Hale v. Crawford Record and Briefs

    C
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HA i  CRAWFORD

LAYTOt'3 & CRAUTHEP; 

V. KANSAS

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RECORD
AND

BRIEF?











O C T O B E R  T E R M , 1 9 3 2 .

UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE FIRST CIRCUIT.

No. 2824.

FRANK G. HALE, Lieutenant Detective, 
Massachusetts State Police,

RESPONDENT, APPELLANT,

V.

GEORGE CRAWFORD,
PETITIONER, a p p e l l e e .

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES 
FOR THE DISTRICT OF MASSACHUSETTS,
FROM DECREE (LOWELL, J.), MAY 2, 1933.

T R A N SC R IP T  OF RECORD.

JOSEPH E. WARNER,
Attorney General, Massachusetts,

S. D. BACIGALUPO,
Assistant Attorney General, Massachusetts,

GEORGE B. LOURIE,
Assistant Attorney General, Massachusetts,

JOHN GALLEHER,
District Attorney, Loudoun County, V irginia,

for Appellant.
J. WESTON ALLEN,
BUTLER R. WILSON,

for Appellee.





UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE FIRST CIRCUIT.

O C T O B E R  T E R M , 1 9 3 2 .

No. 2824.

FRANK G. HALE, Lieutenant Detective, 
M assachusetts State Police,

RESPONDENT, APPELLANT,

V.

GEORGE CRAWFORD,
PETITIONER, APPELLEE.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES 
FOR THE DISTRICT OF MASSACHUSETTS,
FROM DECREE (LOWELL, J.), MAY 2, 1933.

T R A N SC R IPT  OF RECORD.

JOSEPH E. WARNER.
Attorney General, Massachusetts,

S. D. BACIGALUPO,
Assistant Attorney General, Massachusetts,

GEORGE B. LOURIE,
Assistant Attorney General, Massachusetts,

JOHN GALLEHER,
D istrict Attorney, Loudoun County, V irginia,

for Appellant.
J. WESTON ALLEN,
BUTLER R. WILSON,

for Appellee.





TABLE OF CONTENTS.

I’AOK

Court (Circuit Court of Appeals) and Title of C a s e ............................................... 1

T ra n sc r ip t  of R ecord  of D is t r ic t  C o u r t :
Title of Case in District C o u r t ..............................................  1

Motion to Amend and Amended Petition for Writ of Habeas Corpus . 1
Warrant to A r r e s t ............................................................................................. 7

Marshal’s Return on Summons  8
Writ of Habeas Corpus issued . . . . . . . .  9
Answer and Return of R e s p o n d e n t ................................................................. 9
Return on Warrant issued Feb. 17, 1933   10
Writ of Habeas Corpus and Officer’s Return of Service . . .  11
Agreement of C o u n s e l ........................................................................................... 12

Population Statistics, e t c . ......................................................................... 18
Lists of qualified Taxpayers, e tc...................................................................... 24

H e a r i n g .......................................................................................................................25
Finding of the  District C o u r t ..................................................................................25
Order of C o u r t ............................................................................................................. 26
Petition for Appeal and Allowance t h e r e o f .......................................................26
Exhibit A,—Requisition ............................................................................................ 27

B,—W a r r a n t ....................................................................................... 7,33
Petition for A p p e a l .................................................................................................... 34
Assignment of E r r o r s ........................................................................................... 34
P r a e c i p e .......................................................................................................................35
Citation i s s u e d ............................................................................................................. 36

Certificate of Clerk of District Court . . .  . . .  36





IJNilED STATES CIRCUIT COURT OF APPEALS
FOR THE FIRST CIRCUIT.

O C T O B E R  T E R M , 1 9 3 2 .

No. 2824.
FRANK G. HALE, Lieutenant Detective, Massachusetts

State Police,
RESPONDENT, APPELLANT,

V.

GEORGE CRAWFORD,
PETITIONER, APPELLEE.

TRANSCRIPT OF RECORD OF DISTRICT COURT.

No. 4962, C iv il  D o c k e t ,

GEORGE CRAAVFORD, P e t it io n e e  fo b  W r it  of H abeas C o r p u s ,
v.

FRANK G. HALE, L ie u t . D e t e c t iv e , M a ssa c h u se tts  S t a t e  P o l ic e ,
R e s p o n d e n t .

A petition for writ of habeas corpus was filed in the clerk’s office 
on the eighteenth day of February, A. D. 1933, and was duly entered 
at the December Term of this court, A. D. 1932.

Said petition for writ of habeas corpus was subsequently amended 
by a motion to amend filed and allowed by the court, and as amended 
is as follows:

MOTION OF PETITIONER TO AMEND PETITION
A N D

AMENDED PETITION FOR WRIT OF HABEAS CORPUS. 
[Filed and Allowed April 5, 1933.]

To the Honorable Judges of the District Court of the United Stales 
within and for the District of Massachusetts :

And now comes George Crawford, in his own proper person, and



2 Transcript of Record of District Court.

moves to amend his petition by inserting after the second para­
graph the following matter, viz.:

The petitioner says that he was born twenty-eight years ago in 
Augusta, Georgia, lived in Virginia from 1918 to September 1931, 
since which latter time he has resided continuously in Boston, Mass­
achusetts ; that he is not the person alleged to have committed the 
crime set forth in the demand for his rendition; that since January 
12, 1933, he has been confined in the Suffolk County jail under 
bail of $25,000 which it is impossible for him to furnish; that he 
is wholly without means to prosecute his petition or make his 
defense and has had no opportunity to object to the method of 
the denial to him of due process of law.

And the petitioner further says that he cannot lawfully be held 
by virtue of said warrant or order, and his detention or restraint 
thereunder is in violation of the Constitution of the United States 
and laws of the United States in that:

1. The said warrant is based upon an alleged indictment pur­
porting to have been found against him by the grand jury of 
Loudoun County in the State of Virginia, which alleged indictment 
is null and void, and was procured in a manner which denies to 
your petitioner rights guaranteed to him by the Constitution of 
the United States and the laws of the United States.

2. The said grand jury which is alleged to have found said 
alleged indictment was impaneled in a manner which denied to 
your petitioner rights guaranteed to him by the Constitution of the 
United States, by reason of which said indictment is null and void, 
denies to your petitioner rights secured to him by the Constitu­
tion of the United States and its laws and cannot be made the 
foundation of any detention of your petitioner.

3. Your petitioner is a member of the colored race, a Negro, 
and a citizen of the United States; that the population of said 
Loudoun County in the State of Virginia contains great numbers 
of persons of the colored race who are citizens of Virginia and of 
the United States, registered voters, owners of property, taxpayers 
and in all respects proper and suitable persons to serve upon grand 
and petit juries in said Loudoun County; that, although colored



persons, members of the Negro race, are 650,000 or 21.8 percent 
of the population of the State of Virginia, for many years it has 
been the practice and custom, throughout the State of Virginia 
and throughout said Loudoun County, to exclude from service upon 
all grand and petit juries all persons of the colored or Negro race 
by reason of their race, color or previous condition of servitude and 
without consideration as to whether said colored persons were 
proper and suitable persons to serve upon said juries, which prac­
tice and custom has the force and effect of a State Statute and was 
and is contrary to the Constitution of the United States; that pur­
suant to said illegal and unconstitutional practice and custom all 
colored persons of the Negro race were by reason of their color, 
race or previous condition of servitude excluded from the grand 
jury which purported to return the indictment by reason of which 
your petitioner is unlawfully detained, whereby your petitioner 
was and is denied rights secured to him by the Constitution of the 
United States and its laws.

4. Because there exists in Loudoun County and the State of 
Virginia against colored people, members of the Negro race, gen­
erally, and against the petitioner particularly, an unreasonable 
race or color prejudice, which will make it impossible for him to 
obtain that fair and impartial jury of the vicinage, guaranteed to 
him by the Constitution of the United States and its laws and that 
will deny to him the due process of law and the fair and impartial 
trial which are of right his under the fourteenth amendment to 
the United States Constitution and its laws.

5. In divers other respects the detention or restraint of your 
petitioner denies to him rights secured to him by the Constitution 
of the United States and its laws.

So that his petition as amended will appear as follows, viz.:

Amended Petition for Writ of Habeas Corpus.
To the Honorable Judges of the District Court of the United States 

within and for the District of Massachusetts:
Respectfully represents George Crawford of Boston, in the Com­

monwealth of Massachusetts, and District of Massachusetts afore­

Amended Petition for Writ of Habeas Corpus. 3



4 Transcript of Record of District Court.

said, that he is unlawfully restrained of his liberty in Boston, in 
the Commonwealth of Massachusetts and District of Massachu­
setts aforesaid, by the said Frank G. Hale; that the pretense of 
such restraint according to the belief of your complainant is a 
certain warrant or order, whereof a copy is hereto annexed, pur­
porting to have been issued by the Governor of the Commonwealth 
of Massachusetts; that the said warrant or order has been issued 
without authority of law, improvidently and in violation of the 
Constitution and of the laws of the United States and of said Com­
monwealth.

And your complainant further says that he cannot lawfully be 
held by virtue of said warrant or order, and his detention and 
restraint thereunder are in violation of the Constitution and of the 
laws of the United States and of said Commonwealth, in that he 
is not the person by name designated in said warrant or order or 
so to be taken or held under the terms of the authority thereof; 
that said warrant or order does not upon its face or by its recital 
purport to authorize the taking or detention of said petitioner, 
George Crawford, thereunder; that said petitioner, George Craw­
ford, is not the oerson alleged to have committed the crime or 
offense purporting to be set forth or exhibited in the demand for 
extradition upon which the said warrant or order of the Governor 
of the Commonwealth of Massachusetts has issued.

The petitioner says that he was born twenty-eight years ago in 
Augusta, Georgia, lived in Virginia from 1918 to September 1931, 
since which latter time he has resided continuously in Boston, 
Massachusetts; that he is not the person alleged to have com­
mitted the crime set forth in the demand for his rendition; that 
since January 12, 1933, he has been confined in the Suffolk County 
jail under bail of $25,000 which it is impossible for him to furnish ; 
that he is wholly without means to prosecute his petition or make 
his defense and has had no opportunity to object to the method of 
the denial to him of due process of law.

And the petitioner further says that he cannot lawfully be held 
by virtue of said warrant or order, and his detention or restraint



thereunder is in violation of the Constitution of the United States 
and laws of the United States in that:

1. The said warrant is based upon an alleged indictment pur­
porting to have been found against him by the grand jury of Lou­
doun County in the State of Virginia, which alleged indictment is 
null and void, and was procured in a manner which denies to 
your petitioner rights guaranteed to him by the Constitution of 
the United States and laws of the United States.

2. The said grand jury which is alleged to have found said 
alleged indictment was impaneled in a manner which denied to 
your petitioner rights guaranteed to him by the Constitution of 
the United States, by reason of which said indictment is null and 
void, denies to your petitioner rights secured to him by the Con­
stitution of the United States and its laws and cannot be made the 
foundation of any detention of your petitioner.

3. Your petitioner is a member of the colored race, a Negro, 
and a citizen of the United States; that the population of said 
Loudoun County in the State of Virginia contains great numbers 
of persons of the colored race who are citizens of Virginia and of 
the United States, registered voters, owners of property, taxpay­
ers and in all respects proper and suitable persons to serve upon 
grand and petit juries in said Loudoun County; that, although 
colored persons, members of the Negro race, are 650,000 or 
21.8% of the population of the State of Virginia, for many years 
it was been the practice and custom, throughout the State of 
Virginia and throughout said Loudoun County, to exclude from 
service upon all grand and petit juries all persons of the colored 
or Negro race by reason of their race, color or previous condition 
of servitude and without consideration as to whether said colored 
persons were proper and suitable persons to serve upon said 
juries, which practice and custom has the force and effect of a 
State Statute and was and is contrary to the Constitution of the 
United States, that pursuant to said illegal and unconstitutional 
practice and custom all colored persons of the Negro race were 
by reason of their color, race or previous condition of servitude

.excluded from the grand jury which purported to return the

Amended Petition for Writ of Habeas Corpus. 5



6 Transcript of Record of District Court.

indictment by reason of which your petitioner is unlawfully de­
tained, whereby your petitioner was and is denied rights secured 
to him by the Constitution of the United States and its laws.

4. Because there exists in Loudoun County and the State of 
Virginia against colored people, members of the Negro race, gen­
erally, and against the petitioner particularly, an unreasonable 
race or color prejudice, which will make it impossible for him 
to obtain that fair and impartial jury of the vicinage, guaranteed 
to him by the Constitution of the United States and that will deny 
to him the due process of law and the fair and impartial trial 
which are of right his under the Fourteenth Amendment to the 
United States Constitution and the laws of the United States.

5. In divers other respects the detention or restraint of your 
petitioner denies to him rights secured to him by the Constitution 
of the United States and its laws.

Wherefore, your petitioner prays that a writ of habeas corpus 
may issue, and for such other and further relief as to this Honor­
able Court may seem meet to the end that said petitioner, George 
Crawford, may obtain his liberty.

GEORGE CRAWFORD.

Commonwealth of Massachusetts.
Suffolk, ss. Boston, March 29, 1933.

Then personally appeared the above-named George Crawford 
and made oath that the statements of fact set forth in the fore­
going petition are true, to the best of his knowledge and belief, 
and that he believes that all inferences of fact set forth are true.

Before me,
Butler R. W ilson,

[seal] Notary Public.

Allowed April 5, 1933.
James A. Lowell,

District Judge.



7

Warrant to Arrest.
T he Commonwealth of Massachusetts 

His Excellency Joseph B. Ely,
Governor of the Commonwealth. 

To Any Sheriff, Deputy Sheriff, Officer of the 
(L.s.) Division of State Police of the Department of

Public Safety, and to Any Officer authorized to 
(signed) serve warrants in criminal cases within this 

Joseph B. Ely Commonwealth.
Whereas, it has been represented to me by the Governor of the 

State of Virginia that George Crawford stands charged in said 
State with the crime of Murder which the Governor of the State 
of Virginia certifies to be a crime under the Laws of said State, 
committed in the county of Loudoun in said State, and that said 
George Crawford is a fugitive from the justice of said State and 
has taken refuge in this Commonwealth, and the Governor of the 
State of Virginia having, pursuant to the Constitution and Laws 
of the United States, demanded of me that I shall cause the said 
George Crawford to be arrested and delivered to E. S. Adrain and 
D. H. Cooley, who are the agents of the Governor of the State of 
Virginia and are duly authorized to receive the said George Craw­
ford into their custody and convey him back to the State of Vir­
ginia :

And whereas, the said representation and demand are accom­
panied by certain documents whereby the said George Crawford 
is shown to have been duly charged with the said crime and to 
be a fugitive from the justice of the State of Virginia, and to have 
taken refuge in this Commonwealth, which documents are duly 
certified by the Governor of the State of Virginia to be authentic 
and duly authenticated:

Wherefore, you are required to arrest and secure the said George 
Crawford wherever he may be found within this Commonwealth, 
and afford him such opportunity to sue out a writ of Habeas 
Corpus as is prescribed by the laws of this Commonwealth, and



8 Transcript of Record of District Court.

thereafter deliver him into the custody of the said E. S. Adrain 
and D. H. Cooley to be taken back to the State of Virginia from 
which he fled, pursuant to the said requisition; all of which shall 
be without charge to this Commonwealth; and also to return this 
warrant and make return to the Secretary of the Commonwealth 
of all your proceedings had thereunder and of all facts and circum­
stances relating thereto.

And all officers authorized to serve warrants in criminal cases 
within this Commonwealth are hereby required to afford all need­
ful assistance in the execution hereof.

In witness whereof, I have hereunto signed my name and caused 
the Great Seal of the Commonwealth to be affixed, this seventeenth 
day of February, in the year of our Lord one thousand nine hun­
dred and thirty-three.

By His Excellency the Governor:
F. W. Cook

Secretary of the Commonwealth.

The Commonwealth of Massachusetts

Boston, February 18, 1933.
A True Copy.
Witness the Great Seal of the Commonwealth, this eighteenth 

day of February in the year of our Lord one thousand nine hun­
dred and thirty-three.

F. W. Cook

[seal] Secretary of the Commonwealth.

On the twenty-fifth day of February, 1933, a summons to show 
cause was issued, being made returnable into court on Monday, 
February 27, 1933, at two o’clock P. M.

Due return on said summons was made by the marshal into 
court on February 25, 1933, and is as follows:

V
MARSHAL’S RETURN ON SUMMONS.

United States of America,
Massachusetts District, ss. Boston, February 20, 1933.

Pursuant hereunto, I have this day summoned the within-named



Answer and Return of Respondent. 9

Frank G. Hale, Lieutenant Detective, Massachusetts State Police, 
to appear before the District Court of the United States, as within 
directed, by giving to him in hand at State House, Boston, Mass., 
a true and attested copy of the within summons to show cause.

WILLIAM J. KEVILLE, United States Marshal,
by Joseph M. W inston , Deputy.

At the same term, to wit, February 27, 1933, it was ordered by 
the court, the Honorable Hugh D. McLellan, District Judge, sit­
ting, that writ of habeas corpus issue.

Also at the same term, to wit, March 18, 1933, the following 
Answer and Return of Frank G. Hale, Respondent, was filed:
ANSWER AND RETURN OF FRANK G. HALE, RESPONDENT.

[Filed March 18, 1933.]
Now comes Frank G. Hale, the respondent named in the within 

petition, and makes and files his return with the writ in said cause.
Said respondent says that he is an officer of the Division of 

State Police of the Department of Public Safety of the Common­
wealth of Massachusetts, and as such is authorized to serve war­
rants in criminal cases within said Commonwealth; that the peti­
tioner is in his lawful custody and keeping, as such officer, under 
and by virtue of and pursuant to the lawful warrant under the 
seal of His Excellency Joseph B. Ely, Governor of the Common­
wealth of Massachusetts, as a fugitive from justice of the State 
of Virginia, to be delivered to the agent appointed by the governor 
of said state to receive him, a copy of which said warrant, together 
with the return thereon, is annexed hereto and expressly made a 
part of this answer; that said warrant has been duly and law­
fully served upon said petitioner, and that he has heretofore and 
thereby been lawfully arrested thereon, as appears from the 
return made upon said warrant; that by virtue of said service 
and arrest the petitioner is now lawfully held and detained in the 
custody of the respondent to await full execution of said warrant, 
pursuant to its terms and authority; and that the petitioner so 
held under said warrant is the identical person named therein as 
the alleged fugitive.



10 Transcript of Record of District Court.

And the respondent further denies each and every allegation in 
the petition set forth except such as are specifically admitted 
herein.

FRANK G. HALE.

Commonwealth of Massachusetts.
Suffolk, ss. Boston, March 17, 1933.

Then personally appeared the above-named Frank G. Hale and 
made oath that all statements of fact made of his personal knowl­
edge are true, and that all statements herein made he verily be­
lieves to be true. James J. Kelleher,

Notary Public.

[Memorandum. Copy of warrant, referred to in the original 
answer and return as annexed, is here omitted, as it is printed as 
part of the amended petition for writ of habeas corpus on page 7, 
of this transcript of record. James S. Allen, Clerk]

Return on Warrant Issued February 17, 1933.
Suffolk ss. Feb. 18,1933.

By virtue of the within precept I have this day arrested the 
within named George Crawford at the Charles St. Jail, the de­
fendant Crawford, stated that he wished to avail himself of Ha­
beas Corpus rights of intentions through his attorney Butler R. 
Wilson to apply for a petition for a writ of Habeas Corpus in the 
Federal District Court at Boston. In view of this fact I left him 
in charge of the Sheriff and Keeper of the Suffolk County Jail, 
Charles St., Boston, Mass, with a copy of this warrant for safe 
keeping. Frank G. Hale

State Police Officer.

Suffolk ss. Feb. 18, 1933.
At IT. 45 A. M. this day I was summoned by Deputy U. S. Mar­

shal Joseph M. Winston to appear before the District Court of the 
United States, to be holden at Boston, within and for the Massa­
chusetts District on Monday, the 27th day of February, current at 
2 o’clock p. M., then and there to show cause, if any I have, why



Writ of Habeas Corpus. 11

a writ of Habeas Corpus should not issue for the body of George 
Crawford, as prayed for in his petition.

Frank G. Hale
State Police Officer.

This cause was thence continued to the present March Term 
of this court, A. D. 1933, when, to wit, April 5, 1933, a motion of 
the petitioner to amend his petition for writ of habeas corpus is 
filed and allowed by the court, the Honorable James A. Lowell, 
District Judge, sitting.

On the said fifth day of April, A. D. 1933, the amended peti­
tion was filed, which is hereinbefore set forth.

On the twenty-fourth day of said April, 1933, the following Writ 
of Habeas Corpus issues, returnable forthwith:

WRIT OF HABEAS CORPUS.
United States of America,

Massachusetts District.
[seal] The President of the United States of America

To Frank G. Hale, Lieutenant Detective, Massachu­
setts State Police, Greeting :

We command you that the body of George Crawford by you 
restrained of his liberty, as it is said, you take and have before 
our Judge of our District Court of the United States at the United 
States Court House in Boston, in said District, forthwith to do 
and receive what our said court shall then and there consider 
concerning him in this behalf, and then and there show cause (if 
any you have), of the taking and detaining of the said George 
Crawford.

And have you there this writ with your doings therein.
Witness, the Honorable James A. Lowell at Boston aforesaid, 

the twenty-fourth day of April, in the year of our Lord one thou­
sand nine hundred and thirty-three.

JAMES S. ALLEN, Cleric, 
by John E. Gilman, Jr., Deputy Clerk.



12 Transcript of Record of District Court.

Officer’s Return on Writ.
United States of America.

District of Massachusetts, ss. Boston, Mass., April 24,1933.
I hereby certify that I have this day served the within Habeas 

Corpus by giving in hand to Frank G. Hale, Lieutenant Detective, 
Massachusetts State Police, a true and attested copy thereof.

William J. Keville, United States Marshal,
by Joseph M. W inston, Deputy.

Service, $2, travel, .06—$2.06.

Also, on said twenty-fourth day of April, A. D. 1933, the fol­
lowing Agreement is filed:

AGREEMENT.
[Filed April 24, 1933.]

Now come the parties to the above-entitled cause and agree as 
follows:

1. That the indictments in question in this cause were returned 
in the Circuit Court of Loudoun County, in the State of Virginia, 
by the grand jury of said county, on or about February 8, 1932, 
and charge the crime of murder committed on or about January 
13, 1932, at Middleburg, in Mercer district, in said Loudoun 
County, Virginia.

2. That the law of Virginia, in force long prior to both dates 
and still in force, places jurisdiction over crimes committed within 
a county of said State in the Circuit Court of such county.

3. That the law with reference to grand jurors, in force in the 
State of Virginia at the time the grand jury list was prepared and 
of the return of the indictments in this case, is as follows:

“ Code of Virginia, Chapter 193.
Grand Juries.

Section 4852. When and how grand jurors to be selected 
by judges of circuit courts of counties and corporation or 
hustings courts of cities; lists to be delivered to clerk; when 
and how jurors summoned.—The judges of the said courts



Agreement. 13

shall annually, in the month of June, July, or August, select 
from the male citizens of each county of their respective 
circuits and in their several cities forty-eight persons twenty- 
one years of age and upwards, of honesty, intelligence, and 
good demeanor, and suitable in all respects to serve as grand 
jurors, who shall be the grand jurors for the county or city 
from which they are selected for twelve months next there­
after. Such jurors shall be selected in each county from the 
several magisterial districts of the county, and in each city 
from the several wards of the cities in proportion to the 
population thereof, and the judge making the selection shall 
at once furnish to the clerk of his court in each county of his 
circuit or in his city a list of those selected for that county 
or city. The clerk, not more than twenty days before the 
commencement of each term of his court at which a regular 
grand jury is required, shall issue a venire facias to the 
sheriff of his county or sergeant of his city, commanding him 
to summon not less than twelve nor more than sixteen of the 
persons selected as aforesaid (the number to be designated 
by the judge of the court by an order entered of record) to 
be named in the writ, to appear on the first day of the court 
to serve as grand jurors. No such person shall be required 
to appear more than once until all the others have been 
summoned once, nor more than twice until the others have 
been twice summoned, and so on: provided, that no male 
citizen over sixty years of age shall be compelled to serve as 
a grand juror. The clerk, in issuing the venire facias, shall 
apportion the grand jurors, as nearly as may be, ratably 
among the magisterial districts or wards; but the Circuit 
Court of James City county, or the judge thereof in vacation, 
shall select the grand jurors for such court from said county 
and the city of Williamsburg in such proportion from each as 
he may think proper.

Section 4853. Who are qualified; number of grand jurors, 
regular and special.—A regular grand jury shall consist of 
not less than eleven nor more than sixteen persons, and a



14 Transcript of Record of District Court.

special grand jury of not less than six nor more than nine 
persons. Each grand juror shall be a citizen of this State, 
twenty-one years of age, and shall have been a resident of 
this State two years, and of the county or corporation in 
which the court is to be held one year, and in other respects 
a qualified juror, and not a constable, or overseer of a road, 
and, when the grand juror is for a circuit court of a county, 
not an inhabitant of a city, except in those cases where the 
circuit court of the county has jurisdiction in the city, in 
which case the city shall be considered as a magisterial dis­
trict, or the equivalent of a magisterial district, of the county 
for the purpose of the jury lists.”

4. It is further agreed that the following facts may be consid­
ered by the court as if testified to by the persons mentioned and 
as true, being first subject, however, to a ruling by the court as 
to their admissibility as evidence bearing upon the issues which 
may properly be raised in these proceedings, saving the rights of 
the party aggrieved by such ruling.

5. That the Honorable John R. H. Alexander is the Circuit 
Judge presiding over the Twenty-sixth Judicial Circuit of Virginia, 
which is comprised of the counties of Rappahannock, Fauquier 
and Loudoun and their respective circuit courts ; that the Honor­
able Edward O. Russell is clerk of the Circuit Court of said Lou­
doun County; that the Honorable Eugene S. Andrian is sheriff of 
said Loudoun County; and that each of said persons held said 
office prior to January 13, 1932, and still holds the same.

6. That said Honorable John R. H. Alexander, Circuit Judge as 
aforesaid, would, if called to the stand, testify as follows: That 
he has been a member of the bar of Loudoun County since 1906, 
and has been Circuit Judge since 1929, presiding over the Twenty- 
sixth Judicial Circuit as aforesaid; that prior to 1929 he had 
served as Commonwealth Attorney in Loudoun County; that he 
has never known of any Negro to be called for jury duty or to 
serve on any jury in Loudoun County or the other two counties 
in his circuit; that he makes up the grand jury lists for Loudoun



Agreement. 15

County from the lists of qualified taxpayers, and tries to select 
representative persons from that list because of the serious nature 
and importance of the work a grand jury has to do; that he 
knows there are Negroes in Loudoun County who meet the com­
mon law and statutory requirements of grand jurors, and has no 
doubt there are Negroes in the county who further measure up 
to the standards which he himself in his discretion has estab­
lished for grand jurors of the county, but he has never investi­
gated the qualifications of any Negro with the purpose of deter­
mining his fitness for jury duty ; that no question has ever been 
raised about Negroes serving on any jury in Loudoun County ; 
that the Negroes of Loudoun County appear satisfied with existing 
conditions and he does not know whether Negroes of the county 
would want to serve on a jury; and that no suggestion that they 
be placed on the jury list has ever been made to him by any 
person ; that he has nothing to do with drawing the felony juries, 
but his functions are limited to selecting the lists from which the 
grand juries are drawn, and he has never considered Negroes for 
grand jury service, the subject never having been considered by 
him or brought to his attention ; that it is a custom in Loudoun 
County and the other two counties in his circuit, and, so far as 
he knows, in the other counties of the State to use white men 
exclusively for jury service in the State courts, and he has just 
followed the custom.

7. That the grand jurors composing the grand jury which 
returned said two indictments were—

(1) C. H. Arnold. (7) T. M. Derflinger.

(6) George Laycock.
8. That said Honorable Edward O. Russell, clerk of the Circuit 

Court of Loudoun County, as aforesaid, would, if called to the 
stand, testify as follows: That he has been clerk of the Circuit 
Court of Loudoun County since 1929; that he has lived in Lou­

12) M. E. Ball.
(3) Frank Saunders.
(4) George Ankers.
(5) Alfred Dulin.

(8) R. Carroll Chinn.
(9) James M. Cole.
(10) Walter Leith.
(11) Fred S. Warren.



16 Transcript of Record of District Court.

doun County practically all his life; that he has never known of 
a Negro to serve as a grand juror or petit juror; that the names 
of jurors are taken from the lists of qualified taxpayers; that 
there has never been a Negro on any grand, petit or felony jury 
since he took office in 1929 nor at any time prior to that in his 
recollection; that he, said Russell, selected the aforesaid grand 
jurors from the list furnished to him by said Judge Alexander; 
that it was a regular grand jury ; that he personally knew every 
member of said grand jury to be a white man; that he has per­
sonally checked the names of said grand jurors against the quali­
fied taxpayers list of Loudoun County for 1931 and found that 
the name of every said grand juror listed there was the name of a 
white man.

9. That both said Honorable John R. H. Alexander, Circuit 
Judge, and said Honorable Edward O. Russell, clerk of said court, 
as aforesaid, would further testify that each knew that every name 
on the grand jury list prepared by said Honorable John R. H. 
Alexander for Loudoun County for 1931-1932, from which said 
Honorable Edward 0. Russell selected the grand jury aforesaid, 
to be the name of a white man.

10. That the lists of qualified taxpayers for Loudoun County for 
the years 1928, 1929 and 1930 were furnished to attorneys for 
petitioner by said Honorable Edward O. Russell, clerk of the Cir­
cuit Court of Loudoun County as aforesaid; that said attorneys 
were unable to procure from said Russell a copy of the qualified 
taxpayers list for 1931 by reason of the fact that said Russell had 
only one copy; but that said attorneys and said Honorable Ed­
ward 0. Russell, clerk of the Circuit Court as aforesaid, then and 
there checked said lists of qualified taxpayers for the years 1928, 
1929 and 1930 with said 1931 list to ensure that said three lists 
and said 1931 list were exactly the same in style and manner of 
composition and grouping of taxpayers listed; that all four of 
said lists were identical in these respects; and that in each list 
the qualified Negro taxpayers listed were set apart from the white 
taxpayers listed and labelled “ colored ”.

11. That Honorable Eugene S. Adrian, sheriff of said Loudoun



Agreement. 17

County, would, if placed upon the stand, testify as follows: That 
he had been sheriff of Loudoun County for ten years and deputy 
sheriff during the seven years immediately preceding; that the 
sheriff or his deputy serves the writ summoning persons to jury 
duty in the county; that he has never served such a writ on a 
Negro or known of such a writ to be served on a Negro; that he 
has lived in Loudoun County all his life; that he has never seen 
a Negro serving on any jury; that it was the existing custom not 
to put Negroes on any jury in Loudoun County; that this is a 
matter of common knowledge in said county.

12. The lists of qualified taxpayers of Loudoun County for the 
years 1928, 1929 and 1930, set out in paragraph 10 of this state­
ment of agreed facts, as officially printed by the county, and cer­
tain population statistics from the United States census, to be 
considered by the court so far as material and subject to the rul­
ing as referred to in paragraph 4 herein, attached hereto and 
made a part hereof.

J. WESTON ALLEN,
BUTLER R. WILSON,

Attorneys for the Petitioner.
S. D. BACIGALUPO,

Assistant Attorney General of Massachusetts,
for the Respondent.

Department of Commerce 
Bureau of the Census 

Office of the Director
Washington April 18, 1933.

I hereby certify that the attached compilations consisting of six 
sheets giving population statistics for the State of Virginia, and 
for Fauquier, Loudoun and Rappahannock counties, have been 
prepared from the original records on file in the Bureau of the 
Census., W. F. Austin

[SEAL] Director of the Census.



18 Transcript of Record of District Court.

Six pages Page 1
Composition of the Population of Virginia and of Fauquier, 

Loudoun, and Rappahannock Counties: 1910

Virginia
County

Fauquier Loudoun
Rappa­
hannock

Total population . 2,061,612 22,526 21,167 8,044
White . . . . 1,389,809 15,037 15,946 5,896
Negro . . . . 671,096 7,486 5,221 2,148

Males 21 years old and over:
White . . . . 363,659 3,858 4,423 1,453
Negro . . . . 159,593 1,659 1,269 443

Illiterates, 10 years of age and 
over:

Total . . . . 232,911 2,148 1,690 1,332
Per cent 15.2 12.7 10.3 22.5

White . . . . 83,825 556 444 858
Per cent 8.1 4.9 3.5 19.6

Negro . . . . 148,950 1,591 1,246 474
Per cent 30.0 29.2 32.2 30.5

School attendance, 6-20 years 
of age :

Total . . . . 392,499 4,427 3,980 1,640
White . . . . 278,091 3,070 3,073 1,149
Negro . . . . 114,346 1,357 907 491

Rural population . 1,585,083 22,526 21,167 8,044
Number of families:

White . . . . 281,489 3,069 3,459 1,184
Negro . . . . 137,963 1,420 977 389

Number of homes owned:
White . . . . 154,325 1,850 2,004 715
Negro . . . . 56,997 754 431 206



Agreement. 19

Six pages Page 2
Composition of the Population of Virginia and of Fauquier, 

Loudoun, and Rappahannock Counties: 1920

Virginia
County

Fauquier Loudoun
Rappa­
hannock

Total population . 2,309,187 21,869 20,577 8,070
White . . . . 1,617,909 14,934 15,765 5,916
Negro . . . . 690,017 6,932 4,810 2,154

Males 21 years old and over: 
White . . . . 437,083 3,933 4,357 1,496
Negro . . . . 176,036 1,686 1,182 513

Illiterates, 10 years of age and 
over:

Total . . . . 195,159 1,612 959 1,320
Per cent 11.2 9.8 6.0 22.1

White . . . . 72,625 517 271 872
Per cent 5.9 4.5 2.2 19.7

Negro . . . . 122,322 1,095 688 448
Per cent 23.5 21.6 19.3 29.1

School attendance, 6-20 years 
of age:

Total . . . . 483,978 4,045 4,361 1,550
White . . . . 346,287 2,980 3,317 1,098
Negro . . . . 137,560 1,064 1,044 452

Rural population . 1,635,203 21,869 20,577 8,070
Number of families:

White . . . . 334,708 3,171 3,518 1,232
Negro . . . . 148,362 1,352 933 398

Number of homes owned:
White . . . . 180,755 1,906 2,031 649
Negro . . . . 61,227 721 459 175



20 Transcript of Record of District Court.

6 pages Page 3
Composition of the Population of Virginia and of Fauquier, 

Loudoun, and Rappahannock Counties: 1930

Virginia
County

Fauquier Loudoun
Rappa­
hannock

Total population 2,421,851 21,071 19,852 7,717
White . . . . 1,770,405 14,797 15,502 5,839
Negro . . . . 650,165 6,272 4,347 1,878

Males 21 years old and over:
White . . . . 487,525 4,054 4,414 1,546
Negro . . . . 162,285 1,582 1,151 482

Illiterates, 10 years of age and 
over:

Total . . . . 162,588 1,473 987 1,033
Per cent 8.7 9.1 6.3 17.9

W h ite .................................. 67,220 580 383 657
Per cent 4.9 5.0 3.1 15.1

N ergo .................................. 95,148 893 604 376
Per cent 19.2 19.1 18.4 26.5

School attendance, 6-20 years 
of age:

Total . . . . 537,801 4,580 4,054 1,623
White . . . . 390,846 3,265 3,173 1,181
Negro . . . . 146,760 1,315 881 442

Rural population . 1,636,314 21,071 19,852 7,717
Rural-farm 948,746 12,473 10,223 6,047
White . . . . 689,141 9,270 8,898 4,711
Males 21 years old and
over . . . . 176,828 2,483 2,556 1,203

Negro . . . . 258,967 3,203 1,322 1,336
Males 21 years old and
over . . . . 56,813 757 362 307

Rural-nonfarm . 687,568 8,598 9,629 1,670
White '. 509,608 5,527 6,604 1,128



Agreement. 21

Males 21 years old and
over . . . . 139,461 1,571 1,858 343

Negro . . . . 177,797 3,069 3,025 542
Males 21 years old and
over . . . . 45,837 825 789 175

Number of families:
White . . . . 388,049 3,282 3,721 1,252
Negro . . . . 140,726 1,245 894 346

Number of homes owned :
White . . . . 210,835 1,883 2,142 691
Negro . . . . 61,294 648 454 192

Six pages Page 4
White and Negro Males 10 years old and over Engaged in Gainful 

Occupations, by Industry Groups, for Fauquier, Loudoun, 
and Rappahannock Counties, Virginia : 1930

Fauquier
County
Loudoun Rappahannock

White Negro White Negro White Negro
All industries . 4,246 1,769 4,543 1,307 1,681 556

Agriculture 2,468 1,124 2,835 797 1,243 383
Farmers (owners and

tenants) 1,127 214 1,230 59 516 110
Farm managers and

foremen 78 8 93 2 15 __

Farm laborers 1,260 902 1,502 735 712 273
Wage workers 1,069 853 1,373 724 620 257
Unpaid family

workers 191 49 129 11 92 16
Forestry and fishing 20 10 1 2 _ _ _

Coal mines — 1 __ _
Other extraction of min-

erals 9 3 20 22 5 5
Building industry 360 58 329 91 60 12
Chemical and allied in-

dustries 1 - 2 _ 1 _ _



Cigar and tobacco facto­
ries

Clothing industries 
Food and allied indus­

tries
Automobile factories and 

repair shops
Iron and steel industries 
Saw and planing mills . 
Other woodworking and 

furniture industries . 
Paper printing and allied 

industries 
Cotton mills 
Silk mills
Other textile industries 
Independent hand trades 
Other manufacturing in­

dustries
Construction and main­

tenance of streets, etc. 
Garages, greasing sta­

tions, etc.
Postal service 
Steam and street rail­

roads
Telegraph and telephone 
Other transportation and 

communication 
Banking and brokerage 
Insurance and real estate 
Automobile agencies and 

filling stations . 
Wholesale and retail 

trade, except automo­
biles

22 Transcript of of District Court.

- - - 2 -
1 4 1 - -

- 39 4 8 -

9 23 2 4 _

5 24 6 3 1
21 48 6 41 3

1 10 3 12 -

-
12

-
1

o
-

9 28 9

Z
l
6 6

1 65 13 32 4

123 93 43 77 101

9 56 10 4 2
2 53 1 8 -

25 104 5 1 _

- 5 1 2 -

47 75 44 13 5
4 43 1 2
3 29 7 6 ..

1 19 1 8 _

24 286 13 50

Record

5

24

34
10
59

12

10

18

33

221

26
48

81
6

58
33
30

49

342 2



Agreement. 23

Other trade industries 2 - 5 — i —

Public service (not 
elsewhere classified) 36 1 37 5 24 1

Six pages Page 5
White and Negro Males 10 Years Old and Over Engaged in Gainful 

Occupations, by Industry Groups, for Fauquier, Loudoun, 
and Rappahannock Counties, Virginia: 1930

County
Fauquier Loudoun Rappahannock

Recreation and amuse­
W h ite N egro W hite N egro W h ite N egro

ment
Other professional and 

semiprofessional ser­

27 20 21 8 6

vice . . . .  
Hotels, restaurants, board­

101 18 110 16 21 6

ing houses, etc. 
Laundries and cleaning

15 26 10 20 6 2

and pressing shops . 
Other domestic and per­

2 — 6 3 - -

sonal service 28 139 57 93 2 17
Industry not specified . 78 84 94 80 29 6

Six pages Page 6
Population of Fauquier, Loudoun, and Rappahannock Counties, 

Virginia, by Magisterial Districts : 1930

Fauquier County 
Cedar Run district 
Center district 
Lee district .
Marshall district .
Scott district

White Negro
14,797 6,272

1,828 796
3 ,6 6 0 2,053
3 ,079 830
2,798 1,390
3 ,432 1,203



24 Transcript of Record of District Court.

Loudoun County 15,502 4,347
Broad Run district 2,274 549
Jefferson district . . . . 2,329 543
Leesburg district 3,140 866
Lovettsville district 2,375 106
Mercer district . . . . 2,253 1,415
Mount Gilead district . 3,131 868

Rappahannock County 5,839 1,878
Hampton district 1,248 567
Hawthorne district 667 107
Jackson district . . . . 938 426
Piedmont district 1,256 162
Stonewall district 716 264
Wakefield district • 1,014 352

A List of Persons in Loudoun County, Virginia, who have paid
their State Poll Tax for the years 1928, 1929 and 1930 

in accordance with the law.
Broad Run District

Adrian Robert E 
Adrian W T 
Albright D F

Allen Isaiah

Ball Fred Lee 
Ball Lester H 
Ball W J 
Beans Charles E

A
Anderson Frank T 
Anderson Joseph E 
Ankers George 
Armel Lawrence S 

* * *

Colored
Allen Lucien 

B
Beard Ernest G 
Beavers David A 
Beavers Jessie M 
Benjamin L L 
Bond Hattie E

Ankers, Laura B 
Ankers Lenora F 
Ankers Mahlon A

* *

Arthur James

Benjamin Raymond 
Bodine Henry C 
Bodine J F 
Bodmer T E



Finding of the Court. 25

Capps W R

Colored
Basil Crave 

C
Caylor M E Cooksey H S

Caldwell Mary B Caylor Marion F Cornett John W
Carter Robert J Coleman P J Corselius Edward
Carson J Graham Cooksey Cora J Costello W T

* * * * * #

Corum Nat
Colored

Corum Solomon Corum Tennie
[Memorandum . By agreement of parties, the remainder of list 

is here omitted, as above indicates the makeup of the entire list 
to the letter “ Z ” inclusive. James S. Allen, Clerk.]

Thereupon, to wit, April 24, 1933, said cause comes on to be 
heard and is fully heard by the court on the return and answer to 
the petition for writ of habeas corpus and the agreement, the 
Honorable James A. Lowell, District Judge, sitting, and it is 
ordered that the writ of habeas corpus be allowed, the court rul­
ing evidence set forth in the agreement to be admissible and 
respondent’s exception thereto saved.

On the second day of May, A. D. 1933, the following Finding of 
the Court is filed :

FINDING OF THE COURT.
May ‘2, 1933.

On the twenty-fourth day of April, 1933, this cause comes on 
to be heard by the court. The respondent offers in evidence the 
requisition papers of the Governor of Virginia and the original 
warrant of his Excellency Joseph B. Ely, Governor of Massachu­
setts, a copy of the latter being attached to the respondent’s 
answer and return. These are received and marked, respectively, 
“ Exhibits A” and “ B ”. The counsel for the petitioner agrees that 
such showing makes a prima facie case and offers an agreement 
of the parties, which is made a part of the record. According to



26 Transcript of Record of District Court.

this agreement I rule that the evidence therein mentioned is 
admissible and competent in these proceedings, and thereupon 
rule that the indictments are void and the requisition of the Gov­
ernor of Virginia is not in form. Therefore I direct the entry of 
the following order:

Ordered, that the petitioner be discharged; but it being repre­
sented to me that the respondent intends to enter his appeal, it is 
ordered that the petitioner be remanded to the custody of the 
respondent pending final determination on said appeal.

JAMES A. LOWELL.
May 2, 1933. ___________

Thereupon, to wit, May 2, 1933, the following final Order of 
Court is entered:

ORDER OF COURT.
May 2, 1933.

Lowell, J. The above-entitled cause having come on for hear­
ing on the twenty-fourth day of April 1933, it is now, to wit, May 
2, 1933, ordered that the writ of habeas corpus be sustained, and 
that the petitioner George Crawford be discharged from custody; 
but it being represented to the court that the respondent intends 
to take an appeal from this order, it is therefore further ordered 
that the petitioner said George Crawford be remanded to the 
custody of the respondent pending final decision on said appeal.

By the Court,
JOHN E. GILMAN, Jr.,

j  a  l  , Deputy Clerk.
D .’j. ________

From the foregoing order, a petition for appeal to the United 
States Circuit Court of Appeals for the First Circuit is filed by the 
respondent on May 2, 1933, and allowed by the court on the 
same day.



27

EXHIBIT A—REQUISITION.
Commonwealth of V irginia. 

Executive Department.

The Governor of the State of Virginia,
To the Governor of the State of Massachusetts

Whereas, It appears by application, copy of indictment, etc., 
which are hereunto annexed and which I certify to be authentic 
and duly authenticated in accordance with the Laws of this State, 
that George Crawford stands charged with the crime of murder 
which I certify to be a crime under the Laws of this State com­
mitted in the County of Loudoun in this State, and it having been 
represented to me that he has fled from the justice of this State 
and may have taken refuge in the State of Massachusetts

Now Therefore, pursuant to the provisions of the Constitution 
and the Laws of the United States in such case made and provided, 
I do hereby require that the said George Crawford be apprehended 
and delivered to E. S. Adrain and D. H. Cooley who are hereby
authorized to receive and convey him to the State of Virginia, there 
to be dealt with according to Law.

In Witness Whereof, I have hereunto signed my name and affixed 
the Great Seal of the Commonwealth, at the Capitol in the City of 
Richmond, this 18th day of January in the year of our Lord one 
thousand nine hundred and thirty-three and in the 157th year of 
the Commonwealth.

[seal] Jno . Garland Pollard
By the Governor,

Peter Saunders, Secretary of the Commonwealth.

State of Virginia,
County of Loudoun:

To His Excellency, the Governor of Virginia.
Your petitioner respectfully represents unto your Excellency 

that George Crawford charged with the murder in the first degree, 
of Agnes B. Ilsley, and Mina Buchner, in the County of Loudoun, 
against the County of Loudoun and State of Virgina, against whom



28 Transcript of Record of District Court.

an indictment has been found, a duly attested copy of which indict­
ment is hereto annexed; and sworn evidence that the aforesaid 
George Crawford is a fugitive from justice is also hereto annexed; 
is now in the state of Massachusetts, and his whereabouts are 
known.

Your petitioner further respectfully represents that in his opinion 
the ends of public justice require that the aforesaid George Craw­
ford be brought to this state for trial, at the public expense; that 
your petitioner has sufficient evidence to secure the conviction of 
the aforesaid George Crawford; and that this petition is not made 
for the purpose of collecting a debt or pecuniary mulct, or of remov­
ing the alleged fugitive to a foreign jurisdiction with a view there to 
serve him with civil process, or for any probate purpose whatever; 
that if the requisition applied for be granted the criminal proceed­
ings shall not be used for any of said objects; that E. S. Adrain, 
Sheriff of Loudoun County, Virginia, and D. H. Cooley, Deputy 
Sheriff of Loudoun County, the agents hereinafter requested to be 
authorized as agents, are proper persons and have no private 
interest in the arrest of George Crawford, and that there is an 
affidavit hereto annexed showing that the petition is made in good 
faith, the aforesaid George Crawford was in the State at the time 
of the commission of the aforesaid crime; and facts concerning 
the commission of the crime; and that the officer taking the 
affidavits was duly authorized.

Wherefore, your petitioner prays that Your Excellency will issue 
immediately, a requisition upon the Governor of said State of 
Massachusetts for the apprehension and delivery of the said 
George Crawford to E. S. Adrain, Sheriff of Loudoun County, and 
D. H. Cooley, Deputy Sheriff of Loudoun County, and that you em­
power the said Adrain and Cooley in due form, as the authorized 
agent to receive and convey the said George Crawford to the State 
of Virginia. John Galleher

Commonwealth Attorney for Loudoun County.

Clerks Office of the Circuit Court of Loudoun County to wit:
I, E. O. Russell, Clerk of the Circuit Court of Loudoun County,



Exhibit A — Requisition. 29

in the State of Virginia, do hereby certify that John Galleher, 
whose name is signed to the foregoing petition, states that the 
above facts are true to his knowledge and belief, and I do further 
certify that John Galleher, whose name is signed to the above 
petition, is the Commonwealth’s attorney for the County of Lou­
doun, State of Virginia.

