Supreme Court Hears Argument on How Fast is "Deliberate Speed?"

    (E n u r t  o f  ffjp  H u t te d  S t a t e s
O c to b e r T erm , 1954

No.

WALTER JOHNSON,
Petitioner,

V.

STATE OF MISSISSIPPI,
Respondent.

P E T IT IO N  FOR CERTIORARI TO THE SUPREME 
COURT OF MISSISSIPPI

Thtjrgood Marshall,
J ack Greenberg,

Counsel for Petitioner.

Supreme P rinting Co., I nc., 114 W orth Street, N. Y. 13, B E ekman 3-2320  
•->>■49



TABLE OF CONTENTS
, PAGE

Citations to Opinions Below ....................................  1
Jurisdiction ................................     1
Question Presented ...................................................  2
Statement ....................................................................  3
Reasons for Granting the W r i t .................................  4

A p p e n d ix  :

Opinion of Ethridge, J .........................................  la

Table of Cases Cited
Ashcraft v. Tennessee, 322 U. S. 143 ....................  4
Chambers v. Florida, 309 U. S. 227 .......................... 4
Craig v. Harney, 331 U. S. 367 .................................  4
Norris v. Alabama, 294 U. S. 587 .............................  4
Patton v. State, 332 U. S. 463 ................................... 2, 7
Pierre v. Louisiana, 306 U. S. 354 ...........................  7
Strauder v. West Virginia, 100 U. S. 303 ................  7

Table of Statutes Cited
28 u. S. C., 1257(3) ...................................................  1
Section 1762, Mississippi Code of 1942 ....................  5
Section 1766, Mississippi Code of 1942 ....................  5, 6
Section 1772, Mississippi Code of 1942 ....................  5
Section 1779, Mississippi Code of 1942 ....................  5

Constitutional Provision
United States Constitution, Fourteenth Amendment 2, 7 

Other Authority
1950 Census of Population, Vol. II, Characteristics

of the Population, part 24, Mississippi................  6



Supreme (Eourt of %  Inttpft States
October Term, 1954

No.

-------------------o-— — — ---- -—•
W alter J ohnson,

Petitioner, 
v.

State of Mississippi,
Respondent.

------------------- o-------------------

PETITION FOR CERTIORARI TO THE SUPREME 
COURT OF MISSISSIPPI

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Mississippi entered 
in the above-entitled case on January 17, 1955.

Citations to Opinions Below

The opinion of the Supreme Court of Mississippi, 
printed in Appendix A hereto infra, page la, is reported 
in 76 So. 2d (Adv. 841).

Jurisdiction

The judgment of the Supreme Court of Mississippi was 
entered January 17, 1955. The jurisdiction of this Court 
is invoked under 28 U. S. C., 1257(3), petitioner having- 
asserted in the courts below rights, privileges and immuni­
ties conferred by the constitution and statutes of the 
United States. Petitioner raised the question of systematic 
exclusion of Negroes from grand juries in Harrison



2

County, Mississippi on motion for new trial (R. 205-224).1 
The judge of the Circuit Court of Harrison County, Mis­
sissippi held on the merits that there was no systematic 
exclusion of Negroes from grand juries, although he stated 
that “ I don’t remember too many (Negroes) serving on 
the grand jury . . . ” (R. 327, 28).

The Supreme Court of Mississippi also decided against 
petitioner’s constitutional claim on the merits and held 
that there was no proof of systematic exclusion. It held 
that “ [ajppellant also argues that there has been a sys­
tematic exclusion of, and a discrimination against, Negroes 
serving on the grand jury and the petit jury, in violation 
of the rule in Patton v. State, 332 U. S. 463.2 . . .  [n]o 
Negro jurors served on the particular grand jury and petit 
jury involved in this case, but appellant makes no showing 
whatever that there was any systematic exclusion of the 
names of Negroes from the jury box or panels.” (76 So. 
2d Adv. 841, 844, Appendix, infra p. 7a).

Question Presented

Whether petitioner was denied rights guaranteed by the 
Fourteenth Amendment to the United States Constitution 
where he has been sentenced to death following indictment 
by a grand jury in a county where but two Negroes have 
served on grand juries during the last 35 years.

1 “R.” refers to the Transcript of Record. The page number fol­
lowing “R.” is that which appears on the bottom of the page.

