _ 1 ,320 577 692 1 - 18 32 •- -
_ 1 21 29 _ _ 1 ,189  

}  2 ,160

555 576 - - 27 31 - -

1 ,347 635 712 615 690 1 19 22 _ -
994 1,057 52 55

1,170 591 579 566 549 _ 1 25 29 - •-
550 518 525 501 _ _ 25 17 - -

^ 1 ,865 a w 845 47 37
922 473 432 452 1 _ 16 21 - - ■

387 366 377 _ 2 18 8 _ -
}  1 ,171 5 25

321 346 309 1 1 9 11 _ _ .608

2 13 11 _ _
J 674 11

1 _ 6 3 _ _ 34«i 311

180 157 1 _ 9 8 _ _ 290 141 129 - - 11 9 ■- -

565 281 284 275 273 _ 6 11 _ _ 553 271 272 - - 4 6
230

- -

21 years and over------- 12,880 6 ,267 6,113 6,023 5 ,87 4 8 5 236 234 - - 10,048 4 ,797 4,793 8 3 215 1

33,346 16,365 16,981 11,603 11,833 41 30 4,720 5,118 1 - 30,882 10,364 10,323 42 32 4 ,899 5,218 a

Under 5 years------------ 3 ,013 1 ,551
1 ,624

1,462
1,646

1,102
1,125

1,025
1,189

- - 449
499

437
457

- - 3 ,282
3,645

1,135
1,263

1,109
1,247

1
;

483
576

554
559

-

_ 502 555 _ _ 3,396 1,118 1,116 - - 556 606 - —
1,775 1,182 1,245 2 1 467 529 _ _ 3 ,301 1 ,080 1 ,044 - - 592 585 -

1,104 _ 1 396 509 _ 2 ,684 895 907 3 3 405 471 -
3 3 404 435 _ 2,046 670 720 4 2 291 359 -

30 to 34 years------------ 2 ,351 1 jl62 1,189 855 883 3 304 306 - 1 ,872 604 692 2 1 242 330 l

2,100 983 1,117 728 749 2 4 253 364 - -
| 3 ,574 1,181 1,238 11 512

1,844 893 951 648 650 2 3 243 298 - -
852 899 591 625 3 5 258 269 - - J 3 ,120 998 967 575 567

835 571 575 9 3 241 257 - -
46<? 468 6 4 184 188 _ _

| 2,147 691 8 385 311
355 4 1 140 145 1 _ 740

1^041 495 369 330 2 3 175 162 _ -
| 1 ,219 456 404 190 161

290 218 197 2 2 103 91 - -
253 224 3 _ 102 116 _ - 573 209 183 2 6 88 -

268 219 179 75 89 _ _ 613 217 212 - - 89 95 - -

21 years and over------ 19,549 9,548 10,001 6,793 6,940 39 29 2,715 3,032 1 - 16,652 5,562 5,634 41 32 2,597 “

4,093 2,062 2,031 1,931 r ,9 i i _ _ 131 120 - - 4 ,037 1,870 1,863 - - 155 149 -

371 177 194 168 182 _ 9 12 _ _ 451 214 206 - - 12 19 - -
_ _ 17 11 _ _ 476 199 234 - - 25 18 - -

224 217 211 203 _ _ 13 14 _ - 438 202 201 - - 13 22 - -
12 _ _ 429 211 172 - - 23 23 — -

*80. 4.9L
141
133

L -L2L JB. * 4 4 '
263 116

496=
133

13
8

12
6

~

30 to 34 years----------- 274 141 133 126 - - 8 7 - - 237 125 99 - * 6 7 -
253 130 123 126 119 _ _ 4 4 - - 0 207 15

117 112 109 5 8 _ - J 111

101 99 94 _ _ 5 7 _ -
| 401 184 197 10 10

! 101 92 _ 10 4 _ -
55 to 59 years----- t— 159 77 82 1 73 82 - 4

1 6
- - J 309 157 127 - - 15 10 - -

_ _ 9 5 _ _
| 165 80 74_ 4 4 _ _

75 years and over----- 81 38 43 1 37 41 - - 1 2 - - 77 35 36 - 3 3 -

78 38 4C 1 34 35 _ _ 4 5 - - 94 45 41 - * 2 6 - -
21 years and over----- 2 ,401 1 ,222 1,17$ 1 1,148 1,110 - 74 69 - - 2 ,162 1,008 1,011 _ - ”