Given under my hand and seal of the said Court this 17th day 
of January, 1933. E. O. Russell

[seal] Clerk of the Circuit Court of
Loudoun County, Virginia.

State of Virginia, to w it:
I, J. R. H. Alexander, the sole Judge of the Circuit Court of Lou­

doun County, in the State aforesaid, certify that E. O. Russell, who 
hath given the foregoing certificate, (executed simultaneously here­
with) is the Clerk of the said court, qualified according to law, 
that his said attestation is in due form, and by the proper officer, 
and that the said court is a court with general jurisdiction.

Given under my hand this 17 day of January 1933.
J. R. H. Alexander, Judge.

Commonwealth of Virginia, County of Loudoun, to wit:
In the Circuit Court of Loudoun County at its February Term 

in the year of our Lord one thousand nine hundred and 
thirty-two:

The grand jurors in and for the body of the County of Loudoun, 
State of Virginia, and now attending the Circuit Court of said 
County at its February Term in the year nineteen hundred and 
thirty-two, upon their oaths do present: That George Crawford, 
on the 13th day of January, 1932, in the said County of Loudoun, 
in and upon one Agnes B. Ilsley, then and there, feloniously, wil­
fully, deliberately and premeditatedly and of his malice afore­
thought, did, make an assault; and that the said George Craw­
ford, then and there, feloniously, wilfully, deliberately, premedi­
tatedly and of his malice aforethought, did strike, hit and beat the 
said Agnes B. Ilsley, with a certain blunt instrument, with great 
force and violence, in and upon the head, arms, hands, and other



30 Transcript of Record of District Court.

parts of the body of her, the said Agnes B. Ilsley, and then and 
there feloniously, wilfully, deliberately, premeditatedly, and of his 
malice aforethought, did then and there, in the manner and form 
aforesaid, give to the said Agnes B. Ilsley, several mortal strokes, 
wounds and bruises in and upon the head, the arms, the hands, 
and other parts of the body of her, the said Agnes B. Ilsley, of 
which said mortal strokes, wounds and bruises, she, the said Agnes
B. Ilsley, in the County aforesaid, on the 13th day of January, 
1932, of the said mortal strokes and bruises aforesaid, instantly 
died.

And so the jurors aforesaid, upon their oaths aforesaid, do say 
that the said Agnes B. Ilsley, the said George Crawford in manner 
and form aforesaid and by the means aforesaid, feloniously, wil­
fully, deliberately and premeditatedly, and of his malice afore­
thought did kill and murder, against the peace and dignity of the 
Commonwealth. John Galleher

Attorney for the Commonwealth
A copy—Teste: E. O. Russell, c. c.

State of Virginia, to w it:
I, E. O. Russell, Clerk of the Circuit Court of Loudoun County, in 

the State aforesaid, certify that the foregoing is a true transcript of 
the record, in the matter of the indictment of George Crawford 
for Felony No. 1 as fully and truly as they now exist among the 
records of said Court, and I further certify that J. R. H. Alexander, 
whose genuine signature appears to the following certificate, exe­
cuted simultaneously herewith, is the sole Judge of the said court,
which is a court with general jurisdiction.

In testimony whereof I hereto set my hand and affix the seal of 
said court, this 17th day January 1933.

E. O. Russell Clerk
State of Virginia, to wit:

I, J. R. H. Alexander, the sole Judge of the Circuit Court of Lou­
doun County, in the State aforesaid, certify that E. 0. Russell, who 
hath given the foregoing certificate, (executed simultaneously here­
with) is the Clerk of the said court, qualified according to law, that



Exhibit A — Requisition. 31

his said attestation is in due form, and by the proper officer, and 
that the said court is a court with general jurisdiction.

Given under my hand this 17 day of January 1933.
J. R. H. A lexander Judge

Commonwealth of Virginia, County of Loudoun, to w it:
In the Circuit Court of Loudoun County at its February Term 

in the year of our Lord one thousand nine hundred and 
thirty two.

The grand jurors in and for the body of the County of Lou­
doun, State of Virginia, and now attending the Circuit Court of 
said County at its February Term in the year nineteen hundred 
and thirty-two, upon their oaths do present: That George Craw­
ford, on the 13th day of January, 1932, in the said County of Lou­
doun, in and upon one Mina Buckner, then and there feloniously, 
wilfully, deliberately and premeditatedly and of his malice afore­
thought, did, make an assault; and that the said George Craw­
ford, then and there, feloniously, wilfully, deliberately, premedi­
tatedly and of his malice aforethought, did strike, hit and beat 
the said Miss Mina Buckner, with a certain blunt instrument, 
with great force and violence, in and upon the head, arms, hands 
and other parts of the body of her, the said Mina Buckner, and 
then and there feloniously, wilfully, deliberately, premeditatedly 
and of his malice aforethought, did then and there, in the man­
ner and form aforesaid, give to the said Mina Buckner, several 
mortal strokes, wounds, and bruises in and upon the head, the 
arms, the hands and other parts of the body of her, the said Mina 
Buckner, of which said mortal strokes, wounds and bruises, she 
the said Mina Buckner, in the County aforesaid, on the 13th 
day of January, 1932, of the said mortal strokes and bruises afore­
said, instantly died.

And so the jurors aforesaid, upon the oaths aforesaid, do say 
that the said Mina Buckner, the said George Crawford in manner 
and form aforesaid and by the means aforesaid, feloniously, wil­
fully, deliberately and premeditatedly, and of his malice afore­



thought, did kill and murder, against the peace and dignity of the 
Commonwealth of Virginia.

John Galleher
Attorney for the Commonwealth 

A copy—Teste: E. O. Russell c. c.

At a Circuit Court held for Loundoun County,
February Term, 1932.

C. H. Arnold, M. E. Ball, Frank Saunders, George Ankers, Alfred 
Dulin, George W. Laycock, T. M. Derflinger, R. Carroll Chinn, 
James M. Cole, Walter Leith and Fred S. Warren, having been 
sworn a Grand Jury of Inquest for the body of this County and 
having received their charge retired to their room and after some­
time returned to the County and presented

An indictment against George Crawford for a Felony # 1, a true 
bill, Geo. W. Laycock, Foreman.

An indictment against George Crawford for a Felony # 2, a true 
bill, Geo. W. Laycock, Foreman.

A copy—teste: E. O. Russell c . c .

State of Virginia, to w it:
I, E. O. Russell, Clerk of the Circuit Court of Loudoun County, 

in the State aforesaid, certify that the foregoing is a true tran­
script of the record, in the matter of the indictment of George 
Crawford for Felony No. 2 as fully and truly as they now exist 
among the records of said Court, and I further certify that J. R. 
H. Alexander, whose genuine signature appears to the following 
certificate, executed simultaneously herewith, is the sole Judge of 
the said court, which is a court with general jurisdiction.

In testimony whereof I hereto set my hand and affix the seal of 
said court, this 17 day January 1933.

E. O. Russell Clerk
State of Virginia, to w it:

I, J. R. H. Alexander, the sole Judge of the Circuit Court of 
Loudoun County, in the State aforesaid, certify that E. O. Russell, 
who hath given the foregoing certificate, (executed simultaneously 
herewith) is the Clerk of the said court, qualified according to

32 Transcript of Record of District Court.



Exhibit B — Warrant. 33

law, that his said attestation is in due form, and by the proper 
officer, and that the said court is a court with general jurisdiction.

Given under my hand this 17 day of January 1933
J. R. H. A lexander Judge

The Commonwealth of Virginia,
To the Sheriff of the County of Loudoun, Greeting :

We command you, That you do not omit for any liberty in 
your bailiwick, but that you take George Crawford if he be found 
within the same, and him safely keep, so that you have his body 
before the Judge of our Circuit Court for Loudoun County, at the 
Court-house, on the 13 day of February, 1933, to answer us of a 
certain felony made against him in the said Court, on the 8th day 
of February, 1932 by the Grand Jury for Loudoun County and 
have then there this writ.

Witness, E. 0. Russell, Clerk of our said Court, the 17 day of 
February, 1933, in the 157 year of the Commonwealth.

E. O. Russell Clerk

EXHIBIT B-WARRANT.
[Memorandum . Copy of warrant is here omitted, as it already 

appears printed on page 7 and returns on same on page 10 of 
this transcript of record. James S. A llen, Clerk.]

An additional return on warrant—Exhibit B—is as follows : 
Suffolk ss Feb. 27, 1933

At 2 o’clock p. M. this day I appeared before the District Court 
of the United States holden at Boston, within and for the Massa­
chusetts District, Justice McClellan presiding, to show cause, if 
any, I have, why a writ of habeas corpus should not issue for the 
body of George Crawford, as prayed for in his petition. The mat­
ter was continued until Monday, March 13, 1933 for a hearing.

Frank G. Hale ,
State Police Officer.



34 Transcript of Record of District Court.

RESPONDENT’S PETITION FOR APPEAL
A N D

ASSIGNMENT OF ERRORS.
[Filed May 2, 1933.]

To the Honorable the Judge of the District Court of the United States 
for the District of Massachusetts:

Now comes Frank G. Hale, the respondent in the above-entitled 
cause, and claims his appeal, to the United States Court of Appeals 
for this circuit, from the decision and order in said cause made by 
this court, (Lowell, J.), ordering the discharge of the petitioner. 

By his Attorneys,
JOSEPH E. WARNER,

Attorney General, 
S. D. BACIGALUPO,

Assistant Attorney General of Massachusetts.

May 2, 1933. Appeal allowed.
James A. Lowell,

United States District Judge.

ASSIGNMENT OF ERRORS.
As errors committed in said decision, the respondent alleges 

the following, to w it:
1. That the court erred in ruling that the evidence contained in 

the agreement of the parties was admissible in these proceedings.
2. That the court erred in admitting the facts stated in the 

agreement of the parties in evidence in these proceedings.
3. That the court erred in ruling that the statements contained 

in the agreement of the parties were competent evidence in these 
proceedings.

4. That the court erred in finding that the indictments in Ex­
hibit A were void.

5. That the court erred in ruling that the indictments in Ex­
hibit A were void.

6. That the court erred in ruling that the requisition of the 
governor of Virginia (Exhibit A) was not in form.



Praecipe. 35

7. That the court erred in ruling that the petitioner was unlaw­
fully restrained of his liberty by the respondent.

8. That the court erred in making judicial inquiry into the 
manner in which the administrative functions were performed in 
the selection of the grand jurors who returned the indictments in 
question.

9. That the court erred in ruling as a matter of law that the 
indictments were not in sufficient form for the purposes of the 
requisition.

10. That the court erred in ruling that the warrant of the 
executive of the Commonwealth of Massachusetts was issued in 
violation of the provisions of the Constitution of the United States 
in such case made and provided.

11. That the court erred in ruling, in substance, that the peti­
tioner is unlawfully restrained of his liberty and ordering his 
discharge.

FRANK G. HALF, Petitioner,
by his Attorneys,

Joseph E. Warner , Attorney General,
S. D. Bacigalupo,

Assistant Attorney General of Massachusetts.

On the fourth day of May, 1933, a waiver of bond on appeal 
was filed by the petitioner.___________

PRAECIPE.
[Filed May 11, 1933.]

To the Clerk of the United States District Court.
Sir: Please prepare a transcript of the record, pleadings, pro­

ceedings and papers in the above-entitled cause, to be transmitted 
to the United States Circuit Court of Appeals for the First Circuit, 
in the matter of the appeal of the respondent heretofore allowed 
herein, and include in such transcript copies of the following 
papers and proceedings, to w it:

1. Motion of petitioner to amend petition and amended petition 
for writ of habeas corpus with the warrant for arrest attached.

2. Marshal’s return on summons.



36 Transcript of Record of District Court.

3. Answer and return of Frank G. Hale, respondent.
4. Writ of habeas corpus and officer’s return thereon.
5. Agreement filed April 24,1933, with papers annexed—certain 

parts of list of poll taxpayers being omitted.
6. Finding of the court, May 2, 1933.
7. Order of court, dated May 2, 1933.
8. Exhibit A—Requisition.
9. Exhibit B—Warrant (note as to omission, as made part of 

item 1).
9a. Additional return dated February 27, 1933, on Exhibit B.
10. Respondent’s petition for appeal and assignment of errors.
11. Recital as to waiver of appeal bond.
12. Recital as to issuance of citation and acknowledgement of 

service thereon.
13. Necessary recitals.
14. Praecipe.

J. WESTON ALLEN,
BUTLER R. WILSON,

Attorneys for Petitioner. 
JOSEPH E. WARNER,

Attorney General of Massachusetts. 
STEPHEN D. BACIGALUPO,

Assistant Attorney General.

A citation on appeal was issued on the eighth day of May, A. D. 
1933, being made returnable in the United States Circuit Court of 
Appeals on the twenty-third day of May, 1933. Service of said 
citation on appeal was duly acknowledged by the attorney for the 
petitioner. _____  ____

CLERK’S CERTIFICATE.

U nited States of A merica,
District of Massachusetts, ss .

I, James S. Allen, clerk of the District Court of the United States 
for the District of Massachusetts, do hereby certify that the fore­
going is the transcript of the record on the appeal of Frank G. 
Hale, Lieut. Detective Massachusetts State Police, respondent,



Clerk’s Certificate. 37

including true copies of such proofs, entries and papers on file as 
have been designated by praecipe in the cause entitled,

No. 4962, C i v i l  D o c k e t ,
GEORGE CRAWFORD, P e t i t i o n e r  for  W r it  of  H abeas  C o r p u s ,

v.
FRANK G. HALE, L i e u t . D e t e c t i v e  M a ssa ch usetts  S t a t e  P olice ,

R e s p o n d e n t ,

in said District Court determined.
And I further certify that transmitted herewith are the originals 

of the petition for appeal and the citation on appeal with the 
acknowledgment of service thereon.

In testimony whereof, I have hereto set my hand and affixed 
the seal of said District Court, at Boston, in said District, this 
seventeenth day of May, A. D. 1933.

[ s e a l ] JAMES S. ALLEN, Clerk



/







United States Circuit Court of Appeals 
for the First Circuit.

October Term, 1932.

No. 2824.
Frank G. Hale, Lieutenant Detective, 

Massachusetts State Police,
Respondent, Appellant,

V .

George Crawford,
Petitioner, Appellee.

BRIEF FOR APPELLEE.

J. WESTON ALLEN, 
BUTLER R. WILSON.

B O S T O N :
A D D I S O N  C . G E T C H E L L  & S O N , L A W  P R I N T E R S , 

1933.



il
l



INDEX.

Statement of the case 
Brief of argument

I. Exclusion of Negroes from a grand jury by 
reason of race or color denies to a Negro defen­
dant due process of law and the equal protection 
of the laws

II. A. The indictments returned by such unconsti­
tutional grand jury must be held void on the 
application for writ of habeas corpus

B. The petitioner was not charged with crime 
within the meaning of the Constitution and 
laws of the United States governing extra­
dition, and the requisition of the Governor 
of Virginia was not in form

III. The petitioner being in custody in violation of 
the Constitution and laws of the United States, 
the District Court had jurisdiction to grant its 
writ of habeas corpus

A. The history of the writ of habeas corpus, 
both in England and in this country, shows 
that the application of the writ has been con­
stantly broadened and the jurisdiction of the 
courts in granting the writ constantly ex­
tended to conserve and maintain the original 
purpose that a man shall not be deprived of 
his liberty except upon a lawful charge or 
conviction

B. The District Court has jurisdiction to issue 
the writ of habeas corpus, to inquire into and 
determine whether a person in jail under 
color of authority derived from the Federal 
Constitution is in custody in violation of the 
Constitution, and, if so unlawfully held, to 
discharge him

Page
1
9

9

12

13

15

15

2 0



11 IN D EX

C. The allegations of the petition required the 
District Court to exercise its jurisdiction to 
inquire into the cause of the petitioner’s re­
straint, and upon the facts admitted in the 
record, to discharge the petitioner

D. If it is contended that the District Court 
had discretion as to the time and mode in 
which it would determine the issue raised by 
the petitioner, Judge Lowell, having exer­
cised that discretion to proceed under R.S. 
sec. 761, to receive the evidence and deter­
mine the issue before him, and having 
allowed the petition and discharged Craw­
ford, the only question before this Court 
upon appeal is whether his decision to pro­
ceed and determine the issue before him, 
which he had the power to do, was an abuse 
of judicial discretion which constitutes re­
versible error

IV. The court properly admitted the facts con­
tained in the agreement of the parties as compe­
tent and material evidence on the issue presented 
by the petition for the writ of habeas corpus

V. The cases relied upon by the appellant are dis­
tinguishable from the case at bar and cannot 
avail the appellant upon the issue before this 
Court upon appeal

A. The cases which hold that illegalities in 
empaneling the grand jury cannot be con­
sidered on habeas corpus

VI. Conclusion

P a g e

24

31

35

41

41
43



IN D EX 111

TABLE OF CASES CITED.

Andrews v. Swartz, 156 U.S. 272 
Carter v. Texas, 177 U.S. 442 
Cohens v. Virginia, 6 Wheat. 264 
Commonwealth v. Dennison, 24 How. (U.S.) 66 
Covell v. Heyman, 111 U.S. 176 
Frank v. Mangum, 237 U.S. 309 
Harkrader v. Wadley, 172 U.S. 148 
Harlan v. McGourin, 218 U.S. 442 
Henry v. Henkel, 235 U.S. 219 
Hyatt v. Corkran, 188 U.S. 691 
Iowa-Des Moines Bank v. Bennett, 284 U.S. 239 
Kaizo v. Henry, 211 U.S. 146 
Lee Gim Bor v. Ferrari, 55 F. (2d) 86 
Loney, In re, 134 U.S. 372 
Moran, Matter of, 203 U.S. 96 
Neagle, Ex parte, 135 U.S. 1
Neagle, In re, 135 U.S. 1 17, 18, 21
Neal v. Delaware, 103 U.S. 370
New York v. Eno, 155 U.S. 89 21
Pearce v. Texas, 155 U.S. 311
People v. Brady, 56 N.Y. 182
People, ex rel. Whitfield, v. Enright, 191 N.Y. S. 491 
Bickey Land & Cattle Co. v. Miller et al., 218 U.S. 258

Page
13, 41 

10, 13, 40 
26, 27 

13 
29 

37, 38 
29 
41 
15 

36, 37 
10
41
42 

21, 29
41 
18

24, 29 
10 

23, 29 
12, 41 
36, 37

42 
29

36, 37 
30, 45

Boberts v. Beilly, 116 U.S. 80 26,
Boyall, Ex parte, 117 U.S. 241 21, 29,
Shubuya Jugiro, In re, 140 U.S. 291 13
Strauder v. West Virginia, 100 U.S. 303 9
Tarrance v. Florida, 188 U.S. 519 10, 12
Turney v. Ohio, 273 U.S. 510 32
United States v. Fowkes, 49 F. 50; affirmed 53 F. 13;

certiorari denied, 149 U.S. 789 15, 37, 39, 42
United States v. Bauch, 253 F. 814 35
Virginia v. Paul, 148 U.S. 107 35
Virginia, Ex parte, 100 U.S. 339 9, 12, 32



IV IN D EX

Pajte

Waterman, Re, 29 Nev. 288
Whitten v. Tomlinson, 160 U.S. 231 21, 29
Willcox v. Consolidated Gas Co., 212 U.S. 19 26, 27
Wilson, In re, 140 U.S. 575 41
Wood, In re, 140 U.S. 278 13, 34, 41, 42



United States Circuit Court of Appeals 
for the First Circuit.

O cto ber  T e r m , 1932.

No. 2824.
FRANK G. HALE, L ie u t e n a n t  D e t e c t iv e , M a s s a c h u s e t t s

S ta te  P o l ic e ,
RESPONDENT, APPELLANT,

V.

GEORGE CRAWFORD,
PETITIONER, a p p e l l e e .

BRIEF FOR APPELLEE.

S t a t e m e n t  of  t h e  C a se .

This cause is here upon appeal from a final order of the Dis­
trict Court of the United States for the District of Massachu­
setts, discharging George Crawford from the custody of Frank 
G. Hale, who held him a prisoner under and by virtue of a 
warrant issued by the Governor of the Commonwealth of 
Massachusetts.

On February 18, 1933, George Crawford, a Negro, filed in 
the District Court of the United States for the District of 
Massachusetts a petition for a writ of habeas corpus (Record, 
p. 1), which petition was- subsequently amended on April 5, 
1933 (Record, p. 11). In substance the petition, as amended, 
alleges that Crawford is unlawfully restrained of his liberty in 
Boston in the Commonwealth and District aforesaid by the 
said Hale; that the pretense for such restraint is a warrant, 
a copy of which is annexed to the petition (Record, p. 7), pur­
porting to have been issued by the Governor of said Common­



2

wealth; that said warrant is based upon two alleged indict­
ments purporting to have been found by the grand jury of 
Loudoun County in the State of Virginia, which said indict­
ments were procured in a manner which denies to the petitioner 
rights guaranteed to him by the Constitution and laws of the 
United States, in that Negroes were excluded from said grand 
jury by reason of color, race or previous condition of servi­
tude, although there were many Negroes in said County pos­
sessing qualifications consistent with the laws of the State of 
Virginia for service as grand jurors (Record, pp. 4, 5 and 6).

The petition as amended further alleges that there exists in 
the State of Virginia and in said Loudoun County an unreason­
able race or color prejudice against Negroes generally and 
against Crawford in particular, which, if he is returned to said 
State, will preclude that fair and impartial trial guaranteed 
by the Constitution and laws of the United States (Record, p. 
6). On February 27th, a summons to show cause having issued 
to the respondent Hale, returnable on the same day, and due 
return thereof having been made, the Court, by McLellan, J., 
ordered that the writ of habeas corpus issue (Record, p. 9), 
and, on the same day, the cause was continued for hearing to 
March 13th.

On March 13th no answer had been filed by the respondent. 
Thereafter, on March 18th, a return and answer under oath 
was filed (Record, p. 10), alleging that the respondent is an 
officer of the Division of the State Police of said Common­
wealth and as such is authorized to serve warrants in crimi­
nal cases within said Commonwealth; that Crawford is in his 
lawful custody, under and by virtue of the warrant issued by 
the Governor of said Commonwealth as aforesaid, to be de­
livered to the agent appointed by the Governor of the State of 
Virginia to receive him; that said warrant has been lawfully 
served on Crawford and that thereby he has been lawfully 
arrested; that Crawford, the person held under said warrant, 
is the identical person named therein; that the appellant denies 
each and every allegation in the petition except such as are



3

specifically admitted in his answer (Record, pp. 9 and 10). 
Thereafter, on April 5th, the amendment to the petition duly 
signed and sworn to by the petitioner was filed and allowed as 
heretofore set forth (Record, p. 11).

On April 24th, the District Court, by Lowell, J., issued a 
writ of habeas corpus returnable forthwith (Record, p. 11), 
which was served on the appellant on the same day (Record, 
p. 12). Also on April 24th a statement of agreed facts was filed 
by the parties to the cause (Record, pp. 12-25, inclusive).

I t appears from the agreement that the said indictments 
were returned in the Circuit Court of Loudoun County in the 
State of Virginia, by the grand jury of said County, on or 
about February 8,1932, and charged the crime of murder com­
mitted on or about January 13, 1932, at Middleburg, in Mercer 
district, in said Loudoun County, Virginia; that the law of 
Virginia in force prior to both dates and still in force places 
jurisdiction over crimes committed within a county of said 
State in the Circuit Court of such county (Record, p. 12). The 
law relative to grand jurors, in force in the State of Virginia 
at the time the grand jury list was prepared and of the return 
of the said indictments, is stated as follows (Record, pp. 12, 
13 and 14) :

“ C ode o f  V ir g in ia , C h a p t e r  193.
“ Grand Juries.

“ Section 4852. When and how grand jurors to be se­
lected by judges of circuit courts of counties and corpora­
tion or hustings courts of cities; lists to be delivered to 
clerk; when and how jurors summoned.—The judges of 
the said courts shall annually, in the month of June, July, 
or August, select from the male citizens of each county of 
their respective circuits and in their several cities forty- 
eight persons twenty-one years of age and upwards, of 
honesty, intelligence, and good demeanor, and suitable in 
all respects to serve as grand jurors, who shall be the 
grand jurors for the county or city from which they are



4

selected for twelve months next thereafter. Such jurors 
shall be selected in each county from the several magis­
terial districts of the county, and in each city from the 
several wards of the cities in proportion to the population 
thereof, and the judge making the selection shall at once 
furnish to the clerk of his court in each county of his cir­
cuit or in his city a list of those selected for that county 
or city. The clerk, not more than twenty days before the 
commencement of each term of his court at which a regu­
lar grand jury is required, shall issue a venire facias to 
the sheriff of his county or sergeant of his city, command­
ing him to summon not less than twelve nor more than six­
teen of the persons selected as aforesaid (the number to 
be designated by the judge of the court by an order entered 
of record) to be named in the writ, to appear on the first 
day of the court to serve as grand jurors. No such per­
son shall be required to appear more than once until all 
the others have been summoned once, nor more than twice 
until the others have been twice summoned, and so on: 
provided, that no male citizen over sixty years of age 
shall be compelled to serve as a grand juror. The clerk, 
in issuing the venire facias, shall apportion the grand 
jurors, as nearly as may be, ratably among the magisterial 
districts or wards; but the Circuit Court of James City 
county, or the judge thereof in vacation, shall select the 
grand jurors for such court from said county and the city 
of Williamsburg in such proportion from each as he may 
think proper.

“ Section 4853. Who are qualified; number of grand 
jurors, regular and special.—A regular grand jury shall 
consist of not less than eleven nor more than sixteen per­
sons, and a special grand jury of not less than six nor more 
than nine persons. Each grand juror shall be a citizen of 
this State, twenty-one years of age, and shall have been 
a resident of this State two years, and of the county or 
corporation in which the court is to be held one year, and



5

in other respects a qualified juror, and not a constable, 
or overseer of a road, and, when the grand juror is for a 
circuit court of a county, not an inhabitant of a city, except 
in those cases where the circuit court of the county has 
jurisdiction in the city, in which case the city shall be con­
sidered as a magisterial district, or the equivalent of a 
magisterial district, of the county for the purpose of the 
jury lists.”

In the agreement it was further stipulated that, subject to 
a ruling by the Court as to their admissibility as evidence, 
these facts are true : That the Honorable John R. H. Alexan­
der, Circuit Judge presiding over the Twenty-sixth Judicial 
Circuit of Virginia, which comprises the counties of Rappa­
hannock, Fauquier and Loudoun and their respective Circuit 
Courts, would, if called, testify as follows (Record, pp. 14 and 
15):

“ That he has been a member of the bar of Loudoun 
County since 1906, and has been Circuit Judge since 1929, 
presiding over the Twenty-sixth Judicial Circuit as afore­
said ; that prior to 1929 he had served as Commonwealth 
Attorney in Loudoun County; that he has never known 
of any Negro to be called for jury duty or to serve on any 
jury in Loudoun County or the other two counties in his 
circuit; that he makes up the grand jury lists for Loudoun 
County from the lists of qualified taxpayers, and tries to 
select representative persons from that list because of 
the serious nature and importance of the work a grand 
jury has to do; that he knows there are Negroes in Lou­
doun County who meet the common-law and statutory re­
quirements of grand jurors, and has no doubt there are 
Negroes in the county who further measure up to the 
standards which he himself in his discretion has estab­
lished for grand jurors of the county, but he has never 
investigated the qualifications of any Negro with the pur­
pose of determining his fitness for jury duty; that no ques­



6

tion has ever been raised about Negroes serving on any 
jury in Loudoun County; that the Negroes of Loudoun 
County appear satisfied with existing conditions and he 
does not know whether Negroes of the county would want 
to serve on a jury; and that no suggestion that they be 
placed on the jury list has ever been made to him by any 
person; that he has nothing to do with drawing the felony 
juries, but his functions are limited to selecting the lists 
from which the grand juries are drawn, and he has never 
considered Negroes for grand jury service, the subject 
never having been considered by him or brought to his 
attention; that it is a custom in Loudoun County and the 
other two counties in his circuit, and, so far as he knows, 
in the other counties of the State, to use white men exclu­
sively for jury service in the State Courts, and he has just 
followed the custom.”

The stipulation further shows that the Honorable Edward 0. 
Bussell, Clerk of the Circuit Court of Loudoun County, would, 
if called, testify as follows (Becord, pp. 15 and 16) :

“ That he has been clerk of the Circuit Court of Loudoun 
County since 1929; that he has lived in Loudoun County 
practically all his life; that he has never known of a Negro 
to serve as a grand juror or petit juror; that the names 
of jurors are taken from the lists of qualified taxpayers; 
that there has never been a Negro on any grand, petit or 
felony jury since he took office in 1929 nor at any time 
prior to that in his recollection; that he,. said Bussell, 
selected the aforesaid grand jurors from the list furnished 
to him by said Judge Alexander; that it was a regular 
grand ju ry ; that he personally knew every member of said 
grand jury to be a white man; that he has personally 
checked the names of said grand jurors against the quali­
fied taxpayers list of Loudoun County for 1931 and found 
that the name of every said grand juror listed there was 
the name of a white man. ’ ’



7

The stipulation further shows that both said Honorable John
R. H. Alexander and said Honorable Edward 0. Russell would 
further testify that each knew that every name on the grand 
jurors’ list prepared by said Judge Alexander for Loudoun 
County from which said Russell selected the grand jury afore­
said was the name of a white man (Record, p. 16). I t further 
shows that, in the lists of qualified taxpayers for Loudoun 
County from which was drawn the grand jury aforesaid, the 
names of the qualified Negro taxpayers listed were set apart 
from the names of the qualified white taxpayers listed, and 
were labelled “ colored” (Record, p. 16).

The statement of agreed facts shows that the Honorable 
Eugene S. Adrian, Sheriff of said Loudoun County, would, if 
called, testify as follows (Record, pp. 16 and 17).

“ That he had been sheriff of Loudoun County for ten 
years and deputy sheriff during the seven years imme­
diately preceding; that the sheriff or his deputy serves 
the writ summoning persons to jury duty in the county; 
that he has never served such a writ on a Negro or known 
of such a writ to be served on a Negro; that he has lived 
in Loudoun County all his life; that he has never seen a 
Negro serving on any jury; that it was the existing cus­
tom not to put Negroes on any jury in Loudon County; 
that this is a matter of common knowledge in said county. ’ ’

Annexed to the agreement and made a part thereof are the 
lists of qualified taxpayers of Loudoun County as officially 
printed by the County, and certain population statistics from 
the United States Census, to be considered by the Court (Rec­
ord, pp. 17-25, inclusive), so far as material.

Thereupon, on April 24th, this cause came on to be heard 
before Lowell, J., on the petition as amended, the return and 
answer to the petition for the writ of habeas corpus, the requi­
sition from the Governor of the State of Virginia, which was 
offered in evidence and marked “ Exhibit A ” (Record, pp.



8

27-33, inclusive), the warrant issued by the Governor of the 
Commonwealth of Massachusetts, which was offered in evi­
dence and marked “ Exhibit B ” (Record, p. 33), and the state­
ment of agreed facts, which, subject only to the respondent’s 
objection as to the competency of the facts agreed upon, was 
offered in evidence and admitted, the respondent excepting 
thereto. The Court thereupon ordered that the writ of habeas 
corpus be allowed (Record, p. 25).

On May 2d the following finding of the Court was filed (Rec­
ord, pp. 25 and 26) :

“Finding of the Court.
“ May 2, 1933.

“ On the twenty-fourth day of April, 1933, this cause 
comes on to be heard by the court. The respondent offers 
in evidence the requisition papers of the Governor of 
Virginia and the original warrant of his Excellency 
Joseph B. Ely, Governor of Massachusetts, a copy of the 
latter being attached to the respondent’s answer and re­
turn. These are received and marked, respectively, ‘Ex­
hibits A ’ and ‘B ’. The counsel for the petitioner agrees 
that such showing makes a prima facie case and offers an 
agreement of the parties, which is made a part of the 
record. According to this agreement I rule that the evi­
dence therein mentioned is admissible and competent in 
these proceedings, and thereupon rule that the indict­
ments are void and the requisition of the Governor of 
Virginia is not in form. Therefore I  direct the entry of 
the following order:

“ Ordered, that the petitioner be discharged; but it 
being represented to me that the respondent intends to 
enter his appeal, it is ordered that the petitioner be re­
manded to the custody of the respondent pending final 
determination on said appeal.

J a m e s  A. L o w e l l

“ May 2, 1933.”



9

Thereupon on the same day the following final order of 
court was entered (Record, p. 26):

“ Order of Court.
“ May 2, 1933.

“ L o w e l l , J. The above-entitled cause having come on 
for hearing on the twenty-fourth day of April 1933, it is 
now, to wit, May 2, 1933, ordered that the writ of habeas 
corpus be sustained, and that the petitioner George Craw­
ford be discharged from custody; but it being represented 
to the court that the respondent intends to take an appeal 
from this order, it is therefore ordered that the petitioner 
said George Crawford be remanded to the custody of the 
respondent pending final decision on said appeal.

By the Court,
J o h n  E. G i l m a n , J r.,

“ J.A.L., Deputy Clerk.
D .J.”

From this order an appeal was duly claimed and allowed, 
and assignments of error alleged, and the cause is now before 
this Court upon said appeal (Record, pp. 34, 35).

B r i e f  o f  A r g u m e n t .

I.

E x c l u s io n  o f  N e g r o e s  f r o m  a g r a n d  j u r y  b y  r e a s o n  o f  r a c e

OR COLOR DENIES TO A N e GRO DEFENDANT DUE PROCESS OF LAW 

AND THE EQUAL PROTECTION OF THE LAWS.

Among the rights and immunities secured to the colored 
race by the Fourteenth Amendment to the Constitution of the 
United States is impartial jury trial by jurors selected with­
out discrimination because of race or color.

Strauder v. West Virginia, 100 U.S. 303, 308-309 
(1879).

Ex parte Virginia, 100 U.S. 339, 346 (1879).



10

It is not necessary that the discrimination shall he by statu­
tory enactment. I t  is equally a denial of equal protection of 
the laws within the meaning of the Fourteenth Amendment if 
the exclusion from jury service is made by executive or 
judicial action without express statutory authority.

Neal v. Delaware, 103 U.S. 370, 397 (1880).
Carter v. Texas, 177 U.S. 442, 447 (1900).
Tar ranee v. Florida, 188 U.S. 519, 520 (1903).

See also Iowa-Des Moines Bank v. Bennett, 284 U.S. 239, 
246 (1931).

Both aspects of the matter are fully covered by Carter v. 
Texas, supra. In that case Carter, a Negro, indicted for 
murder, before arraignment or plea to the indictment, offered 
a sworn motion to quash, alleging in substance that Negroes 
were excluded by reason of race from the grand jury which 
found the indictment, although one fourth of the population 
and registered voters of the County were colored and qualified 
for such service. He tendered witnesses to prove that allega­
tion, but the Court refused to hear evidence and overruled the 
motion. Carter duly preserved his rights, and after conviction 
sued out a writ of error. The Court unanimously reversed the 
conviction, and said, through Mr. Justice Gray (p. 447):

“ Whenever, by any action of a state, whether through 
its legislature, through its courts, or through its executive 
or administrative officers all persons of the African race 
are excluded, solely because of their race or color, from 
serving as grand jurors in the prosecution of a person 
of the African race, the equal protection of the laws is 
denied to him, contrary to the Fourteenth Amendment to 
the Constitution of the United States.”

In the case at bar the proof fully sustains the allegation of 
the petition of discrimination against Negroes in the selection 
of the grand jury by reason of their race and color, in viola­
tion of the Constitution of the United States.



11

All material facts being agreed upon in the record, no con­
troverted issue of fact was before the Could for determination.

The agreement filed by the parties states not only the facts 
agreed upon so far as material, but also the law of Virginia 
with reference to grand jurors in force at the time the grand 
jury list was prepared from which the grand jury was diawn 
which returned the alleged indictments of the appellant.

The proof fully sustains the allegation of the petition in this 
regard. By the law of Virginia the Circuit Judge selects, from 
the male citizens of each county, forty-eight persons to serve 
as grand jurors for the ensuing year, and not more than 
twenty days before the commencement of each term the Clerk 
causes not less than twelve nor more than sixteen of the per­
sons selected as aforesaid to be summoned to serve as grand 
jurors for that term. In the present instance the giand panel 
of forty-eight was selected by Judge Alexander, and consisted 
solely of white persons. The selection was made by Judge 
Alexander from the list of qualified taxpayers. Specimen lists 
are before this Court. They show that the Whites and the 
Negroes are separately listed, so that the color of each person 
can be determined by a glance. Moreover, they show a goodly 
proportion of qualified Negro taxpayers.

I t  further appears from the statement of agreed facts that 
the Judge, the Clerk and the Sheriff testify to a long stand­
ing custom not to put Negroes on any jury; that the Judge 
testifies that, in making up the panel of forty-eight for the 
Clerk, he did not and never has considered the personal quali­
fications of any Negro for jury service, although he had no 
doubt that many were qualified therefor; that he never con­
sidered Negroes for grand jury service, and that in this case 
(as in others) “ he had just followed the custom” ; that the 
lists of qualified taxpayers from which the panel of forty-eight 
is selected by the Judge segregate the Negroes and the Whites 
so that a Negro could be selected only by mistake—and such 
error has never occurred; that from the all White list thus 
prepared by the Judge, the Clerk (as he must) selected only



12

white men to compose the grand jury which returned these 
indictments. The custom to exclude Negroes from juries in 
Virginia appears to be of even longer standing than the testi­
mony shows here. A Virginia judge was indicted under the 
Act of March 1, 1875, c. 114, sec. 4, 18 Stat. 336, for this very 
offense in 1879.

E x parte Virginia, 100 U.S. 339, 340, 342.

The certified census figures for Loudoun County which are 
attached to and made a part of the statement of agreed facts 
show that the Negroes of the county form approximately one- 
fifth of the population and are represented in practically all 
the gainful occupations of the populace, that less than twenty 
per cent are illiterate, and that more than half of the Negro 
families in the county own their own homes.

n .
A.

The indictments returned by such unconstitutional grand jury 
must be held void on the application for writ of habeas 
corpus.

In the case at bar the indictment is not assailed on any mat­
ter of technical pleading nor on the constitutionality of the 
Virginia statute. Such matters may well be left to the Court 
of the demanding state. Pearce v. Texas, 155 U.S. 311. The 
indictment at bar is assailed because, although fair on its face, 
it was procured in a manner which denied to the petitioner 
equal protection of the laws. That presents a question of fact 
which would require proof (Tarrance v. Florida, 188 U.S. 519) 
if the facts were not admitted in the stipulation of agreed facts 
in the record.

The petition in this case is a direct attack on the validity 
of the indictment in a court first having jurisdiction of the 
question and of the person, and evidence has been offered to



13

support the allegation, which evidence is not Centro's ex ted. 
Thus objection to the indictment is seasonably made, and all 
subsequent steps taken directed toward securing a conviction 
are void.

Carter v. Texas, 177 U.S. 442.

Cases such as In re Wood, 140 U.S. 278; In re Shubuya 
Jugiro, 140 U.S. 291, 297, and Andrews v. Swartz, 156 U.S. 272, 
obviously do not aid the appellant. In each of those cases a 
person convicted and sentenced for crime sued out a writ of 
habeas corpus to assail the judgment of conviction on the 
ground that members of his race had been excluded from the 
grand jury by reason of race or color. That question might 
have been presented to the State Courts and reviewed by writ 
of error, but had not in fact been so presented. The Supreme 
Court held that the writ of habeas corpus could not be made to 
perform the function of a writ of error, or to subject to col­
lateral attack the judgment of a court having jurisdiction to 
render it.

The case at bar is wholly different. The writ of habeas 
corpus is not here invoked to assail the judgment of a court 
having jurisdiction, or to perform the function of a belated 
writ of error. I t is seasonably invoked to assail a present 
restraint of petitioner’s liberty in violation of the Fourteenth 
Amendment.

B.

The petitioner was not charged with crime within the meaning 
of the Constitution and laws of the United States governing 
extradition, and the requisition of the Governor of Virginia 
was not in form.

In Commonwealth v. Dennison, 24 How. (U.S.) 66, at page 
104, Taney, C.J., says:

“ The Governor of the (demanding) State could not, 
upon a charge made before him, demand the fugitive, for,



14

according to the principles upon which all of our institu­
tions are founded, the executive department can act only- 
in aiding to support the judicial process and enforcing its 
authority, when its interposition for that purpose becomes 
necessary, and is called for by the judicial department. 
The executive authority of the State, therefore, was not 
authorized by this article (Art. IV, sec. 2, cl. 2) to make 
the demand unless the party ivas charged in the regular 
course of judicial proceedings.” (Italics ours.)

To be legally charged with crime in the regular course of 
judicial proceedings “ means charged in the regular course of 
law and in conformity with law.”

Re Waterman, 29 Nev. 288, 289 (1907).

The accused cannot be charged in conformity with law when 
the grand jury list, from which is taken the particular grand 
jury panel that returns the indictment, is selected in violation 
of the equal protection of the laws guaranteed by the Con­
stitution itself. The provisions of the Constitution are as 
much a part of the local law of the State of Virginia and are 
as obligatory on the judge invested with the authority to 
administer judicial proceedings as the local statutes. Article 
VI, clause 2, of the Constitution provides:

“ The Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof; and all Treaties 
made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land; and 
the judges in every State shall be bound thereby, any Thing 
in the Constitution or Laws of any State to the Contrary 
notwithstanding. ’ ’

If, then, through the violation of the provisions of the Con­
stitution by a judge of Virginia, the entire grand jury panel 
is made invalid, how can it be that such illegal panel can charge 
the accused with crime agreeably to the Constitution! And



15

when such action on the part of a state judge is brought to the 
attention of a Federal Court as the Court first having juris­
diction of the question, it must necessarily find, in applying 
the fundamental law of the land, that the executive requisition 
based on an indictment procured by such action is not in form. 
Questions of comity have no place.

“ The right to personal liberty is too important to be 
overborne by anything short of evidence that it has been 
forfeited. Mere matters of form, and considerations 
based on notions of comity between courts, have no proper 
place in trials on habeas corpus.” Per Butler, J., in 
United States v. Fowkes, 49 F. 50, 53 (1892; affirmed, 
53 F. 13; certiorari denied, 149 U.S. 789).

“ In view of the nature of the writ and of the character 
of the detention under a warrant, no hard and fast rule 
has been announced as to how far the court will go in 
passing upon questions raised in habeas corpus proceed­
ings.” Per Lamar, J., in Henry v. Henkel, 235 U.S. 219, 
228 (1914).

III.

T h e  p e t it io n e r  b e in g  i n  c u s t o d y  i n  v io l a t io n  o f  t h e  C o n s t i­

t u t i o n  AND LAWS OF THE UN ITED  STATES, THE DISTRICT COURT 

HAD JURISDICTION TO GRANT ITS WRIT OF HABEAS CORPUS.

A.

The history of the writ of habeas corpus, both in England and 
in this country, shows that the application of the writ has 
been constantly broadened and the jurisdiction of the courts 
in granting the writ constantly extended to conserve and 
maintain the original purpose that a man shall not be de­
prived of his liberty except upon a lawful charge or con­
viction.

The purpose of the writ of habeas corpus ad subjiciendum 
from the earliest records of its origin in the English law has



16

been that no man should be detained in custody in a criminal 
case except upon a lawful charge or conviction. As a manda­
tory writ of right, it was a part of the common law of England 
before Magma Carta and was imbedded in that great charter 
to be thereafter for all time the source of relief from oppres­
sion by kings or magistrates.

I t was not from the outset an unfailing source of relief, and 
the history of the writ, both in England and in this country, 
has been one of constant extension of its application by legis­
lative enactment to meet limitations imposed by the courts 
upon its authority.

In England, the rights thought to be secured by the writ 
after its inclusion in Magna Carta were largely defeated by 
royal prerogatives and by politically constituted courts. Not 
until after the judges had held in Darnel’s Case (1627) that 
the command of the King was a sufficient answer to the writ, 
did the House of Commons in the Petition of Right provide 
“ that no free man in any such manner . . .  be imprisoned or 
detained, ’ ’ and the writ became fully established as the means 
of defeating illegal imprisonment by judicial or executive 
order.

The Petition of Right was in turn disregarded in Selden’s 
Case (1629), and this led to the abolition of the star chamber, 
followed by an act of Parliament (1640) by which the right to 
habeas corpus was given to test the legality of commitments 
by command or warrant of the King or Privy Council (Hallam, 
Cons. Hist., 12th ed., vol. II, c. IX). The abuses continuing 
in the reign of Charles II  and becoming more and more in­
tolerable under the arbitrary decisions by Lord Clarendon and 
specifically by Lord Nottingham in the Jenhes case (1676), the 
Parliament, under the leadership of Lord Shaftesbury, passed 
the famous Habeas Corpus Act of 1679, which bears his name 
(31 Car. II, c. 2). This act was adopted by some of the 
American colonies prior to the Declaration of Independence 
and was a part of the common law which all the colonies in­
herited from the mother country. Because of the ingrained



17

conservatism which pervades the English courts in limiting 
the application of a new law to the particular grievances which 
it is supposedly designed to remedy, the writ of habeas corpus 
has been extended from time to time by specific enactments to 
enlarge its application, and always with an eye single to con­
serve and maintain its original purpose, that a man shall not 
be deprived of his liberty except upon a lawful charge or con­
viction.

The larger scope of the writ of habeas corpus in this coun­
try was pointed out by Joseph H. Choate, citing Church on 
Habeas Corpus, in his masterly argument supporting Attor­
ney General Miller for the appellee in In re Neagle, 135 U.S. 
1. In discussing section 14 of the Judiciary Act of E89 he 
said:

“ How far, under that statute, the federal courts could 
go behind the return, considering that it gave them the 
power to grant the writ for the express ‘purpose of an 
inquiry into the cause of restraint of liberty,’ probably 
never wms, and need not now be determined.

‘ ‘ Certainly, as the English law then stood, that is, the 
common law and the Habeas Corpus Act of Charles II, 
the judges and courts in England confined themselves 
very closely to what appeared upon the face of the return, 
where it had been legal and regular, and the process had 
been issued by a court of competent jurisdiction. But 
the writ of habeas corpus seems always to have had a more 
extended use in the United States than in England, and 
inquiries under it have been more varied and far-reaching 
here than in that country. Church on Habeas Corpus, 
§221, p. 272.”

The extension of the writ of habeas corpus in England by 
successive acts of Parliament to override the limitations put 
upon it by judicial interpretation after Magna Carta finds a 
striking parallel in the broadening by successive acts of Con­
gress of the scope and application of the writ in the Federal



18

Courts of this country to remedy the indeterminate authority 
of the writ as phrased in the Judicature Act.