2 Patton v. Mississippi, 332 U. S. 463, held that there had been a 
denial of rights conferred by the Fourteenth Amendment where the 
petitioner had been convicted following an indictment by grand jury 
from which Negroes had been systematically excluded.



3

Statement

Petitioner, a 17-year old Negro was a member of the 
Air Force, stationed at the United States Air Base, Keesler 
Field, Mississippi. On March 30, 1954 a 20-year old white 
resident of Mississippi and her 15-year old sister com­
plained that they were accosted on a main street in Biloxi 
by a Negro man in woman’s clothing and compelled to 
enter a vacant shed off the street at knife point. There 
the Negro “ woman” compelled the older woman to submit 
to a sodomous act and then to sexual relations (E. 43-52). 
Shortly after their release the young women complained 
to the police. An alarm went out and a few minutes there­
after petitioner was stopped for questioning at the Keesler 
Air Force Base to which he was returning with a bundle of 
woman’s clothing under his arm (R. 97-99). He was exam­
ined and found to be wearing woman’s underclothing (R. 
100). The chief clinical psychologist of the United States 
Veterans Hospital in Gulfport, Mississippi later testified 
on motion for new trial that petitioner is a transvestite 
(E. 257), and had developed sexual deviations at an early 
age, that he “ was not conscious of right and wrong” and 
had a “ strong uncontrollable compulsion and a tendency to 
secure pleasure on immature levels of erotic gratification” 
(E. 251).

He was indicted (E. 2), tried, and convicted of the crime 
of rape without recommendation of mercy (E. 17-18). The 
death penalty was mandatory (E. 6).

On motion for new trial petitioner asserted denial of 
his fundamental constitutional right not to be convicted of 
a capital crime following indictment by a grand jury from 
which members of his race had been systematically ex­
cluded (E. 205-224).

The trial court (R. 327, 28) and the Supreme Court of 
Mississippi (76 So. 2d 841, 844; Appendix infra p. la),



4

decided against petitioner, upon the merits, that Negroes 
had not been systematically excluded from grand juries 
in Harrison County.

Reasons for Granting the Writ

The decision of the Supreme Court of Mississippi is in 
clear conflict with the decisions of this Court in that peti­
tioner’s conviction and sentence of death were affirmed in 
the face of uncontradicted testimony of systematic exclu­
sion of Negroes from grand juries in Harrison County, 
Mississippi.

Where there is a claim of denial of constitutional right 
this Court will go behind the factual findings of the courts 
below and assess that claim on the basis of the uncontra­
dicted evidence. Norris v. Alabama, 294 U. S. 587, 590; 
Chambers v. Florida, 309 U. S. 227, 228-229; Ashcraft v. 
Tennessee, 322 U. S. 143,147-148; Craig v. Harney, 331 U. S. 
367, 373-374. The uncontradicted evidence in this case is 
as follows:

There was no Negro on the grand jury which indicted 
petitioner (R. 208). The Clerk of the Court in which peti­
tioner was tried testified that he had been Clerk for six 
years (R. 205) before which he was deputy clerk for 29 
years (R. 218, 220). During these 35 years he has appar­
ently been present at all the empanelings of grand juries 
in Harrison County (R. 220, 221, 222). On only one occa­
sion during these 35 years does he recall any Negroes serv­
ing on grand juries:

“By Mr. Wiggington:
Q. I believe you told Mr. Holleman that in your 

recollection, I believe you said that you were Clerk 
for six years but you don’t remember if it was when 
you were Clerk or Deputy Clerk that you remember



5

two negroes being on the Grand Jury? A. It was 
about the time or just before Mr. Ramsay died. 
That’s a little more than six years.ago.

Q. Six years ago? And that is the only time that 
you have recollection of negroes serving on the 
Grand Jury; is that right? A. That is the only time 
that I recall them serving on the Grand Ju ry” 3 
(R. 219-220).