MORGAN..................... 15,242 8 ,296 6,946 7 ,88C 6,886 31 31 385 29 - 13,603 6,992 6,035 56 42 427 51 - -

1 ,695 882 81J 878 811 - 1,789 906 869 - - 9 5 - -
1,705 854 85 I 848 84$ - 1,874 963 901 - “ 6 ~ “

87 1 94r 865 1,602 824 767 - - ■ “
15 to 19 years----------_ 1,757 941 81 914

2| 79C
815
58C

2r
9C

1,390
1,289

739
680

628
495

“ :
16

104 10 - -
47r 8E 1,025 527 390 2 l 5 “
43E 6C 829 40: 345 4 3 71 5 ~

494 41C 1 454 40 c 3$ -
J 1,416 721 608 10 62 6 _ _

32( I 36r 316 17 : -
29 lfl 326 28c 16 -

}  1 ,126 558 502 11 11 37
32S 26 311 25r

24C \ 405 284 11 10
19 1 186 191 J

15C 1 181 172 13
9 3 117 86 J 31

75 years and over— 195 8C 11 | 7r 114 165 83 70 6 4 -

30C 148 15 J 14r 15£ 356 183 172 -
371 31

_
21 years and over— _ 7 , 95C 4,476 3 ,47 | 4,124 3,42E 31 3C 32] i c 6 ,666 3,402 56

1930 POPULATION

Office of CLERK OF THE SUPREME COURT
F O R  TH E M ID D LE D IV IS IO N  O F  TH E STATE O F  TENNESSEE »

is a true, perfect,I, DAVID S. LANSDEN, Clerk of said Court, do hereby certify that the for̂  

and complete copy of the _ __ $

f of said Court, pronounced at its December term, 19  ̂ in. case of

against —

as appears of record now on file in my office.

In Testimony Whereof, 1 have hereunto set my hand and affixed the seal of 

the Court, at offiefi ijn the Capitol at Nashville, on this, the 

day of 0-L> 19

By

I t t l  9M 1-4B F .ftP .C O .

Clerk 

D. C.

27

ftp://ftP.CO


28

EXHIBIT “A ” to Petition for Certiorari

D e p ar tm en t  of C om m erce  

Bureau of the Census 
Washington

June 11, 1946.
I hereby certify, that according to the official count of the 

returns of the Sixteenth Census of the United States, on 
file in the Bureau of the Census, the population of the County 
of Maury, State of Tennessee, by age, race, and sex, as of 
April 1, 1940, is as shown in the attached excerpt from the 
bulletin entitled “ Population, Second Series, Character­
istics of the Population, Tennessee, 1940.”

[ seal .] J. C. Capt,
Director of the Census.

D e p ar tm en t  of C om m erce  

Office of the Secretary
I hereby certify, that J. C. Capt, who signed the foregoing 

certificate, is now, and was at the time of signing, Director 
of the Census, and that full faith and credit should be given 
his certification as such.

In witness whereof, I have hereunto subscribed my name 
and caused the seal of the Department of Commerce to be 
affixed, this eleventh day of June one thousand nine hundred 
and forty-six.

For the Secretary of Commerce:
[ seal .] G erald  B y  a n ,

Chief Clerk.

(Here follows Exhibit “ B ”  to Petition for Certiorari)











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SUPREME COURT OF THE UNITED STATES.

O C T O B E R  T E R M ,  1947.

L O Y D  K E N N E D Y ,

v .
P e titio n e r,

> N o . 5 3 4 .

S T A T E  O F  T E N N E S S E E ,
R e sp o n d e n t. _

C e rtio ra ri to  th e  S u p re m e  C o u rt  o f  Te n n e s s e e .

REPLY BRIEF FOR RESPONDENT.

N A T  T I P T O N ,
S u p re m e  C o u rt  B u ild in g , 

N a s h v ille  3 , Te n n e ss e e , 
A tto rn e y  fo r  R e sp o n d e n t.