No decision of the United States Supreme Court since the 
Dred Scott decision aroused keener interest at the time of its 
rendition than that in the case of E x parte Neagle, following 
the murderous assault upon Justice Field of that Court and 
the shooting of the assailant, Terry, by Neagle in his capacity 
of Deputy Marshal. In the opinion by Miller, J., regarded by 
many as his greatest deliverance, speaking for the majority 
of the Court, he traces the growth of the writ of habeas corpus 
and declares its undeniable application in any case where a 
person is in custody in violation of the Constitution. Nowhere 
is the extension of the scope of the Federal writ more ably 
presented. In this connection he says:

“ The enactments now found in the Revised Statutes of 
the United States on the subject of the writ of habeas 
corpus are the result of a long course of legislation forced 
upon Congress by the attempt of the States of the Union 
to exercise the power of imprisonment over officers and 
other persons asserting rights under the federal govern­
ment or foreign governments, Avhich the States denied. 
The original act of Congress on the subject of the writ 
of habeas corpus, by its 14th section, authorized the judges 
and the courts of the United States, in the case of pris­
oners in jail or in custody under or by color of the author­
ity of the United States, or committed for trial before some 
court of the same, or when necessary to be brought into 
court to testify, to issue the writ, and the judge or court 
before whom they were brought was directed to make 
inquiry into the cause of commitment. 1 Stat. 81, c. 20, 
§ 14. This did not present the question, or, a t least, it gave 
rise to no question which came before the courts, as to 
releasing by this writ parties held in custody under the 
laws of the States. But when, during the controversy 
growing out of the nullification laws of South Carolina, 
officers of the United States were arrested and imprisoned



19

for the performance of their duties in collecting the reve­
nue of the United States in that State, and held by the 
state authorities, it became necessary for the Congress 
of the United States to take some action for their relief. 
Accordingly the act of Congress of March 2, 1833, 4 Stat. 
634, c. 57, § 7, among other remedies for such condition 
of affairs, provided, by its 7th section, that the fedeial 
judges should grant writs of habeas corpus in all cases of 
a prisoner in jail or confinement, where he should be com­
mitted or confined on or by any authority or law, for any 
act done, or omitted to be done, in pursuance of a law of 
the United States, or any order, process or decree of any 
judge or court thereof.

“ The next extension of the circumstances on which a 
writ of habeas corpus might issue by the federal judges 
arose out of the celebrated McLeod Case, in which Mc­
Leod, charged with murder, in a state court of New York, 
had pleaded that he was a British subject, and that what 
he had done was under and by the authority of his govern­
ment, and should be a matter of international adjustment, 
and that he was not subject to be tried by a court of New 
York under the laws of that State. The federal govern­
ment acknowledged the force of this reasoning, and under­
took to obtain from the government of the State of New 
York the release of the prisoner, but failed. He was, how­
ever, tried and acquitted, and afterwards released by the 
State of New York. This led to an extension of the powers 
of the federal judges under the writ of habeas corpus, by 
the act of August 29,1842, 5 Stat. 539, c. 257, entitled ‘An 
act to provide further remedial justice in the courts of 
the United States.’ I t  conferred upon them the power 
to issue a writ of habeas corpus in all cases where the 
prisoner claimed that the act for which he was held in 
custody was done under the sanction of any foreign power, 
and where the validity and effect of this plea depended 
upon the law of nations.



20

“ The next extension of the powers of the court under 
the writ of habeas corpus was the act of February 5,1867, 
14 Stat. 385, c. 28, and this contains the broad ground of 
the present Revised Statutes, under which the relief is 
sought in the case before us, and includes all cases of re­
straint of liberty in violation of the Constitution or a law 
or treaty of the United States, and declares that ‘the said 
court or judge shall proceed in a summary way to deter­
mine the facts of the case, by hearing testimony and the 
arguments of the parties interested, and if it shall appear 
that the petitioner is deprived of his or her liberty in con­
travention of the Constitution or laws of the United 
States, he or she shall forthwith be discharged and set at 
liberty.’ ”

Since the passage of the Act of 1867 the power of the Fed­
eral Court to grant the writ of habeas corpus whenever a per­
son is imprisoned in violation of the Constitution and laws of 
the United States has been declared in successive decisions, 
and has never been successfully challenged by those asserting 
the right of the states to retain custody of a prisoner.

B.

The District Court has jurisdiction to issue the writ of habeas 
corpus, to inquire into and determine whether a person in 
jail under color of authority derived from the Federal Con­
stitution is in custody in violation of the Constitution, and, 
if so unlawfully held, to discharge him.

The jurisdiction of this Court to inquire whether the peti­
tioner, Crawford, is in custody in violation of the Constitution 
or laws of the United States, and to allow the writ if law and 
justice so require, is established by the Act of February 5, 
1867 (14 Stat. 385, c. 28), as now incorporated in the Revised 
Statutes, and by repeated decisions of controlling authority—

R.S. secs. 751-755, 761 (U.S.C. title 28, c. 14, secs.
451-455, 461);



21

Ex parte Royall, 117 U.S. 241, 247 (1886);
New York v. Eno, 155 U.S. 89, 93 (1894);
Whitten v. Tomlinson, 160 U.S. 231, 239, 240 

(1895)—

and this jurisdiction will be exercised in the Court’s discre­
tion, even in a case where the jurisdiction of a State Court 
over the crime and the person has already attached, although 
the effect is to defeat the state jurisdiction in advance of trial 
and prevent a trial by jury.

In re Neagle, 135 U.S. 1 (1890);
In  re Loney, 134 U.S. 372 (1890).

In Ex parte Royall (supra), which was a Virginia case, the 
petitioner, after indictment and before trial, brought a writ 
of habeas corpus in the United States Circuit Court, claiming 
that he was unlawfully held in violation of the Constitution, 
and the petition was dismissed on the ground that the Court 
had no jurisdiction to discharge the prisoner when held in 
custody by the Court of the state.

Upon appeal, the Supreme Court, by Harlan, J., defined the 
authority of the Federal Court when its jurisdiction is 
invoked:

“ The grant to the Circuit Courts in §751 of jurisdic­
tion to issue writs of habeas corpus, is in language as 
broad as could well be employed. While it is attended 
by the general condition, necessarily implied, that the 
authority conferred must be exercised agreeably to the 
principles and usages of law, the only express limitation 
imposed is, that the privilege of the writ shall not be en­
joyed by—or, rather, that the courts and the judicial offi­
cers named, shall not have power to award the writ to—any 
prisoner in jail, except in specified cases, one of them being 
where he is alleged to be held in custody in violation of the 
Constitution.



22

“ Whether, therefore, the appellant is a prisoner in 
jail, within the meaning of §753, or is restrained of his 
liberty by an officer of the law executing the process of a 
court of Virginia, in either case, it being alleged under 
oath that he is held in custody in violation of the Con­
stitution, the Circuit Court has, by the express words of 
the statute, jurisdiction on habeas corpus to inquire into 
the cause for which he is restrained of his liberty, and to 
dispose of him ‘as law and justice require’.

“ It would seem—whether reference be had to the act 
of 1867 or to existing statutory provisions—that it was 
the purpose of Congress to invest the courts of the Union, 
and the justices and judges thereof, with power upon 
writ of habeas corpus, to restore to liberty any person, 
within their respective jurisdictions, who is held in cus­
tody, by whatever authority, in violation of the Constitu­
tion or any law or treaty of the United States. The statute 
evidently contemplated that cases might arise when the 
power thus conferred should be exercised, during the 
progress of proceedings instituted against the petitioner 
in a State Court, or by or under authority of a State, 
on account of the very matter presented for determination 
by the writ of habeas corpus; for care is taken to pro­
vide that any such proceedings, pending the hearing of 
the case upon the writ and until final judgment and after 
the prisoner is discharged, shall be null and void.

“ That the petitioner is held under the authority of a 
State cannot affect the question of the power or jurisdic­
tion of the Circuit Court to inquire into the cause of his 
commitment, and to discharge him if he be restrained of 
his liberty in violation of the Constitution. The grand 
jurors who found the indictment, the court into which it 
was returned and by whose order he was arrested, and 
the officer who holds him in custody, are all, equally with 
individual citizens, under a duty, from the discharge of 
which the State could not release them, to respect and



23

obey the supreme law of the land, ‘anything in the Con­
stitution and laws of any State to the contrary notwith­
standing.’ ”

In New York v. Eno (supra) a writ of habeas corpus was 
brought by Eno, who had been indicted in the State of NeAv 
York for an offense which he claimed was made by Federal 
statutes an offense against the United States, exclusively cog­
nizable by their Courts. The writ was dismissed on appeal to 
the Supreme Court because it was held that the claim of the 
accused of immunity from prosecution in the State Court 
should first he passed upon by the highest Court of the state.

It is distinguished from the present case because the State 
of New York had jurisdiction of the person of the accused, and 
there was a controverted question of law to be detex mined, 
which controverted question involved the issue whether or 
not the State of New York did not also have jurisdiction of 
the crime. In a dissenting opinion, concurred in by Shiras, J., 
Field, J., said that the jurisdiction of the crime was vested 
exclusively in the Court of the United States, and that it 
would therefore subserve no useful purpose to proceed with 
the cases in the State Court and thus ascertain what the Court 
would have done had it possessed jurisdiction, and that the 
accused was therefore entitled to his discharge whenever the 
matter was properly brought to the attention of the Federal 
Court.

I t can be said in this case that the accused, having been 
indicted by a grand jury drawn in violation of the provisions 
of the Fourteenth Amendment to the Constitution, it would sub- 
sei've no useful purpose to proceed with the case in the State 
Court and thus ascei’tain what that Court would have done 
if the indictment had been valid, and that the accused in this 
case, being in custody in violation of the Constitution upon 
an invalid indictment, is entitled to his discharge whenever 
the matter is properly brought to the attention of the Federal 
Court.



24

In In re Neagle {supra) Mr. Justice Miller, in tlie opinion 
of the Court, cites with approval language used by Mr. Choate 
in the Senate of the United States in the debate upon the 
passage of the Act of 1842, extending the application of the 
writ of habeas corpus, as follows:

“ If you have the power to interpose after judgment, 
you have the power to do so before. If you can reverse 
a judgment, you can anticipate its rendition. If, within 
the Constitution, your judicial power extends to these 
cases or these controversies, whether you take hold of 
the case or controversy at one stage or another, is totally 
immaterial. The single question submitted to the national 
tribunal, the question whether, under the statute adopt­
ing the law of nations, the prisoner is entitled to the exemp­
tion or immunity he claims, may as well be extracted from 
the entire case, and presented and decided in those tri­
bunals before any judgment in the state court, as for it 
to be revised afterwards on a writ of error. Either way, 
they pass on no other question. Either way, they do not 
administer the criminal law of a State. In the one case 
as much as in the other, and no more, do they interfere 
with state judicial power.”

The reasoning of Mr. Choate is equally applicable to the 
present case, upon the admitted facts in the agreement set 
forth in the record.

C.

The allegations of the petition required the District Court to 
exercise its jurisdiction to inquire into the cause of the 
petitioner’s restraint, and upon the facts admitted in the 
record, to discharge the petitioner.

The petition charges that the pretense for Crawford’s re­
straint is the warrant issued by the Governor of the Common­



25

wealth of Massachusetts on the requisition of the Governor of 
Virginia, which requisition, and, therefore, which warrant, are 
based upon alleged indictments found in violation of the Con­
stitution of the United States in that Negroes were excluded 
from the grand jury solely by reason of race or color. The 
return of the appellee alleges that Crawford is in his custody 
solely by reason of said warrant. It follows from the foregoing 
that Crawford is held in custody, not under process issuing 
from a State Court in either Virginia or Massachusetts, but 
only under and by virtue of the authority vested in the execu­
tive to take and hold the prisoner in custody for delivery to 
the agent of another state by the Constitution, art. IV, sec. 2, 
cl. 2, and the laws of the United States, U.S.C. title 18, c. 20, 
sec. 662. The Constitution provides in the section cited:

“ A person charged in any state with treason, felony, 
or other crime, who shall flee from justice and be found 
in another state, shall, on demand of the executive author­
ity of the state from which he fled, be delivered up, to be 
removed to the state having jurisdiction of the crime.”

This provision of the Constitution is not self-executing, and 
there is no express grant to Congress of legislative power to 
execute it. However, a contemporary construction, contained 
in the Act of 1793, 1 Stat. 302, ever since continued in force, 
and now embodied in sections 5278 and 5279 of the Revised 
Statutes, has established the validity of the legislation on the 
subject (see U.S.C. title 18, c. 20, sec. 662). This act of Con­
gress is as follows:

“ Whenever the executive authority of any State or 
Territory demands any person as a fugitive from justice, 
of the executive authority of any State or Territory to 
which such person has fled, and produces a copy of an 
indictment found . . . charging the person demanded with 
having committed treason, felony, or other crime, certified 
as authentic by the governor or chief magistrate of the



26

State or Territory from whence the person so charged 
has fled, it shall be the duty of the executive authority of 
the State or Territory to which such person has fled to 
cause him to be arrested and secured, and to cause notice 
of the arrest to be given to the executive authority mak­
ing such demand, or to the agent of such authority ap­
pointed to receive the fugitive, and to cause the fugitive 
to be delivered to such agent when he shall appear. . .

As was said by Mr. Justice Matthews in Roberts v. Reilly, 
116 TLS. 80 (1885), at p. 94:

“ I t  follows, however, that, whenever the executive of 
the State, upon whom such a demand has been made, by 
virtue of his warrant, causes the arrest for delivery of a 
person charged as a fugitive from the justice of another 
State, the prisoner is held in custody only under color 
of authority derived from the Constitution and laws of the 
United States, and is entitled to invoke the judgment of 
the judicial tribunals, whether of the State or the United 
States, by the writ of habeas corpus, upon the lawfulness 
of his arrest and imprisonment. ’ ’

In the case at bar, the petitioner having brought a petition 
for writ of habeas corpus, and having alleged under oath that 
he is held in custody in violation of the Constitution, and the 
District Court, by express words of the statute, having juris­
diction on habeas corpus to inquire into the cause for which 
the petitioner is restrained of his liberty, and to dispose of 
him as law and justice require, it became the duty of the Court 
under all the circumstances of the case to determine whether 
the petitioner was so held in custody in violation of the Con­
stitution, and that duty devolving on the Court may not be 
declined.

Cohens v. Virginia, 6 Wheat. 264 (1821).
Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909).



27

In Cohens v. Virginia the Court said, by Marshall, C.J. (at 
p. 404):

“ It is most true that this Court will not take jurisdic­
tion if it should not: hut it is equally true, that it must 
take jurisdiction if it should. The judiciary cannot, as 
the legislature may, avoid a measure because it approaches 
the confines of the constitution. We cannot pass it by be­
cause it is doubtful. With whatever doubts, with what­
ever difficulties, a case may be attended, we must decide 
it, if it be brought before us. We have no more right to 
decline the exercise of jurisdiction which is given, than 
to usurp that which is not given. The one or the other 
would be treason to the constitution. Questions may oc­
cur which we would gladly avoid; but we cannot avoid 
them. ’ ’

In Willcoxv. Consolidated Gas Co., the Court said, by Peck- 
ham, J. (at p. 40) :

“ They [the appellants] assume to criticise that court 
for taking jurisdiction of this case, as precipitate, as if 
it were a question of discretion or comity, whether or not 
that court should have heard the case. On the contrary, 
there Avas no discretion or comity about it. When a Federal 
court is properly appealed to in a case over which it has 
by law jurisdiction, it is its duty to take such jurisdiction 
(Cohens v. Virginia, 6 Wheat. 264, 404), and in taking 
it that court cannot be truthfully spoken of as precipitate 
in its conduct. That the case may be one of local interest 
only is entirely immaterial, so long as the parties are 
citizens of different States or a question is involved which 
by law brings the case within the jurisdiction of a Federal 
court. The right of a party plaintiff to choose a Federal 
court where there is a choice cannot be properly denied. 
In re Metropolitan Railway Receivership, 208 U. S. 90- 
110; Prentis v. Atlantic Coast Line et at., 211 U. S. 210.



28

In the latter case it was said that a plaintiff could not be 
forbidden to try the facts upon which his right to relief 
is based before a court of his own choice, if otherwise 
competent. I t is true an application for an injunction was 
denied in that case because the plaintiff should in our 
opinion have taken the appeal allowed him by the law of 
Virginia while the rate of fare in litigation was still at 
the legislative stage, so as to make it absolutely certain 
that the officials of the State would try to establish and 
enforce an unconstitutional rule.

“ The case before us is not like that. I t involves the 
constitutionality, with reference to the Federal Constitu­
tion, of two acts of the legislature of New York, and it is 
one over which the Circuit Court undoubtedly had juris­
diction under the act of Congress, and its action in taking 
and hearing the case cannot be the subject of proper 
criticism.”

The petitioner in the case at bar had the undisputed right, 
when there was a choice of jurisdiction, to choose the Federal 
Court to determine the fundamental issue raised by writ of 
habeas corpus, whether he was being restrained of his liberty 
in violation of the Constitution of the United States. He chose 
the Federal Court to determine a Federal question.

The cause came before this Court as the Court of first in­
stance. The Court had jurisdiction of the cause by the pro­
visions of the Revised Statutes; it acquired jurisdiction of the 
person when the order was made for the writ to issue and 
service was made upon the appellant and he appeared and 
made return and answer.

The Court of the demanding state has never acquired juris­
diction of the person. No Court of the asylum state has juris­
diction either of the person or of the crime with which the 
petitioner is charged.

The case is therefore within the established rule that, where 
concurrent jurisdiction exists in law, the Court which first



29

obtains jurisdiction in fact should fully determine the matter 
before it.

Harkrader v. Wadley, 172 U.S. 148, 164 (1898).
Rickey Land <& Cattle Co. v. Miller et al., 218 U.S.

258, 262 (1910).
Coveil v. Heynian, 111 U.S. 176 (1884).

In the case of Ilarkrader v. Wadley the Court, by Shiras, J. 
(at p. 164), says:

“ When a state court and a court of the United States 
may each take jurisdiction of a matter, the tribunal where 
jurisdiction first attaches holds it, to the exclusion of the 
other, until its duty is fully performed and the jurisdiction 
involved is exhausted; and this rule applies alike in both 
civil and criminal cases. Freeman v. Howe, 24 How. 450; 
Buck v. Colbath, 3 Wall. 334; Taylor v. Taintor, 16 Wall. 
366; Ex parte Crouch, 112 U. S. 178. ”

This rule was the basis for refusing the writ in Ex parte 
Royall (supra), Neiv York v. Eno (supra), and Whitten v. 
Tomlinson (supra). In each of those cases the petitioner was 
already before the Court of the state, which had acquired juris­
diction of the person and of the subject-matter. In each case 
the question whether the statute under which the accused was 
indicted was unconstitutional could properly be determined by 
the State Court in the first instance, and if decided adversely 
to the accused, be reviewed by the Supreme Court of the United 
States on writ of error. Obviously no sufficient reason ap­
peared for ousting that jurisdiction by writ of habeas corpus 
in the Federal Court in advance of trial, as was done in the 
cases of In re Loney (supra), and In re Neagle (supra). The 
Courts, therefore, in the three cases referred to, followed 
Coveil v. Heyman (see Ex parte Royall, supra, at p. 272) 
and declined to issue writs in advance of trial, but it was ex­



30

pressly pointed out in Ex parte Royall that the Circuit Court 
still had a discretion to issue the writ at any subsequent time.

The case at bar is the converse of Ex parte Royall. The 
State of Virginia is seeking to acquire a jurisdiction not yet 
possessed, and its very request for the return of the petitioner 
is tainted by its flagrant violation of the Constitution in deny­
ing to the petitioner in the method of procuring his indict­
ment that equal protection of the laws which it was the purpose 
of the Fourteenth Amendment to secure to the Negro race. 
The State of Virginia in requesting extradition invokes the 
Constitution in order to secure the return of the petitioner to 
proceed against him in defiance of the Constitution. The effect 
of dismissing the writ in this case would be to continue a re­
straint which violates the Fourteenth Amendment by ousting 
the jurisdiction which this Court has already acquired in order 
to enable the State of Virginia to acquire a jurisdiction not 
yet obtained. To have dismissed this petition for habeas corpus 
after the District Court had acquired jurisdiction and the writ 
had issued would have been abhorrent to every sense of justice, 
because it would have deprived the petitioner of the right which 
is given him to choose between the jurisdiction of the Federal 
Court and a State Court when his right of liberty under the 
Constitution is at stake, and would have forced him to submit 
the issue to the jurisdiction of the very state which upon the 
admitted facts in the record of this case has caused him to be 
restrained of his liberty in violation of the Constitution.

I t  is therefore submitted that it was the duty of Judge 
Lowell, when the writ had issued and the petitioner was before 
him, to proceed pursuant to Revised Statutes, sec. 761, “ in a 
summary way (all material facts being admitted) to hear the 
arguments and thereupon dispose of the party as law and 
justice require. ’ ’



31

D.

I f  it is contended that the District Court had discretion as 
to the time and mode in which it woidd determine the issue 
raised by the petitioner, Judge Lowell, having exercised that 
discretion to proceed under R.S. sec. 761, to receive the 
evidence and determine the issue before him, and having 
allowed the petition and discharged Crawford, the only ques­
tion before this Court upon appeal is whether his decision to 
proceed and determine the issue before him, which he had 
the power to do, was an abuse of judicial discretion which 
constitutes reversible error.

1.

It is difficult to see, in view of the fact that the Federal 
Court is given full jurisdiction by the Federal statutes upon 
a writ of habeas corpus to inquire into the cause of the com­
mitment and discharge the petitioner if he is found to he held 
in custody in violation of the Constitution, and in view of the 
fact that in the case at bar the District Court had acquired 
jurisdiction of the cause and of the person of the petitioner, 
so that there was presented no question of divesting any other 
Court which had obtained priority of jurisdiction, how it can 
be claimed that the Court had a discretion to refuse to proceed 
in a summary manner, as it is provided he “ shall” do in R.S. 
sec. 761, to inquire into the cause of the restraint upon the 
liberty of the petitioner and to dispose of the party as law 
and justice may require. To do so was to deny the petitioner 
the jurisdiction of his choice for the determination in a sum­
mary way of the issue which he had raised as of right and in 
effect to divest the District Court of this jurisdiction and com­
pel the petitioner to submit to the jurisdiction of a State 
Court in the first instance the very issue which he had elected 
to have determined in the Federal Court.

If the District Court had discretion not to proceed in a 
summary way to determine the issue which was immediately 
before it, the writ having issued in accordance with the order



of the Court, every argument which has been presented in this 
brief in support of the Court having a duty imposed upon it 
which it could not decline, applies with equal force and effect 
to sustain the soundness of the discretion which Judge Lowell 
exercised in proceeding to consider and determine the issue 
before him.

32

2.

I f  the Court was called upon to exercise its discretion as to 
the time and mode in which it would determine the issue before 
it, it was its duty to consider all the circumstances under which 
the discretion was to he exercised.

The Court was bound to take into consideration that, if it 
declined or deferred action upon the petition or dismissed the 
petition without prejudice, and the petitioner was surrendered 
by the respondent Hale to the agent of the demanding state, 
the consequence would be, under the Virginia law, that Craw­
ford would be put to his trial upon the indictments in the Cir­
cuit Court of Loudoun County before the Circuit Judge pre­
siding over the Twenty-sixth Judicial Circuit of Virginia, 
who was the same Judge who had selected the list of jurors in 
violation of the Constitution of the United States, from which 
list the grand jury had been drawn which had found the in­
dictments. Upon any motion or plea in abatement to quash or 
dismiss the indictments, grounded upon the violation of the 
Constitution in selecting the list of jurors, the Judge would be 
called upon to pass judgment upon his own act involving the 
question whether he had violated the Federal statute prohibit­
ing discrimination against Negroes in the selection of jurors 
(see Ex parte Virginia, supra). Such action on the part of 
the judge would violate the fundamental principle of due 
process, that no person shall sit as judge in a case where he 
has a personal interest in the outcome.

Turney v. Ohio, 273 U.S. 510 (1927).



33

The Court also, in the exercise of its discretion, had a right 
to consider that Crawford would he put to his trial before a 
petit or felony jury in Loudoun County, and in the agreed 
facts submitted to the Court it was stated that in that County 
the same custom which obtained in making up the jury lists 
from which grand jurors Avere drawn also obtained with re­
spect to making up the jury lists from which the petit and 
felony jurors Avei*e draAvn, and that during the term of office 
of the Clerk of Loudoun County there had never been a Negro 
on any grand, petit or felony jury in the County, nor at any 
time prior to that in his recollection, and that he had lived in 
the County practically all his life ; and that the Sheriff of the 
County had never served a writ summoning a Negro to jury 
duty in the County or kno a v h  such a Avrit to be served on a 
Negro, and had never seen a Negro seiwing on any jury, and 
that it Avas the existing custom not to put Negroes on any jury 
in Loudoun County, which Avas a matter of common knoAvledge.

3.

I f  the Court had discretion in its action on the 'petition, in 
the exercise of a sound discretion, it should rightly give con­
sideration to the fact that since 1925 a writ of habeas corpus 
is the only writ of right remaining upon which Crawford could 
secure a final determination of his right to liberty by the Su­
preme Court of the United States.

The limitation on the appellate jurisdiction of the Supreme 
Court of the United States imposed by the Act of February 
13, 1925, c. 229, sec. 1, removing the jurisdiction of the Su­
preme Court to issue its Avrit of error to the State Courts ex­
cept in cases Avhere State or Federal statutes are to be re­
viewed, has an important bearing on the propriety of grant­
ing the writ of habeas corpus in the case at bar. All the old 
cases which deny habeas corpus state that the citizen’s rights 
are fully protected when he is forced to trial in the State Court 
because he has adequate machinery for appeal, culminating



34

in a writ of error from the Supreme Court of the United States 
to review the Federal question.

“ If the question of exclusion of citizens of the African 
race from the lists of grand and petit jurors had been 
made during the trial in the Court of General Sessions, 
and erroneously decided against the appellant, such error 
in decision would not have made the judgment of convic­
tion void, or his detention under it illegal. . . .  Nor would 
that error, of itself, have authorized the Circuit Court of 
the United States, upon writ of habeas corpus to review 
the decision or disturb the custody of the accused by the 
state authorities. The remedy in such case, for the ac­
cused, was to sue out a writ of error from this court to the 
highest court of the State having cognizance of the mat­
ter, whose judgment, if adverse to him in respect to any 
right, privilege or immunity specially claimed under the 
Constitution or laws of the United States, could have been 
re-examined, and reversed, affirmed or modified, by this 
court as the law required.” Per Harlan, J., In re Wood 
(supra), at 287.

The writ of error is a writ of right. Under it the citizen 
was assured of review by the Supreme Court of the United 
States of his assertion of Federal right. But since the cur­
tailment of the jurisdiction of the Supreme Court under writ 
of error by the Act of 1925, the citizen can now seek review of 
the decision of the State Court, where no question of statutory 
interpretation is involved, only as a matter of grace through 
certiorari.

No citizen’s constitutional rights, privileges and immunities 
should be shut off, denied or destroyed prior to a review by 
the Federal Courts as a matter of right. Since the citizen can 
no longer get this review through the old process of appeal or 
writ of error from the Supreme Court, the more reason the 
District Coui't should in proper cases be ready to relieve him



35

of open violations of Ms constitutional rights by habeas 
corpus, the only remedy of right remaining to him.

United States v. Rauch, 253 F. 814 (1918).

None of the old cases decided before the Act of 1925 attempt 
to say that a writ of certiorari offers the citizen protection 
which is substantially the equivalent of habeas corpus. They 
rely wholly on the writ of error, which, for the reasons just 
stated, is no longer available. The citizen must be given some 
protection, where the State openly admits a persistent viola­
tion of his constitutional rights. His best remaining protec­
tion against lawful oppression from the courts or authorities 
of the State is the writ of habeas corpus.

See Virginia v. Paul, 148 U.S. 107, 120-121 (1893).

IV.
T h e  C o u r t  p r o p e r l y  a d m it t e d  t h e  f a c t s  c o n t a in e d  i n  t h e

AGREEMENT OF THE PARTIES AS COMPETENT AND MATERIAL EVI­

DENCE ON THE ISSUE PRESENTED BY THE PETITION FOR THE WRIT

OF HABEAS CORPUS.

When the writ of habeas corpus is brought, not in a State 
Court, but in the Federal Court, the provisions of the Revised 
Statutes upon habeas corpus by express terms give to the 
Court a broad field of inquiry. Regardless of the rule in the 
State Courts, the express language of the statute (U.S.C.A. 
title 28, c. 14) authorizes the Federal Courts to look behind the 
indictment or other portion of the record, where such inspec­
tion is necessary to determine whether the petitioner is in 
custody in violation of the Constitution or laws of the United 
States.

“ Sec. 460. Denial of return; counter allegations; 
amendments. The petitioner or the party imprisoned or 
restrained may deny any of the facts set forth in the



36

return, or may allege any other facts that may be material 
in the case. Said denials or allegations shall be made 
under oath. The return and all suggestions made against 
it may be amended, by leave of the court, or justice, or 
judge, before or after the same are filed, so that thereby 
the material facts may be ascertained. (U.S.C.A. title 28, 
c. 14, sec. 460.) ” (Italics ours.)

“ Sec. 461. Summary hearing; disposition of party. 
The court, or justice, or judge shall proceed in a summary 
ivay 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. (U.S.C.A. title 28, c. 14, 
sec. 461.) ”  (Italics ours.)

As is pointed out in the case of Roberts v. Reilly (supra), the 
duty of the Governor of the state where the fugitive is found 
is merely ministerial. Neither from the Constitution nor 
from the act of Congress does he derive any executive or 
judicial authority. He must, therefore, perform his minis­
terial duty if the three requirements upon which it is predi­
cated are present: that he has before him an authenticated 
copy of the indictment from the demanding state charging 
crime, that the identity of the accused is established, and that 
it appears he is a fugitive from justice, and the scope of his 
inquiry is limited to the question whether these three require­
ments have been complied with.

No such restriction obtains when the jurisdiction of the 
Federal Court is invoked by the accused upon an application 
for a writ of habeas corpus. The scope of inquiry open to the 
Court extends to an examination of the grounds upon which 
the warrant issued. The warrant of the Governor, when intro­
duced in evidence, establishes only a prima-facie case.

Roberts v. Reilly (supra).
Hyatt v. Corkran, 188 U.8. 691, 710, 711 (1903).
People v. Brady, 56 N.Y. 182.



37

In Roberts v. Reilly the Court said:
“ It is conceded that the determination of the fact by 

the executive of the State in issuing his warrant of arrest, 
upon a demand made upon that ground, whether the writ 
contains a recital of an express finding to that effect or 
not, must be regarded as sufficient to justify the removal 
until the presumption in its favor is overthrown by con­
trary proof. ’ ’

In People v. Brady it Avas held that the Courts have jurisdic­
tion to interfere by writ of habeas corpus and to examine the 
grounds upon Avhich an executive warrant for the apprehension 
of an alleged fugitive from justice from another state is issued, 
and, in case the papers are defective and insufficient, to dis­
charge the prisoner.

In Hyatt v. Corkran the Court, by Mr. Justice Peckham, says 
(at p. 711):

“ We are of opinion that the warrant of the governor 
is but prima facie sufficient to hold the accused, and that 
it is open to him to show by admissions, such as are herein 
produced, or by other conclusive evidence, that the charge 
upon AAdiich extradition is demanded assumes the absence 
of the accused person from the State at the time the 
crime Avas, if ever, committed.”

By express words of the above section 461, it is mandatory 
upon the Court to proceed to determine the facts of the case 
by hearing the evidence. That the Court has authority to 
determine the issue after full inquiry beyond the record of the 
cause of restraint is recognized in the decisions.

Frank v. Mangum, 237 U.S. 309, 330 (1915).
United States v. Fowkes, 53 F. 13, 15 (certiorari 

denied, 149 U.S. 789) (1892).



38

In Frank v. Mangurn (supra) the Court says, by Mr. Justice 
Pitney (at pp. 330, 331):

“ The rule at the common law, and under the act 31 Car. 
II, c. 2, and other acts of Parliament prior to that of 
July 1, 1816 (56 Geo. I l l ,  c. 100, 3), seems to have been 
that a showing in the return to a writ of habeas corpus that 
the prisoner was held under final process based upon a 
judgment or decree of a court of competent jurisdiction, 
closed the inquiry. So it was held, under the judiciary act 
of 1789 (ch. 20, 14, 1 Stat. 73, 81), in Ex parte Watkins, 3 
Pet. 193, 202. And the rule seems to have been the same 
under the act of March 2, 1833 (ch. 57, §7, 4 Stat. 632, 
634), and that of Aug. 29, 1842 (ch. 257, 5 Stat. 539). But 
when Congress, in the act of February 5, 1867 (ch. 28, 14 
Stat. 385), extended the writ of habeas corpus to all cases 
of persons restrained of their liberty in violation of the 
Constitution or a law or treaty of the United States, pro­
cedural regulations were included, now found in Rev. 
Stat., §§754-761. These require that the application for 
the writ shall be made by complaint in writing assigned by 
the applicant and verified by his oath, setting forth the 
facts concerning his detention, in whose custody he is de­
tained, and by virtue of what claim or authority, if known; 
require that the return shall certify the true cause of the 
detention; and provide that the prisoner may under oath 
deny any of the facts set forth in the return or allege 
other material facts, and that the court shall proceed in 
a summary way to determine the facts by hearing testi­
mony and arguments, and thereupon dispose of the party 
as law and justice require. The effect is to substitute for 
the bare legal review that seems to have been the limit of 
judicial authority under the common-law practice, and 
under the act of 31 Car. II, c. 2, a more searching investi­
gation, in which the applicant is put upon his oath to set 
forth the truth of the matter respecting the causes of his



39

detention, and the court, upon determining the actual facts, 
is to ‘dispose of the party as law and justice require.’ 

“ There being no doubt of the authority of the Con­
gress to thus liberalize the common law procedure on 
habeas corpus in order to safeguard the liberty of all per­
sons within the jurisdiction of the United States against 
infringement through any violation of the Constitution 
or a law or treaty established thereunder, it results that 
under the sections cited a prisoner in custody pursuant 
to the final judgment of a state court of criminal juris­
diction may have a judicial inquiry in a court of the United 
States into the very truth and substance of the causes of 
his detention, although it may become necessary to look 
behind and beyond the record of his conviction to a suffi­
cient extent to test the jurisdiction of the state court to 
proceed to judgment against him. Cuddy, Petitioner, 131 
U. S. 280, 283, 286; In re Mayfield, 141 U. S. 107, 116; 
Whitten v. Tomlinson, 160 U. S. 231, 242; In  re Watts and 
Sachs, 190 U. S. 1, 35.”

In United States v. Foivhes (supra) the appellee was in the 
custody of an officer of the United States under color of a 
law of the United States. An application for his removal to 
the Judicial District of Missouri was made to the District 
Court for the Eastern District of Pennsylvania, and at the 
same time and in the same Court the appellee presented his 
petition for a writ of habeas corpus, which was allowed. His 
detention was alleged to be justified solely by the section of 
the Eevised Statutes which provides for the arrest and im­
prisonment of offenders only “ for any crime or offense against 
the United States . . . for trial before such court of the 
United States as by law has cognizance of the offense. ’ ’ The 
Court alleged to have such cognizance was a District Court of 
the United States in Missouri. If  he had committed a crime 
against the United States, and if the District Court referred 
to did have cognizance of it, the prisoner was lawfully held;



40

but, if either of these facts did not exist, then his imprison­
ment was without warrant of law. The Circuit Court of Ap­
peals affirmed the order of the District Court discharging the 
prisoner, and said, through Dallas, Circuit Judge (at p. 15):

“ The position taken on behalf of the United States is 
that the district court could not look beyond the indict­
ment and the action of the commissioner by whom the 
(petitioner) had been committed; and this position was 
adhered to throughout the proceedings in that court, not­
withstanding the fact that ample opportunity was afforded 
the appellant to produce evidence to refute that which was 
presented on behalf of the appellee. We, however, can­
not sustain this view of the law. We do not doubt that a 
district court may, in its discretion, and in a proper case, 
order a warrant of removal upon the indictment alone; but 
it would be going much further, and much too far, as we 
think, to hold that in all cases, and especially in such a 
case as this record discloses, the judge is precluded from 
hearing any other evidence whatever, and must, upon 
mere inspection of the indictment, order the removal of 
the accused person to a considerable distance for trial, 
although evidence be offered which, if received, would 
conclusively establish that the court to which it is asked 
that he shall be remanded is without jurisdiction to try 
him. ’ ’

The District Court in this case, as the Court first having 
jurisdiction over the person of the prisoner, properly ruled 
that the uncontroverted facts offered were competent and ma­
terial evidence to support the allegations of an issue it had 
power to consider.

Carter v. Texas, 177 U.S. 442 (1900).



41

Y .

T h e  c a s e s  r e l ie d  u p o n  b y  t h e  a p p e l l a n t  a r e  d is t in g u is h a b l e

FROM THE CASE AT BAR AND CANNOT AVAIL THE APPELLANT UPON 

THE ISSUE BEFORE THIS COURT UPON APPEAL.

A.

The cases which hold that illegalities in empaneling the grand 
jury cannot he considered on habeas corpus—

Eg., In re Wood, 140 U.S. 278 (1891);
In re Wilson, 140 U.S. 575 (1891);
Andrews v. Swartz, 156 U.S. 272 (1894);
Matter of Moran, 203 U.S. 96 (1906);
Kaizo v. Henry, 211 U.S. 146 (1908);
Harlan v. McGourin, 218 U.S. 442 (1910)—

are all distinguishable from the case at bar.

In each of the cases the trial court otherwise had jurisdic­
tion over both the crime and the person of the accused, entirely 
apart from the grand jury proceedings; whereas in the case 
at bar Virginia lacks jurisdiction over the person and cannot 
get jurisdiction except by and through the unconstitutional 
grand jtiry. In each of the cases above, the application for 
habeas corpus was delayed until after conviction, at which time 
applicant was confronted with the rule that habeas corpus 
cannot be made to serve the functions of a “ belated writ of 
error” ; whereas in the case at bar application is made 
promptly before conviction, upon petitioner’s first appearance 
in any court. In none of the above cases was extradition in­
volved. In each of the above cases the applicant either wholly 
failed to raise the illegality of the grand jury in the trial 
court; or, having raised the question in the trial court, did 
not press the point to the highest court by appeal or writ of 
error.

Pearce v. Texas, 155 U.S. 311, does not aid the appellant. 
In that case Pearce, arrested in Texas and held under warrant



42

of the Governor of that State for rendition to the State of 
Alabama on an indictment which purported to charge larceny, 
sued out a writ of habeas corpus in the State Court, wherein 
he assailed the indictment for certain alleged defects in the 
allegation of time and place, inter alia, and also assailed the 
constitutionality of the Alabama Statute. The trial Judge held 
that the indictment was not insufficient under the law of Ala­
bama and refused the writ. That decision was affirmed by the 
Texas Court of Appeals, which declined to pass upon the con­
stitutionality of the statute assailed. The petitioner thereupon 
sued out a writ of error from the Supreme Court of the United 
States to the Texas Court. The Supreme Court affirmed the 
judgment below, holding: (1) that the technical sufficiency of 
the indictment as a pure matter of pleading would not be in­
quired into upon a writ of habeas corpus; and (2) that the 
Texas Court, in declining to pass upon the constitutionality of 
the Alabama Statute, and remitting that question to the Ala­
bama Court, denied to the petitioner no Federal right.

The case at bar is wholly different, as has been pointed out 
in a prior section of this brief, II, A.

The only case which has been found which holds that in 
extradition proceedings the question of the unconstitutionality 
of the grand jury in the demanding state cannot be raised by 
habeas corpus in the asylum state is People, ex rel. Whitfield, v. 
Enright, 191 N.Y. S. 491 (1921). The case never reached the 
New York Court of Appeals, and an examination of the opin­
ion shows that the decision is based upon an erroneous con­
ception of the issue which was adjudicated in In  re Wood 
(supra), which is the only case cited. I t  cannot be considered 
as an authority in the Federal Court because the New York 
Court was not clothed with the authority of the United States 
Revised Statutes, and its decision as an authority of this Court 
is controlled by the cases of United States v. Fowkes, 53 F. 
13 (1892) (certiorari denied 149 U.S. 789) and by Lee Gim Bor 
v. Ferrari, 55 F. (2d) 86 (1932).



43

VI.
C o n c l u s io n .

The appellee, a prisoner in jail under color of authority de­
rived from the Federal Constitution, by right of choice, has 
elected to bring a petition for writ of habeas corpus in the 
Federal Court, and alleges, inter alia, that he is in custody in 
violation of the Constitution of the United States. The peti­
tion having been filed in the District Court of the United States 
for the District of Massachusetts, upon motion, the Court, by 
McLellan, J., ordered that the writ should issue. The respon­
dent to the petition has answered that he holds the petitioner 
by virtue of a warrant issued by the Governor of Massachu­
setts on the requisition of the Governor of Virginia.

The petition is before the Court as the court of first instance 
having jurisdiction both of the cause and of the person of the 
prisoner. The Court of the demanding state having jurisdic­
tion of the crime alleged to have been committed has not ob­
tained jurisdiction of the person. No Court of the asylum 
state has jurisdiction either of the crime alleged or of the per­
son. No conflict of jurisdiction has arisen. The jurisdiction 
of the State of Virginia has not attached, and no issue is here 
presented calling for the exercise of a discretion to supersede 
the jurisdiction of the State Court. I t  is not, therefore, a 
question of administering the criminal laAV of a state. No 
question of comity or conflict between judicial tribunals is 
involved.

The District Court having first and sole jurisdiction of the 
Federal question whether the prisoner is in custody in viola­
tion of the Constitution, it becomes mandatory upon the Court, 
under R.S. 761, to proceed in a summary way to determine the 
facts of the case and, if it shall appear that the petitioner is 
deprived of his liberty in contravention of the Constitution, to 
set him at liberty. The warrant of the Governor of Massa­
chusetts and the requisition of the Governor of Virginia con­
stitute only prima facie evidence. The agreed facts contained



44

in the stipulation filed by the parties are clearly admissible, 
because they constitute unqualified admissions that the indict­
ments set out in the requisition were found by a grand jury 
selected in violation of the Fourteenth Amendment to the 
Constitution.

All material facts being admitted, there are no controverted 
facts to be adjudicated. The violation of the Constitution of 
the United States upon the admitted facts being established 
and confirmed by decisions of the Supreme Court of control­
ling authority, no controverted question of law remains to be 
adjudicated. I t  is, therefore, apparent that there is no oppor­
tunity for the exercise of any discretion in regard to either the 
time or mode of granting the writ to permit the Court of the 
demanding state to adjudicate in the first instance any con­
troverted questions of law or of fact.

In determining whether the prisoner is held in violation of 
the Constitution, the sole issue is whether the indictments 
have or have not been found conformably with the Constitu­
tion. If they have not, they are voidable in the state of their 
origin. They are utterly void in the Federal Court when their 
validity is put in issue as constituting the charge upon which 
the prisoner is in custody, as they would be void in the state 
of their origin if their validity in that state was put in issue 
and adjudicated.

Upon the peculiar facts presented in this record, the peti­
tion was before this Court as a case of first impression.

The practice in such a case calls for the application of the 
fundamental principles of law and justice which in this case 
are imposed upon the Court by the express words of the statute 
(R.S. 761) from which the Court derives its authority.

The writ of habeas corpus is an extraordinary writ calling 
for summary hearing and summary action. The prisoner is 
entitled to his liberty upon the agreed facts in this case, and 
no future action by the State Court of Virginia can alter the 
right of Crawford to be freed upon these indictments, because 
no action by such Court can make these indictments good.



45

It would seem that the Court can have no discretion in grant­
ing the writ and discharging the prisoner. If Judge Lowell 
had any discretion as to the time and mode of granting the writ, 
the reasons must indeed he compelling which would require or 
justify retaining the prisoner in custody on the void indict­
ments, and postponing action, and in effect relinquishing juris­
diction, to give jurisdiction to the state which by unconsti­
tutional means is seeking to acquire jurisdiction.

There are impelling reasons why such discretion to defer 
granting the writ, if it exists under the circumstances of the 
present case, should not be exercised. To deny the prisoner 
his liberty after his right to liberty has been established upon 
the admitted facts, would be to transfer jurisdiction in the first 
instance from an impartial court to a court which, following the 
long-standing custom which is common knowledge in the com­
munity, has not been impartial to the Negro race and to this 
appellee in procuring these indictments, a custom which ex­
tends to petit and felony juries and will deprive the appellee 
of his constitutional right in any future trial in that State, 
without the protection of a writ of review as of right, which 
protection was the ground for the exercise of the discretion in 
the case of Ex parte Royall, supra, and the cases which have 
followed it.

The real issue is, therefore, will this Court, by deferring 
granting of the writ to which the appellee is entitled, aid the 
demanding state in securing jurisdiction of the person of the 
appellee by unconstitutional means, when the demanding state 
could have, at any time before or since the decision of Judge 
Lowell, called a constitutional grand jury to find valid indict­
ments, and can do so now before the final decision of this 
cause upon appeal, provided it is willing to recognize the 
Fourteenth Amendment.

Respectfully submitted,
J. WESTON ALLEN, 
BUTLER R, WILSON,

Attorneys for Appellee.













A  * *.

t \  1 i f-J •

United States Circuit Court of Appeals 

for the First Circuit.

►
No. 2824.

October Term, 1932.

Frank G. Hale, Lieutenant Detective 
Massachusetts State Police,

Respondent, Appellant,
V.

George Crawford,
Petitioner, Appellee.

BRIEF FOR RESPONDENT.

JOSEPH E. WARNER,
Attorney General, Massachusetts,

S. D. BACIGALUPO,
Assistant Attorney General, Massachusetts,

GEORGE B. LOURIE,
Assistant Attorney General, Massachusetts,

JOHN GALLEHER,
Commonwealth Attorney, Loudoun County, Virginia,

For Appellant.

BOSTON:
ADDISON C. GETCHELL & SON, LAW PRINTERS,

1933.



'
|§§!



INDEX.
P a g e

I. Statement of facts 1
II. Issues 4
III. Argument 4

A. General purpose of rendition law 4
B. The validity or sufficiency of an indictment, valid

upon its face, cannot be attacked in habeas corpus 
proceedings in interstate rendition 8

1. Questions relating to the validity or sufficiency
of an indictment due to defects of form in said 
indictment may not be raised in habeas corpus 
proceedings in interstate rendition 8

2. Questions relating to the validity or the suf­
ficiency of an indictment because of the alleged 
unconstitutionality of the statute upon which 
said indictment is based may not be raised in 
habeas corpus proceedings in interstate rendi­
tion 9

3. Questions relating to the validity or the suf­
ficiency of an indictment because of defenses 
such as the statute of limitations or insanity 
may not be raised in habeas corpus proceed­
ings in interstate rendition 12

4. Questions relating to the validity or the suf­
ficiency of an indictment because of alleged ir­
regularities in the Grand Jury proceedings 
may not be raised in habeas corpus proceed­
ings in interstate rendition 13

5. The decisions in cases involving the removal 
of an alleged fugitive for trial from one fed­
eral district to another should be followed in
the present case by analogy 17

6. In general and except in a small class of un­
usual cases, in which class the present case does 
not fall, it has been held that habeas corpus



11 IN D EX

P a g e

cannot be used as a substitute for a writ of 
error even when constitutional rights are in­
volved 23

C. The indictment in the present case is not void and 
its validity or sufficiency cannot be attacked collat­
erally in the present proceeding 31

IV. Conclusion 41

TABLE OF CASES CITED.