The state made no effort to contradict this testimony. 
Its inquiry was merely directed to whether the two Negroes 
had served six years or four years ago (R. 191). The trial 
judge substantially confirmed the Clerk’s testimony in staff

3 The Clerk in selecting the Grand Jury, must choose from 
names that are furnished to him by the board of supervisors of the 
county. Section 1766, Mississippi Code of 1942 governs:

“How List of Jurors Procured.—The board of super­
visors at the April meeting in each year, or at a subsequent 
meeting if not done at the April meeting, shall select and 
make a list of persons to serve as jurors in the circuit court 
for the twelve months beginning more than thirty days after­
wards, and as a guide in making the list they shall use the 
registration book of voters, and shall select and list the names 
of qualified persons of good intelligence, sound judgment, and 
fair character, and shall take then as nearly as they conve­
niently can, from the several supervisors district in propor­
tion to the number of qualified persons in each, excluding all 
who have served on the regular panel within two years, if 
there be not a deficiency of jurors. The clerk of the circuit 
court shall put the names from each supervisor’s district in 
a separate box or compartment, kept for the purpose, which 
shall be locked and kept for the purpose, which shall be locked 
and kept closed and sealed, except when juries are drawn, 
when the names shall be drawn from each box in regular order 
until a sufficient number is drawn. The board of supervisors 
shall cause the jury box to be emptied of all names therein, 
and the same to be refilled from the jury list as made by them 
at said meeting.”

See also §§ 1762, 1772, 1779.



6

ing that “ I don’t remember too many (Negroes) serving- 
on the Grand Ju ry” (R. 327)4

In the face of the clear uncontradicted testimony, the 
assertion by the Mississippi Supreme Court that “ the evi­
dence offered by appellant is to the contrary and negatives 
his allegations” (that Negroes were systematically ex­
cluded) is incorrect.

Harrison County has a population of 13,421 non-whites 
among its 70,652 whites,5 and has 1600 registered Negro 
voters among 26,000 white voters (R. 212-213). It is in­
credible that no Negro (with but two exceptions, six years 
ago) qualified for jury service in 35 years if there were 
not severe discrimination against members of that race. 
In the words of this Court “ . . .  if it can possibly be con­
ceived that all of them were disqualified for jury service by 
reason of crime, habitual drunkeness, gambling, inability 
to read and write, or to meet any other or all of the statu­

4 There was no testimony contradicting the fact that no other 
Negroes had ever served , on Harrison County Grand Juries. The 
state however tried to raise an inference that there possibly might 
have been others:

“By Mr. Holleman: You wouldn’t say that was the only 
time that they ever served though, would you?

By the Witness: No sir.”
In view of the Clerk’s explicit testimony and presence at the em- 

panellings, this admission of a mere mathematical possibility appears 
to be devoid of substantive meaning.

Neither is the uncontradicted testimony rebutted by the Clerk’s 
statement that he had not been “party to” nor had he “witnessed 
systematic exclusion of the members of the negro race for jury duty 
in Harrison County, Mississippi” (R. 222-223). The Clerk had 
to draw from lists furnished to him, and he had neither knowledge 
nor responsibility concerning their composition (R. 217, 222-223). 
See also Section 1766, Miss. Code of 1942, supra.

5 1950 Census of Population; Vol. II, Characteristics of the popu­
lation, part 24, Mississippi.



7

tory tests, we do not doubt that the state could have proved 
it.” Patton v. Mississippi, 332 U. S. 463, 468.

It has been the clear and consistent rule of the court 
that a conviction of a Negro upon an indictment handed 
down by a grand jury from which Negroes were sys­
tematically excluded violates the 14th Amendment to the 
Constitution of the United States. This proposition has 
been repeatedly reaffirmed, e.g., Strauder v. West Virginia, 
100 U. S. 303; Pierre v. Louisiana, 306 U. S. 354; Patton v. 
Mississippi, 332 U. S. 463; Cassel v. Texas, 339 U. S. 282.

Thus the decision below conflicts with this Court’s rule.
“ When a jury selection plan, whatever it is, operates in 

such a wTay as always to result in the complete and long- 
continued exclusion of any representative at all from a 
large group of Negroes or any other racial group, indict­
ments and verdicts returned against them by juries thus 
selected cannot stand,” Patton v. Mississippi, 332 U. S. 
463, 469.

It is therefore clear that the decision of the Supreme 
Court of Mississippi would take petitioner’s life without 
due process of law and in denial of the equal protection of 
the laws.

W herefore for the foregoing reasons the petition for 
writ of certiorari should be granted.

Respectfully submitted,

Thurgood Marshall,
J ack Greenberg,

Counsel for Petitioner.



l a

APPENDIX

Opinion of Ethridge, J.