R O Y  H . B E E L E R ,
A tto rn e y  G e n e ra l and R e p o rte r o f  Te n n e ss e e , 

S u p re m e  C o u rt  B u ild in g ,
N a s h v ille  3 , T e n n e s s e e ,

O f  C o u n se l.

St. Loras Law Printing Co., 415 North Eighth Street. CE ntral 4477.





I N D E X .

Page
Statement of the case.......................................................  2

Argument on point 1 of the petition..............................  4

Argument on point 2 of the petition..............................  10
Conclusion .......................................................................... 13

Cases Cited.

Akins v. Texas, 325 U. S. 398, 403................................  8
Hill v. Texas, 316 U. S. 400.............................................  8
Patton v. Miss. (No. 122 October Term 1947).............  8
State v. Logan, . . .  Mo. . . . ,  126 S. W. (2d) 236.......... 12
Virginia v. Eives, 100 U. S. 313......................................  12

Statutes Cited.
Code of Tennessee:

Sec. 9990 ........................................................................  5
Sec. 10020 ......................................................................  11
Sec. 10021 ......................................................................  5
Sec. 10026 ......................................................................  5

Private Acts of Extra Session of 1913, Ch. 45...............  4





SUPREME COURT OF THE UNITED STATES.

O C T O B E R  T E R M ,  1947.

L O Y D  K E N N E D Y ,

v .
P e titio n e r,

i  N o. 5 3 4 .

S T A T E  O F  T E N N E S S E E ,
R e sp o n d e n t. .

C e rtio ra ri to  th e  S u p re m e  C o u rt  o f Te n n e s s e e .

REPLY BRIEF FOR RESPONDENT.

M ay I t P lease  t h e  C o u r t :

Inasmuch as the petition is sought to he prosecuted 
upon the typewritten record, and since counsel for re­
spondent has not been furnished with a copy of such type­
written record, it will be impossible to make apt references 
to the typewritten record in this reply brief. Instead, an 
effort will be made to designate the witnesses by whose 
testimony the facts relied on by the respondent shall ap­
pear.



STATEMENT OF THE CASE.

The prosecution in this case grows out of one of those 
infrequent racial clashes, regretted by both white and 
black alike, which sometimes occur. The facts of this 
particular prosecution are stated in the opinion of the Su­
preme Court of Tennessee as follows:

This case followed racial disturbances at Columbia in 
February, 1946. There had been a clash between some 
members of the two races on the afternoon of February 
25, 1946. In this trouble, a city policeman was shot, and 
some members of the State Highway Patrol were sent to 
Columbia for the purpose of assisting local officers in the 
restoration of order. After the arrival of the State Patrol, 
it was decided that at daylight the next morning the pa­
trol would move in and undertake to disarm and arrest 
persons in the locality of the disturbance. The area was 
the colored section of the town, extending from Main and 
Woodland Streets and known as Mink Slide. After day­
break on the morning of February 26, the patrolmen, un­
der the direction of Sheriff Underwood, moved into the 
area in question. The patrolmen were dressed in their 
regular uniform, indicating their official capacity, and a 
number of them were armed with machine and riot guns. 
They proceeded to go and knock on the doors of the es­
tablishments in this locality and notify the occupants, if 
any, to come out and they would not be harmed. This 
continued without incident until they reached a barber 
shop owned by Sol Blair. The testimony of the State 
shows that when they knocked on the door the patrolmen 
saw someone in the shop, and noted that this person was 
armed with a shotgun.

Five witnesses for the State. testified that at least one 
shot was fired toward the patrolmen from the inside of



—  3 —

this building. The shot struck and wounded Austin, one 
of the highway patrolmen. The patrolmen returned the 
fire and entered the building. The back door of the shop 
was locked. In a shower stall at the back of the shop 
they found the defendant crouched against the wall, with 
a single-barreled shotgun at his side. This gun contained 
an empty shell, which, apparently, had been recently dis­
charged. Pillow, who was acquitted, was found crouched 
down on the floor, under some cover. A  double-barreled 
shotgun was also found in this building when the officers 
entered. This gun was empty, but two exploded shells 
were found on the floor. One or two shotgun shells were 
also found on the person of both the defendant and Pillow, 
and a sack of shells was found in the barber shop.