Andrews v. Swartz, 156 U.S. 272 35
Biddinger v. Commissioner of Police, 245 U.S. 128 7, 12
Chapman, In re, 156 U.S. 211 23
Collins v. Traeger, 27 Fed. (2d) 842 10
Davis’s Case, 122 Mass. 324 9
Drew v. Thaw, 235 U.S. 432 9, 12
Frank v. Mangum, 237 U.S. 309 30
Frederich, Petitioner, In re, 149 U.S. 70 27, 31
Graves’s Case, 236 Mass. 493 9
Harding, Ex parte, 120 U.S. 782 38
Henry v. Henkel, 235 U.S. 219 18, 20
Hogan v. O’Neil, 255 U.S. 52 9
J. Harry Spencer, In the Matter of the Application of,

228 U.S. 652 28
Johnson v. Hoy, 227 U.S. 245, 33 Sup. Ct. 240 23
Ivaizo v. Henry, 211 U.S. 146 37
Morse v. United States, 267 U.S. 80 20
Munsey v. Clough, 196 U.S. 364 8
Neal v. Delaware, 103 U.S. 370 39
Patterson v. State of Alabama, 53 Sup. Ct. 55 40
Pearce v. Texas, 155 U.S. 311, 32 Tex. Crim. App. 301 11
People v. Enright, 191 N.Y. S. 491 13, 16
People v. McLaughlin, 247 N.Y. 238 9
People v. Meyering, 348 111. 486 9
Pettibone v. Nichols, 203 U.S. 192 27
Pierce v. Creecy, 210 U.S. 387 9



P a g e

Powell v. State of Alabama, 53 Sup. Ct. 55 40
Reggel, Ex parte, 114 U.S. 642 9
Royall, Ex parte, No. 1 and No. 2,117 U.S. 241 25, 30
Rumely v. McCarthy, 250 U.S. 283 22
Savin, Petitioner, 131 U.S. 267 35
Scottsboro Case, 224 Ala. 524,140 Sou. 195 40
Shibuya Jugiro, In re, 140 U.S. 291 37
Simon v. Keville, 4 Fed. (2d) 575 22
State v. Johnson, 238 N.W. 490 12
Stevens v. Fuller, 136 U.S. 468 35
Strauss, In the Matter of, 197 U.S. 324 7
United States, ex rel. Kennedy et al., v. Tyler, Sheriff, 

et al., 269 U.S. 13 30
Urquhart, Sheriff, v. Brown, 205 U.S. 179 28
Weems v. State of Alabama, 53 Sup. Ct. 55 40
Whitaker v. Hitt, 52 App. D.C. 149, 285 Fed. 797 22
Wilson, In re, 140 U.S. 575 39
Wood, In re, 140 U.S. 278 31, 33

index iii





United States Circuit Court of Appeals 
for the First Circuit.

O c t o b e r  T e r m , 1932.

No. 2824.

FRANK G . HALE, L i e u t e n a n t  D e t e c t iv e  M a s s a c h u s e t t s

S t a t e  P o l ic e , 

r e s p o n d e n t , a p p e l l a n t , 

v.

GEORGE CRAWFORD, 
p e t i t i o n e r , a p p e l l e e .

RESPONDENT’S BRIEF.

I.

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

This is an appeal by the respondent, Frank G. Hale of the 
Massachusetts State Police, from an order of the District 
Court of the United States for the District of Massachusetts 
granting a writ of habeas corpus brought by George Crawford, 
the petitioner, and ordering the discharge of the said peti­
tioner.

At the February term, 1932, of the Circuit Court of Loudoun 
County, Virginia, the petitioner, George Crawford, was in­
dicted for murder (Rec. p. 29 et seq.). On January 17, 1933, 
the Honorable John Galleher, Commonwealth’s Attorney for 
Loudoun County, Virginia, made application to the Governor



2

of the Commonwealth of Virginia that a request he made upon 
the Governor of the Commonwealth of Massachusetts for the 
rendition to that state of the said George CraAvford (Rec. p. 
27). On January 18,1933, the Governor of the Commonwealth 
of Virginia made a request upon the Governor of the Common­
wealth of Massachusetts for the rendition to that state of the 
said George Crawford (Rec. p. 27). The Governor of the 
Commonwealth of Massachusetts, in conformity with the pro­
visions of the statutes of said Commonwealth, delegated the 
Attorney General to give a hearing to the alleged fugitive and 
to advise him as to whether or not a warrant might properly 
issue for the arrest of the said George Crawford.

A hearing was duly held before Stephen D. Bacigalupo, Es­
quire, Assistant Attorney General, at which hearing the al­
leged fugitive was represented by counsel and introduced evi­
dence. On February 18, 1933, the Governor of the Common­
wealth of Massachusetts issued a warrant directing the arrest 
of the said George CraAvford and the delivery of the said per­
son to the duly authorized agent of the Commonwealth of Vir­
ginia (Rec. p. 8). This warrant was duly served by the re­
spondent, and the said George Crawford is at the present time 
in his custody.

In conformity with the laws of the Commonwealth of Massa­
chusetts, Crawford was duly apprised of his right to file a peti­
tion for writ of habeas corpus. On March 29, 1933, a petition 
for writ of habeas corpus was filed by the said George Craw­
ford in the District Court of the United States for the District 
of Massachusetts (Rec. p. 1 et seq.), and a hearing was duly 
held before the Honorable James A. Lowell, Judge of said 
Court. The principal contention of the petitioner is that “ he 
cannot lawfully be held by virtue of said warrant or order, and 
his detention or restraint thereunder is in violation of the Con­
stitution of the United States and the laws of the United 
S tates” in that the indictment found against him by the 
Grand Jury  of Loudoun County in the Commonwealth of Vir­
ginia is null and void because “ it was procured in a manner



3

which denies to the petitioner rights guaranteed to him by the 
Constitution of the United States and laws of the United 

^States.” The basis for the claim that the said indictment is 
void is that all negroes were allegedly excluded from the said 
Grand Jury pursuant to an allegedly illegal and unconstitu­
tional practice and custom (Rec. pp. 4-5).

At the hearing before the District Court, the petitioner 
offered in evidence an agreement which set forth the laws of 
Virginia relative to Grand Juries and the manner in which the 
Grand Jury  which returned the indictment in question was 
constituted (Rec. pp. 12-17), also certain census statistics (Rec. 
pp. 17-24), and a list of persons in Loudoun County, Virginia, 
who paid their poll tax for the years 1928,1929, and 1930 (Rec. 
pp. 24-25). This testimony was offered by the petitioner in 
an endeavor to establish the void character of the indictment, 
which is a part of the rendition request of the Governor of Vir­
ginia. The respondent objected to the admission of the evi­
dence set forth in the agreement. Said objection was over­
ruled and the evidence admitted, the respondent’s exception 
thereto being duly saved (Rec. p. 25). The respondent intro­
duced into evidence the requisition papers of the Governor of 
Virginia and the original warrant of His Excellency Joseph B. 
Ely, Governor of Massachusetts, which were received and 
marked, respectively, Exhibit A and B (Rec. pp. 25, 26-33). 
The judge of the District Court ruled that the evidence con­
tained in the agreement “ is admissible and competent in these 
proceedings” and “ that the indictments are void ancTtiT 
requisition of the Governor of Virginia is not in form. A /tb  
thereupon ordered the discharge of the petitioner, but re­
manded him to the custody of the respondent, pending the final 
determination of this appeal (Rec. pp. 25, 26). From the fore­
going rulings the respondent duly appealed, and set forth 
eleven assignments of error (Rec. pp. 34-35).



4

n.
I s s u e s .

This appeal raises two closely interrelated issues:
1. Whether or not the Court erred in admitting the evi­

dence contained in the so-called agreement. This evidence was 
offered for the purpose of attacking the validity or sufficiency 
of the indictment charging the petitioner with the crime of 
murder in Virginia. This indictment forms the basis for the 
rendition request of the Governor of Virginia. I t was valid 
and proper on its face. The respondent duly excepted to the 
admission of this evidence.

2. Whether or not the Court erred in ruling that the above- 
mentioned indictment is void. This ruling is founded upon 
the theory that the invalidity of the indictment is due to the 
existence of the facts set forth in the above-mentioned agree­
ment. The respondent duly excepted to this ruling.

The identity of the petitioner and his presence within the 
jurisdiction of the Commonwealth of Virginia were estab­
lished by the respondent, and no evidence was introduced by 
the petitioner to controvert the same.

III.
A r g u m e n t .

A .  G e n e r a l  P u r p o s e  o f  R e n d it io n  L a w .

Interstate extradition, or, as sometimes termed, interstate 
rendition, is based on the Constitution of the United States, 
article IV, section 2, paragraph 2, as follows:

“ A Person charged in any State with Treason, Felony, 
or other Crime, who shall flee from Justice, and be found 
in another State, shall on Demand of the executive 
Authority of the State from which he fled, be delivered up, 
to be removed to the State having Jurisdiction of the 
Crime.”



5

This section of the Constitution was given statutory effect 
by the Act of February 12, 1793 (1 S.L. 302), being sections 
5278 and 5279, U.S. R.S.; TJ.S. C.A., title 18, chapter 20, sec­
tions 662, 663:

“ Sec. 5278. Whenever the executive authority of any 
State or Territory demands any person as a fugitive from 
justice, of the executive authority of any State or Terri­
tory to which such person has fled, and produces a copy 
of an indictment found or an affidavit made before a magis- 
ti’ate of any State or Territory, charging the person de­
manded with having committed treason, felony, or other 
crime, certified as authentic by the governor or chief 
magistrate of the State or Territory from whence the 
person so charged has fled, it shall be the duty of the execu­
tive authority of the State or Territory to which such per­
son has fled to cause him to be arrested and secured, and 
to cause notice of the arrest to be given to the executive 
authority making such demand, or to the agent of such 
authority appointed to receive the fugitive, and to cause 
the fugitive to be delivered to such agent when he shall 
appear. If no such agent appears within six months from 
the time of the arrest, the prisoner may be discharged. All 
costs or expenses incurred in the apprehending, securing, 
and transmitting such fugitive to the State or Territory 
making such demand, shall be paid by such State or Terri­
tory.

‘4 Sec. 5279. Any agent so appointed who received fugi­
tive into his custody, shall be empowered to transport him 
to the State or Territory from which he has fled. And 
every person who, by force, sets at liberty or rescues the 
fugitive from such agent while so transporting him, shall 
be fined not more than $500 or imprisoned not more than 
one year. ’ ’

Rendition proceedings are merely the first step in bringin 
about the return to the demanding jurisdiction of a perso



6

charged with crime. As such, they involve no determination 
of the guilt or innocence of the accused. The Constitution and 
laws of the United States sought to provide a summary pro­
ceeding whereby persons charged with crime can be brought 
to the bar of justice in the jurisdiction in which said crime was 
committed. In this procedure full faith and credit are to be 
given to the laws and acts of the demanding jurisdiction. I t  is 
presumed that the accused will receive a full, fair, and im­
partial trial when returned to the demanding jurisdiction and 
that all his rights, constitutional or otherwise, will be ade­
quately protected in the Courts of the jurisdiction in which he 
is to be finally adjudged guilty or innocent.

To effectuate this purpose it has been generally held that 
the nature of the charge is immaterial and the procedure under 
which the charge may be made is immaterial so long as it is 
in substantial conformity with the laws of the demanding juris­
diction. An indictment is not a necessary element of the 
validity qf^ j ^ ^itid^Toqjiegt. ~A rendition requisition based 
upon an affidavit or sworn complaint made before a commit­
ting magistrate, who has no jurisdiction to make any deter­
mination of the guilt or innocence of the accused but whose 
sole power is to hold the accused upon the finding of probable 
cause for further action by a Grand Jury, is as sufficient for 
the purposes of rendition as an indictment.

“ But such decisions, instead of making against the use 
in this constitutional section of the word ‘charged’ in its 
broad sense, make in its favor, because, as we have noticed, 
an extradition is simply one step in securing the arrest 
and detention of the defendant. And these preliminary 
proceedings are not completed until the party is brought 
before the court in which the trial may be had. Why 
should the State be put to the expense of a grand jury and 
an indictment before securing possession of the party to 
be tried? . . . While courts will always endeavor to see 
that no such attempted wrong is successful, on the other 
hand care must be taken that the process of extradition



7

be not so burdened as to make it practically valueless. I t 
is but one step in securing the presence of the defendant 
in the court in which he may be tried, and in no manner 
determines the question of guilt.” In the Matter of 
Strauss, 197 U.S. 324, 330.

“ The provision of the Federal Constitution quoted, 
with the change of only two words, first appears in the 
Articles of Confederation of 1781, where it was used to 
describe and to continue in effect the practice of the New 
England Colonies with respect to the extradition of 
criminals. Kentucky v. Dennison, 24 How. 66. The lan­
guage was not used to express the law of extradition as 
usually prevailing among independent nations but to pro­
vide a summary executive proceeding by the use of which 
the closely associated States of the Union could promptly 
aid one another in bringing to trial persons accused of 
crime by preventing their finding in one State an asylum 
against the processes of justice of another. Lascelles v. 
Georgia, 148 U.S. 537. Such a provision was necessary 
to prevent the very general requirement of the state con­
stitutions that persons accused of crime shall be tried in 
the county or district in which the crime shall have been 
committed from becoming a shield for the guilty rather 
than a defense for the innocent, which it was intended to 
be. Its design was and is, in effect, to eliminate, for this 
purpose, the boundaries of States, so that each may reach 
out and bring to speedy trial offenders against its laws 
from any part of the land.

“ Such being the origin and purpose of these provisions 
of the Constitution and statutes, they have not been con­
strued narrowly and technically by the courts as if they 
were penal laws, but liberally to effect their important 
purpose, . . . ” Biddinger Commissioner of Police, 245 
U.S. 128,132-133. ----------------------



. T h e  V a l id it y  or  S u f f i c i e n c y  o p  a n  I n d i c t m e n t , V a l id  

u p o n  i t s  F a c e , C a n n o t  b e  A t t a c k e d  i n  H a b e a s  C o r p u s  P r o ­
c e e d in g s  i n  I n t e r s t a t e  R e n d i t i o n .

The evidence submitted over objection by the District Court 
was designed to contest the validity and sufficiency of the in­
dictment charging- the petitioner with murder returned by the 
Grand Jury  of Loudoun County, Virginia, which indictment 
is valid and sufficient upon its face. No evidence is admissible 
in habeas corpus proceedings in interstate rendition for this 
purpose. All questions relating to the sufficiency or validity 
of an indictment, valid upon its face, must be left to the Courts 
of the demanding jurisdiction for determination.

'l. Questions relating to the validity or sufficiency of an in­
dictment due to defects of form in said indictment may not 
he raised in habeas corpus proceedings in interstate rendi­
tion.

The petitioner is precluded in habeas corpus proceedings 
in interstate rendition from attacking the technical.sufficiency 
of the indictment or other charge of crime. I t  has been well 
established in all the leading cases relative to interstate 
rendition that formal objections regarding the indictment are 
matters for the consideration of the Courts of the state in 
which the indictment was found and are not open to consid­
eration on habeas corpus proceedings arising out of an inter­
state rendition request.

In the case of Munseyv. Clough, 196 U.S. 364, 373, the Court 
held that the indictment found in the demanding state will 
not be presumed to be void on habeas corpus proceedings in 
the state in which the demand is made if it substantially 
charges an offense for which the person demanded may be 
returned for trial; that the technical sufficiency of the indict­
ment and the question of procedure under it are not open to 
inquiry on habeas corpus to review the issuance of the gover­
nor’s warrant; and that “ the Courts of that state (the de­



9

manding jurisdiction) would undoubtedly protect her (peti­
tioner) in the enjoyment of all her constitutional rights.”

In E x parte Reggel, 114 U.S. 642, it was similarly held that 
technical objections to an indictment could not be raised in 
habeas corpus proceedings following the granting of a warrant 
of rendition by the executive of a state or territory.

To the same effect is the case of Pierce v. Creecy, 210 U.S. 
387, in which the Court said, on page 402:

“ The only safe rule is to abandon entirely the standard 
to which the indictment must conform, judged as a crim­
inal pleading, and consider only whether it shows satis­
factorily that the fugitive has been in fact, however in- 
artificially, charged with crime in the state from which he 
has fled. ’ ’

Also Hogan v. O’Neil, 255 U.S. 52, in which the Court said, 
on page 55:

“ Were there any doubt of the sufficiency of the indict­
ment, as a pleading, it would not be open to inquiry on 
habeas corpus. Munsey v. Clough, 196 U.S. 364-375.”

To the same effect as the cases cited above are the follow­
ing:

Graves’s Case, 236 Mass. 493, 498.
Davis’s Case, 122 Mass. 324, 329.
People v. McLaughlin, 247 N.Y. 238.
People v. Meyering, 348 111. 486,181 N.E. 300.
Drew v. Thaw, 235 U.S. 432, 439.

2. Questions relating to the validity or the sufficiency of an 
indictment because of the alleged unconstitutionality of the 
statute upon which said indictment is based may not be 
raised in habeas corpus proceedings in interstate rendition.

I t has been held that the petitioner in habeas corpus pro­
ceedings may not attack the validity of the indictment on the



10

ground that the statute upon which said indictment is founded 
is unconstitutional.

“ . . . we must also rule against appellant on his further 
contention that the Illinois statute, defining the offense 
with which he is charged, is unconstitutional. Its validity 
has been sustained by the Supreme Court of Illinois. 
People v. Bertsche, 265 111. 272. . . .  At most, the ques­
tion is only debatable, and is therefore primarily for the 
court having jurisdiction of the charge. If there denied 
any constitutional right, appellant may, as was said in the 
Pearce-Texas Case, supra [155 U.S. 311] seek his remedy 
in the United States Supreme Court. To recognize his 
right to have the question decided here would, as is said 
in the Pierce-Creecy Case, supra [210 U.S. 387] ‘impose 
upon courts, in the trial of writs of habeas corpus, the 
duty of a critical examination of the laws of states with 
whose jurisprudence and criminal procedure they can 
have only a general acquaintance. Such a duty would be 
an intolerable burden, certain to lead to errors in deci­
sion, irritable to the just pride of the states, and fruitful 
of miscarriages of justice. ’ See, also, Brew v. Thaw, 235 
U.S. 432, 35 S. Ct. 137, 59 L. Ed. 302; In re Strauss, 197 
U.S. 324, 332, 333, 25 S. Ct. 535, 49 L. Ed. 774.” Collins 
v. Traeger (G.C.A. 9th Circ.),(27 Fed. (2d) 842, 846.',

The right to raise a question as to the validity of an indict­
ment, which is the basis of a rendition request because of the 
alleged unconstitutionality of the statute under which said in­
dictment has been returned, has been denied to the petitioner 
in habeas corpus proceedings even though a federal constitu­
tional question was involved therein.

“ It Avas not disputed that the indictments were in sub­
stantial conformity with the statute of Alabama in that 
behalf, and their sufficiency as a matter of technical plead­
ing Avould not be inquired into on habeas corpus. Ex parte



11

T

Reggel, 114 U.S. 642. Nor was there any contention as 
to the proper demand having been made by the executive 
authority of the State from whence the petitioner had de­
parted, or in respect of the discharge of the duty imposed 
by the Constitution and laws of the United States on the 
executive authority of the asylum State to cause the sur­
render. The question resolved itself, therefore, into one 
of the validity of the statute on the ground of its repug­
nancy to the Constitution, and the Court of Appeals de­
clined to decide in favor of its validity. And if it could 
be said upon the record that any right under the Consti­
tution had been specially set up and claimed by plaintiff 
in error at the proper time and in the proper way, the 
state court did not decide against such right, for the denial 
of the right depended upon a decision in favor of the 
validity of the statute. What the state court did was "TfU 
leave the question as to whether the statute was in viola­
tion of the Constitution of the United States, and the in­
dictments insufficient accordingly, to the demanding State. 
Its action in that regard simply remitted to the courts of 
Alabama the duty of protecting the accused in the enjoy­
ment of his constitutional rights, and if any of those rights 
should be denied him, which is not to be presumed, he 
could then seek his remedy in this court.

“ We cannot discover that the Court of Appeals, in de­
clining to pass upon the question raised in advance of the 
courts of Alabama, denied to plaintiff in error any right 
secured to him by the Constitution and laws of the United 
States, or that the court in announcing that conclusion 
erroneously disposed of a Federal question.” Pearce v. 
Texas, 155 U.S. 311, 313-314.

The Court in the Pearce-Texas case, cited above, also quoted 
with approval the following portion of the opinion of the ma­
jority of the Court of Appeals of Texas in the same case (32 
Texas Criminal Appeals, 301):



12

. . ‘We desire to modify certain propositions stated in 
the opinion of Judge Simians. I t is intimated, if not 
stated directly, that the relator would have the right to 
show hy proper evidence that the indictment in substance 
was not sufficient under the laws of the demanding State. 
Our position upon this question is that if it reasonably 
appears upon the trial of the habeas corpus that the re­
lator is charged by indictment in the demanding State, 
whether the indictment be sufficient or not under the law 
of that State, the court trying the habeas corpus case will 
not discharge the relator because of substantial defects 
in the indictment under the laws of the demanding State. 
To require this would entail upon the court an investiga­
tion of the sufficiency of the indictment in the demanding 
State, when the true rule is that if it appears to the court 
that he is charged by an indictment with an offence, all 
other prerequisites being- complied with, the applicant 
should be extradited. We are not discussing the char­
acter of such proof; this must be made by a certified copy 
of the indictment, etc. ’ ’ ’

3. Questions relating to the validity or the sufficiency of an 
indictment because of defenses such as the statute of limita­
tions or insanity may not be raised in habeas corpus pro­
ceedings in interstate rendition.

I t has been held that defenses to an indictment such as the 
statute of limitations may not be set up in habeas corpus pro­
ceedings following a rendition request.

State v. Johnson, 238 N.W. 490 (Minn.)
Biddinger v. Comm, of Police, Neiv York, 245 U.S.

128.

In the case of Drew v. Thaw, 235 U.S. 432, the Court held 
that a petitioner in habeas corpus following the issuance of a 
Governor’s warrant could not set up his inability to commit



13

the alleged crime because of insanity. Mr. Justice Holmes, in 
delivering the opinion of the Court, said, on pages 439 and 440:

“ The most serious argument on behalf of Thaw is that 
if he was insane when he contrived his escape he could 
not be guilty of crime, while if he was not insane he was 
entitled to be discharged; and that his confinement and 
other facts scattered through the record require us to as­
sume that he was insane. But this is not Thaw’s trial. 
In extradition proceedings, even when as here a humane 
opportunity is afforded to test them upon habeas corpus, 
the purpose of the writ is not to substitute the judgment 
of another tribunal upon the facts or the law of the matter 
to be tried. The Constitution says nothing about habeas 
corpus in this connection, but peremptorily requires that 
upon proper demand the person charged shall be delivered 
up to be removed to the State having jurisdiction of the 
crime. . . . And even if it be true that the argument 
stated offers a nice question, it is a question as to the law 
of New York which the New York courts must decide.”

4. Questions relating to the validity or the sufficiency of an 
indictment because of alleged irregularities in the Grand 
Jury proceedings may not be raised in habeas corpus pro­
ceedings in interstate rendition.

The exact issue raised in this case was raised in a similar 
proceeding before the Supreme Court of the State of New 
York, in the case of People v. Enright; 191 N.Y. S. 491. No
appeal was taken in that case from the decision of the pre­
siding justice. The Court held that it could not inquire as to 
whether or not negroes had been intentionally barred from 
service on the Grand Jury, contrary to the laws of the demand­
ing jurisdiction.

“ [1, 2] In this proceeding the court can only inquire 
into the questions of whether there is a sufficient charge 
of a crime, whether the relator is the person named in the



14

indictment, and whether the relator was in the demanding 
State on the day that the crime is alleged to have been 
Committed. No other questions can be raised or consid­
ered. Even if it be true, as asserted by relator in his 
traverse, that colored persons were excluded from the 
grand jury which found the indictment, that the relatoi 
left the state of North Carolina to escape mob violence, 
and that there is danger that he will not have a fair trial 
if he is surrendered to the North Carolina authorities, 
those facts do not entitle him to relief on habeas corpus, 

j The state of New York is under the duty of surrendering 
the fugitive to the agent of the state of North Carolina, 
and the rendition warrant of the Governor of New York 
must he executed for that purpose. Const. U.S. art. 4, 
§2; U.S. Rev. St. §5278, U.S. Comp. St. §10126; section 
827 of the Code of Criminal Procedure; Biddinger v. 
Commissioner of Police of the City of New York, 245 U.S. 
128, 38 Sup. Ct. 41, 62 L. Ed. 193; Appleyard v. Mass., 203 
U.S. 222, 227, 228, 27 Sup. Ct. 122, 51 L. Ed. 161, 7 Ann. 
Cas. 1073.

“ When the papers are regular, and contain a sufficient 
charge of crime, and it sufficiently appears that the rela­
tor is the person named in the indictment, and that he was 
within the demanding state on the day which the indict­
ment alleges as the date of the crime, the Governor of the 
state in which the, fugitive is found is under the duty of 
surrendering the fugitive into the custody of the demand­
ing state. This duty, which is imposed by the Constitu­
tion of the United States, is imperative.

“ [3] The only questions before the court are whether 
the relator is unlawfully deprived of his liberty and 
whether the Governor of this state, in honoring the de­
mand of the foreign state, has acted without authority of 
law. I t is not enough for the relator to show that the in­
dictment is defective under the laws of this state; he is 
bound to overcome the presumption that the Governors



15

of the two states have performed their duties under the 
laws of the United States. People ex rel. Marshall v. 
Moore, 167 App. Div. 479, 153 N. Y. Supp. 10.

/  “ [1] The relator in this proceeding is a negro. I t is 
/ contended that the indictment is invalid because, in viola- 
I tion of the Constitution and laws of the state of North 
|  Carolina and in violation of the Constitution and laws 

of the United States, negroes were excluded from the 
grand jury which found the indictment. This point can­
not be raised in this proceeding. I t  is a matter which 
the defendant can raise only in the courts of the state 

' of North Carolina, when he is brought to trial there 
\ under the indictment which is the basis for his extradi- 
\ tion. In Re Wood, 140 U.S. 278,11 Sup. Ct. 738, 35 L. Ed. 

V 505, the court laid down the following rules:
“  ‘When the statutes of a state do not exclude persons 

of African descent from service as grand or petit jurors, 
a person accused in a state court of crime, who desires 
to avail himself of the fact that they Avere so excluded 
in the selection of the grand jury which found the indict­
ment against him, or of the petit jury which tried him, 
should make the objection in the state court during the 
trial, and, if overruled, should take the question for de­
cision to the highest court to which a writ of error could 
be sued out from this court, and, failing to do so, he can­
not have the adverse decision of the state court revieAved 
by a Circuit Court of the United States upon a writ of 
habeas corpus.’

“ I t  is true that the Wood Case Avas not an extradition 
proceeding, but the principle upon which the decision in 
that case Avas based Avas that an objection to an indict­
ment on the ground that persons of African descent Avere 
excluded from the grand jury can be raised only in the 
trial court. The courts of this state cannot undertake to 
sit in judgment upon the methods or procedure folloAved



16

in a sister state in administering the laws of the sister 
state. Any objection to such methods and procedure must 
be made in the courts of the sister state. I t  must he as­
sumed that relator will have a fair trial in North Carolina.

“ Relator contends that he should not be surrendered 
to the agent of the state of North Carolina, because he 
will be in danger of mob violence there, and, if brought 
to trial, will not have a fair trial. This court cannot 
go into that question in this proceeding. The courts of 
this state cannot impugn the motives of the authorities 
of the state of North Carolina, by conducting an inquiry 
into the question of whether the fugitive will he accorded 
protection and given a fair trial in that state. We are 
bound to assume that the authorities of the state of North 
Carolina will do their full duty to the prisoner—will give 
him ample protection and accord him all his legal rights. 
We are not dealing here with a foreign power, but with 
a sister state of the Union, whose sovereignty is equal 
to our sovereignty, and who is entitled to our full confi­
dence. See Marbles v. Creecy, 215 U.S. 63, 30 Sup. Ct. 
32, 54 L. Ed. 92; Commonwealth v. Philadelphia Prison, 
220 Pa. 401, 69 Atl. 916, 21 L.R.A. (N.S.) 939; E x parte 
Swearingen, 13 S.C. 74; 2 Moore on Extradition, §617; 
People ex rel. MacSherry v. Enright, 112 Misc. Rep. 568, 
184 N.Y. Supp. 248.

“ W rit dismissed.” People v. Enright, 191 N.Y. S. 491, 
493-495.

If the decision of the Court in the Enright case quoted 
above is not to be followed, many practical difficulties will 
be placed in the path of prosecuting officials seeking the ren­
dition of alleged fugitives which are repugnant to the entire 
spirit and letter of the laws relative to interstate rendition. 
The purpose of these laws is to facilitate speedy trials for 
accused in the jurisdiction where the offense was committed, 
and, to effectuate this purpose, the return of fugitives from



17

one state to another should be rendered as facile as possible. 
For the Courts to hold differently than the decision in the 
Enright case would permit fugitives to raise many technical 
objections relative to Grand Jury proceedings which would 
be difficult or impossible for prosecuting officials to meet in 
distant jurisdictions. Questions such as the presence of un­
authorized persons in the Grand Jury, irregularities in the 
procedure of drawing the Grand Jury, or irregularities com­
mitted during the deliberations of a Grand Jury would then 
be open to a petitioner in habeas corpus. More serious and 
more easily determined matters such as the question of the 
insufficiency of the indictment as a matter of law because of 
defects of pleading, because of the invalidity of the statute 
upon which the indictment was based, or because of the exis­
tence of defenses to the indictment such as the statute of 
limitations or insanity are not now open to a petitioner in 
habeas corpus proceedings. The petitioner is precluded from 
raising these questions even though a federal constitutional 
question is involved in their determinaton. I t  would be 
most inconsistent for a Court to bar inquiry into these mat­
ters and at the same time permit a petitioner to question 
the validity or sufficiency of an indictment because of alleged 
irregularities relative to the procedure of the Grand Jury in 
the proceedings in which the indictment was returned. In ­
quiry into such matters should be denied the petitioner in 
the same manner as inquiry into the validity or sufficiency 
of the indictment for the causes considered under the pre­
ceding headings of this brief. This inquiry should be barred 
even though the alleged irregularities may involve the peti­
tioner’s constitutional rights.

5. The decisions in cases involving the removal of an alleged 
fugitive for trial from one federal district to another shoidd 
be followed in the present case by analogy.

Cases involving removal for trial from one federal district 
to another have uniformly held that all questions as to the



18

validity or sufficiency of an indictment, valid upon its face, 
must be determined in the jurisdiction in which the indictment 
was returned.

In the case of Henry v. Henkel, 235 U.S. 219, the petitioner 
was indicted in the District of Columbia for failure or refusal 
to give testimony before a senate investigating committee. He 
was arrested in another jurisdiction and his removal ordered 
under the general removal statute. He thereupon applied for 
a writ of habeas corpus, alleging that the statute under which 
he was indicted was unconstitutional. The Court held that 
the question on the constitutionality of the statute was an 
issue to be determined by the trial Court.

“ When a person under arrest applies for discharge 
on writ of habeas corpus the issue presented is whether 
he is unlawfully restrained of his liberty. Rev. Stat. §752. 
But there is no unlawful restraint where he is held under 
a valid order of commitment, so that in strict logic the 
inquiry might extend to the legal sufficiency of the order. 
In view, however, of the nature of the writ and of the 
character of the detention under a warrant, no hard and 
fast rule has been announced as to how far the court 
will go in passing upon questions raised in habeas corpus 
proceedings. In cases which involve a conflict of juris­
diction between state and Federal authorities, or where 
the treaty rights and obligations of the United States 
are involved, and in that class of cases pointed out in 
Ex parte Roy all, 117 U. S. 241; Ex parte Lange, 18 Wall. 
163; New York v. Eno, 155 U. S. 89; In  re Loney, 134 U. S. 
372, the court hearing the application will carefully in­
quire into any matter involving the legality of the de­
tention and remand or discharge as the facts may re­
quire. But, barring such exceptional cases, the general 
rule is that, on such applications, the hearing should be 
confined to the single question of jurisdiction, and even 
that will not be decided in every case in which it is raised. 
For otherwise the ‘habeas corpus courts could thereby



19

draw to themselves, in the first instance, the control of 
all prosecutions in state and Federal courts.’ To estab­
lish a general rule that the courts on habeas corpus, and 
in advance of trial, should determine every jurisdictional 
question would interfere with the administration of the 
criminal law and afford a means by which, with the exist­
ing right of appeal, delay could be secured when the 
Constitution contemplates that there shall be a speedy 
trial, both in the interest of the public, and as a right 
to the defendant.

“ The question has been before this Court in many 
cases—some on original application and others on writ 
of error; in proceedings which began after arrest and 
before commitment; after commitment and before con­
viction; after conviction and before review. The appli­
cations were based on the ground of the insufficiency of 
the charge, the insufficiency of the evidence, or the un­
constitutionality of the statute, state or Federal, on which 
the charge was based. In some of the cases the appli­
cants have advanced the same arguments that are here 
pressed, including that of hardship of being taken to a 
distant State for trial upon an indictment alleged to be 
void.

“ But in all these instances, and notwithstanding the 
variety of forms in which the question has been presented, 
the court, with the exceptions named, has uniformly held 
that the hearing on habeas corpus is not in the nature, 
of a writ of error nor is it intended as a substitute for 
the functions of the trial court. Manifestly, this is true 
as to disputed questions of fact, and it is equally so as 
to disputed matters of law, whether they relate to the 
sufficiency of the indictment or the validity of the statute- 
on which the charge is based. These and all other con­
troverted matters of law and fact are for the determina­
tion of the trial court. (Italics ours.) If the objections are 
sustained or if the defendant is acquitted he will be dis­



20

charged. If they are overruled and he is convicted he 
has his right of review. Kaizo v. Henry, 211 U. S. 146, 
148. The rule is the same whether he is committed for trial 
in a court within the district or held under a warrant of 
removal to another State. He cannot, in either case, 
anticipate the regular course of proceeding by alleging 
a want of jurisdiction and demanding a ruling thereon 
in habeas corpus proceedings. Glasgow v. Moyer, 225 
U. S. 420; In  re Gregory, 219 U. S. 210; Ex parte Simon, 
208 U. S. 144; Johnson v. Hoy, 227 U. S. 245; Urquhart 
v. Brown, 205 U. S. 179; Hyde v. Shine, 199 U. S. 62; 
Beavers v. Henkel, 194 U. S. 73; Biggins v. United States, 
199 U. S. 547, 551; E x parte Boyall, 117 U. S. 241.

“ The Jast^of these decisions is particularly in point 
/ not only because of the applicability of its reasoning to 
I the present case, but because of the fact that the writ 

was there denied even though the statute, on which the 
charge was based, was ultimately held to be void. Boyall 
v. Virginia, 116 U. S. 572, 579, 583; Same v. Same, 121 U. S. 
102, 104; In  re Royall, 125 U. S. 696.

“ The cases cited do not, of course, lead to the con­
clusion that a citizen can be held in custody or removed 
for trial where there was no provision of the common 
law or statute making an offense of the acts charged. 
In  such case the committing court would have no juris­
diction, the prisoner would be in custody without war­
rant of law and therefore entitled to his discharge. 
Greene v. Henkel, 183 U. S. 249, 261.” Henry v. Henkel, 
235 U.S. 219, 227-230.

Another of the leading cases on this subject is Morse v. 
United States, 267 U.S. 80 (1925). Delivering the opinion of 
the Court, Mr. Justice Sutherland, on page 83, said:

“ The second contention (that the indictment was fatally 
defective) proceeds upon a complete misconception of 
the purpose for which the indictment is produced and



21

considered in removal proceedings, and the authoritative 
effect of the ruling of the commissioner and the court 
on habeas corpus in respect thereof. The inquiry in such 
proceedings is whether there is probable cause to believe 
the prisoner guilty and justify his removal for trial. 
That inquiry may he made and the prisoner removed to 
the trial district in advance of indictment or without the 
production of the indictment if one has been found. 
Greene v. Henkel, 183 U. S. 249, 260; Pierce v. Creecy, 
210 U. S. 387, 403; United States v. Greene, 100 Fed. 941, 
943. The indictment was before the commissioner simply 
as evidence for the purpose of establishing or tending 
to establish the commission of an offense; and the com­
missioner had authority to pass upon its effect in that 
aspect only. The court reviewing the action of the com­
missioner under Sec. 1014 upon habeas corpus was gov­
erned by the same rules and its decision was subject to 
the same limitation. Henry v. Henkel, 235 U. S. 219, 230; 
Benson v. Palmer, 31 App. D. C. 561, 564-565. Neither 
had authority to determine the sufficiency of the indict­
ment as a pleading. ‘The only safe rule is to abandon 
entirely the standard to which the indictment must con­
form, judged as a criminal pleading, and consider only 
whether it shows satisfactorily that the fugitive has been 
in fact, however inartificially, charged with crime in the 
State from which he has fled.’ Pierce v. Creecy, supra, 
pp. 401, 402. In Benson v. Henkel, 198 U. S. 1, 12, this 
court said: ‘While we have no desire to minimize what 
we have already said with regard to the indictment set­
ting out the substance of the offense in language sufficient 
to apprise the accused of the nature of the charge against 
him, still it must be borne in mind that the indictment 
is merely offered as proof of the charge originally con­
tained in the complaint, and not as a complaint in itself 
or foundation of the charge, which may be supported by 
oral testimony as well as by the indictment. When the



22

accused is arraigned in the trial court he may take ad­
vantage of every insufficiency in the indictment, since 
it is there the very foundation of the charge, but to hold 
it to be the duty of the Commissioner to determine the 
validity of every indictment as a pleading, when offered 
only as evidence, is to put in his hands a dangerous power, 
which might be subject to serious abuse. If, for instance, 
he were moved by personal considerations, popular 
clamor or insufficient knowledge of the law to discharge 
the accused by reason of the insufficiency of the indict­
ment, it might turn out that the indictment was perfectly 
valid and that the accused should have been held. But 
the evil once done is, or may be, irremediable, and the 
Commissioner, in setting himself up as a court of last 
resort to determine the validity of the indictment, is liable 
to do a gross injustice.’ ”

To the same effect are the following:

Rumely v. McCarthy, 250 U.S. 283.
Simon v. Keville, 4 Fed. (2d) 575.
Whitaker v. Hitt, 52 App. D.C. 149, 285 Fed. 797.

Aside from the question as to whether or not the petitioner 
is a fugitive, the procedure in interstate rendition and removal 
between federal districts should be treated in as nearly the 
same manner as possible. The purpose of each proceeding 
is identical—to facilitate the speedy trial of all persons 
charged with crime. The indictment or affidavit required in 
interstate rendition should not be scrupulously examined. Its 
purpose is merely to prove that the alleged fugitive is sub­
stantially charged with having committed a crime. Defenses 
to that charge of crime, of whatever nature or character they 
may be, should be left to the determination of the Courts of 
the demanding jurisdiction. The orderly process of law 
enforcement should not be impeded by permitting such de-



23

fenses to be raised collaterally in proceedings such as the 
present petition.

6. In  general and except in a small class of unusual cases, in 
which class the present case does not fall, it has been held 
that habeas corpus cannot be used as a substitute for a 
writ of error even when constitutional rights are involved.

In J ohnson v. Hoy, 227 U.S. 245, 33 Sup. Ct. 240, the peti­
tioner was indicted for violation of the White Slave Traffic Act.
He applied for a writ of habeas corpus on the ground that the 
Act under which he was indicted was unconstitutional and 
void. The Court, in denying the petition for the writ of 
habeas corpus, said, on page 247:

I
“ The writ of habeas corpus is not intended to serve 

the office of a writ of error even after verdict; and, for
still stronger rea.snncyif_ig nnt available to a dp-ffinrjfl.pt-------
before trial, except. in rare and exceptional oflps^ as^ 
pointed out in E x parte Rouall. 117 U. S. 241. . . . This 
is an effort to nullify that rule, and to depai't from the 
regular course of criminal proceedings by securing from 
this court, in advance, a decision on an issue of law which 
the defendant can raise in the district court, with the 
right, if convicted, to a writ of error on any ruling ad­
verse to his contention. That the orderly course of a 
trial must be pursued and the usual remedies exhausted, 
even where the petitioner attacks on habeas corpus the 
constitutionality of the statute under which he was in­
dicted, was decided in Glasgow v. Moyer, 225 U. S. 420, 56 
L. ed. 1147, 32 Sup. Ct. Rep. 753.”

In reviewing and reaffirming the earlier cases on this sub­
ject Mr. Chief Justice Fuller said, in the case of In re Chap­
man, 156 U.S. 211, at page 216:

“ In New York v. Eno, 155 U. S. 89, the circumstances 
under which a court of the United States should, upon



24

habeas corpus, discharge one held in custody under the 
process of a state court were considered, as they had 
previously been in Ex parte Royall, 117 U. S. 241, and 
the views expressed in the latter case reiterated with 
approval. I t  was held that Congress intended to invest 
the courts of the Union and the justices and judges thereof 
with power upon writ of habeas corpus to restore to lib­
erty any person within their respective jurisdictions held 
in custody, by whatever authority, in violation of the 
Constitution or any law or treaty of the United States; 
that the statute contemplated that cases might arise when 
the power thus conferred should be exercised during the 
progress of proceedings instituted in a state court against 
a prisoner on account of the very matter presented for 
determination by the writ of habeas corpus; but that the 
statute did not imperatively require the Circuit Court by 
that writ to wrest the prisoner from the custody of the 
state officers in advance of his trial in the state court; 
and that while the Circuit Court had the power to do so 
and could discharge the accused in advance of his trial, it 
was not bound in every case to exercise such power im­
mediately upon application being made for the writ. The 
conclusion was that, in a proper exercise of discretion, 
the Circuit Court should not discharge the petitioner until 
the state court had finally acted upon the case, when it 
could be determined whether the accused, if convicted, 
should be put to his writ of error, or the question deter­
mined on habeas corpus whether he was restrained of 
his liberty in violation of the Constitution of the United 
States. These principles were fully discussed in the 
cases of the appeals of Royall from judgments on habeas 
corpus of the Circuit Court of the United States for the 
Eastern District of Virginia, 117 U. S. 241, and in addi­
tion thereto Royall made an original application to this 
court for a Avrit of habeas corpus, which was denied upon 
the grounds stated in the previous cases. E x parte Royall, 
117 U. S. 254.”



25

In view of the delicate relations existing between federal 
and state Courts, it has been repeatedly held that only in ex­
ceptional cases will federal Courts interpose by habeas corpus. 
These cases have been well defined by the Courts, and the in­
stant case does not come within the exceptions.

The exceptional cases are treated at length in the case of 
Ex parte Royall, No. 1 and No. 2,117 U.S. 241, by Mr. Justice 
Harlan, giving the opinion of the Court, on page 251 et seq.:

“ We cannot suppose that Congress intended to com­
pel those courts, by such means, to draw to themselves, 
in the first instance, the control of all criminal prosecu­
tions commenced in State courts exercising authority 
within the same territorial limits, where the accused 
claims that he is held in custody in violation of the Con­
stitution of the United States. The injunction to hear 
the case summarily, and thereupon ‘to dispose of the 
party as law and justice require’ does not deprive the 
court of discretion as to the time and mode in which it 
will exert the powers conferred upon it. That discre­
tion should be exercised in the light of the relations exist­
ing, under our system of government, between the judicial 
tribunals of the Union and of the States, and in recogni­
tion of the fact that the public good requires that those 
relations be not disturbed by unnecessary conflict between 
courts equally bound to guard and protect rights secured 
by the Constitution.”

The exceptional cases are enumerated by the Court as 
follows:

“ When the petitioner is in custody by State authority 
for an act done or omitted to be done in pursuance of a 
law of the United States, or of an order, process, or 
decree of a court or judge thereof; or where, being a sub­
ject or citizen of a foreign State, and domiciled therein,



26

he is iii custody, under like authority, for an act done or 
I omitted under any alleged right, title, authority, privi- 
| lege, protection, or exemption claimed under the com- 
i mission, or order, or sanction of any foreign State, or
I '  '

under color thereof, the validity and effect whereof de­
pend upon the law of nations; in such and like cases of 
urgency, involving the authority and operations of the 
General Government, or the obligations of this country 
to, or its relations with, foreign nations, the courts of 
the United States have frequently interposed by writs 
of habeas corpus and discharged prisoners who were held 
in custody under State authority. So, also, when they 
are in the custody of a State officer, it may be necessary, 
by use of the writ, to bring them into a court of the 
United States to testify as witnesses.”

The Court further said:
“ The present cases involve no such considerations. Nor 

do their circumstances, as detailed in the petitions, sug­
gest any reason why the State court of original jurisdic­
tion may not, without interference upon the part of the 
courts of the United States, pass upon the question which 
is raised as to the constitutionality of the statutes under 
which the appellant is indicted. The Circuit Court was 
not at liberty, under the circumstances disclosed, to pre­
sume that the decision of the State court would be other­
wise than is required by the fundamental law of the land, 
or that it would disregard the settled principles of con­
stitutional law announced by this court, upon which is 
clearly conferred the power to decide ultimately and 
finally all cases arising under the Constitution and laws 
of the United States. In Taylor v. Carryl, 20 How. 583, 7 
595, it was said to be a recognized portion of the duty 
of this court—and, we will add, of all other courts, Na| 
tional and State—‘to give preference to such principled 
and methods of procedure as shall serve to conciliate the



27

distinct and independent tribunals of the States and of 
the Union, so that they may cooperate as harmonious 

members of a judicial system coextensive with the United 
States, and submitting to the paramount authority of the 
same Constitution, laws, and Federal obligations.’ And 
in Covell v. Heyman, 111 U. S. 176, 182, it was declared 
‘that the forbearance which courts of co-ordinate juris­
diction, administered under a single system, exercise to­
wards each other, whereby conflicts are avoided, by avoid­
ing interference with the process of each other, is a prin­
ciple of comity, with perhaps no higher sanction than 
the utility which comes from concord; but between State 
courts and those of the United States it is something 
more. I t is a principle of right and of law, and, there­
fore, of necessity.”

In In  re Frederick, Petitioner, 149 U.S. 70, the Court said, 
on page 75:

“ While the writ of habeas corpus is one of the rem­
edies for the enforcement of the right to personal free­
dom, it will not issue, as a  matter of course, and it 
should be cautiously used by the federal courts in refer­
ence to state prisoners.”

The Court, in Pettibone v. Nichols, 203 U.S. 192, said, on 
page 201, Mr. Justice Harlan delivering the opinion:

“ The duty of a federal court to interfere, on habeas 
corpus, for the protection of one alleged to be restrained 
of his liberty in violation of the Constitution or laws of 
the United States, must often be controlled by the special 
circumstances of the case, and unless in some emergency 
demanding prompt action the party held in custody by a 
state and seeking to be enlarged will be left to stand his 
trial in the state court, which, it will be assumed, will 
enforce—as it has the power to do equally with a court



28

of the United States; Robb v. Connolly, 111 U. S. 624, 
637—any right secured by the Supreme law of the land. ’ ’

In the Matter of the Application of J. Harry Spencer, 228 
U.S. 652, for writ of habeas corpus, on the ground of exces­
sive sentence and ex post facto law, the Court said, on page 
659:

“ And surely even a defendant in a criminal case can­
not complain if in the tribunals in which he is arraigned 
for crime, he has opportunity to deny the crime, require 
its proof, resist unjust or excessive punishment and have 
a review of all rulings through the successive state tri­
bunals and finally in the ultimate court of review upon 
questions under the Constitution of the United States. 
This being a defendant’s opportunity, we have declared 
many times that it would only be an exceptional case 
when we should interfere by habeas corpus with the course 
or final administration by the state courts of the criminal 
justice of a state. The cases are very numerous.”