E thbidge, Justice:

Walter Johnson, the appellant, was convicted in the 
Circuit Court of Harrison County of the crime of Rape, 
and was sentenced to suffer the death penalty. Code of 
1942, Sec. 2358. The crime occurred around 10:30 P. M. 
on the night of March 30, 1954, in the City of Biloxi, Har­
rison County, Mississippi. It is undisputed that appellant 
committed the offense. The prosecutrix, a young white 
married woman, testified that appellant had a knife and 
threatened the life of herself and her sister, with whom 
she was going home, unless she submitted to his demands.

She unequivocally identified Johnson as the culprit, and 
she had ample opportunity to observe him on the occasion 
in question. Her sister also definitely identified appellant. 
Dr. W. A. Tisdale, who examined the prosecutrix shortly 
after the rape occurred, testified concerning the condition 
of her body after the rape, and his examination fully con­
firmed her statements. Appellant, a Negro, was a soldier 
stationed at Keesler Field. Corporal Zike arrested him 
when he returned to Gate Number One around 11:05 P. M. 
that night, and took a knife from him. Appellant made an 
oral confession to Sergeants Etheridge and Hill of the 
Air Force Police, in wThich he admitted the crime and the 
use of the knife which was taken from him as the instru­
ment of coercion. Assistant Chief of Police Walter Wil­
liams and Captain Charlie Comeaux, of the Biloxi Police 
Department, testified that appellant signed two separate 
written confessions of the crime, one dated March 30, 1954, 
and another April 7, 1954; and that these confessions were 
wholly voluntary and made without any coercion or prom­
ise of leniency. They admitted appellant’s premeditated, 
criminal rape of the prosecutrix. Appellant did not testify,



2a

either on the preliminary hearing concerning the confes­
sions or on the merits. He offered no evidence and made 
no issue as to the admissibility of the confessions. Since 
there is no dispute as to the facts, we will not undertake 
to outline the repulsive details of appellant’s crime.

Appellant argues that the verdict of the jury is against 
the great weight of the evidence. However, this record 
contains no dispute of the State’s testimony and Johnson’s 
two confessions that he committed the crime. Apparently 
the argument on this point is the claim that the prosecutrix 
did not offer sufficient resistance to the commission of the 
crime. But the record shows that she and her sister, who 
was present at the time, were rendered incapable.of physi­
cal resistance because of the fact that appellant had with 
him a large knife with which he threatened to kill both the 
prosecutrix and her sister if they resisted or cried out. 
Where the act is accomplished after the female yields 
through fear caused by immediate threats of great bodily 
injury, there is compulsive force and the act is rape. Actual 
physical force or actual physical resistance is not required 
where the female yields through fear under a reasonable 
apprehension of great bodily harm. Here the threats were 
made before the act through the exhibition of, and threat 
to use, a deadly weapon, a knife. Actual physical resist­
ance by the female is not required in such circumstances. 
75 C. J. 8., Rape, See. 15; Milton v. State, 142 Miss. 364, 
107 So. 423 (1926); McGee v. State, 40 So. 2d. 160, 171 
(Miss. 1949).

The trial court committed no error in admitting into 
evidence the two confessions of appellant. It is undisputed 
that appellant was fully advised as to his rights and that 
he made the statements voluntarily, without coercion of 
any kind. Appellant did not testify upon the preliminary 
examination as to their admissibility and offered no evi­
dence that such statements were not voluntary. There is

Opinion of Ethridge, J.



no evidence that he was overawed, frightened or intimi­
dated by the officers, as appellant asserts.

On the voir dire examination, the juror Scarborough 
had been accepted as a juror by the State. He had testified 
that he had no conscientious scruples against the imposi­
tion of capital punishment. While being* questioned by the 
defendant’s attorney, Scarborough changed his prior testi­
mony, and said that he had a strong* conviction against the 
imposition of capital punishment. The court then inter­
rogated him and was advised by him that he did not believe 
in capital punishment. Thereupon the trial judge excused 
Scarborough as a juror, and stated that he wanted the jury 
to understand that the court was taking no part in the 
decision on the facts, that whether appellant was guilty, 
and, if so, the type punishment he should receive, were 
questions for the jury, but that since Scarborough did not 
believe in capital punishment, that was a disqualification 
in a capital case. Appellant says that the effect of the 
court’s action was to advise the jury that their readiness 
to inflict capital punishment was their most important 
qualification, and that this action prejudiced the jury 
against appellant.