Opinion, pp. 2-3.

The preponderance of the evidence is that the shots 
were fired from the inside of the shop, and before any 
shots were fired by the patrolmen.

Opinion, p. 5.



—  4  —

ARGUMENT ON POINT 1 OF THE PETITION.

To adequately comprehend the situation, a reference to 
the relevant Tennessee statutes may be in order. In 
Maury County, the situs of this trial, the selection of 
veniremen is governed by a special statute, to-wit, Ch. 45, 
Private Acts of Extra Session of 1913. This statute is too 
long and involved to be set out verbatim. Its provisions 
may be briefly summarized as follows:

By it a jury commission of three members is provided. 
They are required to meet upon the first Monday in July 
biennially and to select the names of not less than 750 nor 
more than 1500 prospective veniremen from the tax rolls 
of the county or any other reliable source, apportioning 
the prospective veniremen as near as practicable to the 
population of the several civil districts of the county. 
These names are to be placed in a locked box and not 
less than 10 days prior to the meeting of any term of 
court, a child of tender years, in the presence of the jury 
commission, draws from the box the names of the prospec­
tive veniremen for such term of court. This Act became 
effective in September 1913. Presumably the first stated 
meeting of the jury commission was held in July 1914.

The record shows very definitely that on the first Mon­
day in July 1944, the jury commission for Maury County 
met and placed in this box the names of 750 veniremen. 
The two surviving members of the then jury commission, 
one having died in the interim, testified definitely that the 
sole source of these names which they placecLin this box 
at that time was the then current or 1943 tax rolls. These 
jury commissioners testify and it was so found by the trial 
court after a personal inspection of the tax rolls, that such 
tax rolls contain no symbols identifying the race of the 
taxpayer. They testify that in some instances they knew 
the prospective veniremen but that in others and perhaps



a majority of the cases, they did not know him. They 
definitely deny any racial discrimination in the selection 
of these parties. The respondent thinks that subsequent 
developments bear out the truthfulness of their statements 
in this respect.

The term of court at which the petitioner was indicted 
convened on February 25, 194^and on that morning a 
grand jury was empaneled. The crime for which peti­
tioner stands convicted was not committed until the fol­
lowing morning. This fact alone should explode the hys­
terical charges of conspiracy contained in the petition 
insisting that a few members of the negro race were 
promptly placed on this jury list to give alleged legality 
of form to the selection of the grand jury indicting the 
petitioner.

In Tennessee to be eligible as a juryman one need be 
but a male more than the age of 21, and either a house­
holder or freeholder, and to be free from conviction of an 
infamous crime. Neither a literacy test nor the previous 
payment of any form of tax is required. (Code of Ten­
nessee, Section 9990.) Grand juries in Tennessee consist 
of 13 members, a foreman appointed by the court for a 
period of two years (Code of Tennessee, Section 10026), 
and 12 additional members, these 12 additional members 
being drawn by lot. The names of all the jurors in at­
tendance upon the opening day of court are placed in a 
hat or other receptacle, and the first 12 names drawn from 
this hat constitute the grand jury, in addition to the fore­
man previously mentioned. (Code of Tennessee, Section 
10021.)

In February, 1946, and prior to the beginning of the 
term of court at which the petitioner was indicted, the 
jury commissioners of Maury County duly met and, pur­
suant to statute, a five-year-old child, unable to read or 
write, drew from the box the names of 109 prospective

—  5 —-



veniremen for the ensuing term of court. Of this 109 
names so drawn, 10 thereof were definitely shown to have 
been members of the negro or colored race. These 10 
members of the negro race were Malcolm Alderson, L. E. 
Buford, Will Jones, Sam Kittrell, Maxey Perryman, Jim 
Bussell, Henry Howard, Ewell Lowery, Lewis Nicholson 
and Ernest Lipscomb. The testimony in the case, without 
substantial contradiction, shows that all 10 of these parties 
were members of the negro race. The trial judge so found, 
and his finding in that respect was expressly approved by 
the Supreme Court of Tennessee.