The case of TJrquhart, Sheriff, v. Brown, 205 U.S. 179, de­
cided in 1907, was an appeal to the United States Supreme 
Court by the State of Washington, after the United States 
Circuit Court had discharged the prisoner on a writ of habeas 
corpus. Mr. Justice Harlan, giving the opinion of the Court, 
said, on page 181 et seq.:

“ I t  is the settled doctrine of this court that although 
the Circuit Courts of the United States, and the several 
justices and judges thereof, have authority, under exist­
ing statutes, to discharge, upon habeas corpus, one held 
in custody by state authority in violation of the Con­
stitution or of any treaty or law of the United States, 
the court, justice or judge has a discretion as to the time 
and mode in which the power so conferred shall be 
exerted; and that in view of the relations existing, under



29

our system of government, between the judicial tribunals 
of the Union and of the several States, a Federal court 
or a Federal judge will not ordinarily interfere by habeas 
corpus with the regular course of procedure under state 
authority, but will leave the applicant for the writ of 
habeas corpus to exhaust the remedies afforded by the 
State for determining whether he is illegally restrained 
of his liberty. After the highest court of the State, com­
petent under the state law to dispose of the matter, has 
finally acted, the case can be brought to this court for 
reexamination. ’ ’

Exceptions:
“ The exceptional cases in which a Federal court or 

judge may sometimes appropriately interfere by habeas 
corpus in advance of final action by the authorities of 
the State are those of great urgency that require to be 
promptly disposed of, such, for instance, as cases ‘in­
volving the authority and operations of the General 
Government, or the obligations of this country to, or its 
relations with, foreign nations.’ ”

“ So, in the recent case of Drury v. Lewis, 200 U. S. 1, 
it was said that in cases of the custody by state authori­
ties of one charged with crime the settled and proper 
procedure was for a Circuit Court of the United States 
not to interfere by habeas corpus, ‘unless in cases of 
peculiar urgency, and that instead of discharging they 
will leave the prisoner to be dealt with by the courts of 
the S tate; that after a final determination of the case by 
the state court, the Federal courts will even then gener­
ally leave the petitioner to his remedy by writ of error 
from this court. The reason for this course is apparent. 
I t  is an exceedingly delicate jurisdiction given to the 
Federal courts by which a person under an indictment 
in a state court and subject to its laws may, by the deci­
sion of a single judge of the Federal court, upon a writ



30

of habeas corpus, be taken out of the custody of the 
officers of the State and finally discharged therefrom. ’ ’ ’

In Frank v. Mangum, 237 U.S. 309, the Court said, on page 
328:

“ It is, indeed, settled by repeated decisions of this

/' court that where it is made to appear to a court of the 
United States that an applicant for habeas corpus is in 
the custody of a state officer in the ordinary course of 
a criminal prosecution, under a law of the state not in 
itself repugnant to the Federal Constitution, the writ,. 
in the absence of very special circumstances, ought not 

| 'to  be issued until the state prosecution has reached its 
conclusion, and not even then until the Federal ques­
tions arising upon the record have been brought before 
this court upon writ of error. Ex parte Royall, 117 U. S. 
241, 251; Re Frederick, 149 U. S. 70, 77; Whitten v. Tom­
linson, 160 U. S. 231, 242; Raker v. Grice, 169 U. S. 284, 
291; Tinsley v. Anderson, 171 U. S. 101, 105; Markuson v. 
Roucher, 175 U. S. 184; Urquhart v. Rrown, 205 U. S. 179. 
And see Henry v. Henkel, 235 U. S. 219, 228.”

In the case of United States, ex rel. Kennedy et al., v. Tyler, 
Sheriff, et al., 269 U.S. 13, the Court said, on page 17:

“ The rule has been firmly established by repeated de­
cisions of this court that the power conferred on a federal 
court to issue a writ of habeas corpus to inquire into the 
cause of the detention of any person asserting that he 
is being held in custody by the authority of a state court 
in violation of the Constitution, laws or treaties of the 
United States, is not unqualified, but is to be exerted in 
the exercise of a sound discretion. The due and orderly 
administration of justice in a state court is not to be 
thus interfered with save in rare cases where exceptional 
circumstances of peculiar urgency are shown to exist. ’ ’

Ex parte Royall, 117 U.S. 241, 250-253;



31

In  re Wood, 140 U.S. 278, 289;
In re Frederick, 149 U.S. 70, 77-78;
And others cited.

It can be readily observed from the foregoing cases that 
federal Courts will not interfere in habeas corpus proceed­
ings with the orderly procedure of the state Courts in enforc­
ing their criminal laws. The exceptions, so well defined, refer 
only to cases “ involving the authority and operations of the 
General Government, or the obligations of this country to, 
or its relations with, foreign nations.” In the instant case 
the petitioner is charged with murder, which is a crime against 
the laws of the State of Virginia; he has been regularly in­
dicted; and a warrant for his extradition has been issued 
by the Governor of the asylum state. The circumstances of 
the said petitioner’s case do not in any manner come within 
the well-defined exceptions laid down by the Court of last 
resort of this country.

C . T h e  I n d i c t m e n t  i n  t h e  P r e s e n t  C a s e  is  n o t  V o id  a n d  I t s  

V a l id it y  o r  S u f f i c i e n c y  C a n n o t  b e  A t t a c k e d  C o l l a t e r a l l y  

i n  t h e  P r e s e n t  P r o c e e d in g .

The respondent does not admit that the Courts of Virginia 
or the Supreme Court of the United States will, if the ques­
tion raised by the petitioner in these proceedings is properly 
raised before the Court in which the indictment is returned, 
quash the said indictment. Neither does the respondent seek 
to set forth affirmatively in these proceedings that the indict­
ment will not be quashed if objections are taken thereto be­
fore the trial Courts of Virginia. The respondent presumes 
conclusively that the Courts of the Commonwealth of Vir­
ginia will decide this question, if properly raised, in strict 
accordance with the Constitution and laws of the United 
States and the Constitution and laws of the Commonwealth 
of Virginia. The respondent does not intend to discuss any



32

questions relative to the validity of the indictment against 
the petitioner which will perhaps be passed upon by the 
Court of Virginia if properly raised during his trial. The 
respondent contends that in these proceedings the District 
Court erred in ruling that the indictment is void. This con­
tention is based upon the claim that the District Couit could 
not properly consider in these proceedings the question of 
the invalidity of the indictment because of the possible effect 
of the evidence contained in the agreement and admitted over 
his objection, and that the only Court which has the power 
to pass upon the question of the validity or sufficiency of the 
indictment for these reasons is the Court in which the indict­
ment was returned—and that Court may pass upon this ques­
tion only if properly raised during the course of the trial.

The basis of the rulings of the District Court was that the 
facts contained in the agreement amounted to an exclusion 
of negroes from the Grand Jury, and that this exclusion had 
the effect of rendering the indictment returned by that Grand 
Jury  void. Irregularities in the course of a judicial pro­
ceeding, such as the exclusion of negroes from service as 
Grand Jurors, may constitute reversible error, but they do 
not render the entire proceedings void. The accused has the 
right to raise the question of such irregularities in the Court 
where the same occurred and to prosecute an appeal, in the 
event that the errors are not corrected, to the highest Court 
of the state and by writ of error to the Supreme Court of 
the United States. The existence of such irregularities, how­
ever, does not confer upon him the right to attack the pro­
ceedings collaterally; nor do such irregularities render illegal 
his detention under the warrant issued pursuant to such pro­
ceedings; nor is the warrant or the indictment void as a mat­
ter of law. The only question relative to the validity of the 
indictment that can be raised outside of the proceedings in 
which the irregularities occurred is the question of jurisdic­
tion of the original Court over the offense charged and the 
person alleged to have committed said offense.



33

. The petition for the writ sets forth no ground af­
fecting its jurisdiction either of the offence charged or 
of the person alleged to have committed it. If the ques­
tion of the exclusion of citizens of the African race from 
the lists of grand and petit jurors had been made during 

|  the trial in the Court of General Sessions, and erroneously 
\ decided against the appellant, such error in decision would 

not have made the judgment of conviction void, or his 
detention under it illegal. . . . ” In re Wood, 140 U.S. 
278, at 287.

On page 285, in the same case, the Court said:

“ We do not perceive that anything said in Neal v. 
Delaware would have authorized the Circuit Court to dis­
charge the appellant from custody, even if, upon investi­
gation, it had found that citizens of the race to which 
he belongs had been, in fact and because of their race, 
excluded from the lists of grand and petit jurors from 
which were selected the grand jurors who indicted and 
the petit jurors who tried him. That was a matter aris­
ing in the course of the proceedings against the appel­
lant, and during his trial, and not from the statutes of 
New York, and should have been brought at the appro­
priate time, and in some proper mode, to the attention of 
the trial court. Whether the grand jurors who found the 
indictment, and the petit jurors who tried the appellant, 
were or were not selected in conformity with the laws 
of New York—which laws, we have seen, are not obnox­
ious to the objection that they discriminate against 
citizens of the African race, because of their race—was a 

\ question which the trial court was entirely competent to 
decide, and its determination could not be reviewed by 
the Circuit Court of the United States, upon a writ of 
habeas corpus, without making that writ serve the pur­
poses of a writ of error. No such authority is given to 
the Circuit Courts of the United States by the statutes



34

defining and regulating their jurisdiction. I t  often oc­
curs in the progress of a criminal trial in a state court, 
proceeding- under a statute not repugnant to the Con­
stitution of the United States, that questions occur which 
involve the construction of that instrument and the de­
termination of rights asserted under it. But that does not 
justify an interference with its proceedings by a Circuit 
Court of the United States, upon a writ of habeas corpus 
sued out by the accused either during or after the trial 
in the state court. For ‘upon the state courts, equally 
with the courts of the Union, rests the obligation to 
guard, enforce, and protect every right granted or se­
cured by the Constitution of the United States and the 
laws made in pursuance thereof, whenever those rights 
are involved in any suit or proceeding before them;’ and 
‘if they fail therein, and withhold or deny rights, privi­
leges or immunities secured by the Constitution and laws 
of the United States, the party aggrieved may bring the 
case from the highest court of the State in which the 
question could be decided to this court for final and con­
clusive determination.’ Robb v. Connolly, 111 U.S. 624, 
637.”

And on page 289, the Court further said:

“ While the courts of the United States have power, 
upon habeas corpus, to inquire into the cause of the de­
tention of any one claiming to be restrained of his liberty 
in violation of the Constitution, or laws, or treaties of the 
United States, it was not intended by Congress that they 
should by writs of habeas corpus obstruct the ordinary 
administration of the criminal laws of the States, through 
their own tribunals.”

And again, on page 290:

“ These principles have special application where, as 
in the present case, there is no pretence that the statute



35

under which the prosecution of the appellant was con­
ducted is repugnant to the Constitution or laws of the 
United States.”

V “ Our conclusion is that the District Court had juris­
diction of the subject matter, and of the person, and that 
irregularities, if any, occurring in the mere conduct of 
the case, do not affect the validity of its final order.” 
Savin, Petitioner, 131 IT.S. 267, at 279.

- “ We are of opinion that the order of the Circuit Court 
must be affirmed. The matters alleged before that court 
against the action of the commissioner did not go to the 
question of his jurisdiction, so as to make such action 
reviewable on habeas corpus by the Circuit Court. He 
had jurisdiction of the subject matter and of the person 
of Stevens, under the proceedings instituted in conform­
ity with the statutes of Massachusetts. The objections 
taken on the part of Stevens, at the hearing before the 
commissioner, and also urged here, to the proceedings 
before the commissioner, all of them went only to alleged 
errors and irregularities in those proceedings, which 
could not be reviewed by the Circuit Court on a writ 
of habeas corpus, and cannot be taken cognizance of by 
this court on this appeal.” Stevens v. Fuller, 136 U.S. 
468, a t 477.

In the case of Andrews v. Swartz, 156 U.S. 272, the peti­
tioner sought a writ of habeas corpus after conviction on the 
ground that persons of the colored race had been excluded 
from the Grand Jury  which had returned the indictment and 
from the Petit Jury  which had convicted him because of their 
race, in violation of his constitutional rights, and on the 
further ground that he had no right of appeal under the laws 
of New Jersey. The Court said, on pages 275 and 276:



36

“ The further contention of the accused is that he is 
restrained of his liberty in violation of the Constitution 
and laws of the United States, in that persons of his race 
were arbitrarily excluded, solely because of their race, 
from the panel of jurors summoned for the term of the 
court at which he was tried, and because the state court 
denied him the right to establish that fact by competent 
proof.

“ I t  is a sufficient answer to this contention that the 
state court had jurisdiction both of the offense charged 
and of the accused. By the laws of New Jersey the Court 
of Oyer and Terminer and general jail delivery has ‘cog­
nizance of all crimes and offences whatsoever which, by 
law, are or shall be of an indictable or presentable nature, 
and which have been or shall be committed within the 
county for which such court shall be held.’ Rev. Stat. 
N. J. 272, §30. If the state court, having entered upon 
the trial of the case, committed error in the conduct of 
the trial to the prejudice of the accused, his proper remedy 
was, after final judgment of conviction, to carry the case 
to the highest court of the State having jurisdiction to 
review that judgment, thence upon writ of error to this 
court, if the final judgment of such state court denied any 
right, privilege or immunity specially claimed, and which 
was secured to him by the Constitution of the United 
States. Even if it be assumed that the state court im­
properly denied to the accused, after he had been ar­
raigned and pleaded not guilty, the right to show by 
proof that persons of his race were arbitrarily excluded 
by the sheriff from the panel of grand or petit jurors 
solely because of their race, it would not follow that the 
court lost jurisdiction of the case within the meaning of 
the well-established rule that a prisoner under conviction 
and sentence of another court will not be discharged on 
habeas corpus unless the court that passed the sentence 
was so far without jurisdiction that its proceedings must



37

be regarded as void. Ex parte Siebold, 100 U.S. 371, 375; 
In re Wood, 140 U.S. 278, 287; In re Shibuya Jugiro, 140 
U.S. 291, 297; Pepke v. Cronan, 155 U.S. 100. When a 
state court lias entered upon the trial of a criminal case, 
under a statute not repugnant to the Constitution of the 
United States, and has jurisdiction of the offence and of 
the accused, no mere error in the conduct of the trial 
should be made the basis of jurisdiction in a court of the 
United States to review the proceedings upon writ of 
habeas corpus.

“ The application to the Circuit Court for a writ of 
habeas corpus was properly denied, and the judgment 
must be

Affirmed.”

In the case of In re Shibuya Jugiro, 140 U.S. 291, the peti­
tioner, after conviction, sought his release on habeas corpus 
on the ground that all members of the yellow race had been 
excluded from the Grand and Petit Juries because of their 
race. The Court said, on pages 297-298:

“ It rests with each State to prescribe such qualifications 
as it deems proper for jurymen, taking care only that 
no discrimination, in respect to such service, be made 
against any class of citizens solely because of their race. 
The statutes of New York regulating these matters do 
not, in any way, conflict with the provisions of the Federal 
Constitution; and if, as alleged, they were so adminis­
tered by the state court, in appellant’s case, as to dis­
criminate against him because of his race, the remedy 
for the wrong done to him was not by a writ of habeas 
corpus from a court of the United States. ’ ’

In Kaiso v. Henry, 211 U.S. 146, the petitioner was indicted 
before a Grand Jury  for the Circuit Court of the Territory of 
Hawaii for murder, tried, convicted, and sentenced to death.



38

He applied for a writ of habeas corpus on the ground that 
eight of the Grand Jurors, who indicted him, were disqualified 
because they were not citizens of the United States. In re­
fusing the application for a writ of habeas corpus, the Court 
said, on page 149:

“ These well-settled principles are decisive of the case 
before us. Disqualifications of grand jurors do not de­
stroy the jurisdiction of the court in which an indictment 
is returned, if the court has jurisdiction of the cause 
and of the person, as the trial court had in this case. 
Ex parte Harding, 120 U.S. 782; In re Wood, 140 U.S. 
278; In  re Wilson, 140 U.S. 575. See Matter of Moran, 
203 U.S. 96, 104. The^ indictment, though voidable, if 
the objection is seasonably taken, as it was in this case, 
is not void. United States v. Gale, 109 U.S. 65. The 
objection may be waived, if it is not made at all or de­
layed too long. This is hut another form of saying that 
the indictment is a sufficient foundation for the jurisdic­
tion of the court in which it is returned, if jurisdiction 
otherwise exists. That court has the authority to decide 
all questions concerning the constitution, organization 
and qualification of the grand jury, and if there are errors 
in dealing with these questions, like all other errors of 
law committed in the course of the proceedings, they can 
only be corrected by writ of error.”

In E x parte Harding, 120 U.S. 782, the Court said, on page 
784:

“ The fact that a law of the territory allowed an alien 
who had declared his intention to become a citizen of 
the United States to sit on a grand jury, and that an alien 
did in fact sit on the jury that found the indictment 
against this petitioner, did not deprive the court of its 
jurisdiction for his trial under the indictment. The ob­
jection, if it be one, goes only to the regularity of the 
proceedings, not to the jurisdiction of the court.”



39

In In re Wilson, 140 U.S. 575, tlie petitioner was indicted 
for murder and convicted. He petitioned for a writ of habeas 
corpus, claiming the proceedings to be void because the Grand 
Jury was not a legally constituted tribunal. The Court said, 
on page 579, that even if the Grand Jury were not legally 
constituted, a defect in the number of Grand Jurors did not 
vitiate the entire proceedings so that they could be challenged 
collaterally on habeas corpus, but it was only a matter of 
error, to be corrected by proceedings in error. The Court 
said, on page 585:

“ If it be, therefore, a doubtful question, whether the 
defendant can, after trial and verdict, take advantage of 
such a defect by direct challenge, it would clearly seem 
that it is one not going to the matter of jurisdiction, and 
one which cannot he taken advantage of by a collateral 
attack in habeas corpus.”

In the Wood case and in the Andrews case, cited above, 
the claim was specifically made that the Court, because of the 
manner of drawing Grand Jurors, “ had no jurisdiction to 
indict and try a person of the African race,” and that the 
indictments returned by Grand Julies from which members 
of the African race had been excluded by the officials adminis­
tering the laws relative to the summonsing of Grand Jurors 
were void. The United States Supreme Court has held in 
the cases cited above that the Court in which such indictments 
ivere returned had jurisdiction, and that the alleged defect 
relative to the membership of the Grand Jury returning said 
indictments did not render the indictments void, but merely 
laid the basis for a claim of error in the trial Court, Avhich 
claim must of necessity be duly made during the course of 
the trial proceedings and properly prosecuted on appeal.

I t is submitted that the eAddence contained in the agree­
ment, even if it amounted to an exclusion of negroes from the 
Grand Jury  and came Avithin the doctrine in the case of Neal 
v. Delaware, did not have the effect of voiding the indictment,



40

but merely constituted irregularities that could be taken ad­
vantage of in the trial Court, but could not be set up collaterally 
in the present proceedings.

In the Scottsboro case, 224 Ala. 524, 532, 540, 140 Sou. 195, 
215, 201, the Supreme Court of Alabama refused to consider 
a question of exclusion of negroes from the jury panel be­
cause the same was not raised before the trial Court, and 
stated that this question could not be raised in the first in­
stance before an Appellate Court. This decision was, of 
course, reversed on another ground by the United States 
Supreme Court. Powell v. State of Alabama, Patterson v. 
State of Alabama, Weems v. State of Alabama, 53 Sup. Ct. 55. 
The majority opinion in this case stated that it dealt solely 
with the assignment of error in respect to the denial of coun­
sel, and did not consider the other assignments of error. In 
the dissenting- opinion Mr. Justice Butler stated:

“ The court putting aside—they are utterly without 
merit—all other claims that the constitutional rights of 
petitioners were infringed, grounds its opinion and judg­
ment upon a single assertion of fact. I t  is that peti­
tioners ‘were denied the right of counsel, with the ac­
customed incidents of consultation and opportunity of 
preparation for tria l.’ If that is true, they were denied 
due process of law and are entitled to have the judgments 
against them reversed. ’ ’

The decision of the Supreme Court of Alabama on a point 
which was not reversed by the Supreme Court of the United 
States thus holds that the exclusion of negroes from Grand 
Jury  service is an irregularity which must be availed of dur­
ing the trial. This appears to be in harmony with the pre­
vious decisions of the United States Supreme Court in the 
Wood case, the Andrews case, and other cases cited above. 
If, as was found by the District Court in the present petition, 
the indictment was void, the Supreme Court of Alabama could, 
and should properly, have considered this objection, although



41

raised in the first instance in the Appellate Court, as the trial 
Court would have had no jurisdiction to proceed on a void 
indictment. Similarly, if an indictment he void because of 
the exclusion of negroes from Grand Juries, thus depriving 
the trial Court of jurisdiction to act upon the indictment, 
this question would be open to the accused at any time. But 
it has been uniformly and consistently held, as set forth above, 
that an attack upon the validity of the indictment by reason 
of the exclusion of members of the race from service on the 
Grand Jury must be properly raised at the trial. I t cannot 
be raised collaterally after the trial. For even stronger rea­
sons it should not be permitted to be raised collaterally be­
fore the trial.

IV.
C o n c l u s io n .

I t  is respectfully submitted that the District Court erred 
in ruling that the evidence contained in the so-called agree­
ment was admissible, in ruling that the effect of said evidence 
was to render the indictment of the petitioner void, in ruling 
that the requisition papers of the Governor of the Common­
wealth of Virginia were not in proper form, and ordering the 
granting of the writ and discharge of the petitioner, for the 
following reasons:

1. These rulings are repugnant to the general purpose of 
the law of rendition.

2. These rulings are inconsistent with the cases which hold 
that questions relating to the validity or sufficiency of an 
indictment due to defects of form in said indictment may not 
be raised in habeas corpus proceedings in interstate rendition.

3. These rulings are inconsistent with the cases holding 
that questions relating to the validity or sufficiency of an in­
dictment because of the alleged unconstitutionality of the 
statute upon which said indictment is based may not be raised 
in habeas corpus proceedings in interstate rendition.



42

4. These rulings are inconsistent with cases holding that 
questions relating to the validity or sufficiency of an indict­
ment because of defenses such as the statute of limitations or 
insanity may not be raised in habeas corpus proceedings in 
interstate rendition.

5. These rulings are inconsistent with cases holding that 
questions relating to the validity or sufficiency of an indict­
ment because of alleged irregularities in the Grand Jury pro­
ceedings may not be raised in habeas corpus proceedings in 
interstate rendition.

6. These rulings are not in harmony with cases involving 
the removal of an alleged fugitive for trial from one federal 
district to another, and such cases should be followed in situ­
ations like the present by analogy.

7. These rulings are inconsistent with the cases holding 
that in general and, except in a small class of unusual cases 
in which the present case does not fall, habeas corpus cannot 
be used as a substitute for a writ of error, even when consti­
tutional rights are involved.

8. The indictment in the present case is not void and its 
validity or sufficiency cannot be attacked collaterally in the 
present proceedings.

JOSEPH E. WABNER,
Attorney General,

S. D. BACIGALUPO,
Assistant Attorney General, 

GEORGE B. LOURIE,
Assistant Attorney General, 

JOHN GALLEHER,
Commonwealth Attorney for 
Loudoun County, Virginia.







1

U n it e d  S t a t e s  C i r c u it  C o u r t  o f  A p p e a l s  f o r  t h e  F ir s t  
C i r c u it , O c t o b e r  T e r m , 1 9 3 2

No. 2824

F r a n k  G. H a l e , Lieutenant Detective, Massachusetts 
State Police, Respondent, Appellant,

v.
G e o r g e  C r a w f o r d , Petitioner, Appellee

Appeal from the District Court of the United States for 
the District of Massachusetts

Before Bingham, Wilson, and Morton, JJ .

O p i n i o n  o f  t h e  C o u r t — June 15, 1933 
B in g h a m , J . :

This is an appeal from an order of the District Court 
for Massachusetts in a habeas corpus proceeding discharg­
ing the applicant from the custody of the respondent, who 
held him under the warrant of the Governor of Massachu­
setts in an interstate rendition proceeding, directing his 
return to the State of Virginia.

At the February term, 1932, of the Circuit Court of 
Loudoun County, Virginia, the applicant, George Craw­
ford, a negro, was indicted for murder in two indictments. 
January 17, 1933, the Prosecuting Attorney for Loudoun 
County asked the Governor of Virginia to request the Gov­
ernor of Massachusetts to cause Crawford to be returned 
to Virginia. January 18, 1933, the Governor of Virginia 
made such request and the Governor of Massachusetts, after 
a hearing, on February 18, 1933, issued his warrant au­
thorizing the arrest of Crawford and his delivery to the 
duly authorized agents of Virginia. On that day the re­
spondent arrested Crawford on the warrant and now holds 
him thereunder. Thereupon Crawford filed in the federal 
District Court for Massachusetts a petition for the writ 
of habeas corpus, subsequently amended April 5, 1933. 
A summons having been issued and served, the respondent 
filed his return setting up that he held Crawford under 
and by virtue of the warrant, to be delivered to the Vir-



2

ginia agents; that Crawford was the identical person 
named in the w arrant; and denied each and every allega­
tion of the petition. April 24, 1933, the District Court 
ordered the writ of habeas corpus to issue and on that day 
the parties appeared before the court and were heard.

At the hearing the applicant offered in evidence an 
agreed statement of facts, which in substance was that 
while the statutes of Virginia, prescribing the qualifica­
tions of and who should be drawn as grand jurors, did 
not discriminate against persons of African descent, the 
Circuit Judge for Loudoun County, designated by law to 
select the grand jurors, selected no persons of African 
descent to serve on the grand jury which returned the 
indictments in question, but excluded from the list all such 
persons because of their race and color, although there 
were persons of African descent in that county duly quali­
fied to act as grand jurors. The facts stated in this agree­
ment were offered in evidence by the applicant and ad­
mitted by the court, subject to exception. The respondent 
put in evidence the requisition papers of the Governor of 
Virginia and the rendition warrant of the Governor of Mas­
sachusetts.

The requisition papers of the Governor of Virginia con­
tained the application of the Prosecuting Attorney of Vir­
ginia above referred to, copies of the indictments and the 
bench warrants issued thereon, a certificate that the indict­
ments were authentic and duly authenticated according to 
the laws of that State, that each charged Crawford with 
the crime of murder, which the Governor of Virginia cer­
tified to be a crime under the laws of that State committed 
in the County of Loudoun; and also a certificate that the 
Circuit Court for Loudoun County was a court of general 
jurisdiction. I t was further stated that Crawford was a 
fugitive from the justice of that State, had taken refuge in 
the State of Massachusetts, and a request was made that he 
be apprehended and delivered to certain persons named, 
who were authorized to receive and convey him to the State 
of Virginia.

It was agreed that Crawford, the party charged with 
crime in the indictments and described in the requisition 
warrant, was the identical person arrested and before the 
court, and that the evidence submitted by the respondent 
made a prima facie case for rendition.



3

Upon the case thus presented the District Court ruled 
that the indictments were void and ordered the applicant 
discharged; but remanded him to the custody of the re­
spondent pending final determination, of this appeal.

The first question to be considered is whether the court 
erred in admitting the evidence in regard to the discrimina­
tion by the officer of Virginia in the selection and organiza- 
ton of the grand jury which found the indictments. The 
indictments are conceded to be valid and proper on their 
face and the question is whether the evidence relating to 
the selection and organization of the grand jury and attack­
ing the validity of the indictments was competent.

This question, so far as we know, has not been passed 
on in a habeas corpus case arising out of an interstate 
rendition proceeding, but it has been in such cases arising 
out of proceedings under Sections 1014 of the Revised 
Statutes authorizing the arrest and removal of a person 
charged with crime in a federal district other than the one 
in which he is arrested. Greene v. Henkel, 183 U. S. 249, 
261. In that case the indictment was good on its face and 
the evidence offered attacked its validity on the ground 
that the grand jury which found the indictment was not 
made up as the law required. In discussing the admissi­
bility of the evidence, the court said:

“ We do not think that under this statute [Section 1014] 
the commissioner would be warranted in taking evidence in 
regard to the organization of the grand jury which found 
the indictment, as claimed by the defendants. The indict­
ment is valid on its face; purports to have been found by 
a grand jury acting in fact as such [Italics ours] at a regu­
lar term, of a District Court of the United States, presided 
over by one of its judges and hearing testimony in the 
ordinary way. In our opinion, such an indictment is prima 
facie good, and when a, copy of it is certified by the proper 
officer, a magistrate, acting pursuant to Section 1014 of the 
Revised Statutes, is justified in treating the instrument as 
an indictment found by a competent grand jury, and is not 
compelled or authorized to go into evidence which may 
show or tend to show violations of the United States 
statutes in the drawing of jurors composing the grand jury 
which found the indictment.” That “ Matters of that na­
ture are to be dealt with in the court where the indictment 
is found, and we intimate no opinion upon the merits of



4

those questions” ; that “ we do not think that by this order 
of removal the constitutional rights of the defendants are 
in anywise taken from them” ; that “ the provision that 
no person may be held to answer for an infamous crime 
unless upon the presentment or indictment of a grand jury 
is not violated or infringed” ; and that “ if this so-called 
indictment be void [voidable] for the reasons alleged, the 
place to set up its invalidity is the court in which it was 
found.”

Drew v. Thaw, 235 U. S. 432, 438, was an interstate rendi­
tion case. In that case Thaw was indicted by a New York 
grand jury and in the indictment it was alleged that he had 
been committed to the Matteawan State Hospital for the 
insane under an order of court reciting that he had been 
acquitted at his trial upon a former indictment on the 
ground of insanity and that his discharge was deemed 
dangerous to public safety; that being thus confined, he 
conspired with certain persons to procure his escape from 
the hospital and did escape, to the obstruction of justice 
and of the due administration of the laws. The Governor 
of New York made a demand upon the Governor of New 
Hampshire for his extradition alleging that Thaw was a 
fugitive from justice, and a copy of the indictment found 
by the New York grand jury accompanied the demand. The 
Governor of New Hampshire issued a warrant for the ar­
rest and return of Thaw, upon which he was arrested. 
Thaw then applied to the federal District Court for New 
Hampshire for a writ of habeas corpus and the District 
Court, after hearing, ordered his discharge. An appeal 
was taken to the Supreme Court. It appeared that, by a 
statute of New York, under which the indictment was 
found, it was provided that an agreement to commit any 
act for the perversion or obstruction of justice or of the 
due administration of the laws is a misdemeanor, if an 
overt act beside the agreement is done to effect the object. 
It was held (1) that, inasmuch as the courts of New York 
may hold that “ the withdrawal, by connivance, of a man 
from an insane asylum, to which he had been committed 
as Thaw was, did tend to obstruct the due administration 
of the law,” the indictment charged a crime; (2) that if 
the conspiracy constituted a crime there was no doubt that 
Thaw was a fugitive from justice; and (3) as to the con-



5

tention—that “ if Thaw was insane when he contrived his 
escape he could not be guilty of crime, while if he was not 
insane he was entitled to be discharged” and that his con­
finement and other facts required the court to assume that 
he was insane—the court held that this was not Thaw’s 
trial; that in extradition proceedings the purpose of the 
writ of habeas corpus was “ not to substitute the judgment 
of another tribunal upon the facts or the law of the matter 
to be tried” ; that the question of the sufficiency of the 
indictment was not open; and that, if the contention above 
stated “ offers a nice question, it is a question as to the law 
of New York which the New York courts must decide.” In 
concluding its opinion the court said:

“ When, as here, the identity of the person, the fact that 
he is a fugitive from justice, the demand in due form, the 
indictment by a grand jury for what it and the Governor 
of New York allege to be a crime in that State and the rea­
sonable possibility that it may be such, all appear, the con­
stitutionally required surrender is not to be interfered 
with by the summary process of habeas corpus upon specu­
lations as to what ought to be the result of a trial in the 
place where the Constitution provides for its taking place.”

And the court reversed the order of the District Court.
State of South Carolina v. Bailey, decided by the Su­

preme Court May 22, 1933, is an interstate rendition case. 
There Bailey was charged, on an affidavit by a policeman 
before a local magistrate, with having, on May 1, 1932, com­
mitted murder in South Carolina. Demand was made upon 
the Governor of North Carolina for delivery of the accused 
as a fugitive from justice. A warrant was issued by the 
Governor of North Carolina for the arrest of Bailey and 
his return to the state from which he fled. He was arrested 
on the warrant and at once applied to the local Superior 
Court for a writ of habeas corpus, alleging that he was not 
in the State of South Carolina at the time the murder was 
alleged to have been committed, but was in the State of 
North Carolina. The judge of the Superior Court, after 
hearing the parties and their evidence, ruled and found (1) 
that Bailey was a citizen of North Carolina; (2) that he 
was not a fugitive from justice; that he was not present 
in South Carolina at the time of the commission of the



6

alleged crime; and (3) that the State of South Carolina 
had failed to show probable cause for holding him; and 
discharged Bailey. The Supreme Court of North Carolina, 
on review, affirmed the judgment of the lower court. The 
case was then taken to the Supreme Court of the United 
States on certiorari. That court reviewed the evidence and 
findings of the two state courts and, after pointing out that 
the requisition papers were regular on their face and that 
in effect “ the matter for determination was whether the 
accused appeared to be held contrary to the Federal Con­
stitution and laws, ’ ’ said:

‘ ‘ The circumstances require this Court to search the rec­
ord and determine for ourselves whether upon the facts 
presented the courts below reached the proper conclusion.”

It held that the judgment below must be reversed, saying:
“ Considering the Constitution [Art. IV, Sec. 2, par. 2] 

and statute [Sec. 5278 Rev. Stat.] and the declarations of 
this Court, we may not properly approve the discharge of 
the respondent unless it appears from the record that he 
succeeded in showing by clear and satisfactory evidence 
that he was outside the limits of South Carolina at the 
time of the homicide. Stated otherwise, he should not have 
been released unless it appeared beyond reasonable doubt 
[Italics ours] that he was without the State of South Caro­
lina when the alleged offense was committed and conse­
quently, could not be a fugitive from her justice.”

This is a holding that, where the requisition papers in a 
rendition proceeding are regular on their face, and prima 
facie valid, the accused on habeas corpus, if he undertakes 
to controvert any fact essential to his rendition and thus 
appearing from the requisition papers, must do so by proof 
beyond a reasonable doubt.

And in Rodman v. Pothier, 264 U. S. 399, 402, a removal 
case, where the Court of Appeals for this Circuit, when the 
case was before it (291 Fed. 311, 321), was of “ the opinion 
that no other conclusion could be drawn from the evidence 
than that, at the time the crime charged in the indictment 
was committed, the United States had acquired no title in 
the land embraced within Camp Lewis Military Reserva­
tion; that the sovereignty of the State over the tract had



not been yielded up and was not until * * * more than
a year after the alleged murder” ; that consequently the 
United States was without jurisdiction over the locus where 
the crime was alleged to have been committed, and this 
deprived the federal District Court for Washington, the 
district to which removal was sought, of jurisdiction of the 
crime. But the Supreme Court evidently regarded the 
question of the jurisdiction of the United States over the 
crime as one going to the merits of the case and triable in 
the District Court to which removal was sought, not one 
going to the jurisdiction of that court (Louie v. United 
States, 254 U. S. 548), and held that such question, although 
it involved matters of law as well as of fact, was for the 
determination of the trial court, not to be reviewed on 
habeas corpus. It was there said:

“ Whether the locus of the alleged crime was within the 
exclusive jurisdiction of the United States demands con­
sideration of many facts and seriously controverted ques­
tions of laAv. As heretofore often pointed out, these mat­
ters must be determined by the court where the indictment 
was found. The regular course may not be anticipated 
by alleging want of jurisdiction and demanding a ruling 
thereon in a habeas corpus proceeding. Barring certain 
exceptional cases (unlike the present one), this Court ‘has 
uniformly held that the hearing on habeas corpus is not 
in the nature of a writ of error nor is it intended as a sub­
stitute for the functions of the trial court. Manifestly, 
this is true as to disputed questions of fact, and it is equally 
so as to disputed matters of law, whether they relate to 
the sufficiency of the indictment or the validity of the stat­
ute on Avhich the charge is based. These and all other 
controverted matters of laAv and fact are for the determina­
tion of the trial court.’ Henry v. Henkel, 235 U. S. 219, 
229; Louie v. United States, 254 U. S. 548.”

See also Beavers v. Henkel, 194 U. S. 73, at page 87; 
Benson v. Henkel, 198 U. S. 1, 16, 17; Haas v. Henkel, 216 
U. S. 462, 481, Records and Briefs in U. S. Supreme Court, 
October Term, 1909, No. 367;; Rodman v. Pothier, 291 Fed. 
311, 321; id. 264 U. S. 399, 402, Fitzgerald v. United States, 
6 Fed. (2d) 156, 157; and Removal of Federal Offenders, 
by Russell Hardy at pp. 42-47.



8
Although the question of the admissibility of evidence 

now under consideration has not been passed upon by the 
Supreme Court in a rendition case, we see no reason why 
the reasoning applied in removal cases involving such ques^ 
tion is not applicable in a rendition case involving the same 
or a like question. In removal cases the chief reason for 
rejection of the evidence seems to be that the matter to 
which it relates is one for the trial court to decide in the 
district to which removal is sought, it being an irregularity 
in the proceeding pending before that court and not a mat­
ter going to the jurisdiction of the court. Indeed it is this 
line of reasoning that is made use of and applied by the 
Supreme Court in habeas corpus proceedings brought by 
a person of African descent held for trial in a state court 
on an indictment found against him and where a like dis­
crimination was made in the selection of the grand jury 
finding the indictment.

In re Wood, 140 U. S. 278, is a case of that very nature. 
There Wood, a negro, was held in custody by a state war­
den of a prison of the State of New York, and presented 
a petition for writ of habeas corpus to the Federal Circuit 
Court for the Southern District of that State, setting forth 
the facts concerning his detention. His application was de­
nied by that court and he appealed to the Supreme Court 
of the United States on the ground that he was restrained 
of his liberty in violation of the Constitution and laws of 
the United States. It appeared that he had been indicted, 
tried, and convicted in the Court of General Sessions of 
the Peace in the City and County of New York for the 
crime of murder; had been sentenced to death; and com­
mitted to the custody of the warden awaiting execution. 
The indictment upon which he was arraigned and tried was 
found by a grand jury of that court from the panels and 
lists of which all persons of the African race and descent 
and black in color were excluded because of their race. 
And, while it was held that it was not the right of a colored 
citizen, party to a trial involving his life and liberty “ that 
his race shall have a representation on the jury,”  it was a 
right to which he was entitled “ that in the selection of the 
jurors to pass upon his life, liberty or property, there shall 
be no exclusion of his race, and no discrimination against 
them because of their color.”  I t  also held that the ques-



9

tion was one that could be availed of in the first instance 
only in the court of the state where the trial was had; that 
it was a right that might he waived unless the question 
was duly saved in the manner provided by law, and, if duly 
saved and the decision of the highest court of the state 
was against his constitutional right, that error could be 
reviewed by the Supreme Court on writ of error from that 
court, not by habeas corpus in the federal Circuit Court, 
and the order of the Circuit Court denying the writ was 
affirmed. The same line of reasoning was applied in the 
Thaw case, a rendition case.

e are, therefore, of the opinion that in a habeas corpus 
case, whether arising out of a rendition proceeding or a re­
moval one, evidence of the character here in question is 
not admissible, as the question to which it is addressed is 
not open to review and determination on habeas corpus in 
a federal court, at any rate in the first instance; that the 
question is one that can be heard and determined by the 
trial court in Virginia, and, as said in In re Wood, supra, 
it was not intended by Congress that the federal courts 
should, by writ of habeas corpus, obstruct the orderly ad­
ministration of the criminal laws of a state through its 
own tribunals.

But if we are mistaken in regard to the question just con­
sidered and the evidence was properly admitted, the ques­
tion remains whether the District Court erred in ruling 
that the Virginia indictments, the bases of the warrant 
under which the applicant is held, are void. As no opinion 
was filed by the District Court we have no complete state­
ment of the view it entertained. But it apparently was and 
is that the method pursued in Loudoun County, Virginia, 
in the making up of the lists for and the drawings of grand 
jurors, whereby the state officials discriminated against 
citizens of African descent because of race or color, was 
a violation of the applicant’s constitutional right under the 
Fourteenth Amendment and of such a nature as to render 
the indictments and all proceedings thereunder void, de­
priving the Virginia court of jurisdiction to proceed and 
try the case.

In Ex parte Virginia, 100 U. S. 339, 346, it was held that 
among the rights and immunities secured to the colored 
race by the Fourteenth Amendment to the Constitution was



10

the right to be tried upon an indictment found by grand 
jurors selected without discrimination because of race or 
color, and that such right was violated where an officer of 
the State effected the discrimination, even though he acted 
in violation of the statutes of the S tate; and that the State 
official who, in making up the lists and drawings of jurors, 
discriminated against citizens of African descent because 
of race or color, was subject to indictment for such conduct 
under a federal statute enacted to give effect to the Four­
teenth Amendment.

In Strauder v. West Virginia, 100 U. S. 303, a like con­
stitutional question was presented. There a statute of 
West Virginia provided that “ all white male persons who 
are twenty-one years of age and who are citizens of this 
state shall be liable to service as jurors, etc.” It there 
appeared that the plaintiff in error, a colored man, was in­
dicted for murder in the Circuit Court of Ohio County, 
West Virginia, and was convicted; that on appeal to the 
Supreme Court of the State the judgment of the Circuit 
Court was affirmed and that a writ of error was then taken 
to the Supreme Court of the United States. In the Cir­
cuit Court of the State, before trial was commenced, the 
defendant presented a petition asking that the cause be 
removed into the Circuit Court of the United States, as­
signing as ground for removal that, by virtue of the la'svs 
of the State of West Virginia, no colored man was eligible 
to be a member of the grand jury or to serve on a petit 
jury in the State, etc. The petition was denied and he was 
forced to trial. He also moved to quash the venire, made 
motions challenging the array of the panels, tor a new 
trial, and in arrest of judgment, all of which were over­
ruled, subject to exception. The first question considered 
was “ whether, by the Constitution and laws of the United 
States, every citizen of the United States has a light to 
a trial of an indictment against him by a jury selected and 
impanelled without discrimination against his race or color 
because of race or color; and second, if he has such a rig it, 
and is denied its enjoyment by the State in which he is in­
dicted, may he cause the case to be removed [Rev. Stat. 
Sec. 641] into the Circuit Court of the United States?’ 
Both of these questions were decided in the affirmative.

It is therefore established by these decisions that the



11

discrimination exercised by the State officers of Virginia 
in making up the lists and drawings of the grand jurors 
by whom Crawford was indicted was an infringement of 
his rights guaranteed by the Fourteenth Amendment, and 
the question is whether such act of discrimination is one 
which rendered the indictment void and deprived the Vir­
ginia courts of jurisdiction to try Crawford thereon. The 
answer to this question was forecast by what we have said 
and the decisions reviewed bearing upon the question re­
lating to the admissibility of the evidence disclosing dis­
crimination.

There are a number of cases in which the question has 
been considered and, as we understand them, they all point 
to the conclusion that the matter in question is an irregu­
larity of a kind that must be availed of at the trial in the 
state court where the indictment is found; that it is an ir­
regularity that may be and is waived, if the person on trial 
does not seasonably and in the modes provided by law raise 
the question in that court. In other words, that it does 
not render the indictment void or defeat the jurisdiction of 
the court in which the indictment is returned.

In Ex parte Harding, 120 U. S. 782, Harding petitioned 
the Supreme Court of the United Statesc for a writ of 
habeas corpus, asserting that he was deprived of his liberty 
and was about to be deprived of his life without the due 
process of law guaranteed by the Constitution of the United 
States, in that the indictment on which he had been tried 
and convicted in the territorial court for the Perritoiy of 
Montana was not found by a legal grand jury of the ter­
ritory in that it was not composed wholly of citizens of the 
United S tates; that one of the grand jurors who found and 
returned the indictment was an alien and therefore the in­
dictment was absolutely null and void. I t was there held 
that the fact that an alien was on the grand jury that found 
the indictment against the petitioner “ did not deprive the 
court of its jurisdiction for his trial under the indictment. 
The objection, if it be one, goes only to the regularity of 
the proceedings, not to the jurisdiction of the court. ’ ’ See 
also In re Wood, supra.

In Pearce v. Texas, 155 U. S. 311, Pearce was indicted in 
Alabama in comformity with the code of Alabama author­
izing an indictment without allegations as to the time or



12

place of the commission of the crime, and the indictment 
contained no such allegations. The Governor of Alabama 
having made demand for rendition of Pearce upon the Gov­
ernor of Texas, the latter issued his warrant for the arrest 
and return of Pearce to Alabama; and, while he was in the 
custody of the agent of the State of Alabama to be trans­
ported to Mobile for trial, he sued out a writ of habeas 
corpus before the judge of the Forty-second District of 
the State of Texas, praying to be discharged. The district 
judge denied the discharge and remanded him to the cus­
tody of the agent. Pearce then appealed to the Court of 
Criminal Appeals of the State of Texas, the court of last 
resort in criminal matters, where the decision below was 
affirmed. The case was then transferred to the Supreme 
Court of the United States on writ of error. In the Su­
preme Court it was stated that the question at issue re­
solved itself “ into one of the validity of the statute [the 
Code of Alabama] on the ground of its repugnancy to the 
Constitution, and the Court of Appeals declined to decide 
in favor of its validity.” In considering the matter the 
Supreme Court said:

“ What the state court [of Texas] did was to_leave the 
question as to whether the statute was in violation of the 
Constitution of the United States, and the indictments in­
sufficient accordingly, to the demanding State. Its  action 
in that regard simply remitted to the courts of Alabama 
the duty of protecting the accused in the enjoyment of his 
constitutional rights, and if any of those rights should be 
denied him which is not to be presumed, he could then seek 
his remedy in this court.”

In other words the court held that the constitutionality of 
the statute or Code of Alabama under which the indictment 
was found was, in rendition proceedings, a question which 
was, in the first instance at least, to be passed upon by the 
court of the demanding state in which the trial was to be 
had, and that the court of Texas did not err in denying the 
petition for habeas corpus and remanding the prisoner to 
the custody of the agent of Alabama for removal to that 
state.

Kaizo v. Henry, High Sheriff of Hawaii, 211 U. S. 146, 
was a writ of error from the Supreme Court of the United



13

States to the Supreme Court of the Territory of Hawaii. 
There Kaizo was indicted for murder by a grand juy at a 
term of the Circuit Court of that territory. The grand 
jury was composed of sixteen members. A plea in abate­
ment was seasonably filed alleging that eight of the grand 
jurors were not citizens of the United States or of the 
territory, a qualification prescribed by the laws of the 
territory. Whether the facts stated in the plea were true 
or not, it was agreed that the eight grand jurors were citi­
zens only by virtue of a judgment of naturalization in a 
Circuit Court of the territory. The trial court overruled 
the plea in abatement, holding that the Circuit Courts of 
the territory had jurisdiction to naturalize, subject to ex­
ceptions. Kaizo was found guilty and sentenced to death. 
He then prosecuted a writ of error from the Supreme 
Court of the territory assigning as error the overruling 
of the plea in abatement. That court affirmed the judg­
ment below and the Governor of the territory thereupon 
issued a death warrant commanding the High Sheriff to 
execute the sentence. No writ of error was taken to this 
judgment from the Supreme Court of the United States. 
Kaizo, however, filed a petition for a writ of habeas corpus 
in the Supreme Court of the territory, basing his claim on 
the facts set out in his plea of abatement and agreed to as 
above stated, alleging that the indictment was void and the 
trial court was without jurisdiction to proceed under it. 
The writ of habeas, corpus was discharged and the peti­
tioner remanded to the custody of the High Sheriff. It 
was to that judgment that the writ of error from the Su­
preme Court of the United States was directed. As to the 
question “ whether the eight members of the grand jury, 
whose qualifications were questioned, were naturalized by 
courts having the authority to naturalize aliens” the court 
found “ no occasion to decide or consider the question” ; 
that if Kaizo had desired the judgment of the Supreme 
Court upon that question, he should have brought a writ of 
error to the judgment of the Supreme Court of the terri­
tory; that he could not, by habeas corpus, raise “ questions 
not affecting the jurisdiction of the court which convicted 
him, which were open to him in the original case, and, if 
properly presented then, could ultimately have come to this 
court upon writ or error.” Having determined that the 
composition of the grand jury finding .the indictment did



14

not affect the jurisdiction of the court to hear the case 
upon the indictment, it said:

“ Disqualifications of grand jurors do not destroy the 
jurisdiction of the court in which an indictment is returned, 
if the court has jurisdiction of the cause and of the per­
son, as the trial court had in this case. Ex parte Harding, 
120 U. S. 782; In re Wood, 140 U. S. 278; In re Wilson, 140 
U. S. 575. See Matter of Moran, 203 U. S. 96, 104. The 
indictment, though voidable, if the objection is seasonably 
taken, as it was in this case, is not void. United States v. 
Gale, 109 U. S. 65. The objection may be waived, if it is 
not made at all or delayed too long. This is but another 
form of saying that the indictment is a sufficient founda­
tion for the jurisdiction of the court in which it is returned, 
if jurisdiction otherwise exists. That court has the au­
thority to decide all questions concerning the constitution, 
organization and qualification of the grand jury, and if 
there are errors in dealing with these questions, like all 
other errors of law committed in the course of the pro­
ceedings, they can only be corrected by writ of error. ’ ’

The Matter of Moran, 203 U. S. 96, 102, was a petition 
for writ of habeas corpus to the Supreme Court alleging 
the judgment of conviction for murder under which Moran 
was held was void and stating the ground in support of the 
petition to that court to be the want of jurisdiction of the 
trial court. There the indictment was* claimed to be void 
for the reason that it was found by a grand jury, some of 
whom were not electors of the Territory of Oklahoma and 
some of whom were nonresidents, and the trial judge, in 
summoning them for service, did so in violation of a law 
of Oklahoma. The Supreme Court denied the writ. After 
considering a certain question, it said:

‘ ‘ But it is proper to add that while the reason which we 
have given is logically the first to be considered by this 
court, we do not mean to give any countenance to the notion 
that if the law was disobeyed it affected the jurisdiction of 
the court. Ex parte Harding, 120 U. S. 782; In re Wilson, 
140 U. S. 575.