In cases where the death penalty can be imposed by a 
jury, it is the duty of the judge to inquire of the jurors 
whether they have conscientious convictions against inflict­
ing the death penalty. Phenizee v. State, 180 Miss. 746, 178 
So. 579 (1938). A somewhat similar case to the instant 
one on this question is Lewis v. State, 9 S. and M. 115 
(Miss. 1847). The court was performing its duty in this 
respect, and committed no error in acting as it did. We 
find no prejudice to appellant resulting from this incident.

Appellant made no point either before or during the 
trial that he was insane and incapable of distinguishing 
between right and wrong as to the particular acts with 
which he was charged, or at the time of the trial. He

3a

Opinion of Ethridge, J.



4a

filed no suggestion of insanity nor any other pleading rais­
ing that issue before or during the trial. He did not testify 
in his own defense, and the only witness he offered was 
Captain Robert W. McGill, the commanding officer of the 
Student Squadron of which appellant was a member. He 
testified that appellant came to the squadron on January 
1, 1954, and that he is 17 years of age (18 now). He knew 
nothing about the alleged crime. Appellant’s counsel asked 
McGill his opinion of appellant’s mental age, and what 
peculiarities he displayed. Appellant’s attorney stated that 
he was not pleading insanity. After that statement the 
trial court sustained an objection to those questions. If 
appellant had pleaded insanity, they would have been 
proper. In fact, the district attorney on the trial conceded 
that. However, since in the trial on the merits appellant’s 
counsel advised the court that he was not pleading insanity, 
the court was not in error in sustaining that objection to 
the stated questions to McGill. Appellant asked for and 
obtained no instructions on the question of sanity, and did 
not submit that issue to the jury.

Appellant filed a motion for a new trial, which set up 
two new points not previously raised by him: (1) Newly
discovered evidence which would show that appellant was 
insane at the time of the crime, during the trial, and subse­
quent thereto, and that Dr. H. L. Deabler, a clinical psy­
chologist, had examined appellant and made this diagnosis; 
(2) that no Negroes were summoned to serve on the panel 
from which the grand jury and petit jury were drawn.

On the hearing of this motion for a new trial, appellant 
offered, to support his contention of insanity, Dr. H. L. 
Deabler. He is the chief clinical psychologist at the Vet­
erans Administration Hospital in Gulfport. The substance 
of his lengthy testimony is that appellant has a gross over­
development of the sexual impulse; and it has resulted in 
his taking on feminine ways and being attracted to feminine

Opinion of Ethridge, J.



Opinion of Ethridge, J.

things. On the occasion of this rape, appellant was wearing 
women’s clothing, including* underwear. Dr. Deabler said 
that appellant had failed to develop a sense of right and 
wrong or a “ healthy conscience” ; that appellant at the 
time of the rape had “ a strong uncontrollable compulsion” 
and therefore was not conscious of right and wrong. His 
acts are characterized by transvestitism and voyeurism.

However, he stated that he had made a psycho-diagnos­
tic test to determine appellant’s sanity, and that this test 
showed him to be “ sane in our sense, in contact with 
reality.” He was not psychotic and was not insance, from 
a psychologist’s point of view, but Dr. Deabler thought 
that he was legally insane, since he thought that appellant 
had such an uncontrollable compulsion that he did not 
know the difference between right and wrong. Appellant’s 
intelligence is average for a 17-year-old boy, in terms of 
ability to think, to handle school work “ and that sort of 
thing.” Dr. Deabler had not read appellant’s confession 
and had gained his data largely from a two-hour conference 
with appellant, and from talking to his attorney. The fact 
that after appellant originally approached the prosecutrix 
and her sister, he walked away from them temporarily 
when a truck approached, indicated a fear of being caught, 
but the doctor did not believe it indicated a sense of doing 
something wrong. Appellant is not suffering from any 
mental disease, but a psychological disorder.