Upon the drawing of this venire, it was placed in the 
hands of the Sheriff of the county for the purpose of be­
ing summoned. The method used by the Sheriff for sum­
moning these prospective veniremen was by postcard, noti­
fying them that they had been drawn for jury service 
and to report upon the day stated on such card. Two 
or three cards were introduced, and show that they were 
mailed on February 19, or almost one week before the 
grand jury was empaneled. Of these 10 members of the 
colored race who were drawn as veniremen, it is shown 
that L. E. Buford and Lewis Nicholson had died since 
their names were placed in the jury box, and that 
Malcolm Alderson and Ewell Lowery had left the county. 
Tom Kittrell and Maxey Perryman both testified that they 
actually received these cards summoning them for jury 
service, and, being non-desirous of serving on the jury, 
went to their employers and arranged with them to have 
them excused from such service. Incidentally, there is no 
suggestion in the record that the desire to be excused 
did not proceed solely and alone from the wishes of these 
individual veniremen. Ernest Lipscomb, another venire­
man, seems to be rather illiterate. His testimony is that 
he could hardly read, and that when his card was received 
by him his son, who was in school, had to read it to him. 
His testimony indicates that on the day in question he

—  6 —



—  7 ~

came to Columbia, the county seat of Maury County, to 
be present in response to this card, and that be waited 
around in the hall or other place outside the court room 
for quite awhile, and later made inquiry of the foreman 
of the grand jury if his name was on his list of witnesses. 
Lipscomb seems to have been completely at a loss upon 
this occasion, and without initiative to make an investi­
gation as to the cause of his having been summoned. The 
record fails to disclose what became of Will Jim
Eussell or Henry Howard. It is not shown that the cards 
addressed to them were returned to the Sheriff unde­
livered. Incidentally, it appears from the record that a 
desire for jury service was the exception, rather than the 
rule, in Maury County at this time, for it discloses that of 
the 109 prospective veniremen summoned for jury service 
upon this particular time, only 16 thereof, including 
Ernest Lipscomb, were present. Evidently excuses from 
jury service were not difficult to obtain on the part of 
members of either race.

The petition for certiorari makes one statement totally 
without basis in the record. On page 19 it is stated that 
it was clear that the names of these members of the 
colored race were purposefully placed upon the instant 
panel in an attempt to circumvent the constitutional re­
quirement. With the record showing that these names 
were placed in this jury box in July, 1944, among numer­
ous other names, and with it showing definitely that they 
were drawn from this box prior to February 19, 1946, or 
at least one week prior to the commission of the crime for 
which petitioner stands convicted, it is obvious that unless 
this Court credit these jury commissioners with psychic 
qualities and an ability to foresee events one week in the 
future, the charge that they were placed upon this panel 
for the purpose of circumventing the constitutional re­
quirement falls flat of its own weight.



It is perfectly true that the testimony introduced upon 
this plea in abatement on behalf of the petitioner was to 
the effect that for a considerable period of time no negro 
had been known to serve either on a grand or petit jury 
in Maury County. We recognize that this Court in 
opinions too numerous to mention, has held that proof of 
this type makes a prima facie case or creates a presump­
tion that members of the negro race were excluded sys­
tematically by reason of their race or color and that it be­
comes then incumbent upon the prosecution to negative 
such fact. In this connection, however, we respectfully 
insist that the holdings of this Court are to the effect that 
the right guaranteed to persons of any race is to be in­
dicted by a grand jury and tried by a petit jury in the 
formation of which there shall exist no racial discrimina­
tion. One charged with crime obtains no immunity there­
from by virtue of the fact that his ancestors may have 
been victims of race discrimination. Hill v. Texas, 316 
U. S. 400; and Patton v. Miss. (No. 122 October Term 1947), 
both definitely bear out this insistence. The presumption 
of racial discrimination arising from evidence showing 
non-service of members of the negro race upon juries for a 
protracted period must stand in the same plight as any 
other presumption of law and should yield to definite 
proof that members of that race were actually placed upon 
the jury lists to be summoned for jury service.