In Glasgow v. Moyer, 225 U. S. 420, 429, the court, after 
reviewing the cases, said:



15

“ The principle of the cases is a simple one that if a 
court has jurisdiction of the case the writ of habeas corpus 
cannot be employed to re-try [Italics ours] the issues, 
whether of law, constitutional or other, or of fact.”

That statement was made in a case where a trial had been 
had and it had special reference to that fact. The court 
might as well have said that “ if a court had jurisdiction of 
the case the writ of habeas corpus cannot be employed to 
try or re-try the issues, whether of law, constitutional or 
other, or of fact.” See also Felts v. Murphy, 201 U. S. 123.

Andrews v. Swartz, 156 U. S. 272, was a case where the 
indictment was found by a grand jury upon which persons 
of the colored race had been excluded because of their race 
or color. After conviction in the state court Andrews ap­
plied to the federal Circuit Court for New Jersey for a 
writ of habeas corpus. That court denied the application 
and the case was taken on writ of error to the Supreme 
Court. After pointing out that Andrews should have 
prosecuted a writ of error from the Supreme Court of the 
United States to the highest court of the state, the court 
said:

“ Even if it be assumed that the state court improperly 
denied to the accused, after he had been arraigned and 
pleaded not guilty [Italics ours], the right to show by proof 
that persons of his race were arbitrarily excluded by the 
sheriff from the panel of grand or petit jurors solely be­
cause of their race, it would not follow that the court lost 
jurisdiction of the case within the meaning of the well- 
established rule that a prisoner under conviction and sen­
tence of another court will not be discharged on habeas 
corpus unless the court that passed the sentence was so far 
without jurisdiction that its proceedings must be regarded 
as void. Ex parte Siebold, 100 U. S. 371, 375; In re Wood, 
140 U. S. 278, 287; In re Shibuya Jugiro, 140 U. S. 291, 
297; Pepke v. Cronan, 155 U. S. 100. When a state court 
has entered upon the trial of a criminal case, under a stat­
ute not repugnant to the Constitution of the United States, 
and has jurisdiction of the offence and of the accused, no 
mere error in the conduct of the trial should be made the 
basis of jurisdiction in a court of the United States to re­
view the proceeding upon writ of habeas corpus.”



16

Counsel for Crawford contend that these cases are not 
applicable for, if he were remitted to Virginia and sea­
sonably and properly raised the question here under con­
sideration and the question was decided against him, at 
the present time and under the Judiciary Act of 1925, he 
could not, as of right, prosecute a writ of error from the 
Supreme Court of the United States to the highest couit 
of the State of Virginia to which the case could be taken. 
I t is true that his right of review by writ of error from 

• the Supreme Court of the United States on the facts of 
this case was taken away by the Act of 1925, for under the 
law as it now stands, no writ of error lies from the Supreme 
Court in this case, as the grand jury was not drawn under 
a statute of the State of Virginia which violated the Con­
stitution of the United States. 43 Stat. 936, c. 229, Sec. 
237. He is, however, permitted by that Act to apply to that 
court for certiorari, a discretionary writ. South Carolina 
v. Bailey, supra. If review on such application is not 
granted he undoubtedly, at that stage of the proceeding, 
could have the matter reviewed on habeas corpus in the 
proper federal court, being without review in the Supreme 
Court on writ of error as of right. Ex parte Royall, 117 
U. S. 241, 252, 253; In re Wood, supra, at pp. 289, 290. It 
would not then be an endeavor by habeas corpus to inter­
vene before trial and review what ordinarily can be re­
examined only on writ of error; and the federal court ap­
plied to could not, under such circumstances, properly re­
fuse review on habeas corpus.

Our conclusion is that the District Court erred in holding 
that the indictment was void and discharging the prisoner, 
and our order i s :

The order of the District Court is vacated and the case 
is remanded to that court with directions to enter an order 
remanding the prisoner to the custody of Frank Hale for 
execution of the warrant of the Governor of Massachusetts.

(3620)



Supreme Court of the United States

No.
October Term, 1933.

George Crawford,
Petitioner,

v.

Frank G. Hale, Lieutenant Detective, 
Massachusetts State Police,

Respondent.

PETITION FOR WRIT OF CERTIORARI AND 
BRIEF IN SUPPORT THEREOF.

J. WESTON ALLEN,
BUTLER R. WILSON,

Attorneys for Petitioner.

ADDISON C. G ETC H B LL & SON, LA W  PB IN T E B S, BOSTON.





INDEX.
P a g e

Petition fox* writ of certiorari 1
The questions presented 2
The statutes involved 2
Statement of facts 5
Rulings and order of the District Court 6
Opinion and decree of the United States Circuit 

Court of Appeals for the First Circuit 7
Assignment of errors 10
Petitioner’s contentions 10
Reasons for granting the writ 12
Conclusion 13

Brief in support of petition 15
Jurisdiction 15
Statement 15
Summary of argument 16
Argument 16
Conclusion 32

TABLE OF AUTHORITIES CITED.

Andrews v. Swartz, 156 U.S. 272 31
Beavers v. Henkel, 194 U.S. 73 19, 31
Carter v. Texas, 177 U.S. 442 30
Drew v. Thaw, 235 U.S. 432 31
Fitzgerald v. United States, 6 F. (2d) 156 19
Glasgow v. Moyei', 225 U.S. 420 31
Green v. Henkel, 183 U.S. 249 19, 21, 31
Haas v. Henkel, 216 U.S. 462 19
Henry v. Henkel, 235 U.S. 219 22
Kaizo v. Henry, 211 U.S. 146 31
Loney, In re, 134 U.S. 372 24
Moran, Matter of, 203 U.S. 96 31
Neagle, In re, 135 U.S. 1 24
Neal v. Delaware, 103 U.S. 370 30



11 IN D E X

P a g e

New York v. Eno, 155 U.S. 89 26, 31
Pearce v. Texas, 155 U.S. 311 31
Roberts v. Reilly, 116 U.S. 80 25
Rodman v. Pothier, 264 U.S. 399 19, 21, 31
Royall, Ex parte, 117 U.S. 241 17, 23, 24, 26, 31
Strauder v. West Virginia, 100 U.S. 303 30
Tarrance v. Florida, 188 U.S. 519 30
Virginia, Ex parte, 100 U.S. 339 30
Whitten v. Tomlinson, 160 U.S. 231 26, 31
Wilson, In re, 140 U.S. 575 31
Wood, In re, 140 U.S. 278 31

Act of February 13, 1925, c. 229, sec. 1 15
Hardy on Removal of Federal Offenders, p. 75 21
Rev. Stats, sec. 1014 21
43 Stat. 938 15
U.S.C. tit. 28, c. 14 15,16, 22
U.S.C.A. tit. 18, c. 20 25



Supreme Court of the United States

O c t o b e r  T e r m , 1 9 3 3 .

No.
GEORGE CRAWFORD,

P E T I T I O N E R ,

V.

FRANK G. HALE, L i e u t e n a n t  D e t e c t iv e , M a s s a c h u s e t t s

S t a t e  P o l ic e ,

R E S P O N D E N T .

PETITION FOR WRIT OF CERTIORARI.

To the Honorable the Chief Justice of the Supreme Court 
of the United States and the Associate Justices thereof:
Petitioner, George Crawford, prays that a writ of cer­

tiorari may issue to review the final decree of the United 
States Circuit Court of Appeals for the First Circuit in the 
case of Frank G. Hale, Lieutenant Detective, Massachusetts 
State Police, Appellant, v. George Crawford, Appellee, ren­
dered on June 15, 1933, which vacated the order of the Dis­
trict Court, entered on May 2, 1933 (Record, p. 26), sustain­
ing your petitioner’s writ of habeas corpus and discharging 
your petitioner George Crawford from the custody of the 
respondent Frank G. Hale, Lieutenant Detective, Massa­
chusetts State Police, subject to the further order that your 
petitioner be remanded to the custody of said respondent 
pending final decision upon appeal.



2

T h e  Q u e s t io n s  P r e s e n t e d .

The question here presented is whether your petitioner 
was entitled to be discharged upon his petition for a writ of 
habeas corpus when he was held in custody by a police 
officer of the asylum state under the authority of an execu­
tive warrant issued in interstate rendition proceedings when 
there were no controverted questions of law or fact in issue, 
hut the agreed facts offered in evidence established that 
there had been discrimination by the state officers of the 
demanding state in making up the lists and drawings of the 
grand jurors by whom the indictments were found upon 
which said executive warrant was based and that this was 
in violation of the Fourteenth Amendment of the Constitu­
tion of the United States.

Upon this question the issues are presented (1) whether 
the District Court, having jurisdiction to determine the 
facts of the case and to dispose of the party as law and jus­
tice require, erred in admitting the statement of agreed 
facts as competent and material in determining the issue 
before the Court whether the petitioner was in custody in 
violation of the Constitution, and (2) the statement of 
agreed facts, when admitted, clearly establishing that the 
petitioner was held upon indictments procured in violation 
of his rights under the Fourteenth Amendment, whether 
the Court, having exercised its discretion in discharging the 
petitioner, was guilty of such abuse of discretion as to con­
stitute reversible error upon appeal.

T h e  S t a t u t e s  I n v o l v e d .

United States:
1. U.S.C.A. tit. 18, c. 20, sec. 662 (the Act of Congress rela­

tive to interstate rendition):

“ Sec. 662. Whenever the executive authority of any 
State or Territory demands any person as a fugitive from 
justice, of the executive authority of any State or Territory



3

to which such person has fled, and produces a copy of an 
indictment found or an affidavit made before a magistrate 
of any State or Territory, charging the person demanded 
with having committed treason, felony, or other crime, cer­
tified as authentic by the governor or chief magistrate of 
the State or Territory from whence the person so charged 
has fled, it shall be the duty of the executive authority of 
the State or Territory to which such person has fled to 
cause him to be arrested and secured, and to cause notice 
of the arrest to be given to the executive authority making 
such demand, or to the agent of such authority appointed to 
receive the fugitive, and to cause the fugitive to be delivered 
to such agent when he shall appear. If no such agent ap­
pears within six months from the time of the arrest, the 
prisoner may be discharged. All costs or expenses incurred 
in the apprehending, securing, and transmitting such fugi­
tive to the State or Territory making such demand, shall 
be paid by such State or Territory.”

2. U.S.C.A. tit. 28, c. 14, secs. 451-455, 460, 461 (the Act of
Congress relative to habeas corpus):

“ Sec. 451. Power of Courts. The Supreme Court and 
the District Courts shall have power to issue writs of habeas 
corpus.

“ Sec. 452. Power of Judges. The several justices of the 
Supreme Court and the several judges of the Circuit Courts 
of Appeal and of the District Courts, within their respective 
jurisdictions, shall have power to grant writs of habeas 
corpus for the purpose of an inquiry into the cause of 
restraint of liberty. . . .

“ Sec. 453. When prisoner is in jail. The writ of habeas 
corpus shall in no case extend to a prisoner in jail unless 
where he is in custody under or by color of the authority of 
the United States, or is committed for trial before some 
court thereof; or is in custody for an act done or omitted in 
pursuance of a law of the United States, or of an order,



4

process, or decree of a court or judge thereof; or is in cus­
tody in violation of the Constitution or of a law or treaty of 
the United States; or, being a subject or citizen of a foreign 
state, and domiciled therein, is in custody for an act done or 
omitted under any alleged right, title, authority, privilege, 
protection, or exemption claimed under the commission, or 
order, or sanction of any foreign State, or under color 
thereof, the validity and effect whereof depend upon the 
law of nations; or unless it is necessary to bring the pris­
oner into court to testify.

“ Sec. 454. Application for; complaint in writing. Ap­
plication for writ of habeas corpus shall be made to the 
court, or justice, or judge authorized to issue the same, by 
complaint in writing, signed by the person for whose relief 
it is intended, setting forth the facts concerning the deten­
tion of the party restrained, in whose custody he is de­
tained, and by virtue of what claim or authority, if known. 
The facts set forth in the complaint shall be verified by the 
oath of the person making the application.

“ Sec. 455. Allowance and direction. The court, or jus­
tice, or judge to whom such application is made shall forth­
with award a writ of habeas corpus, unless it appears from 
the petition itself that the party is not entitled thereto. The 
writ shall be directed to the person in whose custody the 
party is detained.

‘‘Sec. 460. Denial of retu rn ; counter-allegations; amend­
ments. The petitioner or the party imprisoned or restrained 
may deny any of the facts set forth in the return, or may 
allege any other facts that may be material in the case. Said 
denials or allegations shall be under oath. The return and 
all suggestions made against it may be amended, by leave 
of the court, or justice, or judge, before or after the same 
are filed, so that thereby the material facts may be ascer­
tained.

‘ ‘ Sec. 461. Summary hearing; disposition of party. The 
court, or justice, or judge shall proceed in a summary way



5

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. ’ ’

Virginia:
Code of Virginia, c. 193, secs. 4852, 4853 (Laws of Virginia

relative to the selection, qualification and organization of
grand jurors—see Record, pp. 12, 13 and 14).

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

The essential facts of the case, as stated in the opinion of 
the Circuit Court of Appeals, are as follows:

“ At the February term, 1932, of the Circuit Court of 
Loudoun County, Virginia, the applicant, George Craw­
ford, a negro, was indicted for murder in two indictments. 
January 17, 1933, the Prosecuting Attorney for Loudoun 
County asked the Governor of Virginia to request the 
Governor of Massachusetts to cause Crawford to be re­
turned to Virginia. January 18, 1933, the Governor of 
Virginia made such request and the Governor of Massa­
chusetts, after a hearing, on February 18, 1933, issued 
his warrant authorizing the arrest of Crawford and his 
delivery to the duly authorized agents of Virginia. On 
that day the respondent arrested Crawford on the war­
rant and now holds him thereunder. Thereupon Craw­
ford filed in the federal District Court for Massachusetts 
a petition for the writ of habeas corpus, subsequently 
amended April 5, 1933. A summons having been issued and 
served, the respondent filed his return setting up that he 
held Crawford under and by virtue of the warrant, to be 
delivered to the Virginia agents; that Crawford was the 
identical person named in the w arrant; and denied each and 
every allegation of the petition. April 24, 1933, the District 
Court ordered the writ of habeas corpus to issue and on that 
day the parties appeared before the court and were heard.



6

“ At the hearing the applicant offered in evidence an 
agreed statement of facts, which in substance was that while 
the statutes of Virginia, prescribing the qualifications of 
and who should be drawn as grand jurors, did not dis­
criminate against persons of African descent, the Circuit 
Judge for Loudoun County, designated by law to select the 
grand jurors, selected no persons of African descent to serve 
on the grand jury which returned the indictments in ques­
tion, hut excluded from the list all such persons because of 
their race and color, although there were persons of African 
descent in that county duly qualified to act as grand jurors. 
The facts stated in this agreement were offered in evidence 
by the applicant and admitted by the court, subject to ex­
ception. The respondent put in evidence the requisition 
papers of the Governor of Virginia and the rendition war­
rant of the Governor of Massachusetts. . . .

“ It was agreed that CraAvford, the party charged with 
crime in the indictments and described in the requisition 
warrant, was the identical person arrested and before the 
court, and that the evidence submitted by the respondent 
made a prima facie case for rendition” (Record, pp. 39, 40 
and 41).

R u l in g s  a n d  O r d e r  o f  t h e  D is t r ic t  C o u r t .

The District Court on May 2, 1933, ruled that the state­
ment of agreed facts offered in evidence by your petitioner 
was admissible and competent and that the indictments were 
void, and the requisition of the Governor of Virginia was 
not in form, and thereupon “ ordered that the writ of habeas 
corpus be sustained, and that the petitioner George Craw­
ford be discharged from custody; but it being represented to 
the Court that the respondent intends to take an appeal from 
this order, it is therefore further ordered that the petitioner 
said George Crawford be remanded to the custody of the 
respondent pending final decision on said appeal” (Record,
p. 26).



7

From this order the respondent appealed to the United 
States Circuit Court of Appeals for the First Circuit (Rec­
ord, pp. 34 and 35).

O p in io n  a n d  D e c r e e  o f  t h e  U n it e d  S t a t e s  C ir c u it  C o u r t  

o f  A p p e a l s  f o r  t h e  F ir s t  C i r c u i t .

At the outset it may be noted that the Circuit Court of 
Appeals, in its opinion, concedes that the statement of 
agreed facts offered by your petitioner, if admissible in 
evidence, establishes an infringement of the rights of your 
petitioner guaranteed by the Fourteenth Amendment. After 
citing as authoritative upon this issue the cases of Ex parte 
Virginia, 100 U.S. 339, 346, and Strauder v. West Virginia, 
100 U.S. 303, the Court states: “ I t  is therefore established 
by these decisions that the discrimination exercised by the 
State officers of Virginia in making up the lists and draw­
ings of the grand jurors by whom Crawford was indicted 
was an infringement of his rights guaranteed by the Four­
teenth Amendment” (Record, pp. 48 and 49).

The Court first takes up the question whether the state­
ment of agreed facts was admissible. In this connection it 
states: ‘ ‘ The first question to be considered is whether the 
court erred in admitting the evidence in regard to the dis­
crimination by the officer of Virginia in the selection and 
organization of the grand jury which found the indictments. 
The indictments are conceded to be valid and proper on 
their face and the question is whether the evidence relating 
to the selection and organization of the grand jury and at­
tacking the validity of the indictments was competent.

“ This question, so far as we know, has not been passed 
on in a habeas corpus case arising out of an interstate ren­
dition proceeding, but it has been in such cases arising out 
of proceedings under Sections 1014 of the Revised Statutes 
authorizing the arrest and removal of a person charged with 
crime in a federal district other than the one in which he is 
arrested” (Record, p. 41).



8

After citing certain decisions (Record, pp. 41-46), the 
Court continues: “ Although the question of the admissibil­
ity of evidence now under consideration has not been passed 
upon by the Supreme Court in a rendition case, we see no 
reason why the reasoning applied in removal cases involv­
ing such question is not applicable in a rendition case in­
volving the same or a like question. In removal cases the 
chief reason for rejection of the evidence seems to he that 
the matter to which it relates is one for the trial court to 
decide in the district to which removal is sought, it being 
an irregularity in the proceeding pending before that court 
and not a matter going to the jurisdiction of the court. In­
deed it is this line of reasoning that is made use of and 
applied by the Supreme Court in habeas corpus proceed­
ing's brought by a person of African descent held for tiial 
in a state court on an indictment found against him and 
where a like discrimination was made in the selection of the 
grand jury finding the indictment” (citing In  re Wood, 140 
U.S. 278). “ We are, therefore, of the opinion that in a 
habeas corpus case, whether arising out of a rendition pro­
ceeding or a removal one, evidence of the character here in 
question is not admissible, as the question to which it is ad­
dressed is not open to review and determination on habeas 
corpus in a federal court, at any rate in the first instance; 
that the question is one that can be heard and determined 
by the trial court in Virginia, and, as said in In re Wood, 
supra, it was not intended by Congress that the federal 
courts should, by writ of habeas corpus, obstruct the orderly 
administration of the criminal laws of a state through its 
own tribunals” (Record, pp. 46 and 47).

The Court then proceeds to consider, if the evidence was 
properly admissible, whether the District Court erred in 
ruling that the indictments were void, and in this connec­
tion speculates upon the view which the District Court en­
tertained in making its ruling: ‘ ‘ But if we are mistaken in 
regard to the question just considered and the evidence was



9

properly admitted, the question remains whether the Dis­
trict Court erred in ruling that the Virginia indictments, 
the bases of the warrant under which the applicant is held, 
are void. As no opinion was filed by the District Court we 
have no complete statement of the view it entertained. But 
it apparently was and is that the method pursued in Loudoun 
County, Virginia, in the making up of the lists for and the 
drawings of grand jurors, whereby the state officials dis­
criminated against citizens of African descent because of 
race or color, was a violation of the applicant’s constitu­
tional right under the Fourteenth Amendment and of such 
a nature as to render the indictments and all proceedings 
thereunder void, depriving the Virginia court of jurisdic­
tion to proceed and try the case” (Record, pp. 47 and 48).

After conceding that the statement of agreed facts, if ad­
mitted, establishes an infringement of the rights of your 
petitioner guaranteed by the Fourteenth Amendment, the 
Court continues: “ the question is whether such act of dis­
crimination is one which rendered the indictment void and 
deprived the Virginia courts of jurisdiction to try Craw­
ford thereon. The answer to this question was forecast by 
what we have said and the decisions reviewed bearing upon 
the question relating to the admissibility of the evidence 
disclosing discrimination.

“ There are a number of cases in which the question has 
been considered and, as we understand them, they all point 
to the conclusion that the matter in question is an irregu­
larity of a kind that must be availed of at the trial in the 
state court where the indictment is found; that it is an 
irregularity that may be and is waived, if the person on trial 
does not seasonably and in the modes provided by law raise 
the question in that court. In other words, that it does not 
render the indictment void or defeat the jurisdiction of the 
court in which the indictment is returned” (Record, p. 49).

The Court then cites decisions upon which it bases its 
opinion (Record, pp. 49-54).



10

The Court then assumes that counsel for your respondent 
contend that the cases discussed in the opinion are not ap­
plicable at the present time because of the change in pro­
cedure under the Judiciary Act of 1925. In conclusion the 
Circuit Court of Appeals holds that the District Court erred 
in holding that the indictments were void and in discharging 
the prisoner.

On June 15, 1933, a final decree was entered, vacating the 
order of the District Court and remanding the case to that 
Court with directions to enter an order remanding the 
prisoner to the custody of your respondent for execution of 
the warrant of the Governor of Massachusetts (Record, pp. 
54 and 55).

A s s i g n m e n t  o f  E r r o r s .

The Circuit Court erred—
(1) In holding that the District Court erred in admitting 

in evidence the statement of agreed facts offered by your 
petitioner;

(2) In holding that the District Court erred in discharg­
ing your petitioner.

P e t i t i o n e r ’s  C o n t e n t io n s .

(1) The District Court has plenary jurisdiction to in­
quire whether the petitioner, Crawford, is in custody in vio­
lation of the Constitution of the United States (Supporting 
Brief, infra, pp. 16, 17).

(2) The District Court properly admitted, as competent 
and material evidence of a restraint in violation of the Four­
teenth Amendment to the Constitution of the United 
States, the facts contained in the agreement of the parties 
(Supporting Brief, infra, pp. 18-22).

(3) The jurisdiction of the District Court to inquire into 
the cause of petitioner’s commitment, and to discharge him 
if he be restrained of his liberty in violation of the Consti-



11

tution of the United States, is in no wise limited or affected 
by the fact that such inquiry or discharge might operate to 
interrupt or obstruct the administration of the criminal 
laws of a state through its own tribunals (Supporting Brief, 
infra, pp. 22-24).

(4) The order of the District Court in gi’anting the writ 
and discharging the petitioner from the custody of the 
respondent did not operate to interrupt or obstruct the ad­
ministration of the criminal laws of the State of Virginia 
through its own tribunals (Supporting Brief, infra, pp. 
24-26).

(5) The order of the District Court in granting the writ 
of habeas corpus and discharging the petitioner from the 
custody of the respondent is not, as matter of law, upon 
this record, an abuse of the exercise of its discretion so to 
do (Supporting Brief, infra, pp. 26-28).

(6) The ruling of the District Court that the indictments 
were void was not reversible error (Supporting Brief, infra, 
pp. 28, 29).

(7) The District Court, upon the record in this case, had 
presented for determination for the first time, so far as ap­
pears in the decisions of this Court, a petition for habeas 
corpus which raised no controverted questions either of law 
or of fact to be referred to the Court of the demanding state 
for determination in the first instance, but, on the contrary, 
all the facts were admitted, and upon these admitted facts 
(which the Court ruled were material and competent) the 
violation of the rights guaranteed to your petitioner by the 
Fourteenth Amendment in the procurement of the indict­
ments was established, so that the District Court was called 
upon to exercise its discretion upon the peculiar facts and 
circumstances presented in the record before it, uncon­
trolled by any previous decisions of this Court (Supporting 
Brief, infra, pp. 30, 31).



12

R e a s o n s  f o r  G r a n t in g  t h e  W r i t .

(1) The question as to the admissibility of the evidence 
in regard to the discrimination by the officers of Virginia in 
the selection and organization of the grand jury which 
found the indictments presents a novel question which has 
not been passed upon by this Court in a habeas corpus case 
arising out of an interstate rendition proceeding (Record, 
pp. 41 and 46). That such discrimination is customary in 
the State of Virginia, so that it has become a matter of com­
mon knowledge, is admitted by the officers of that state (Rec­
ord, pp. 15 and 17).

(2) Upon the admission in evidence of the agreed facts, 
the issue presented to the Court for determination, with no 
controverted questions of law or of fact, constitutes a case 
of first impression of such importance as to merit considera­
tion by this Court.

(3) Both of these questions of law, now raised in the 
Federal Court for the first time, being difficult, as evidenced 
by the contrary decisions of the District Court and of the 
Circuit Court of Appeals for the F irst Circuit, call for re­
view and final determination by this Court.

(4) The course of reasoning upon which the Circuit 
Court of Appeals for the F irst Circuit reached its conclu­
sion, vacating the order of the District Court, was predi­
cated upon unwarranted assumptions and assertions and 
was rested upon decisions which do not support the con­
clusions of the Court, and failed to consider the basic 
grounds of the decision of the District Court; that that 
Court had a broad scope of inquiry into the petitioner’s 
cause of restraint; that under the mandate of the Federal 
Habeas Corpus Act it was required to “ proceed in a sum­
mary way to determine the facts of the case by hearing the 
testimony and arguments” ; and that by the provisions of 
the Act it was vested with a discretion “ to dispose of the 
party as law and justice require.”



13

(5) The correct determination of the issues before this 
Court has become a matter of grave public concern and, by 
reason of the resolution presented in the Congress of the 
United States to impeach the judge of the United States 
District Court for the District of Massachusetts because of 
his decision in this case, such determination by the highest 
tribunal is desired. The importance of the issues to be de­
termined is evidenced by the fact that since the resolution 
of impeachment was introduced in the Congress, Negroes 
have been included in the lists for jury service in three 
states where previously they had been uniformly excluded.

C o n c l u s io n .

Wherefore your petitioner, by his undersigned counsel, 
respectfully prays that this petition be granted, that the 
judgment of the United States Circuit Court of Appeals 
for the First Circuit be reversed, and that the judgment of 
the United States District Court for the District of Massa­
chusetts be affirmed.

Respectfully submitted,
GEORGE CRAWFORD,

By his Attorneys,
J. W e s t o n  A l l e n , 
B u t l e b  R. W il s o n .





Supreme Court of the United States

O cto ber  T e r m , 1933.

No.
GEORGE CRAWFORD,

PETITIONER,

V.

FRANK G . HALE, L ie u t e n a n t  D e t e c t iv e , M a ssa c h u se t t s

S t a t e  P o l ic e , 
r e s p o n d e n t .

BRIEF IN SUPPORT OF PETITION.

J u r is d ic t io n .

The jurisdiction of this Court is invoked under the Act of 
February 13, 1925, c. 229, sec. 1; 43 Stat. 938; U.S.C. tit. 28, 
c. 14, sec. 347.

The Circuit Court of Appeals had jurisdiction to review 
the judgment of the District Court under U.S.C. tit. 28, c. 
14, sec. 463, which provides that the final order in a pro­
ceeding in habeas corpus in a District Court shall be subject 
to review by the Circuit Court of Appeals of the circuit 
wherein the proceeding is had.

S t a t e m e n t .

A statement of the case appears in the petition, supra,
p. 5.



16

S u m m a r y  of  A r g u m e n t .

A concise summary of the ensuing argument is set forth in 
the foregoing petition, supra, pp. 10 and 11.

A r g u m e n t .

I .

The District Court has plenary jurisdiction to inquire 
whether the petitioner, Crawford, is in custody in viola­
tion of the Constitution of the United States.

Sections 451 and 452 of the Federal Habeas Corpus Act 
(U.S.C.A. tit. 28, c. 14) provide that the District Courts, 
and judges of such Courts within their respective jurisdic­
tions, shall have power to issue writs of habeas corpus for 
the purpose of inquiring into the cause of restraint of lib­
erty. Section 461 of the same Act provides for a summary 
hearing, and authorizes the Court or judge to dispose of the 
party as law and justice require. These sections seem to 
contain the entire grant of power. Section 453 of the said 
Act prohibits the issuance of the writ of habeas corpus in 
behalf of a prisoner in jail “ unless where he is in custody 
under or by color of the authority of the United States . . .; 
or is in custody in violation of the Constitution . . .  of the 
United S tates; . . . ”

The petition for habeas corpus filed by your petitioner 
and supported by oath alleged that the grand jury, which 
found the indictments upon which the warrant for his de­
tention was based, was selected and organized in a manner 
which denied to your petitioner the equal protection of the 
laws guaranteed to him by the Fourteenth Amendment of 
the Federal Constitution. The return of the respondent to 
the writ, denying the allegations of the petition, raised the 
question whether or not the petitioner’s detention was in 
violation of the Constitution. This presented to the District



17

Court a case for its determination within the said section 
453.

“ The grant to the Circuit Courts [District Courts] 
in Section 751 of jurisdiction to issue writs of habeas 
corpus, is in language as broad as could well be em­
ployed. While it is attended by the general condition, 
necessarily implied, that the authority conferred must 
he exercised agreeably to the principles and usages of 
law, the only express limitation imposed is, that the 
privilege of the writ shall not be enjoyed by—or rather, 
that the courts and the judicial officers named, shall not 
have power to award the writ to—any prisoner in jail, 
except in specified cases, one of them being where he is 
alleged to be held in custody in violation of the Consti­
tution. . . .

“ Whether, therefore, the appellant is a prisoner in 
jail, within the meaning of Section 753, or is restrained 
of his liberty by an officer of the law executing the 
process of a court of Virginia, in either case, it being 
alleged under oath that he is held in custody in violation 
of the Constitution [italics ours], the Circuit Court has, 
by the express words of the statute, jurisdiction on 
habeas corpus to inquire into the cause for which he is 
restrained of his liberty, and to dispose of him ‘as law 
and justice require’.

“ We are, therefore, of opinion that the Circuit Court 
has jurisdiction upon writ of habeas corpus to inquire 
into the cause of appellant’s commitment, and to dis­
charge him, if he be held in custody in violation of the 
Constitution.”

E x parte Roy all, 117 U.S. 241, 247, 250 (1886).



18

H .

The District Court properly admitted, as competent and 
material evidence of a restraint in violation of the Four­
teenth Amendment to the Constitution of the United 
States, the facts contained in the agreement of the parties.

The Circuit Court of Appeals in its opinion does not raise 
any question that the agreed facts which were offered in 
evidence in the District Court are material upon the ques­
tion whether your petitioner is in custody in violation of the 
Fourteenth Amendment to the Constitution, and would un­
questionably be competent evidence upon this issue when 
raised in the Court of the demanding state.

A cursory examination of the agreed facts (Record, pp. 
12-17, inclusive) discloses that the agreed facts are not only 
material, but conclusive, upon this issue whenever they are 
admitted in evidence, and the Circuit Court of Appeals rec­
ognizes the materiality of the agreed facts when it says that 
“ the discrimination exercised by the State officers of Vir­
ginia in making up the lists and drawings of the grand jurors 
by whom Crawford was indicted was an infringement of his 
rights guaranteed by the Fourteenth Amendment.” It 
necessarily follows that whenever and wherever the agreed 
facts are admitted in evidence upon the decisions of this 
Court, the only finding can he that he is held in restraint of 
his liberty in violation of the Constitution.

It is axiomatic that, given the same set of facts offered in 
evidence upon the same issue for judicial determination, the 
facts must be equally admissible in any Court which has 
jurisdiction of the cause. I t  necessarily follows that if the 
agreed facts are material and admittedly would be compe­
tent evidence if and when the issue is raised in the demand­
ing state, the same facts are equally material and must be 
equally competent in the District Court if the District Court 
has jurisdiction of the cause. That the District Court, 
under the Federal Habeas Corpus Act, has the broadest



19

powers to determine the issue whether the petitioner is 
restrained of his liberty in violation of the Constitution is 
recognized by successive decisions of this Court (ubi supra), 
and the District Court, under the mandate of the statute, 
was compelled to inquire into the cause of your petitioner’s 
restraint and “ determine the facts of the case by hearing 
the testimony.” The discretion vested in the Court “ to 
dispose of the party as law and justice require” is predi­
cated upon making inquiry as to the cause of the restraint 
and admitting in evidence all the material facts, and the dis­
cretion could not be properly exercised until all the material 
facts offered in evidence were before the Court.

The Circuit Court of Appeals, recognizing that there is 
no precedent controlling the action of the District Court in 
admitting the evidence in a case of interstate rendition, 
grounds its opinion that the evidence admitted by the Dis­
trict Court was inadmissible upon an analogy which it as­
sumes between habeas corpus proceedings in removal cases 
and interstate rendition cases. The instances of habeas 
corpus proceedings in removal cases cited in support of the 
Court’s claim of analogy are the cases of Green v. Henkel, 
183 U.S. 249; Beavers v. Henkel, 194 U.S. 73; Haas v. 
Henkel, 216 U.S. 462; Rodman v. Pothier, 264 U.S. 399, and 
Fitzgerald v. United States, 6 F. (2d) 156.

The analogy claimed by the Court disregards the obvious 
fact that very different considerations are applicable when 
discharge by habeas corpus is invoked in removal cases and 
in interstate rendition cases. The essential difference be­
tween the two classes of cases is clearly pointed out in the 
case of Beavers v. Henkel, supra, which the Circuit Court 
of Appeals has cited, in which case Mr. Justice Brewer 
states, in the opinion:

“ This case turns upon the efficacy of an indictment in 
removal proceedings. The government offered no other 
evidence of petitioner’s guilt. . . .



20

“ At the outset it is well to note that this is not a 
case of extradition. There was no proposed surrender 
of petitioner by the United States to the jurisdiction of 
a foreign nation, no abandonment of the duty of protec­
tion which the nation owes to all within its territory. 
There was not even the qualified extradition which 
arises when one State within the Union surrenders to 
another an alleged fugitive from its justice. There 
was simply an effort on the part of the United States 
to subject a citizen found within its territory to trial 
before one of its own courts. . . .

“ Obviously very different considerations are ap­
plicable to the two cases. In an extradition the nation 
surrendering relies for future protection of the alleged 
offender upon the good faith of the nation to which the 
surrender is made, while here the full protecting power 
of the United States is continued after the removal from 
the place of arrest to the place of trial. It may he con­
ceded that no such removal should be summarily and 
arbitrarily made. There are risks and burdens attend­
ing it which ought not to be needlessly cast upon any 
individual. These may not be serious in a removal 
from New York to Brooklyn, but might be if the removal 
was from San Francisco to New York. And statutory 
provisions must be interpreted in the light of all that 
may be done under them. We must never forget that 
in all controversies, civil or criminal, between the gov­
ernment and an individual the latter is entitled to 
reasonable protection. Such seems to have been the 
purpose of Congress in enacting section 1014, Rev. Stat., 
which requires that the order of removal be issued by 
the judge of the district in which the defendant is ar­
rested. In other words, the removal is made a judicial 
rather than a mere ministerial act. ’ ’



21

In a habeas corpus case in interstate rendition proceed­
ings, the petitioner is held under the executive warrant of 
the governor of the asylum state, acting, as has been held, 
not in a judicial capacity, but performing a ministerial act. 
The petitioner has chosen as of right the District Court to 
determine the issue whether he is in custody in violation of 
the Constitution of the United States. He is before the Dis­
trict Court as the Court of first instance having jurisdiction 
of the cause and of the person.

In a removal case, however, the removal statute is de­
signed to afford the accused a judicial hearing and adjudi­
cation of the question whether he is wrongfully restrained, 
and “ the removal statute prescribes a complete and sys­
tematic procedure for testing the right to remove.” The 
writ in such cases is brought either prematurely and op­
erates “ to drive a wedge of habeas corpus into the midst of 
this procedure and to substitute that method for what the 
statute has prescribed” (Hardy on Removal of Federal 
Offenders, p. 75), or is brought after full hearing upon the 
issuing of the order for removal to serve the purpose of an 
appeal where no review of the judicial determination of the 
Court is provided for by the statute or is needed for the 
protection of the accused (Hardy, pp. 78, 91-92; Rodman v. 
Pothier, 264 U.S. 399, 402). The issue upon which the re­
moval of the prisoner is determined is whether there is prob­
able cause, and it is upon this issue that the Courts have held, 
in Green v. Henkel, supra, and other removal cases, that it 
is not open to the accused in habeas corpus proceedings to 
offer evidence to impeach the validity of the indictment.

In Green v. Henkel the language quoted in the opinion of 
the Circuit Court of Appeals expressly by its terms limits 
the opinion there expressed to proceedings under the re­
moval statute (R.S. sec. 1014), and an examination of the 
opinion shows that evidence with respect to the validity of 
the indictment was received at the hearing before the Com­
missioner and that this evidence was before the District



22

Court upon the question of the existence of probable cause; 
and the Court in its opinion assumes that the finding of the 
Commissioner and of the District Judge of probable cause 
was sustained by competent evidence, and it was held that 
upon writ of habeas corpus the Court would not look into the 
weight of the evidence upon which probable cause was 
found.

In Ilenry v. Henkel, 235 U.S. 219, 228, the Court, by 
Lamar, J., says: “ In view of the nature of the writ and of 
the character of the detention under a warrant, no hard and 
fast rule has been announced as to how far the court will go 
in passing upon questions raised in habeas corpus pro­
ceedings.”

III.
The jurisdiction of the District Court to inquire into the 

cause of petitioner’s commitment, and to discharge him 
if he be restrained of his liberty in violation of the Consti­
tution of the United States, is in no wise limited or affected 
by the fact that such inquiry or discharge might operate 
to interrupt or obstruct the administration of the crimi­
nal laws of a state through its own tribunals.

I t is provided in section 465 of the Federal Habeas Corpus 
Act (U.S.C.A. tit. 28, c. 14) that, pending the proceedings in 
habeas corpus in sections 463 and 464 of said Act—which 
include an application for the writ by a person alleged to be 
restrained of his liberty in violation of the Constitution of 
the United States—and, “ until final judgment therein, and 
after final judgment of discharge, any proceeding against 
the person so imprisoned or confined or restrained of his 
liberty, in any State court, or by or under the authority of 
any State, or any matter so heard and determined, or in 
process of being heard and determined, under such writ of 
habeas corpus, shall be deemed null and void. ’ ’



23

In Ex parte Royall, 117 U.S. 241, 248, 249, in tlie opinion 
delivered by Mr. Justice Harlan, the Court said:

“ It would seem—whether reference be had to the 
Act of 1867 or to existing statutory provisions—that it 
was the purpose of Congress to invest the courts of the 
Union, and the justices and judges thereof, with power 
upon writ of habeas corpus, to restore to liberty any 
person, within their respective jurisdictions, who is 
held in custody, by whatever authority, in violation of 
the Constitution or any law or treaty of the United 
States. The statute evidently contemplated that cases 
might arise when the power thus conferred should be 
exercised, during the progress of proceedings insti­
tuted against the petitioner in a State court, or by or 
under authority of a State, on account of the very mat­
ter presented for determination by the writ of habeas 
corpus; for care is taken to provide that any such pro­
ceedings, pending the hearing of the case upon the writ 
and until final judgment and after the prisoner is dis­
charged, shall be null and void. If  such were not the 
clear implication of the statute, still, as it does not 
except from its operation cases in which the applicant 
for the writ is held in custody by the authority of a 
State, acting through its judiciary or by its officers, the 
court could not, against the positive language of Con­
gress, declare any such exception, unless required to do 
so by the terms of the Constitution itself. But as the 
judicial power of the nation extends to all cases arising 
under the Constitution, the laws and treaties of the 
United States; as the privilege of the writ of habeas 
corpus cannot be suspended unless when in cases of 
rebellion or invasion the public safety may require it; 
and as Congress has power to pass all laws necessary 
and proper to carry into execution the powers vested by 
the Constitution in the Government of the United



24

States or in any department or officer thereof; no doubt 
can exist as to the power of Congress thus to enlaige the 
jurisdiction of the courts of the Union and of their jus­
tices and judges. That the petitioner is held under the 
authority of a State cannot affect the question of the 
power or jurisdiction of the Circuit Court to inquire 
into the cause of his commitment, and to discharge him 
if he he restrained of his liberty in violation of the 
Constitution.” (Italics ours.)

It is true that in Ex parte Roy all, supra, the Court did 
not discharge the petitioner, hut it is equally true that the 
Court recognized that the Circuit Court, on the record of 
the case, had the power to do so. And this Court in later 
cases recognized the force of that reasoning and held that 
the Federal Courts had jurisdiction to discharge a prisoner 
in a case where the jurisdiction of a state Court over the 
crime and the person had attached, although the effect was 
to defeat the jurisdiction of the state Court in advance of 
trial.

In  re Loney, 134 U.S. 372 (1890).
In re Neagle, 135 U.S. 1 (1890).

IV.
The order of the District Court in granting the writ and dis­

charging the petitioner from the custody of the respon­
dent did not operate to interrupt or obstruct the adminis­
tration of the criminal laws of the State of Virginia 
through its own tribunals.

The petition charges that the pretense for Crawford’s 
restraint is the warrant issued by the Governor of the 
Commonwealth of Massachusetts on the requisition of the 
Governor of Virginia, which requisition, and therefore 
which warrant, are based upon alleged indictments found 
in violation of the Constitution of the United States in that



25

Negroes were excluded from the grand jury solely by reason 
of race or color. The return of your respondent alleges 
that Crawford is in his custody solely by reason of said 
warrant. The source of authority of the warrant of the 
Governor of Massachusetts is found in the Act of Congress 
embodied in section 5278 of the Revised Statutes (U.S.C.A. 
tit. 18, c. 20, sec. 662, see ante, pp. 2 and 3).

“ It follows, however, that, whenever the executive of 
the State, upon whom such a demand has been made, by 
virtue of his warrant, causes the arrest for delivery of 
a person charged as a fugitive from the justice of 
another State, the prisoner is held in custody only 
under color of authority derived from the Constitution 
and laws of the United States, [italics ours] and is en­
titled to invoke the judgment of the judicial tribunals, 
whether of the State or the United States, by the writ 
of habeas corpus, upon the lawfulness of his arrest and 
imprisonment. The jurisdiction of the courts of the 
States is not excluded in such cases, as was adjudged 
by this court in the case of Robb v. Connolly, 111 
U.S. 624, for, although the party is restrained of his lib­
erty under color of authority derived from the United 
States, he is not in the custody of, or under restraint by, 
an officer of the United States.”

Roberts v. Reilly, 116 U.S. 80, 94 (1885).

Consequently the order of the District Court discharging 
the petitioner wrested him from the custody of a Massa­
chusetts police officer acting by virtue of and pursuant to 
the authority of the United States. The State of Virginia 
never acquired jurisdiction of the person of your petitioner. 
Until it did, no question could arise of divesting the Courts 
of that state of jurisdiction, or of obstructing the adminis­
tration of the criminal laws of that state through its own 
tribunals. The latter question, which is made much of by



26

the Circuit Court of Appeals in its opinion (Record, p. 47), 
is not present in this case as in the cases of Ex parte Royall, 
supra; New York v. Eno, 155 U.S. 89 (1894); and Whitten 
v. Tomlinson, 160 U.S. 231 (1895).

y .

The order of the District Court in granting the writ of 
habeas corpus and discharging the petitioner from the 
custody of the respondent is not, as matter of law, upon 
this record, an abuse of its discretion so to do.

In Ex parte Royall, 117 U.S. 241, in the opinion of Mr. 
Justice Harlan, the Court said:

“ Undoubtedly the writ should be forthwith awarded, 
‘unless it appears from the petition itself that the party 
is not entitled thereto; ’ and the case summarily heard 
and determined ‘as law and justice require’. Such are 
the express requirements of the statute. If, however, 
it is apparent upon the petition, that the writ if issued 
ought not, on principles of law and justice, to result in 
the immediate discharge of the accused from custody, 
the court is not hound to award it as soon as the appli­
cation is made. Ex parte Watkins, 3 Pet. 193, 201; Ex 
parte Milligan, 4 Wall. 2, 111. What law and justice 
may require, in a particular case, is often an embarrass­
ing question to the court or to the judicial officer before 
whom the prisoner is brought.”

This Court may consider whether the order of the District 
Court in granting the writ and discharging the prisoner 
can be sustained on any grounds other than those upon 
which it proceeded. If  it can be, the decree of the Circuit 
Court of Appeals in vacating the order of the District Court 
must be reversed.

The petition alleged clearly and sufficiently that the peti­
tioner was in custody in violation of the Constitution. The



27

evidence offered by the petitioner proved conclusively the 
truth of the allegation. Under those circumstances the Dis­
trict Court had to decide what disposition should be made 
of the petitioner. That decision called for the exercise of 
judicial discretion.

At the time that the discretion of the District Court was 
exercised, no other Court had acquired jurisdiction of the 
person of your petitioner or of the question whether or not 
he was in custody in violation of the Constitution. The Dis­
trict Court could not be guided by any decision of this Court 
as decisive of the question involved on the peculiar facts 
presented for determination. The evidence which that 
Court had to consider was not the result of conflicting testi­
mony, but, on the contrary, was all documentary. From the 
evidence it appeared that the exclusion of members of the 
colored race from jury service by reason of their race or 
color was a matter of custom in the county where the indict­
ments were found and where the petitioner, if returned, 
would be put on trial. I t was evident that your petitioner, 
if returned, would be put to his trial before the same judge 
who had drawn the grand jury in violation, as demonstrated 
by the evidence, of the Constitution of the United States. 
Upon any motion or plea in abatement presented to that 
judge to quash or dismiss the indictments, he would be called 
upon to pass judgment upon his own act. Such action would 
violate the fundamental principle of due process, that no 
person shall sit as judge in a case where he has a personal 
interest in the outcome.