In rebuttal of this testimony, the State offered the chief 
of police of Biloxi, the assistant chief of police, and a police­
man, all of whom had talked with appellant on a number 
of occasions since he had been in custody, and all of whom 
said that in their opinions he was entirely sane and knew 
the difference between right and wrong; and that they had 
discussed the crime with appellant, and he appeared to 
realize that what he had done was wrong. In overruling 
the motion for a new trial, the court stated that in view



Opinion of Ethridge, J.

of the testimony of the State’s witnesses, the psychologist, 
and his own observation of the defendant, he was satisfied 
that the net result of their testimony and of the evidence 
is that defendant knew right from wrong* and was and is 
sane.

We think that this conclusion of the trial court is amply 
warranted. This Court rejected the “ irresistible impulse” 
test of sanity as early as 1879, in Cunningham v. State, 56 
Miss. 269. To the same effect are Garner v. State, 112 
Miss. 317, 73 So. 50 (1916); Smith v. State, 96 Miss. 786, 
49 So. 945 (1909); Eatman v. State, 169 Miss. 295, 153 So. 
381 (1934); Anno. 70 A. L. R. 659, and 173 A. L. R. 391; 14 
Am. Jur., Criminal Law, Sec. 35; 15 Am. Jur., Criminal 
Law, Sec. 327; 22 C. J. S., Criminal Law, Sec. 58. We 
apply the test of the leading English case known as M’Nagh- 
ten’s case, which is the majority rule. 14 Am. Jur., Crimi­
nal Law, Secs. 38-40; 22 C. J. S., Criminal Law, Sec. 59; 
Rogers v. State, No. 39,466, decided January 10, 1955. It 
is summarized in Eatman v. State, supra:

“ In this state, as generally in the several states, 
the rule of law is that the test of criminal responsi­
bility is the ability of the accused, at the time he. 
committed the act, to realize and appreciate the 
nature and quality thereof—his ability to distinguish 
right and wrong. Smith v. State, 95 Miss. 786, 49 
So. 945, 946, 27 L. R. A. (N. S.) 461, Ann. Cas., 
1912A, 23. And the defense of want of inhibitory 
powers, or as otherwise expressed, the defense of 
irresistible or uncontrollable impulse was declared 
in that case to be unavailable, unless the uncontrol­
lable impulse spring from a mental disease existing 
to such a high degree as to overwhelm the reason, 
judgment, and conscience, in which case, as the court 
adds, the accused would be unable to distinguish the 
right and wrong of a matter.”



Opinion of Ethridge, J.

The testimony of appellant’s own witness, Dr. Deabler, 
fails to meet these criteria. In fact, Deabler applied the 
so-called irresistible impulse test, which this Court has 
rejected. On the contrary, the testimony of the State’s 
witnesses, who have had opportunity to form an opinion 
about appellant’s sanity, amply justified the trial court’s 
finding of sanity and its overruling of the motion for a 
new trial. Considering' the entire record on this appeal, 
including appellant’s two signed confessions with their 
logical and intelligible descriptions of his crime, Ave think 
that the trial court was correct in this respect, and cer­
tainly it cannot be said to be manifestly wrong.

Appellant also argues that there has been a systematic 
exclusion of, and a discrimination against, Negroes in serv­
ing on the grand jury and the petit; jury, in violation of the 
rule in Patton v. State, 332 U. S. 463, 68 S. Ct. 184, 92 L. Ed. 
76, 1 A. L. R. 2d. 1286 (1947). Without detailing the testi­
mony of the only witness offered on this issue, which was 
not raised until the motion for new trial, it is sufficient to 
say that the testimony of the Circuit Clerk of Harrison 
County, Ewert Lindsey, shows without dispute that there 
has been no systematic exclusion of Negroes from juries 
in Harrison County, and that, in fact, at practically every 
term of court Negro jurors are drawn out of the box; and 
that no effort was made to discriminate either in selecting 
jurors for the box or in drawing jurors. No Negro jurors 
served on the particular grand jury and petit jury involved 
in this case, but appellant makes no showing whatever that 
there was any systematic exclusion of the names of Negroes 
from the jury box or panels. In fact, the evidence offered 
by appellant is to the contrary and negatives his allegation.

For these reasons the judgment of the circuit court is 
affirmed.

Affirmed, and Thursday, March 3, 1955, is fixed as the 
date for execution of the death sentence in the manner pro­
vided by law.

Ann n in e  of the  judges concur.



• /-