Of course, there is no right upon the part of persons 
charged with crime to either an indictment or trial by a 
mixed jury. Akins v. Texas, 325 U. S. 398, 403. Likewise, 
there exists no right to proportional representation upon 
the venire. Akins v. Texas, supra; Patten v. Miss., supra.

The petition for certiorari contains several inaccuracies 
in connection with the transcript. For instance, it is stated 
therein that the veniremen John Griggs, Edgar Brown 
and J. K. Martin were members of the negro race. There

—  8 —



is not a line of testimony in the transcript tending to show 
that these parties were negro and even though the errone­
ous statement on behalf of the petitioner might redound 
to the advantage of the respondent, the latter desires ac­
curacy as a prime consideration.

The respondent thinks that so far as the grand jury in 
the present case be concerned, the testimony negatives the 
presumption that discrimination was intended in the 
present case. It may be true that the number of negro 
veniremen drawn from this box at the drawing under 
challenge was not proportionately that which would have 
been made had there been a drawing directly proportional 
to the respective population to the county. But such is not 
required under the authorities, supra. Criticism also is 
made of the fact that in the interim 2 of the 10 members 
of the negro race had died. It has been the observation of 
respondent that the Grim Beaper makes no discrimination 
in picking his victims and by the law of average a pro­
portionate number from the white race were also called 
to their ancestors. Since these names were placed on this 
list in the box in July 1944 and from a list compiled the 
previous summer, it is not strange that deaths may have 
occurred therein. Likewise, complaint is made that 2 of 
the negro veniremen had removed from the county. The 
migratory nature of a vast number of our population from 
1943 to 1946 is so well known as to require no evidence. 
After all, fluctuations of residence do occur among both 
races. There is no intimation these two were chosen be­
cause they were going to move.

The respondent respectfully insists that the evidence 
shows that in the present case there was no systematic 
nor determined effort to discriminate against the colored 
race in the setting up of the panel from which the grand 
jury was drawn in the present case. Ten veniremen from 
a total of 109 constitutes a fairly reasonable proportion

—  9 —



—  1 0  —

thereof and certainly where that number of members of the 
negro race were placed upon the panel, such fact definitely 
negatives any thought of discrimination as such.

ARGUMENT ON POINT 2.

This contention insists that the plaintiff in error was 
discriminated against by virtue of his color and race in 
selection of the trial jury. At the outset, it may be con­
ceded that under the previous decisions of this Court the 
trial judge was in error in declining to allow the plaintiff 
in error to show by testimony that for a number of years 
past no member of his race had been a juror on trial 
juries. The effect of this showing would be to simply 
make a prima facie case or create the presumption of sub­
sequent discrimination and cast the burden upon the 
prosecution to show that there was no discrimination in 
this particular case. The testimony heard with reference 
to the method by which the grand jury was drawn showed 
definitely that no member of the negro race had served 
upon trial juries in Maury County for a number of years 
past and we concede such to be the fact. This Court has 
always reserved to itself the right to make an independent 
investigation of the record when a constitutional question, 
such as the one here presented, is involved and for the 
purpose of such investigation this concession above men­
tioned is definitely made and so far as the respondent 
be concerned this Court may investigate this question with 
this concession added and thus obviate the necessity of 
remanding the case to the Supreme Court of Tennessee for 
the introduction of this testimony. Frankly, the respond­
ent desires a decision upon the merits of the constitutional 
questions here presented, unfettered by any subordinate 
issue with reference to the exclusion of relevant testimony 
upon this question.

The transcript shows that 72 veniremen were summoned 
and appeared for jury service of this cause. Of this num-



l i ­

ber 13 were excused by the Court for various reasons with­
out tendering them to the parties, leaving a total of 59 
who were tendered to the parties as prospective jurors. 
Of this 59, 4 were member of the race to which the peti­
tioner belongs. The transcript further shows that of the 
regular jurors summoned for this particular term of court 
15, including one member of the petitioner’s race, remained 
after the selection of the grand jury. These 15 were ex­
cused by the trial court, he stating as his reason therefor 
that they had remained in attendance for two days with 
no cases pending and that for this reason he excused the 
entire fifteen.