It cannot be said that in the circumstances as above related 
the order of the District Court in discharging the petitioner 
was such an abuse of discretion as to constitute reversible 
error. The order of discharge did not interrupt the pro­
ceedings of any other Court. The finding of the custom of 
exclusion of persons of the Negro race in Virginia was based 
upon admissions freely given by officers of that state. In 
short, the entire record afforded to the judge of the District



28

Court sufficient opportunity to warrant him in exercising 
the discretion vested in him in the manner in which he did.

VI.
The ruling of the District Court that the indictments were

void was not reversible error.
The Circuit Court of Appeals apparently is of the opinion 

that, if the agreed facts offered by your petitioner were 
properly admitted in evidence, the sole remaining question 
to be determined in reaching its decision is whether the 
District Court erred in ruling that the Virginia indictments, 
which it admits are the bases of the warrant under which 
your petitioner is held, are void. The Court then under­
takes, in the absence of an opinion filed by the District 
Court, to presuppose that the view entertained by the Dis­
trict Court in reaching its decision “ apparently was and is 
that the method pursued in Loudoun County, Virginia, in 
making up the lists for and the drawings of grand jurors, 
whereby the State officials discriminated against citizens of 
African descent because of race or color, was a violation of 
the applicant’s constitutional right under the Fourteenth 
Amendment and of such a nature as to render the indict­
ments and all proceedings thereunder void, depriving the 
Virginia court of jurisdiction to proceed and try the case.” 
(Italics ours.) Having set up this theory as essential to 
the conclusion reached by the District Court, it proceeds to 
knock it down, and having proved to its own satisfaction 
that its self-imposed reasoning of the District Court was 
wrong, vacates the order of the District Court as based 
upon erroneous reasoning.

The entire evidence upon which the decision of the Dis­
trict Court was reached is before this Court in the record, 
and if the discretion of the Court in discharging the peti­
tioner can be supported on any ground, it is not subject to 
reversal.



29

It is submitted that the view which is presumed to have 
been held by the District Court as the basis of its conclusion 
is not to be implied from the record, because it does not fol­
low that, unless the District Court held that all proceedings 
in Virginia were void, the order of the District Court must 
be vacated. The Circuit Court of Appeals admits that the 
indictments are voidable and that upon their validity being 
put in issue in the Virginia Court they must be held void 
under the decisions of this Court, for to hold otherwise 
would be reversible error. It must follow that if the District 
Court had jurisdiction of the cause and of the person, and 
the jurisdiction of no other Court in either case had at­
tached, then if the issue of the validity of the indictments 
is put in issue, the District Court must find them to be void. 
This does not amount to divesting any other Court of a juris­
diction already acquired or interrupting the orderly pro­
cedure of the prosecution. To fail to discharge the peti­
tioner under the circumstances would be to surrender the 
jurisdiction of the cause and of the person to the Courts of 
Virginia.

The District Court must be deemed to have taken the po­
sition that, with no issue of law or fact in controversy, to 
have remanded your petitioner to custody and leave the 
question of the violation of the Constitution, if he raised it, 
to the Virginia Court, would have been an idle thing, would 
delay justice and to no purpose keep the petitioner in 
restraint of his liberty in violation of the Constitution.



30

VII.
The District Court, upon the record in this case, had pre­

sented for determination for the first time, so far as ap­
pears in the decisions of this Court, a petition for habeas 
corpus which raised no controverted questions either of 
law or of fact to be referred to the Court of the demanding 
state for determination in the first instance, but, on the 
contrary, all the facts were admitted, and upon these ad­
mitted facts (which the Court ruled were competent) the 
violation of the rights guaranteed to the petitioner by the 
Fourteenth Amendment in the procurement of the indict­
ments was established, so that the District Court was 
called upon to exercise its discretion upon the peculiar 
facts and circumstances presented in the record before it, 
uncontrolled by any previous decisions of this Court.

The evidence before the District Court was documentary. 
The statement of agreed facts, the requisition papers of the 
Governor of Virginia and the rendition warrant of the Gov­
ernor of Massachusetts involved no controverted question 
of fact to be found by that Court. The uncontroversial na­
ture of the facts before it provided no opportunity to the 
District Court, in its discretion, to pass to the Courts of Vir­
ginia the problem of finding facts out of conflicting testi­
mony. Likewise, in view of the principles frequently enun­
ciated by this Court, there was not involved in the District 
Court a debatable question of law as to whether, on the 
facts, the rights of your petitioner guaranteed to him by the 
Fourteenth Amendment had been violated.

E x parte Virginia, 100 U.S. 339 (1879).
Strauder v. West Virginia, 100 U.S. 303 (1879).
Neal v. Delaware, 103 U.S. 370 (1880).
Carters. Texas, 177 U.S. 442 (1900).
Tarrance v. Florida, 188 U.S. 519 (1903).



31

The decisions relied upon by the respondent before the 
Circuit Court of Appeals, and by that Court in its opinion, 
admittedly piesent no authority which is controlling upon 
the record in this case. All of those cases are distinguish­
able from the case here, and most of them are cases where
(1) the writ has been denied because the issue presented for 
determination involved either controverted questions of fact 
or debatable points of law, or both—

Ex parte Royall, 117 U.S. 241;
New York v. Eno, 155 U.S. 89;
Drew v. Thaw, 235 U.S. 432;
Pearce v. Texas, 155 U.S. 311—

or (2) the writ, if granted, would divest a state Court of a 
jurisdiction already obtained of the same issue presented 
on habeas corpus and of the person of the accused—

Ex parte Royall, supra;
New York v. Eno, supra;
Pearce v. Texas, supra;
Whitten v. Tomlinson, 160 U.S. 231—

or (3) an attempt was made to make the writ serve the 
function of a belated writ of error—

In re Wood, 140 U.S. 278;
In  re Wilson, 140 U.S. 575;
Andrews v. Swartz, 156 U.S. 272;
Matter of Moran, 203 U.S. 96;
Kaiso v. Henry, 211 U.S. 146;
Glasgow v. Moyer, 225 U.S. 420—

or (4) the writ had been invoked in removal cases to supply 
an appeal, where the removal statute provided for none, 
from the Court which had found probable cause for removal.

Green v. Henkel, 183 U.S. 249.
Reavers v. Henkel, 194 U.S. 73.
Rodman v. Pothier, 264 U.S. 399.



32

C o n c l u s io n .

The course of reasoning adopted by the Circuit Court of 
Appeals, as below pointed out, in the opinion of your peti­
tioner constitutes so serious an injustice to him as to call 
for the exercise of this Court's review. I t is submitted that 
the Circuit Court of Appeals fell into error—

(1) In failing to distinguish between the application of 
the writ of habeas corpus in removal cases on the one hand 
and in interstate rendition proceedings on the other, upon 
the question of the admissibility of the evidence;

(2) In failing to recognize that your petitioner, in con­
troverting the prima-facie evidence of the requisition 
papers, has done so by facts which, being conceded by the 
respondent, constitute proof beyond a reasonable doubt;

(3) In failing to recognize that the petitioner was held 
in custody under color of the authority of the United States 
and not of the State of Virginia, and thereby in reaching the 
erroneous conclusion that the order of the District Court dis­
charging the petitioner was an obstruction of the orderly 
administration of the case in the state Court of Virginia;

(4) In assuming that the prosecution of indictments ad­
mitted to be procured in violation of the rights guaranteed 
to the petitioner by the Constitution of the United States 
constitutes orderly administration of the criminal laws by 
the demanding sta te ;

(5) In ignoring the fact that the State of Virginia, al­
though admitting that in one stage of the criminal proceed­
ing against your petitioner it openly violated the Four­
teenth Amendment of the Federal Constitution, neverthe­
less invoked, and insisted upon strict adherence by a sister 
state to, article IV, section 2, of the same instrument in an 
effort to secure jurisdiction of his person.

(6) In predicating its decision upon the unwarranted 
assumption that the District Court must have held that the 
discrimination practised by the officials of Loudoun County 
in making up the lists for and the drawings of grand jurors



tendered tlie indictments and nil proceedings thereunder 
void ab initio, so that the Virginia Court was deprived of 
jurisdiction to proceed and try the case;

(7) In holding that unless the discrimination against the 
petitioner was such as to deprive the Virginia Court of 
jurisdiction, the order of the District Court discharging the 
petitioner must be vacated;

(8) In failing to recognize that the decisions relied upon 
in the opinion were not applicable in determining the issue 
piesented on the record in the instant case, but were de­
termined upon facts clearly distinguishable, and for the 
most part were cases where (a) the writ has been denied 
because the issue presented for determination involved 
cither controverted questions of fact or debatable points 
of law, or both; or (?;) the writ, if granted, would divest a 
state Court of a jurisdiction already obtained of the same 
issue presented on habeas corpus and of the person of the 
accused; or (c) an attempt was made to make the writ serve 
the function of a belated writ of error; or (d) the writ had 
been invoked in removal cases to supply an appeal, where 
the removal statute provided for none, from the Court which 
had found probable cause for removal;

(9) In failing to consider the basic grounds of the deci­
sion of the District Court, that that Court had a broad scope 
of inquiry into the petitioner’s cause of restraint, that under 
the mandate of the Federal Habeas Corpus Act it was re­
quired to “ proceed in a summary way to determine the 
facts of the case by hearing the testimony and arguments,” 
and that by the provisions of the Act it Avas vested Avith a 
discretion “ to dispose of the party as law and justice 
require. ’ ’

Respectfully submitted,
GEORGE CRAWFORD,

By his Attorneys,
J .  W e s t o n  A l l e n , 
B u t l e r  R. W il s o n .









IN THE

SUPREME COURT OF ARKANSAS

BUBBLES CLAYTON and JIM X. CARUTHERS,
Appellants,

against

STATE OF ARKANSAS,
Appellee.

A p p e a l  p r o m  t h e  C ir c u it  C o u r t  of  t h e  M is s is s ip p i  

C o u n t y , C h ic k a s a w b a  D is t r ic t .

Hon. N e il l  K il l o u g h , Judge.

SUPPLEMENTAL BRIEF FOR APPELLANTS.

JOHN R. THOMPSON, 
JNO. A. KIBBLER,

Attorneys for Appellants.
C h a r l e s  H .  H o u s t o n ,

C arol K in g ,

of Counsel.

GALLO & ACKERMAN, Inc., 142 Liberty Street, Telephones—Rector 2--5356-7



.



IN THE

SUPREME COURT OF ARKANSAS.

B u b b l e s  C la y to n  and J im  X. C a r u t h e r s ,

Appellants,
against

S ta te  of  A r k a n sa s ,

Appellee.

A p p e a l  f r o m  t h e  C ib c u it  C o u r t  of  t h e  M is s is s ip p i  

C o u n t y , C h ic k a s a w b a  D is t r ic t .

SUPPLEMENTAL BRIEF FOR APPELLANTS.

Statement.

This is an appeal from a death sentence imposed for 
the rape of a white woman upon two indigent Negro 
defendants for whom the trial court appointed counsel.

The conviction should be reversed and the cause 
remanded, for the reasons



2

(1.) That the evidence was insufficient in that

The evidence of the alleged rape was incredible,

The identification of these defendants was un­
satisfactory and prompted;

(2.) That the court committed prejudicial error in 
permitting the prosecuting attorney to question de­
fendants on other unrelated crimes, and in permitting 
evidence to be introduced regarding such crimes.

The Evidence Wa£ Insufficient.

Appellate courts have long recognized the danger 
of verdicts in rape cases based not on evidence but 
on “ passion or prejudice” . (Morris v. State, 9 Okla. 
Crim. 241, 253; People v. Fitsgibbons, 343 111. 69, 71.) *

* ‘ The courts have repeatedly approved Sir Mat­
thew Hale’s statements in regard to the crime of 
rape that ‘it must be remembered, that it is an 
accusation easily to be made and hard to be 
proved, and harder to be defended by the party 
accused, though never so innocent;’ and that we 
should ‘be the more cautious upon trials of of­
fenses of this nature, wherein the court and jury 
may with so much ease be imposed upon without 
great care and vigilance; the heinousness of the 
offense many times transporting the judge and 
jury with so much indignation that they are over 
hastily carried to the conviction of the person ac­
cused thereof by the confident testimony some­
times of malicious and false witnesses’ ” . (52 C.



3

J. 1087, quoting from 1 Hale P. C., pp. 635 and 
636.)

The first statement of Sir Matthew Hale, appear­
ing above, has been approved in the following among 
other cases where the conviction for rape was re­
versed.

People v. Kazmierczyk, 357 HI. 592, 192 N. E.
657;

Logan v. State, 66 Tex. Cr. R. 506, 148 S. W.
713;

Morris v. State, 9 Okla. Cr. R. 241, 131 P. 731;
State v. Goodale, 210 Mo. 275,109 S. W. 9.

“ Courts are especially charged with the duty to 
carefully examine the evidence in rape cases” (People 
v. Kazmierczyk, supra, at p. 597). Where the evi­
dence is not sufficient to remove all reasonable doubt 
of the defendants’ guilt the courts should reverse con­
victions.

The Evidence of the Alleged 
Rape Was Incredible.

The prosecution introduced the evidence of three 
witnesses in chief: (1.) Wiley Bryant, a young man
who was with Yergie Terry on the night of the alleged 
rape but did not see it, and so did not and could 
not testify to the actual raping; (2.) Arch Lindsey, 
Chief Deputy Sheriff of Mississippi County, Arkan­
sas, who had arrested the two defendants for an assault 
on Sheriff Wilson and testified about nothing but an 
identification of them by Bryant and Mrs. Terry made



4

in the death house at the Tucker Farm Penitentiary 
where the two Negro defendants were being held for 
such assault, and (3.) Vergie Terry, the prosecutrix, 
who testified to having been raped by each of the 
defendants in Bryant’s car on the night of December 
21, 1934.

Mrs. Terry testified to the alleged raping, in sub­
stance, as follows: She was a married woman nine­
teen years of age, was living separate from her hus­
band, and kept company with other men. On the 
night of December 21, 1934, she was out with Bryant 
in his car. While the car was parked after dark, 
about 8:30, near Sawyer’s Graveyard, Blytheville, with 
the lights out, two masked Negroes came up, flashed 
lights on them, told them “ to stick them up” , and, 
without waiting for compliance, fired a shot through 
the door of the oar. The Negroes forced both Mrs. 
Terry and Bryant out of the car. At the point of 
a pistol they ordered Bryant to lie down in a ditch 
about ten feet from the car. The larger Negro then 
forced Mrs. Terry back into the car. While the 
smaller Negro (identified as Caruthers) guarded 
Bryant, the larger one (identified as Clayton) raped 
Mrs. Terry on the back seat of the car. The Negroes 
then changed places, and while the larger one guarded 
Bryant the smaller one raped Mrs. Terry in the car. 
Bryant then got in the car and sat behind the wheel 
and Mrs. Terry got into the front seat of the car. 
On the instructions of the Negroes they waited about 
five minutes, after which Bryant drove Mrs. Terry 
home. When they arrived in town they inquired of 
Brewster, a police officer, for Arch Lindsey, the Chief



5

Deputy Sheriff. They did not see Lindsey but talked 
to “ the night fellow” and undertook to tell him what 
had happened.

This is substantially the prosecution’s case. Mrs. 
Terry alone testified to the alleged rape. Bryant, her 
escort that night, corroborated the story to the extent 
of saying they were stopped by the two Negro de­
fendants and she was alone in the oar with one after 
the other of them, while he was being guarded in the 
ditch, but expressly stated he did not know what went 
on in the car with Mrs. Terry.

Let us see what prosecuting witnesses were con­
spicuously absent.

There was no medical expert called to testify to 
any examination of Mrs. Terry, and obviously no such 
examination was ever made.

No witness who heard any outcry or to whom any 
complaint was made took the stand, not even the 
“ night fellow.” Both Bryant and Mrs. Terry testi­
fied that two cars had passed the parked car during 
the first of the alleged rapings. Bryant testified that 
he “ didn’t yell” , and Mrs. Terry likewise testified 
that she “ didn’t cry out when either of these cars 
passed.”  Bryant gave no explanation; Mrs. Terry 
said it would not have done any good and added when 
it was suggested to her by the Prosecuting Attorney’s 
question that she was frightened.

“ Duty of woman injured, under ordinary cir­
cumstances, or of her friends, to obtain prompt 
medical advice; and the omission to do so, in cases 
of alleged rape, is a fact which subjects the prose­



6

cution to discredit” . (Wharton, Criminal Law 
[7th Ed.], 971, citing authorities.)

“ Failure to make outcry may be considered, 
as may also the failure to make complaint, in de­
termining the question of resistance and consent 
on the part of prosecutrix.” * (Wharton, Criminal 
Law [7th Ed.], 997.)

*“ Failure to make outcry, if the place where 
the act alleged to have been committed was 
such that it was possible she might have been 
heard; concealing of the injury for any consid­
erable time after she had opportunity to com­
plain—these and like circumstances carry a 
strong but not conclusive, presumption that 
her testimony is false and feigned.” (Citing 
authorities.)

“ It is not to be denied, that the fact that she 
made no violent outcry, and the further one that 
she made no complaint of the injury for several 
days, are circumstances strongly in favor of the 
assumption of the prisoner’s innocence.” (State 
v. Cross, 12 Iowa 66, 69-70.)

“ If the place where the act is alleged to have 
been committed was near to persons by whom she 
might probably be heard and yet she made no out­
cry—these and the like afford a strong though 
not conclusive presumption that her testimony 
was feigned.” (State v. Goodale, 210 Mo. 275, 290.)

Brewster, the police officer of whom Bryant asked 
the whereabouts of Arch Lindsey when he drove Mrs. 
Terry back to town, was not called. The “ night fel-



7

low” to whom Bryant had claimed he had complained 
likewise was not called.

No woman friend of the prosecutrix stepped forward 
to testify to any complaint Mrs. Terry had made or 
give any evidence as to her physical condition.

Finally, there is not a scintilla of evidence in the 
record that Mrs. Terry even complained to Bryant. 
Apparently both of them sat in silence for the five 
or eight minutes they waited before starting back to 
town, without her telling him what had occurred and 
without his asking or expressing the slightest solici­
tude or anxiety.

There was no evidence introduced of any after 
effects of the “ double rape” ; no emotional or mental 
disturbance and no physical laceration, pain or suffer­
ing. There was no evidence of injury to her clothes 
or of stains on her slip or her dress or on the uphol­
stery or floor of the car.

“ And the same is true, as to the fact that her 
garments were not torn, and bore no evidence of 
injury. If nothing of this kind appears the jury 
should, from the peculiar character of the case, 
hesitate long before conviction.” (State v. Cross, 
12 Iowa 66, 70.)

There is not one word in either Bryant’s testimony 
or Mrs. Terry’s testimony that there were any after 
effects of the alleged rape. From the moment he and 
Mrs. Terry got back into the front seat of the car, 
the only reference at all to the supposed rape was 
Bryant’s testimony of looking for Sheriff Lindsey and 
making a report to the “ night fellow” . There is lit­



8

erally not one word more, from him or from any one 
else, as to how Mrs. Terry looked or acted after the 
“ terrible experience” she claims to have had.

Quite aside from the missing witnesses and the man­
ifest gaps in the testimony of those witnesses who did 
testify, certain physical objects intimately connected 
with the alleged crime were not produced. Thus, 
Bryant’s car in which the raping was alleged to have 
occurred with the bullet hole through the door was 
not brought to court or otherwise shown to the jury 
with the explanation that it had been burned.

The clothes which Mrs. Terry wore on the night of 
the alleged assault which would, if torn or stained, 
have afforded the most convincing physical proof of 
the crime, were likewise not produced.

“ Evidence of the condition of the clothing of 
the prosecutrix shortly after the alleged offense, 
as that it was torn, disarranged, or bloody, is ad­
missible, and the clothing itself, after proper iden­
tification, may be exhibited as evidence.”  (52 C. J . 
1073, citing authorities.)

The Supreme Court of Minnesota, in the case of 
State v. Cowing, 99 Minn. 123, 9 Am. & Eng. Ann. 
Cases 566, in setting aside a conviction of rape laid 
great stress on the mere fact that the clothing had 
been washed. The Court said:

“ While not without some corroboration, the tes­
timony of prosecutrix is aided most largely by that 
of her sister; but that corroboration is to be 
weighed in connection with the fact that she and



9

her sister, by washing the skirt, which, if her tes­
timony were true, would probably have borne evi­
dence of blood and semen, effectually destroyed 
the best possible evidence under the circum­
stances.”

There is not even any testimonial evidence as to 
the condition of the clothes. Strangest of all, the 
masks worn by the Negroes which are alleged to be 
in the hands of the police are never introduced in evi­
dence. Only in the question put by the prosecuting 
attorney to Caruthers on cross examination, and of 
which he denies knowledge, are the masks even de­
scribed in any detail.

The Identification of These 
Defendants Was Unsatisfactory.

Two factors taken together served to render iden­
tification difficult or perhaps impossible in this case. 
These were (1.) the absence of light and (2.) the masks 
on the assailants.

(1.) Both Bryant and Mrs. Terry testified that the 
lights on their car were out and that the Negroes 
came up to their car about 8 or 8:30 on a cloudy De­
cember night. Both said the moon came out from 
the clouds “ every once in a while” . When the flash 
lights were first flashed on her Mrs. Terry says she 
“ was blinded” , and could not see the Negroes. At 
no time when the flashlights were on was she able to 
see the Negroes plainly according to her own testi­
mony. Both Bryant and Mrs. Terry testified that two



10

cars passed with headlights on while the larger Negro 
was in the car with Mrs. Terry. Bryant admitted that 
the ditch bank and his car had been between him and 
the passing automobiles. Furthermore, both cars 
passed while the big Negro was in the car with Mrs. 
Terry, so that there were no car lights to help her 
identify the small Negro or to help Bryant identify the 
big one. No car passed while the little Negro was in 
the car.

(2.) The darkness would have made later identifi­
cation difficult enough but in addition the Negroes 
wore masks. Bryant never saw either of them with­
out the masks. Both defendants at all times had their 
faces covered and he “ didn’t see their faces” . About 
the only difference between them he noticed, when he 
was out on the road with both, was “ that one was 
bigger than the other” . While the small Negro was 
standing over Bryant in the ditch, Bryant was lying 
with his “ face down” , but he added, “ I raised my 
head up and looked at him” . That Bryant really did 
not see the two Negroes’ faces at all was plainly 
brought out at the end of his cross-examination by 
the following questions and answers:

‘ ‘ Q. Did this boy have this mustache down there 
(at Tucker Farm) ?

A. Yes, sir.
Q. You don’t know whether he had it this night 

out there or not; you didn’t see any part of his 
face, did you?

A. No, sir.
Q. Didn’t see that mouth of his, could you?



11

A. No, sir.
Q. And didn’t see that kinky head of his, either, 

did yon?
A. No, sir; I didn’t.
Q. You didn’t see that flat nose and mouth of 

this little boy, did you?
A. No, I  didn’t.
Q. You couldn’t? A. No, sir; I  couldn’t .” 
(Transcript, p. 41. Note: Pagination of trans­

cript varies and references to pages may not be 
the same in all copies.)

The main point that Mrs. Terry relied on to support 
her identification was her testimony that the Negroes 
raised their masks during the acts of intercourse. 
Men who had been so careful to hide their faces dur­
ing the commission of a crime curiously enough un­
covered them during just that critical time. Mrs. 
Terry forgot to mention this until a leading question 
was asked suggesting that answer:

“ Q. While the act was going on, tell the jury 
whether or not the Negro was masked?

A. Yes, sir.
Q. What did he do with his mask?
A. He pushed it up on his forehead.
Q. Did you have opportunity, in the full glare 

of that light to see and know him?
A. Yes, sir.
Q. When the act of intercourse was going on 

with the other man, what did he do with his mask? 
A. He did the same thing.
Q. Pushed it up on his forehead?
A. Yes, s ir” (Tr., pp. 52-3).



12

Once more we repeat there was no “ full glare” of 
any car light while the second act of intercourse was 
going on.

Both Bryant and Mrs. Terry testified that there was 
nothing unusual about the way either of the Negroes 
spoke.

Wharton, in his Criminal Eviden-ce has said:

‘ ‘ Caution should he exercised by a jury in weigh­
ing evidence of ‘ identityJ . . .  under conditions that 
generally surround crime, where concealment is 
often attempted, and effacement is frequent, and 
where testimony is often destroyed or simulated, 
identification is not only difficult, but sometimes 
impossible. Again, a predisposition to connect an 
accused with a crime often leads to fancied re­
semblances and witnesses give color to their tes­
timony according to the force of such prejudg­
ment. The clearest impression of the senses are 
often deluding and deceptive to a degree that 
renders them worthless when tested by the actual 
facts. Often, grievous and irreparable wrongs are 
inflicted by reliance upon impressions that are 
frequently so valueless as to demand their com­
plete rejection as a basis of scientific accuracy” 
(p. 1637, citing many authorities).*

And the same author says further:

“ Mindful of how easily opinions as to identity 
are affected by prejudice, it is necessary to con-

*Convicting the Innocent, by Edwin B. Borchard, containing a col­
lection of sixty-five criminal prosecutions and convictions of defend­
ants whose innocence was later established, makes manifest the danger 
of convictions upon flimsy identifications.



13

elude, when the opinions of witnesses are relied 
upon as authority, that the two great constituents 
of reliability are: (1) familiarity with the person 
in controversy, and (2) freedom from personal or 
party prejudice” (p. 1777).

Neither one of these “ two great constituents” was 
present in the instant case. (1.) Bryant and Mrs. 
Terry had, as each testified, not seen either of the 
defendants before the alleged rape and consequently 
were not familiar with the persons in controversy. 
And (2) the prejudice against the defendants, Negroes 
charged with assaulting a sheriff, is manifest through­
out the record.

Identifications in rape cases have in a number of 
instances been looked upon by appellate courts with 
suspicion. Thus in setting aside a conviction of as­
sault with intent to rape the Supreme Court of Illinois 
said:

“ There is also some question about the identifica­
tion of the plaintiff in error by Mrs. Hewitt. When 
plaintiff in error was brought back to Amboy for 
a preliminary hearing the day after the assault 
the husband of the prosecuting witness saw him. 
He was with his wife when the plaintiff in error 
was brought into the office of the magistrate, and 
as he was brought in the husband of the prosecut­
ing witness said, ‘He is in the room now’. He 
admitted making this statement but claimed that 
Mrs. Hewitt had recognized him before that; but 
if so, there was no reason for his pointing out the 
plaintiff in error and for that reason the identifi­
cation of plaintiff in error by the prosecuting wit­



14

ness is not as satisfactory as if she had picked 
him out from a number of others and recognized 
him without any assistance or beyond any ques­
tion as her assailant. It was a dark night and the 
prosecuting witness was assaulted by a person she 
had never seen before.” (People v. Allen, 279 
111. 150, 156-7, our italics.)

After emphasizing the difficulty of identifying an as­
sailant seen only at night in the dark the Supreme 
Court of Idaho reversed a conviction for rape because 
of the unsatisfactory character of the identification. 
The court said in p a r t:

“ The only evidence tending to identify appellant 
as her assailant is her testimony that he is the 
man who assaulted and outraged her.

“ In all communities where a heinous crime, like 
the one under consideration, committed upon a 
young and unoffensive girl, becomes the subject 
of inquiry there is more or less excitement, and 
it naturally follows that where a person is charged 
with such a crime, the prejudice of the community 
is aroused. Therefore great caution should be 
used to avoid a miscarriage of justice, and the 
identity of the defendant should be established 
beyond a reasonable doubt” . (State v. Roberts, 
32 Idaho 96, 98.)

In State v. Thomas (193 Iowa 1004, 188 N. W. 689), 
a prosecution for assault with intent to commit rape, 
the defendant’s face was covered. I t was not masked 
as in this case but merely covered with a veil. In 
reversing the conviction the court recognized that the 
verdict of a jury should ordinarily be accepted but



15

added “ the rule is one of less imperative force in a 
criminal than in a civil case” .

“ One of the essential facts to sustain a conviction 
in a criminal case is the identification of the ac­
cused as the offender; and this must be shown 
beyond a reasonable doubt. Such a showing is not 
to be found in this record, and the verdict cannot 
be permitted to stand” (1024).

The Identification 
Was Prompted.

The identification of the defendants at the trials 
depended wholly on their prior extrajudicial iden­
tification by Mrs. Terry and Bryant in the death house 
at Tucker Farm. The circumstances surrounding the 
identification at Tucker Farm thus became of prime 
significance.

When Mrs. Terry and Bryant made that identifica­
tion the two defendants were set off by themselves in 
one cell. There had previously been a third Negro 
in the cell with them but he had been taken out, placed 
in another cell and forced to get in bed and cover up 
his head, so that there could be no possibility of mis­
taken identity when Sheriff Lindsey brought the two 
prosecuting witnesses down to make the identification. 
Furthermore, on their way out to the penitentiary 
Bryant, Mrs. Terry and the Sheriff, to quote the 
Sheriff, “ talked about it some” . They “ could have” 
discussed the Negroes by name and how they were 
located and arrested.



16

These two Negroes Clayton and Caruthers, had been 
arrested for a wholly different crime, the assault on 
Sheriff Wilson, for which obviously some Negro was 
to be made to pay and pay dearly. It was a curious 
coincidence that these two defendants who had been 
arrested for one crime that had aroused great feeling 
were identified when they were alone together in jail 
for having perpetrated a wholly unconnected crime.

The Arkansas law is plain that extrajudicial iden­
tifications are not admissible over objection (Warren 
v. State, 103 Ark. 165). Presumably this rule indi­
cates that the Arkansas courts place little weight on 
such identification. However, in the instant case there 
was no objection and consequently we do not seek to 
review the admissibility but only the force of such 
identification. The extrajudicial identification which 
was practically the only identification of the defend­
ants, for the later identification at the trial depended 
wholly upon it, was, we submit, under all the circum­
stances including Sheriff Lindsey’s prompting, with­
out probative force.

In the Allen case {supra) the court placed no cred­
ence in an identification which the woman made with 
her husband’s assistance. It is plain from the present 
record, despite his effort to get away from this fact, 
that the identification was made with the help of 
Sheriff Lindsey. In the Allen case, as in the instant 
case, there was no “ line up” and the Illinois Supreme 
Court consequently regarded the identification as “ not 
as satisfactory as if she had picked him out from a 
number of others.”  That identifying a defendant in



17

a rape case from a line-up is the appropriate method 
has been generally recognized.

“ A practice that is quite common with police 
officials, in cases where it is not certain whether 
the person arrested is the one who committed the 
crime, is to have the prosecutrix point out from 
a number of men the particular one who commit­
ted the crime.” (22 R. C. L. 1200-1, Title Rape.)

In the recent decision of the Supreme Court of 
Alabama in Petersen v. State (227 Ala. 361, 367), the 
court approved the prosecution’s evidence “ that the 
witness had looked at many negroes” after effort had 
been made to show that the prosecutrix was mistaken 
in her identification of her assailant.

In an earlier Alabama rape case the court had simi­
larly said:

“ It was entirely competent to show that she 
fixed upon these men as the criminals, out of a 
number who had been brought before her. To be 
able to select one or more out of a multitude, or 
out of any greater number, is one of the ordinary 
tests of the correctness of the identification; and 
the fact that the prosecutrix did this goes to show 
that, although she may have expressed an inaccu­
rate description, she evidenced no hesitation or un­
certainty in pointing out the defendants when they 
and others were brought before her.” (Cotton v. 
State, 87 Ala. 75, 6 S. 396.)

In Bruce v. State (31 Tex. Cr. R. 590), a girl who 
had been outraged described her Negro assailant. She 
denied the identity of the first man arrested and he



18

was later released. The defendant was then arrested. 
A motion to exclude evidence of an extrajudicial iden­
tification was denied, the court saying:

‘ ‘ The appellant, with six or eight other negroes 
stripped of hats and coats, were formed in line in 
the jail and Ella Sherill was brought in, and at 
once identified appellant. They were then rear­
ranged with hats and coats on, and again the ap­
pellant was identified by the prosecutrix and her 
sister.”

To the same effect:

State v. Butler, 114 S. C. 433, 103 S. E. 762;
State v. Johnson, 85 S. C. 265, 67 S. E. 453;
Reg. v. Jenkins, 1 C. & K. 536, 47 E. C. L. 536, 

174 Reprint 927.

How different the procedure was in the instant case 
where the witnesses were brought to the jail by the 
Sheriff who had arrested the defendants, and who if 
he did not point them out, had spoken of them by 
name on the way to the penitentiary and had walked 
with the witnesses in the direction of the cell where 
defendants alone were incarcerated.

The situation presented here is not unlike the situa­
tion presented by the identification in the court room 
of a defendant. Of such an identification the Supreme 
Court of Connecticut has said:

“ An identification of an accused made publicly 
for the first time by a witness in court when 
there presumably have been many opportunities 
for the witness to have seen the accused and have



19

heard him spoken of by a given name, may be 
open to question” . (State v. Frost, 105 Conn. 
326.)

We submit that in the instant ease the identifica­
tions are thus open to serious question.

Both Clayton and Caruthers took the stand in their 
own behalf. Both denied having seen Mrs. Terry and 
Bryant before the identification on January 12, 1935, 
and specifically denied having held up Bryant’s car 
or raped Mrs. Terry on December 21, 1934 or at any 
time. They swore to their having played cards and 
later being up to the state line to purchase liquor on 
the night of the alleged raping. Four Negroes swore 
to having played cards with the two defendants on a 
night shortly before Christmas and their having gone 
to the state line with them. These witnesses with 
extraordinary frankness were unwilling to swear that 
it was surely the night of December 21.

As a final indicator of the dubiousness of the Peo­
ple’s case is the fact that it was in very large part 
brought out by answers to leading questions and not 
by an independent narrative on the part of the wit­
nesses.

“ It is the duty of the reviewing court to give a 
careful, independent consideration to the evidence, 
giving due weight to the fact that the court or 
jury saw and heard the witnesses, and if after 
such consideration the court does not regard the 
evidence in the record, by reason of its improba­
bility, unreasonableness, unsatisfactory character, 
or any other reason arising from a consideration



20

of the evidence, to be sufficient to remove all rea­
sonable doubt and create an abiding conviction 
that the defendant is guilty, it is the duty of the 
court to reverse the judgment of conviction.” 
(People v. Nemes, 347 HI. 268, 179 N. E. 868 
[1932].)

The Court committed prejudicial error in permit­
ting the prosecuting attorney to question defendants 
on other unrelated crimes, and in permitting evidence 
to be introduced regarding such crimes.

It is an elementary principle of law that on the 
trial of a defendant for crime he cannot be convicted 
by proving that he committed certain other unrelated 
crimes at different times and places.

“ The most guilty criminal may he innocent of 
other offenses charged against him, of which, if 
fairly tried, he might acquit himself. From the 
nature and prejudicial character of such evidence 
it is obvious that it should not be received unless 
the mind plainly perceives that the commission 
of the one tends by a visible connection to prove the 
commission of the other by the prisoner. If the 
evidence be so dubious that the judge does not 
clearly perceive the connection, the benefit of the 
doubt should be given to the prisoner, instead of 
suffering the minds of the jurors to be prejudiced 
by an independent fact, carrying with it no proper 
evidence of the particular guilt.”  Whitefield, J., 
in Dabney v. State, 82 Miss. 252, quoting Agnew, 
J., in Shaffner v. Commonwealth, 72 Pa. 60.

See cases collected in annotations, 62 L. R. A. 314; 
48 L. R. A (N. S.) 236.



21

In the instant case where the two defendants were 
charged with alleged rape on Mrs. Vergie Terry, De­
cember 21, 1934, near Sawyer’s Graveyard, Blythe- 
ville, the Prosecuting Attorney spent most of his time 
on cross-examination of the defendants in accusing 
and questioning them as to other entirely distinct and 
unrelated crimes. Sample questions to the defendants 
by the Prosecuting Attorney conducting the cross- 
examination follow:

To the defendant Bubbles Clayton (first on the 
stand):

“ Part of your occupation has been stealing, 
hasn’t it? ” (Tr., p. 76.)

“ You hijacked Mr. Frank and Miss Hutchins 
on November 18th and shot her, didn’t you?” 
(Tr., 76.)

“ You shot her (Miss Hutchins) in the arm, 
didn’t you?” (Tr., 76.)

“ You say you never steal?” (Tr., 77.)
“ * * * Bubbles, you know they had a big lot of 

robberies down here about the time of this hap­
pening, didn’t they, and before it?” (Tr., 77.)

“ After you were arrested and in custody, didn’t 
you tell the officers on a number of occasions where 
the stolen articles were which they could find, 
and which they recovered and sent back to own­
ers?” (Tr., 77.)

“ You heard about Mr. Wilson getting, Mr. Wil­
son being shot in the eye (January 12, 1935). 
You didn’t do it, of course, did you? Were you 
guilty of shooting Mr. Wilson?” (Tr., 78.)

“ I will ask you if you didn’t stick him up, and 
then tell Mr. Lindsey where he could find his 
watch and other stuff?” (Tr., 82.)



2 2

“ You are a Negro man and in there charged 
with shooting the sheriff of this county, who had 
his deputy with him, Mr. Arch Lindsey, and you 
knew that, didn’t you, charged with shooting the 
law?” (Tr., 83.)

And to the defendant Jim  X. Caruthers (later on the 
stand):

“ Your car was parked out there right where 
Sheriff Wilson got shot (January 12, 1935)?” 
(Tr., 106.)

“ Did you tell Mr. Rainmiller where they could 
find Mr. Lewis Wilson’s watch that had been 
stolen?” (Tr., 111.)

“ Did you tell Mr. Rainmiller where he would 
find Mr. Atkins’ radio?” (Tr., 111.)

“ I am asking you for the purpose of contra­
diction, if you didn’t tell Mr. Rainmiller about 
sixteen different robberies, and tell him in each 
particular case where they would find where you 
had either sold the stuff or had it hidden, and 
he called Mr. Arch Lindsey over the telephone, 
and Mr. Lindsey would go find the stuff?” (Tr., 
111.)

The Prosecuting Attorney did not profess to be pro­
ceeding on this line of examination as direct substan­
tive proof of the charge that the defendants had raped 
Mrs. Terry December 21, 1934. He attempted to jus­
tify the questions on the ground of impeaching or con­
tradicting the defendants as witnesses:

“ Mr. Smith (Deputy Prosecuting A ttorney):
Whether or not he committed other offenses
goes to his credibility.”  (Tr., 83.)



23

On this point there was utter confusion in the mind 
of the trial court. His rulings at one stage of the 
case were inconsistent with and repugnant to his rul­
ings on the same point at another stage:

“ Cross-examination of Bubbles Clayton:

Q. After you were arrested and in custody, 
didn’t you tell the officers on a number of occa­
sions where the stolen articles were which they 
could find, and which they recovered and sent 
back to owners?

The Court: Let me see you gentlemen a
moment.”

(Here the Court conferred with counsel for 
the State and defendants.)

“ The Court: Objection sustained.”  (Tr., 77.) 
* * ■ * # #

“ Q. I will ask you if you didn’t stick him up, 
and then tell Mr. Lindsey where he could find his 
watch and other stuff?

A. I did not.

Mr. Adams (for defense): I  object.

A. I  did not.

Mr. Adams: I  object to that. Mr. Dudley 
has announced he is trying to lay a basis for 
impeachment but it occurs to me instead that 
it is trying to get into the record an alleged con­
fession of something, and probably something 
not connected with this lawsuit.

Mr. Smith: Whether or not he committed
other offenses goes to his credibility.



24

The Court: He has denied it.
Mr. Adams: Exception.”  (Tr., 82-83.)

# # *  *  *

“ Cross-examination of Jim X. Caruthers:

(Topic, ownership of his automobile, which 
he said he had paid for in part by picking cot­
ton, but which the Prosecuting Attorney insinu­
ated had been purchased out of proceeds of 
robberies. The car was not involved in the 
alleged rape on Mrs. Terry.)

Mr. Dudley (Prosecuting A ttorney): I didn’t 
ask you that, I asked you who owned it?

Mr. Adams: I  don’t know how this line of 
examination bears on the thing that this boy 
is tried for. I  object to it for that reason. I  
can’t see the purpose of it. I  don’t think the 
cap part is admissible.

Mr. Dudley: Test his credibility, see when
if he did, really pick cotton.

The Court: Yes, he may ask that question.
Mr. Adams: Exceptions.” (Tr., 104.)

# *  *  *  *

“ Q. Iam  asking you for the purpose of contra­
diction, if you didn’t tell Mr. Rainmiller about 
sixteen different robberies, and tell him in each 
particular case where they would find where you 
had either sold the stuff or had it hidden, and he 
called Mr. Arch Lindsey over the telephone, and 
Mr. Lindsey would go find the stuff?

Mr. Adams: I object to that line of examina­
tion.

The Court: I  am holding he is the S tate’s 
witness, being collateral m atters.”



25

It is impossible to reconcile the rulings of the Court. 
The Court begins by excluding questions as to other 
crimes, then he permits it as cross-examination for 
impeaching credibility; and finally holds that the de­
fendant is the State’s own witness in this regard and 
that the Prosecuting Attorney can bring out the evi­
dence as direct examination. If the purpose of the 
questions is to impeach or contradict, the examina­
tion is improper because the State can not impeach 
its own witness. If the purpose is not to impeach, 
then the Court must have been under the opinion that 
proof of other crimes is substantive proof tending to 
establish the crime charged against the defendants at 
the trial. In either event the Court is plainly wrong.

The law in Arkansas is just as clear that the credi­
bility of a defendant as a witness cannot be impeached 
by proof that he has committed other unrelated crimes.

Burris v. State, 38 Ark. 221.

We are not here complaining of or dealing with rec­
ords of convictions used to impeach credibility. The 
Prosecuting Attorney concentrated his fire on alleged 
crimes for which the defendants had never been tried 
and for which they were entitled to their day in court. 
Such examination was error, and prejudice will be 
presumed.

Elder v. State, 69 Ark. 648.

In the instant case the prejudice done to the defend­
ants ’ rights by the improper line of questioning was 
particularly vicious in view of the absolutely incredi-



26

ble story of the alleged rape and identification brought 
forth by the prosecution. As demonstrated above the 
evidence as to the alleged rape is so full of holes and 
missing links that no jury which respected its oath 
could find the defendants guilty beyond a reasonable 
doubt, without the introduction of extraneous, irrele­
vant matters tending to inflame passion and prejudice. 
But with the issue of the alleged rape all confused and 
mixed up with these charges and insinuations of other 
crimes dragged in by the Prosecuting Attorney, the 
jury could not help but be driven to convict the de­
fendants of this charge of rape, under a feeling that 
the defendants were “ bad Negroes” and a menace to 
the community, and that if it did happen that they were 
not guilty of the rape, they were still guilty of so many 
other desperate crimes that they ought to be put away.

As to each defendant, defense counsel objected from 
time to time to the improper line of examination by 
the Prosecuting Attorney, but as shown above the 
Court in most instances overruled the objections. 
After the Court had overruled the first objection to 
this improper line of examination, all subsequent evi­
dence of the same nature was subject to the full force 
of the original objection, even though the objection was 
not expressly renewed.

“ Where a principle of admissibility is once 
decided, counsel need not annoy the presiding 
judge and his opposing counsel by interrupting 
with continual objections. He need only be con­
cerned to be sure that it is exactly the same prin­
ciple.”  Calhoon, J., in Cook v. State, 81 Miss. 
146, 152.



27

See cases collected in 3 C. J. (Appeal and Error), 
Sec. 734.

It is to be emphasized also that the prejudice to the 
defendants’ rights lies in the questioning itself. In 
spite of the pronouncement of the Trial Court, the 
prejudice is not cured or avoided by the fact that in 
most instances the defendants denied commission of 
these other unrelated crimes about which the Prosecut­
ing Attorney was interrogating them. The jury would 
not be convinced by the defendants’ denials; that is 
no more than the jury would expect. And where the 
Prosecuting Attorney keeps on questioning the defend­
ants on the assumption that they were the authors of 
other desperate crimes, the jury could not avoid being 
affected and becoming prejudiced against the defend­
ants. The situation was aggravated where as here the 
Court sustained and gave his approval to such ques­
tioning after the defense had objected.

By way of preserving all rights a motion for new 
trial was made and overruled. One of the specific 
grounds laid therein was:

“ 5. The Court erred in permitting over the ob­
jection and exception of defendants questions to 
be asked about other alleged crimes of defendants 
or circumstances surrounding such alleged crimes 
or alleged admissions or statements of defend­
ants with reference to such other alleged crimes.”

But even without such motion the jurisdiction of this 
Court to review the foregoing prejudicial errors of 
the trial court is plain in this case under the Act of 
May 31, 1909.



2 8

The nobility of the law rises in corresponding degree 
with the seriousness and heinousness of the crime 
charged. In a capital case the dignity and honor of 
the State demand that no unfair advantage be taken 
of the defendants. The Act of May 31, 1909, is an ex­
pression of such attitude. I t cannot be the policy of 
this State to permit a citizen’s life to be forfeited 
through insinuating appeals to prejudice and passion 
in courts of law.

It is respectfully submitted that the conviction 
of the defendants below under the circumstances 
amounted to a denial of their constitutional rights, 
and violated the constitutional guaranties of due 
process and the equal protection of the law provided 
in the Fourteenth Amendment to the Constitution of 
the United States.

For the foregoing reasons the judgments below 
should be reversed.

Respectfully submitted,

JOHN R. THOMPSON,
JNO. A. HIBBLER,

Attorneys for Appellants.
C h a r l e s  H .  H o u s t o n ,

C arol  K in g ,

of Counsel.







IN  THE

S u p r e m e  Co u r t  o f A r k a n  s a s

L o u i s  B l a k e  a n d  E l b e r t  B l a k e __ _____Appellants,
v. No. 3794

S t a t e  o f  A r k a n s a s .................................... ....................Appellee.

APPEAL FROM THE OUACHITA CIRCUIT 
COURT, FIRST DIVISION TO THE SUPREME 

COURT OF THE STATE OF ARKANSAS
H o n . L. S. B r i t t , J u d g e  

H o n . J o e  J o i n e r , P r o s e c u t i n g  A t t o r n e y

H o n . C. M . M a r t i n ,

Attorney for Defendants.
S c i p i o  A .  J o n e s ,

Attorney for Appellants 
on Appeal.

An appeal to the Supreme Court is hereby 
granted to the defendants, Louis Blake and 
Elbert Blake.

E. L. M c H a n e y ,

Associate Justice.

DEMOCRAT P . *  L . CO ., LITTLE ROCK





IN THE

S u p r e m e  Co u r t  o f A r k a n s a s

L o u i s  B l a k e  a n d  E l b e r t  B l a k e ........... ..Appellants,

v. No. 3794

S t a t e  o f  A r k a n s a s ....._....... ......... ......... ...................... Appellee.

APPEAL FROM THE OUACHITA CIRCUIT 
COURT, FIRST DIVISION TO THE SUPREME 

COURT OF THE STATE OF ARKANSAS
H o n . L. S. B r i t t , J u d g e  

H o n . J o e  J o i n e r , P r o s e c u t i n g  A t t o r n e y

An appeal to the Supreme Court is hereby 
granted to the defendants, Louis Blake and 
Elbert Blake.

E. L. M c H a n e y ,

Associate Justice.

STATEMENT

Appellants, Louis Blake and Elbert Blake, 
were indicted, separately, for murder in the first



2

degree, for the killing of one Brad Polk. They 
entered pleas of not guilty and were duly tried, 
jointly, before a jury, which trial resulted in a 
verdict of guilty of murder in the first degree 
and were duly sentenced to die in the electric 
chair. From such judgment the appellants 
prosecute this appeal.