Now it is our insistence that where the jury panel 
eventually tendered to the parties contains members of 
his race, such constitutes a definite showing that no dis­
crimination in fact was practiced against him by reason of 
his race or color. It is perhaps true that the panel as 
originally constituted did not contain as many members 
of his race as eventually, but the respondent insists that 
discrimination must be tested by the jury panel as finally 
submitted to the parties and not by preliminary jury lists.

But it is contended on behalf of the petitioner that the 
action of the prosecution in challenging the four members 
who were tendered to the parties amounted to an unlawful 
discrimination against him. By statute in Tennessee 
(Code, Section 10020) in felonies of the grade here in­
volved the prosecution is allowed four peremptory chal­
lenges for each defendant on trial. All of the persons of 
the petitioner’s race so challenged were challenged per­
emptorily by the prosecution.

The very nature of a peremptory challenge indicates 
that it may be used within the numerical limits provided 
by the party in question without being called to account 
for his reason in so doing. So far in the annals of crimi­
nal trial, no court that the writer can find after diligent



—  12

investigation, has ever held that an error may be suc­
cessfully assigned upon the use of a peremptory challenge. 
The only decision the writer can find (State v. Logan, 
. . . Mo. . . . ,  126 S. W. [2d] 236) holds that the use by 
the prosecution of its peremptory challenge to strike the 
names of negroes from the trial jury did not constitute 
error.

To hold to the contrary would involve this Court in 
doing by indirection what it has consistently held need 
not be done. Since the decision in Virginia v. Rives, 100 
U. S. 313, this Court has been consistent in holding that 
a negro on trial is not entitled to a mixed jury composed 
of members of his own race and of the white race. For 
this Court now to hold that the prosecutor may not ex­
haust his peremptory challenges on members of the negro 
race to the full extent of the statutory number would 
amount in substance to a holding that a negro on trial 
would be entitled to a mixed jury. If this Court holds 
that it is error for the prosecutor to challenge peremp­
torily each negro who appears upon the trial jury panel, 
to the extent of the challenges allowable to the prosecu­
tion by statute, the only possible conclusion that could 
be drawn from such a holding is that a mixed jury is an 
essential ingredient of due process where a member of a 
particular race be on trial. Such a holding would set at 
naught a long line of decisions of this Court and would 
be another step in the direction of complete supervision 
of all phases of state criminal trials, a condition at odds 
with state sovereignty and the true purpose of this Court.

It is our insistence that the transcript shows that there 
was no systematic discrimination against members of the 
negro race in Maury County in the present case despite 
the presumption thereof arising from the fact that none 
had been known to sit upon a grand or petit jury for an 
extensive period of time. It is a part of the judicial his-



1 3

tory of Tennessee that 27 members of the negro race were 
indicted in connection with the incident growing out of 
the clash between the two races in Maury County. Of these 
25 were indicted in one indictment and the petitioner and 
his co-defendant in another; 23 of those indicted in the 
first indictment were acquitted at the hands of an all- 
white jury and the two who were convicted by the verdict 
of the jury were later granted a new trial and their cases 
dismissed upon the ground of the insufficiency of the evi­
dence. In the indictment wherein petitioner is charged, 
his co-defendant was acquitted at the hands of this same 
jury. These facts would seem to indicate that the judicial 
processes of the State of Tennessee accord fair and im­
partial trials to members of the colored race charged with 
crime, even though the crime be alleged to have been 
committed against members of the dominant race.

In conclusion, the respondent respectfully insists that 
the Supreme Court of Tennessee properly ruled upon the 
constitutional questions here involved and that the peti­
tion should be denied.

Respectfully submitted,
NAT TIPTON,

Supreme Court Building, 
Nashville 3, Tennessee, 

Attorney for Respondent.
ROY H. BEELER,

Attorney General and Reporter 
of Tennessee,

Supreme Court Building,
Nashville 3, Tennessee,

Of Counsel.
I hereby certify that I have mailed a copy of this reply 

brief to Z. Alexander Looby, Nashville, Tennessee, Attor­
ney for the Petitioner.

Nat Tipton.