3

ABSTRACT

The indictments upon which the appellants 
were tried are as follows (Tr., pp. 2-4):

In Ouachita Circuit Court, Adj. October 
Term, 1931.

The Grand Jury of Ouachita County, in the 
name and by the authority of the State of Ark­
ansas, on oath, accuse the defendant, Elbert 
Blake, of the crime of murder in the first degree 
committed as follows, to-wit: The said defend­
ant, on the 25th day of January, 1932, in Oua­
chita County, Arkansas, did unlawfully, feloni­
ously, willfully and with malice aforethought 
and with premeditation and deliberation kill 
and murder one Brad Polk, by shooting the said 
Brad Polk with a pistol then and there loaded 
with gunpowder and leaden bullets, and the said 
pistol was then and there held in the hands of 
the said Elbert Blake, with the unlawful and

INDICTMENT

The State of Arkansas) 
Against )

Elbert Blake )

0 Indictment for
) No. 1865 Murder in 
) the First Degree



4

felonious intent to kill and murder the said 
Brad Polk, against the peace and dignity of the 
State of Arkansas.

Joe Joiner,
Prosecuting Attorney, 

Thirteenth Circuit
..... ........................ _..Judge.

Admit to bond in the sum of $___________

INDICTMENT

In Ouachita Circuit Court, Adj. October 
Term, 1931.
The State of Arkansas) Indictment for

Against ) No. 1866 Murder in
Louis Blake ) the First Degree

The Grand Jury of Ouachita County, in the 
name and by the authority of the State of Ark­
ansas, on oath, accuse the defendant, Lewis 
Blake, of the crime of murder in the first degree 
committed as follows, to-wit: The said defend­
ant, on the 25th day of January, 1932, in Oua­
chita County, Arkansas, did unlawfully, feloni­
ously, willfully and with malice aforethought 
and with premeditation and deliberation kill 
and murder one Brad Polk, by shooting the said 
Brad Polk with a pistol then and there loaded 
with gunpowder and leaden bullets, the said



5

pistol was then and there held in the hands of 
the said Lewis Blake, with the unlawful and 
felonious intent to kill and murder the said 
Brad Polk, against the peace and dignity of the 
State of Arkansas.

Joe Joiner,
Prosecuting Attorney, 

Thirteenth Circuit

..... ..............    Judge.
Admit to bond in the sum of $_________ __

VEBDICT

A jury was regularly impaneled and sworn 
to try the cause and returned a verdict of guilty 
of murder in the first degree with punishment 
of death by electrocution (Tr., pp. 18-19).

In apt time a motion for a new trial was 
filed as follows (Tr., pp. 27-29):

In  t h e  O u a c h i t a  C i r c u i t  C o u r t

State of Arkansas...............     Plaintiff,
y.

Louis Blake and Elbert Blake............Defendants.



6

MOTION FOR NEW TRIAL

Come the above named defendants, Louis 
and Elbert Rlake, and move the court to set aside 
the verdict of the jury and judgment of the 
court herein, and to grant a new trial of this 
cause, and for cause state:

FIRST: Because the verdict of the jury is 
contrary to the law.

SECOND: Because the verdict of the jury 
is contrary to the evidence.

THIRD: Because the verdict of the jury
is contrary to both the law and the evidence.

FOURTH: Because the court erred in over­
ruling defendant’s demurrer filed to the indict­
ments herein.

FIFTH: Because the evidence is not suffi­
cient to support the verdict of murder in the 
first degree.

SIXTH: Because the evidence is not suffi­
cient to support a verdict of any degree of homi­
cide.

SEVENTH: Because the court erred in
permitting J. B. Morgan, a witness for the State 
to testify as follows:

Yes, sir, I bought 160 acres of land that he 
lived on, and Louis lived in the house there and



7

wanted to stay there, and I told him that I did 
not want to work that land, that I was going to 
use it for a pasturage, and, I guess, it was about 
two months before I finally got him to move. 
It was reported among the negroes that he car­
ried a gun, in fact, there was a negro who work­
ed on my places, and he says to me, “Cam, ain’t 
you having trouble in getting Louis off of your 
place,” and I said, “No trouble, but he won’t 
move,” and he says, “Boss, you watch him, he 
carries a gun all of the time, and he might hurt 
you.”

EIGHTH: Because the court erred in fail­
ing to admonish the jury in regard to the testi­
mony of the said J. B. Morgan.

NINTH: Because the court erred in per­
mitting Walter Jones, a witness for the State to 
testify as follows:

“I heard him (Louis Blake) in the fall brag- 
gin about what good guns he had and what a 
good shot that he was, and on December 24th, 
1931, I was talking with Louis Blake at the 
Peoples Bank Building in Stephens, Arkansas, 
and I asked him if he had moved and he said 
that he had not, that he would not move until 
he had had a settlement, and he said that he 
would have one if he had to kill Mr. Polk.”

TENTH: Because the court erred in giving 
to the jury instructions numbered 1, 2, 3, 4, 5, 6, 
7, 8, 9, 10,11,12, 13, 14, 15, 16, 17 and 18.



8

WHEREFORE, defendants pray that the 
verdict of the jury and the judgment of the court 
thereon be set aside and that they be granted a 
new trial herein.

Attorney for Defendants.
Filed January 29, 1932. Milton Warren, 

Clerk.

I n  t h e  O u a c h i t a  C i r c u i t  C o u r t , F i r s t  D i v i s i o n  

State of Arkansas..................... ......... ......Plaintiff,
v.

Louis Blake ................................. ........Defendant.

MOTION FOR CONTINUANCE IN ORDER TO 
PROCURE MATERIAL WITNESSES (Tr., 
pp. 11-14).
Comes Louis Blake, the above named de­

fendant, and states to the court:
That on the morning of the 28th day of 

January, 1932, when the above styled cause had 
been regularly reached upon the docket and a 
plea of not guilty entered, a jury selected, sworn 
and impaneled in this cause and during the tes­
timony of the first witness introduced by the
State, to-wit: ---------------  Jones, that the said
Jones stated that between the hours of ten and 
eleven o’clock in the forenoon of December



9

24, 1931, he, the said Jones, had a conversation 
with the defendant, Louis Blake, in front of a 
certain bank in the town of Stephens, Ark., at 
which time and place the said witness stated that 
the defendant stated to him that he had not 
moved off of Brad Polk’s place and had not had 
a settlement with Polk and would not move un­
til he had a settlement, if he had to kill Polk.

That this defendant, at the time said wit­
ness related the alleged conversation as above 
set forth, that he was not in the town of Step­
hens, Arkansas, but was several miles distant 
from there and was working for and in the em­
ploy of Chris Guttry and that one Zack Harris 
was so employed at said time and place by the 
said Chris Guttry and that if the said Chris Gut- 
try and Zack Harris were present in court they 
would so testify.

That immediately after the said Jones had 
finished his testimony the defendant’s attorney,
C. M. Martin, stated such facts to the court and 
requested that a subpoena be issued for the said 
Chris Guttry and Zack Harris, returnable in- 
stanter, which was accordingly done and placed 
in the hands of the sheriff of Ouachita County, 
Arkansas, who was directed by the court to pro­
cure the presence of such witnesses forthwith 
and instanter. That the sheriff of Ouachita 
County has sent his duly authorized deputy to



10

subpoena said witnesses, but that said witnesses 
reside eighteen or twenty miles from Camden 
the county site of Ouachita County, Arkansas, 
and has not had time to serve said subpoenas on 
said witnesses and procure their attendance in 
court.

That the said testimony of the said------------
Jones is wholly untrue and false and that said 
testimony was a surprise to this defendant and 
of such a nature that he nor his attorney could 
find out, learn or discover before the trial of 
this cause, by the use of ordinary care and dili­
gence, and that immediately upon learning the 
same defendant used due diligence to secure the 
attendance of said witnesses by praying for 
said forthwith subpoena and has not been able 
to procure them to testify herein.

WHEREFORE, defendant prays that this 
cause be continued until he can procure the at­
tendance of the said witnesses, Zack Harris and 
Chris Guttry.

Attorney for Defendant.

Comes Louis Rlake, the above named de­
fendant and on oath, stated that the facts set 
forth in the above named motion for continu­
ance are true.



11

Subscribed and sworn to before me this the 
28th day of January, 1932.

Clerk.
Filed 1-28-32. Milton Warren, Clerk.
On this 28th day of January, 1932, the fol­

lowing order was made and entered by the 
Ouachita Circuit Court, First Division.
State of Arkansas )

v. ) No. 1866 (Tr. p. 7)
Lewis Blake )

Now on this day this cause is by the court 
consolidated with cause number 1865 for the 
purpose of trial.

I n  t h e  O u a c h i t a  C i r c u i t  C o u r t , F i r s t  D i v i s i o n

State of Arkansas.....................................Plaintiff,
v.

Elbert B lake........ ................................ Defendant.

DEMURBER 
(Tr. p. 8-9)

Comes Elbert Blake, the above named de­
fendant, and demurs to the indictment filed 
herein and for cause of demurrer states:

FIRST: That the facts set forth in the in­
dictment filed herein do not constitute a public 
offense.



12

SECOND: Defendant especially demurs
to said indictment in so far as the same attempts 
to charge him with murder in the first degree 
and for cause states: That said indictment fails 
to state or allege that the homicide with which 
he is charged in said indictment was committed 
after premeditation and deliberation.

THIRD: Because the facts set forth in said 
indictment do not state facts sufficient to con­
stitute murder in the first degree.

Attorney for Defendant.

Filed 1-28-32. Milton Warren, Clerk.

On this 28th day of January, 1932, the fol­
lowing order was made and entered by the Oua­
chita Circuit Court, First Division.

State of Arkansas )
v. ) No. 1865 (Tr. p. 10)

Elbert Blake, et al )

Now on this day comes the defendants 
herein and file a demurrer to the indictment in 
this cause, said demurrer coming on to be heard, 
and the court being well and sufficiently advised 
in the premises, does overrule said demurrer, to 
which ruling and action of the court the defend­
ants except and ask that their exceptions be 
noted of record which is by the court granted.



13

ARRAIGNMENT AND DRAWING OF JURY 
WERE WAIVED AND THE DEFEND­
ANTS ENTERED THEIR PLEAS OF NOT 
GUILTY.

On this 28th day of January, 1932, the fol­
lowing order was made and entered by the Oua­
chita Circuit Court, First Division.
State of Arkansas )

v. ) Nos. 1865-1866
Lewis Rlake and ) (Tr. pp. 16-17)
Elbert Rlake )

Now on this day this cause comes on to be 
heard, and comes the State of Arkansas by its 
prosecuting attorney, Joe Joiner, and comes the 
defendants, Louis Blake and Elbert Blake, in 
proper person, in custody of the sheriff, and by 
their attorney, C. M. Martin, and after having 
waived the arraignment before the court and 
the drawing of a jury, enter their plea of not 
guilty to the charge in the indictment herein 
against them, and both the State and the de­
fendants announcing ready for trial, the court 
orders a jury to try this cause, and comes John 
S. Neal, J. P. Bearden, M. E. Russell, Paul Bar­
nes, Harvey Beard, Roy Strain, and Elbert Gro- 
don, and the regular panel of the petit jury be­
ing exhausted the court orders a special venire 
of 15 men out of which venire J. H. Mahaffey, 
W. P. Lockett, G. S. Boddie, R. L. Shirey and W.



14

M. Sims, were accepted, and the entire panel of 
this jury having been truly selected, impaneled, 
and sworn as the law directs to try this cause, 
and the jury after having heard the part of the 
testimony introduced in this cause, and the hour 
for adjournment having been reached, the court 
orders the jury respited over until tomorrow 
morning at 9 o’clock under instructions of the 
court and in charge of a sworn officer.

SENTENCE

On this 29th day of January, 1932, the fol­
lowing order was made and entered by the Oua­
chita Circuit Court, First Division.
State of Arkansas ) Murder in the

v. ) No. 1866 First Degree
Louis Blake ) (Tr. pp. 21-22-23)

Now on this day comes the State of Arkan­
sas by her attorney Joe Joiner, prosecuting at­
torney, comes also the defendant, in proper per­
son and in custody of the sheriff of Ouachita 
County, Arkansas, and by his attorney C. M. 
Martin, and said defendant having been on the 
29th day of January, 1932, convicted by a jury 
of the Ouachita Circuit Court, of the crime of 
murder in the first degree. Now the said de­
fendant, Louis Blake, appearing before the 
court, the court informs him of the nature of



15

the indictment against him and of his plea and 
verdict therein, the court ask if he has any legal 
cause to show why judgment and sentence 
should not be pronounced against him, and 
none being shown the court reads to him the 
law in relation to the pains and penalties of all 
persons when convicted of a felony, as far as it 
relates to him, and fully declared to him the 
consequence of his conviction, and reads to him, 
and renders the following judgment and sen­
tence.

It is therefore considered, ordered and ad­
judged by the court that the defendant, Louis 
Blake is guilty of murder in the first degree, and 
that he shall immediately be transported to the 
penitentiary of the State of Arkansas, at Little 
Rock, Arkansas, by the sheriff of Ouachita 
County, Arkansas, and there delivered to the 
keeper of said penitentiary to be by him safely 
kept until the first day of April, 1932, on which 
day the commissioner of said penitentiary or 
assistant, or some assistant designated by him, 
shall cause the said Lewis Blake to be electro­
cuted by causing to pass through the body of the 
said Lewis Blake a current of electricity of suffi­
cient intensity to cause death, and to continue 
the application of such current until the said 
Louis Blake is dead.

It is further ordered that the clerk of this 
court make out and deliver to the sheriff of Qua-



16

chita County, Arkansas, a certified copy of the 
foregoing judgment and sentence to be by him 
delivered to the agent or keeper of said peni­
tentiary as sufficient authority for him to re­
ceive the said Lewis Blake in the manner afore­
said.

SENTENCE

On this 29th day of January, 1932, the fol­
lowing order was made and entered by the Oua­
chita Circuit Court, First Division.

State of Arkansas ) Murder in the
v. ) No. 1865 First Degree

Elbert Blake ) (Tr. pp. 24-25-26)

Now on this day comes the State of Arkan­
sas by her attorney, Joe Joiner, prosecuting at­
torney, comes also the defendant, in proper per­
son and in custody of the sheriff of Ouachita 
County, Arkansas, and by his attorney, C. M. 
Martin, and said defendant having been on the 
29th day of January, 1932, convicted by a jury 
of the Ouachita Circuit Court, of the crime of 
murder in the first degree. Now the said de­
fendant, Elbert Blake, appearing before the 
court, the court informs him of the nature of 
the indictment against him and of his plea and 
verdict therein, the court asks if he has any 
legal cause to show why judgment and sentence 
should not now be pronounced against him, and



17

none being shown the court reads to him the 
law in relation to the pains and penalties of all 
persons when convicted of a felony, as far as it 
relates to him, and fully declares to him, the 
consequence of his conviction, and reads to 
him, and renders the following judgment and 
sentence.

It is therefore considered, ordered and ad­
judged by the court that the defendant Elbert 
Blake is guilty of murder in the first degree, and 
that he shall immediately be transported to the 
penitentiary of the State of Arkansas, at Little 
Rock, Arkansas, by the sheriff of Ouachita 
County, Arkansas, and there delivered to the 
keeper of said penitentiary to be by him safely 
kept until the 1st day of April, 1932, on which 
day the commissioner of said penitentiary or as­
sistant, or some assistant designated by him, 
shall cause the said Elbert Blake to be electro­
cuted by causing to pass through the body of 
the said Elbert Blake a current of electricity of 
sufficient intensity to cause death, and to con­
tinue the application of such current until the 
said Elbert Blake is dead.

It is further ordered that the clerk of this 
court make out and deliver to the sheriff of 
Ouachita County, Arkansas, a certified copy of 
the foregoing judgment and sentence to be by 
him delivered to the agent or keeper of said



18

penitentiary as sufficient authority for him to 
receive the said Elbert Blake in the manner 
aforesaid.

IN THE OUACHITA CIRCUIT COURT
T h e  S t a t e  o f  A r k a n s a s ..........................................Plaintiff,

v.

L o u is  B l a k e  a n d  E l b e r t  B l a k e ............Defendants.

BILL OF EXCEPTIONS
Presiding: J u d g e  L. S. B r i t t .

A p p e a r a n c e s :

For the State: M r . J o e  J o i n e r

Mr. T. M. C l i f f o r d  

Mr. L. B. S m e a d

For the Defendants: Mr. C. M. Martin

NOW, on this day, the same being a regular 
day of the January adjourned term of this court, 
and this cause coming on to be heard, comes the 
State of Arkansas by its prosecuting attorney, 
Mr. Joe Joiner, and comes the defendants in 
person and by their attorney, Mr. C. M. Martin, 
and both parties announce ready for trial. 
THEREUPON, a jury of the regular panel and 
of the special venire summoned herein, were 
duly selected, empaneled and sworn to try the 
issues of fact herein, and both parties intro-



19

duced the following testimony to sustain their 
respective issues:

W a l t e r  F. C a w t h o n ,

Shorthand Reporter,
El Dorado, Arkansas
Filed March 17, 1932.

M i l t o n  W a r r e n , Clerk.
(Tr. pp. 32-34.)

W a l t e r  J o n e s , a witness on behalf of the 
State, on being duly sworn, testified ON DIRECT 
EXAMINATION, by Mr. Joiner, that he lived at 
Stephens, Arkansas, and knew both defendants. 
Worked at Mr. Polk’s farm, last fall, and worked 
some with the defendants, Louis & Elbert Blake. 
Heard the defendant make some kind of state­
ment about having trouble with Mr. Polk.

(The defendants object; overruled; excep­
tion.)

Heard Louis Blake in the fall bragging 
about what good guns he had and what a good 
shot that he was, and on December 24,1931, was 
talking with Louis Blake at the Peoples Bank 
Building in Stephens, Arkansas, and asked him 
(Louis) if he had moved, and Louis said he had 
not and would not move until he had a settle­
ment, and he (Louis) said he would have a set­
tlement if he had to kill Mr. Polk.



20

On cross-examination, by Mr. Martin, the 
witness testified that it was about 10 or 10:30 
on Christmas Eve when he was talking to Louis, 
but no one else was present. Did not tell me he 
(Louis) and Mr. Polk had already had a settle­
ment.

Witness excused.

(Tr. pp. 34-37)
J o e  H u d d l e s t o n , a witness on behalf of the 

State, on being duly sworn, testified that he 
lived at Stephens, Arkansas, and knew Brad 
Polk in his lifetime, and had known the defend­
ants, for six or seven years. Heard conversa­
tion between the defendant, Louis Blake, and 
Mr. Polk about a settlement in the fall. Relates 
conversation between the defendant and Mr. 
Polk: “We were working on the tractor one 
morning and they were standing there talking, 
by the oil barrel, and I heard Mr. Polk tell Louis 
that he (Louis) would have to do like the other 
Negroes on the place were doing, and he said 
something about some corn and peas.” Mr. Polk 
told him that he would have to deal square like 
the other Negroes and mentioned the corn and 
peas. On Christmas day, the day Mr. Polk was 
killed, something was said about Mr. Polk com­
ing and having a settlement.

(The defendants object; sustained.)



21

The statement was made in front of Mr. 
Polk s house, but the defendant was not pres­
ent at that time. On Christmas day, saw Mr. 
Polk in Stephens, on the sidewalk, and he flag­
ged me down on the street and came to the car 
and talked to me about twenty minutes; he rode 
home with me; it was about ten minutes to 10 
o’clock. I was to take him to Camden that after­
noon. When we arrived at Mr. Polk’s house in 
Stephens it was about 10:30. He (Mr. Polk) pull­
ed out his watch and wanted to know what time 
I would return to carry him to Camden. De­
ceased wanted to know for he said Louis Blake 
had sent for him to come and have a settle­
ment—

(Defendants object; sustained.)

Went to town to mail reports, and was com­
ing to get Mr. Polk to carry him to Camden, 
when I learned he was shot. I heard the report 
that he was shot about 1 o’clock.

Witness excused.

(Tr. pp. 38-41)

D r . G. P. S a n d e r s , a witness on behalf of 
the State, on being duly sworn, testified that he 
was a regular practicing physician in Stephens, 
Arkansas, and had been for a long time. Knew 
the deceased and was his family physician and 
had done work for his family about 20 or 25



22

years. Was called to see him Christmas day, in 
the afternoon, about 12 or 12:30. Went to a 
Negro’s house, where Mr. Polk was killed, and 
Louis and Elbert Blake lived there, on Mr. Polk’s 
farm. Mr. Polk was lying at the north end of the 
porch and the porch faces the west. He was dead, 
on the ground. Seemed to have fallen back­
wards. Upon examination found that a bullet 
had entered the left eye and had gone almost 
directly through the brain, and, of course, he 
died instantly. This shot caused his death. His 
glasses were lying across his chest and had ap­
parently fallen off of his face. The len of the 
left eye was out, that showing that the bullet 
had gone through there. Mr. Polk had a pint 
of liquor in his left hip pocket, but none had 
been used. Several people were there, Mr. Luther 
Elliott, and a son of the deceased, young Lawler 
and Mr. Boyer, and Louis Blake was there, also. 
Elbert Blake was not there, but the wife of Louis 
Blake was there. This was December 25, 1931. 
It was Mr. Polk’s custom to wear glasses only 
when reading.

On cross-examination by Mr. Martin, the 
witness testified that the glasses were lying 
across the chest of the deceased and a gun was 
near the body, or near his feet. Did not examine 
it to see if it had been discharged or not, but 
thinks it had.



23

On r e d i r e c t  e x a m i n a t i o n  by Mr. Joiner, the 
witness testified that he recognized the small 
shiny pistol as the one found near Mr. Polk’s 
feet, or one similar to it.

Witness excused.

(Tr. pp. 42-45)

R .  L. E l l i o t t , deputy sheriff of Ouachita 
County, and a witness on behalf of the State, on 
being duly sworn, testified that on December 25, 
1931, about 12:15, after receiving the report of 
the killing of Brad Polk, he arrived at the scene. 
Making a thorough search of the house, he 
found two pistols in a trunk, namely, a 38 Spe­
cial and one 45 Colts, with one discharged shell 
in the 45 and 4 in the 38, apparently shot recent­
ly. The said Brad Polk was shot through the 
left eye, the left len of his glasses being broken. 
Did not find any papers in the pockets of the 
deceased. Body turned over to the family. Cus­
tom of Mr. Polk to wear glasses only when read­
ing.

On c r o s s - e x a m i n a t i o n  by Mr. Martin, the 
witness testified that upon examination of the 
house he found three bullet holes through the 
wall and one bullet was taken above the door, 
it went in straight and there was a bullet fired 
from the outside that went through the window 
sash and through a 2 x 4 and then stuck into the



24

wall. A bullet hole was found above the door, 
near the corner of the door facing. The bullet 
that went through the sash was fired from the 
outside, the person firing it being on the outside.

On r e d i r e c t  e x a m i n a t i o n  by Mr. Joiner, Mr. 
Elliott testified that a small gun was found un­
der the feet of Brad Polk with two empty shells 
in it.

Witness excused.

(Tr. pp. 45-50)

A r t h u r  W .  E l l i s , sheriff of Ouachita Coun­
ty, and a witness on behalf of the State, on being 
duly sworn, testified that on Christmas day he 
received a report of a killing at Stephens, and 
arrived at the scene around one o’clock to make 
an investigation. Found the deceased lying on 
his back on the porch, having been moved from 
the ground. Three bullet holes were found, hav­
ing been shot on the inside of the house through 
the wall, and one that was shot through the win­
dow from the inside, ranging in the direction of 
Mr. Polk, where he is reported to have been 
standing, at the place where blood was found 
on the ground. One more shot was fired from 
the outside, that was shot from the outside 
of the house, just on the outside of the door, 
that went in the direction of where the de­
ceased was standing. One or two shots were



25

found over the door, one having been shot 
from the outside of the house, was found over 
the door on the outside. Did not know who shot 
them. Louis Blake under arrest upon his ar­
rival, and Elbert Blake arrested at Stamps, Ar­
kansas, about a week later. Talked to both de­
fendants. First talked to Louis Blake and he 
testified that he did not do any of the shooting, 
but did not deny knowing anything about it, and 
afterwards he admitted that he shot three or 
four times through the wall. He said that he 
was using the 38 Special, and shot about three 
or four times. The witness testified that he 
found four empty shells in the pistol. The de­
fendant said he was shooting to scare the de­
ceased. Witness testified that the way the de­
fendant was shooting through the house was in 
the direction of Mr. Polk. Looked like it was 
to do more than scare the deceased.

(The court here instructs the jury not to 
consider the last Question and a n s w e r  A

Mr. Ellis testified that Elbert Blake made 
the statement that he shot only one time, using 
the 45 Colts. At first Elbert Blake said he did 
not know whether he hit the deceased or not, 
but afterwards said he did. Louis Blake told the 
witness that Elbert killed Mr. Polk, having fired 
the fatal shot. Statements were made freely and 
voluntarily.



26

On c r o s s - e x a m i n a t i o n  by Mr. Martin, the 
witness testified that Louis said that Mr. Polk 
was up at the barn, and that Elbert was going 
by the barn and that Mr. Polk called him and hit 
him, and that Elbert ran, and that he (Louis) 
hollered to Elbert and told him to come on home, 
and then in a few seconds Elbert got to the 
house and then Mr. Polk came to the house and 
accused the boy (Elbert) of stealing something, 
and then he said that he (Louis got up and start­
ed in his house and then Mr. Polk shot at him 
two times. Did not say anything about Mr. Polk 
shooting through the window, but the defend­
ant said he shot out the window himself, stand­
ing between the bed and the window. Defend­
ant said Mr. Polk shot at him two times, while 
the defendant was standing on the gallery, 
starting in the house.

Witness excused.

(Tr. pp. 50-52)

I k e  W a l k e r , a witness on behalf of the 
State, on being duly sworn, testified that he 
lived at Stephens, Arkansas. Knew the defend­
ants, and visited them frequently. Knew Louis 
Blake to carry a gun all of the fall. Had seen 
him with it. Did not recognize or identify the 
defendant’s gun. The defendant, Louis Blake, 
did not tell him why he carried the gun. De-



27

fendant threatened to use it on the witness one 
day. Witness was not afraid of the defendant.

On c r o s s - e x a m i n a t i o n  by Mr. Martin, the 
witness testified that he had seen the defendant 
with a pistol lots of times. First testified that he 
had had no trouble with the boy (Elbert Blake) 
and did not jump on him and beat him up, but 
later testified that at Cook’s house on June 19th, 
year before last, he beat Elbert Blake, the de­
fendant having jumped on him first. Witness 
gave his age as 22. Did not know the defend­
ant’s age then, but the defendant was much 
younger than he.

Witness excused.
(Tr. pp. 52-53)

W i l l  M o o r e , a witness on behalf of the 
State, on being duly sworn, testified upon DI­
RECT EXAMINATION by Mr. Joiner, that he 
lived at Stephens, Arkansas, and was an under­
taker there. Handled body of the deceased, 
Brad Polk, and assisted in undressing the corpse. 
Did not see an envelope with figures on it, but 
some things were left there that came off of the 
body, a watch and some stuff, but were carried 
away with the body. Delivered them to Miss 
Ella Polk. Whatever the witness delivered to 
Miss Polk came off of the person of Mr. Polk.

Witness excused.



(T r. p p . 54-56)

M iss Helen P olk, a w itn e s s  o n  b e h a lf  o f  th e  
S ta te , o n  b e in g  d u ly  sw o rn , te s tif ie d  th a t  B ra d  
P o lk , th e  d e ce ase d , w a s  h e r  f a th e r .  T h re e  e n ­
v e lo p e s , a  p o c k e t b o o k  a n d  a  k n i f e  w e re  d e liv ­
e re d  to  h e r  b y  M r. M oore . Id e n tif ie s  a n  e n ­
v e lo p e  a s  o n e  o f  th e  th in g s  th a t  w e re  d e liv e re d  
to  h e r , a n d  th e  f ig u re s  a s  th o se  o f  h e r  f a th e r ’s.

(E n v e lo p e  is h e re  in tro d u c e d  in  e v id e n ce , 
e x h ib ite d  to  th e  ju r y ,  m a rk e d  E x h ib it  (D ") 
S ta te , a n d  m a d e  a  p a r t  h e re o f .)

On cross-examination by M r. M a rtin , M iss 
P o lk  te s tif ie d  th a t  sh e  d id  n o t  k n o w  w h e n  th e  
f ig u re s  w e re  m ad e .

On redirect examination b y  M r. J o in e r ,  th e  
w itn e s s  te s tif ie d  th a t  o n  th e  d a y  h e r  f a th e r  w a s  
k ille d  th e  d e fe n d a n t ,  L o u is  B la k e , c a m e  to  h e r  
h o u se . W itn e s s  w a s  in  th e  k i tc h e n  w h e n  he  
c a m e  r u n n in g  th r o u g h  th e  f ie ld  a n d  sa id  th a t  
E lb e r t  h a d  sh o t h e r  d a d , a n d  h e  sa id  th a t  he  
w o u ld  g e t th e  c a r  a n d  go f o r  h e lp . T h e  w itn e s s  
sa id , “N o, I w ill go f o r  D r. S a n d e rs .” D e fe n d ­
a n t ,  L o u is  B lak e , sh o v e d  th e  w itn e s s  w h e n  sh e  
g o t in  th e  c a r , t r y in g  to  g e t to  th e  s te e r in g  w h ee l, 
a n d  to ld  h e r  th a t  sh e  h a d  n o  b u s in e s s  g o in g . 
W h e n  th e y  a r r iv e d  a t  D r. S a n d e r ’s h o u se , L o u is  
ju m p e d  o u t  a n d  r a n  in to  th e  h o u se .

28



29

On re-cross examination b y  M r. M a rtin , th e  
w itn e s s  te s tif ie d  th a t  it  d id  n o t  o c c u r  to  h e r  a t 
th e  t im e  th a t  th e  d e fe n d a n t ,  L o u is  B lak e , w a n te d  
to  s te a l th e  c a r , b u t  h e  d id  la te r . S he  a n d  th e  
d e fe n d a n t ,  L o u is  B lak e , d ro v e  r ig h t  s t r a ig h t  to  
th e  d o c to r ’s h o m e , a n d  L o u is  ju m p e d  o u t  o f  th e  
c a r  a n d  r a n  in to  th e  h o u se  f o r  th e  d o c to r .

On re-redirect examination b y  M r. J o in e r ,  
th e  w itn e s s  te s tif ie d  th a t  L o u is  w a s  v e ry  a n x io u s  
to  g e t to  th e  s te e r in g  w h e e l, a n d  d id  n o t  w a n t  h e r  
to  go w ith  h im , th in k in g  sh e  w a s  too  n e rv o u s .

W itn e s s  e x cu se d .

(T r . p p . 57-58)

J . 0 .  Huddleston, a w itn e s s  o n  b e h a lf  o f  
th e  S ta te , o n  b e in g  d u ly  sw o rn , te s tif ie d  th a t  
h e  liv e d  a t  S te p h e n s , A rk a n sa s , a n d  h a d  te s tif ied  
a t  th e  m o rn in g  t r ia l  in  th is  case . H e le f t  B ra d  
P o lk  a t  h is  h o m e  a b o u t  10 :30  a. m . C o u ld  n o t  
te ll  w h e th e r  th e  d e ce ase d  h a d  b e e n  d r in k in g  o r  
w a s  d r u n k  a t  th e  tim e . D id  n o t  sm e ll a n y  
l iq u o r  o n  h is  b re a th .

O n cross-examination b y  M r. M a rtin , th e  
w itn e s s  te s tif ie d  th a t  he  d id  n o t  sm e ll th e  b re a th  
o f  th e  d e ce ase d .

W itn e s s  e x cu se d .

(T r . p p . 58-59)

H . G. W illiams, a w itn e s s  o n  b e h a lf  o f  th e  
S ta te , o n  b e in g  d u ly  sw o rn , te s tif ie d  th a t  h e



30

k n e w  th e  d e c e a se d  in  h is  l ife tim e , a n d  sa w  h im  
o n  C h r is tm a s  m o rn in g  in  S te p h e n s , a ro u n d  10 
a. m . T a lk e d  to  h im  a n d  d id  n o t  th in k  h e  w a s  
d r u n k  o r  d r in k in g  a t  th a t  tim e . T h in k  h e  c o u ld  
h a v e  to ld  i f  h e  h a d  b e en . D id  n o t  sm e ll l iq u o r  
o n  h is  b re a th .

O n  cross-examination by M r. M a rtin  th e  
w itn e s s  te s tif ie d  th a t  h e  w a s  s ta n d in g  c lo se  to  
M r. P o lk  a n d  ta lk in g  to  h im . L o o k ed  lik e  h e  
w o u ld  h a v e  sm e lle d  l iq u o r  i f  th e  d e c e a se d  h a d  
b e e n  d r in k in g .

W itn e s s  e x cu se d .

(T r . p p . 59-61)

Mrs. Smart, a w itn e s s  o n  b e h a l f  o f  th e  S ta te , 
o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  D IR E C T  E X ­
A M IN A T IO N  b y  M r. J o in e r ,  th a t  B ra d  P o lk  w a s  
h e r  f a th e r .  S aw  h im  C h r is tm a s  d a y , h a v in g  d r iv ­
e n  to  to w n  w ith  th e m  a b o u t  9 :3 0  o r  10 o ’c lo ck . 
H e go t o u t  d o w n  to w n . W a s  n o t  d r u n k  o r  d r in k ­
in g  a t  th e  tim e . A fe w  d a y s  p r io r  to  th e  d e a th  
o f  h e r  f a th e r ,  h a d  a  c o n v e rs a t io n  w ith  th e  d e ­
f e n d a n t ,  L o u is  B lak e , a b o u t  h is  m o v in g . H e 
w a s  a t  h e r  h o u se  a n d  w a s  f ix in g  a  f ire  f o r  h is  
w ife , w h o  w a sh e d  f o r  th e m , a n d  h e  to ld  th e  
w itn e s s  th a t  h e  h a d  a  p la c e  to  m o v e  o n , a n d  
th e  w itn e s s  sa id , “W h y  d o n ’t y o u  m o v e ? ” a n d  
h e  sa id  th a t  h e  d id  n o t  h a v e  to  u n t i l  th e  f irs t  
o f  th e  y e a r .  D e f e n d a n t  sa id  h e  l ik e d  th e  f a m i ly  
a s  a  w h o le , b u t  c o u ld  n o t  g e t a lo n g  w ith  d a d ,



31

a n d  sa id  he  w a s  g o in g  to  m o v e  a f te r  th e  
f irs t  o f  th e  y e a r . M o th e r’s d ead . F o u r  g ir ls  a n d  
tw o  b ro th e r s  in  th e  fa m ily .

W itn e s s  e x cu se d .

(T r . 61-62)

M iss Helen Polk, a w itn e s s  o n  b e h a lf  o f  
th e  S ta te , o n  b e in g  re c a lle d , te s tif ie d  o n  D IR E C T  
E X A M IN A T IO N  b y  M r. J o in e r ,  th a t  a  s h o r t  tim e  
b e fo re  th e  d e fe n d a n t ,  L o u is  B lak e , c a m e  to  h e r  
h o u se , sh e  h a d  ta lk e d  w ith  h e r  f a th e r .  A b o u t 
th i r ty  (30) m in u te s  b e fo re  L o u is  c a m e  a n d  to ld  
h e r  th a t  h e r  f a th e r  h a d  b e e n  sh o t. H e r  f a th e r  h a d  
b e e n  h o m e  a b o u t a  h a l f  h o u r  b e fo re  sh e  ta lk e d  
to  h im  a n d  w e n t in to  th e  ro o m  w h e re  h e  w a s  
a n d  h e  a sk e d  h e r  a b o u t  a  c e r ta in  p iece  in  th e  
G aze tte . W a s  n o t d r in k in g  o r  d r u n k  a n d  co u ld  
h a v e  to ld  i f  h e  h a d  b een .

O n  cross-examination b y  M r. M a rtin , th e  
w itn e s s  te s tif ie d  th a t  sh e  h a d  b e e n  h o m e  o ff a n d  
o n  a ll  o f  th e  m o rn in g . D id  n o t  th in k  E lb e r t  
B lak e  c a m e  to  h e r  h o u se .

W itn e s s  ex cu se d .

(T r . p. 63)

Arthur W . Ellis, a w itn e s s  o n  b e h a lf  of 
th e  S ta te , o n  b e in g  d u ly  sw o rn , a n d  o n  b e in g  
re c a lle d , te s tif ie d  o n  D IR E C T  E X A M IN A T IO N  
b y  M r. J o in e r ,  th a t  he  a sk e d  E lb e r t  B lak e  i f  M r.



32

P o lk  w a s  d r in k in g  a n d  h e  sa id  th a t  he  c o u ld  n o t 
te ll, s a id  th a t  h e  a c te d  lik e  he  a lw a y s  d id .

W itn e s s  ex cu se d .

(T r . p. 64)

J . B. Morgan, a w itn e s s  o n  b e h a lf  o f  th e  
S ta te , o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  D IR E C T  
E X A M IN A T IO N  b y  M r. J o in e r ,  th a t  h e  liv e d  a t  
S te p h e n s , A rk a n sa s , a n d  k n e w  M r. P o lk  in  h is  
l ife tim e , a n d  h a d  k n o w n  a b o u t  h im  a ll  o f  h is  
l ife .

(T H E  D E F E N D A N T  A D M ITS T H A T  T H E  
G E N E R A L  R E P U T A T IO N  O F  T H E  D E C E A SE D  
W A S G O O D .)

W itn e s s  e x cu se d .

(T r . p. 65)

T h e  S ta te  h e re  re s ts  its  case .

(T r . p . 66)

T H E  D E F E N D A N T S  IN  O R D E R  T O  SU ST A IN
T H E IR  R E S P E C T IV E  ISS U E S IN T R O ­
D U C E D  T H E  F O L L O W IN G  T E S T IM O N Y :

(T r . p p . 67-84)

Elbert Blake, a p a r ty  d e fe n d a n t ,  o n  b e in g  
d u ly  sw o rn , te s tif ie d  o n  direct examination b y  
M r. M a rtin , th a t  h e  w a s  a  d e f e n d a n t  a n d  w a s  
17 y e a r s  o ld . K n ew  B ra d  P o lk  in  h is  l ife tim e .



33

L iv ed  w ith  h is  f a th e r  o n  h is  f a rm . T e lls  th e  
j u r y  w h a t  t r a n s p ir e d  a t th e  tim e  o f  th e  k illin g  
a n d  a t  th e  t im e  M r. P o lk  f irs t  go t a f te r  h im .

“ I w a s  g o in g  u p  to  th e  n e x t h o u se  th e re , tw o  
b o y s  w e re  th e re , a n d  m o th e r  to ld  m e  to  go a n d  
te ll th e m  to  co m e  a n d  ta k e  d in n e r  w ith  us, a n d  
I s ta r te d  u p  th e re  a n d  M r. P o lk  w a s  a t  th e  c rib , 
a n d  h e  c a lled  m e  a n d  I w e n t o v e r  to  w h e re  he  
w a s  a t, a n d  h e  h a d  so m e  s in g le  t re e s  th e re  a n d  
he  to ld  m e  th a t  I h a d  s to le  th e m , a n d  I say s , ‘N o, 
s ir , M r. P o lk , w e  h a s  h a d  th e m  th e re  f o r  a lo n g  
t im e ,’ a n d  th e n  h e  say , ‘D o n ’t y o u  sa y  y o u  d id n ’t, 
n ig g e r ,’ a n d  h e  h a u le d  a w a y  a n d  h i t  m e  w ith  
a  s in g le  tre e , a n d  th e n  I r a n  o u t  b e h in d  th e  
m u le s , a n d  h e  h a d  a g u n  in  h is  h a n d , a n d  I r u n  
b e h in d  th e  m u le s  a n d  th e n  b e h in d  th e  w e ll sh ed  
a n d  th e n  o v e r  a ro u n d  th e  h o u se , a n d  th e n  I go t 
o v e r  in to  th e  fie ld  a n d  r u n  u p  in to  th e  fie ld  
a n d  th e n  m y  d a d d y  he saw  m e  a n d  he  c a lled  
m e  a n d  say , ‘C om e o n  to  th e  h o u se .’ M y d a d d y  
sa w  h im  (P o lk )  a f te r  m e . I r u n  to  th e  h o u se  
a n d  s to o d  th e re  o n  th e  p o rc h  a n d  th e n  w e n t in to  
th e  h o u se , a n d  m y  d a d  a n d  M r. P o lk  w a s  ta lk in g  
o u t  th e re , m y  d a d  w a s  o n  th e  p o rc h  a n d  M r. 
P o lk  w a s  s ta n d in g  b y  th e  p o rc h , a n d  M r. P o lk  
to ld  h im  th a t  th e  s in g le  t re e s  w e re  h is  a n d  th a t  
th e y  h a d  b e e n  s to le n , a n d  m y  d a d  to ld  h im , ‘N o, 
s ir , M r. P o lk , th e y  b e lo n g  to  u s ,’ a n d  th e n  M r. 
P o lk  re a c h e d  f o r  h is  p is to l a n d  w e  w e n t in to



34

th e  d o o r , a n d  th e n  is  w h e n  h e  sh o t, a n d  h e  to ld  
m e  th a t  ‘he  w o u ld  k ill m e  s u r e ’.”

O n cross-examination b y  M r. S m ead , th e  
d e fe n d a n t  te s tif ie d  th a t  it w a s  a b o u t  d in n e r  tim e  
w h e n  M r. P o lk  w as  a t  th e  c rib , a n d  c a lle d  h im  
to  g e t a f t e r  h im  a b o u t  s te a lin g  so m e  s in g le  tre e s . 
D id  n o t  a rg u e  w ith  h im , ju s t  to ld  h im , “ I d id n ’t 
s te a l th e m ,” a n d  th e n  he  say s , “D o n ’t sa y  a n y ­
m o re  th a t  y o u  d id n ’t .” M r. P o lk  h it h im  w ith  a 
s in g le  tre e  o n  th e  h e a d . T h re w  u p  h a n d s  to  
k n o c k  o ff so m e  o f  th e  b lo w , a n d  th e n  w e n t o n  
f o r  th e  d e c e a se d  h a d  h is  g u n . D id  n o t  lo o k  b a c k  
to  see  w h e th e r  h e  a t te m p te d  to  sh o o t h im , b u t  
he h a d  sa id  th a t  h e  w o u ld  sh o o t th e  d e fe n d a n t .  
R a n  a ro u n d  th e  m u le s  to  p re v e n t  h im  f r o m  
sh o o tin g . K n ew  h e  w a s  n o t g o in g  to  sh o o t th e  
m u le s , f o r  he  c o u ld n ’t k ill h im  (E lb e r t)  a n d  th e  
m u le s  b o th . D eceased  w a s  a b o u t  90 fe e t  f r o m  
th e  m u le s . A f te r  r u n n in g  f r o m  b e h in d  th e  
m u le s , th e  d e fe n d a n t  te s tif ie d  th a t  h e  r a n  to  th e  
b a c k  o f  th e  w e ll sh e d  a n d  M r. P o lk  w a s  in  a f te r  
h im , b u t  d id  n o t sh o o t. C o u ld  n o t  h a v e  sh o t 
th ro u g h  w o o d  a n d  a ll, a n d  h e  w a s  o n  th e  o th e r  
s id e  o f  th e  m u le s . T w o  m u le s  a n d  a  w a g o n  
w e re  th e re , a n d  th e  d e c e a se d  w a s  c o m in g  to ­
w a rd s  th e  d e fe n d a n t .  D id  n o t  k n o w  w h e th e r  
M r. P o lk  w a s  r u n n in g  o r  n o t, b u t  w a s  t r y in g  to  
c a tc h  h im  o r  h e  n e v e r  w o u ld  h a v e  c o m e  o u t. 
D id  n o t k n o w  w h e th e r  h e  c o u ld  r u n  a s  f a s t  a s



35

M r. P o lk . S tay ed  a t th e  w ell sh ed  lo n g  e n o u g h  
to  ge t a ro u n d  it  to  th e  c o rn e r  o f  th e  h o u se . W ell 
sh e d  lo ca te d  r ig h t a t th e  h o u se . D eceased  d id  
n o t  sh o o t a t  h im , b u t c am e  u p  to  th e  h o u se  a n d  
c a lle d  th e  f a th e r ,  w h o  w as  s i t t in g  o n  th e  p o rc h . 
M r. P o lk  w e n t a ro u n d  to  w h e re  th e  f a th e r  w as  
a n d  th e n  to ld  h im  a b o u t s te a lin g  th e se  th in g s , 
a n d  to ld  h im  I (E lb e r t)  s to le  th em . In  th e  h o u se , 
w h ile  M r. P o lk  w a s  ta lk in g  to  f a th e r ,  M r. P o lk  
c a lle d  f a th e r  a n d  to ld  h im  to  co m e  u p  th e re  a t 
th e  c rib , a n d  f a th e r  to ld  h im  th a t  he  w o u ld  n o t  
co m e  u p  th e re  w h ile  h e  w a s  d r in k in g . H e (M r. 
P o lk )  c a m e  u p  th e re  a f t e r  h e  h a d  r u n  m e , a n d  
c o m e  e v en  w ith  th e  c r ib  a n d  sa id , “ L o u is , co m e  
u p  h e re .”  T h e  d e fe n d a n t ,  E lb e r t  B lak e , w as  
w a y  u p  in  th e  fie ld  a t th is  tim e , b u t  d id  n o t  k n o w  
th e  e x a c t d is ta n c e . W a s  th e  sa m e  d a y  w h e n  
M r. P o lk  w e n t to  th e  h o u se  a n d  ta lk e d  to  f a th e r  
a b o u t  h im  (E lb e r t)  s te a l in g  th e  s in g le  tre e s . 
M r. P o lk  a r r iv e d  a t  th e  h o u se  f irs t, a n d  w a s  
s ta n d in g  in  th e  y a rd  w h e n  h e  (E lb e r t)  a r r iv e d . 
U p o n  h is  a r r iv a l ,  th e  d e fe n d a n t  te s tif ie d  th a t  he  
w e n t  in to  th e  h o u se  a n d  f a th e r  a sk e d  a b o u t  th e  
s in g le  tre e  th a t  M r. P o lk  w a s  ta lk in g  a b o u t  a n d  
I to ld  h im  w h e n  I c am e  to  th e  d o o r  th a t  Mr. 
P o lk  say s , “D o n ’t s a y  it a n y m o re  th a t  th e y  a re  
m in e , i f  y o u  do  I w ill k ill  y o u .” M r. P o lk  w a s  
ta lk in g  to  th e  f a th e r  a n d  w a s  g e ttin g  h is  g u n  in  
h is  p o c k e t. H e  w a s  s ta n d in g  r ig h t  b e s id e  th e  
p o rc h , a n d  D ad  w a s  u p o n  th e  p o rc h . T h e  de-



36

f e n d a n t  w as  in  th e  h o u se . T h e n  M r. P o lk  sh o t 
a t  th e  d e f e n d a n t ’s f a th e r ,  L o u is  B lak e , a s  he 
w a lk e d  in to  th e  h o u se , th e  b u lle t  h it  u p  in  th e  
h o u se  so m e w h e re . D ad  w e n t in to  th e  h o u se , 
le a v in g  th e  d o o r  o p e n , a n d  a f t e r  M r. P o lk  sh o t 
D ad  go t h is  g u n , a n d  he  sa y s  (L o u is  B la k e ) , “ M r. 
P o lk  is r u n n in g  o v e r  u s, a n d  I w ill sh o o t a n d  
t r y  to  sc a re  h im .” H is g u n  w as  ly in g  u n d e r  th e  
b e d  w h e re  h e  a lw a y s  k e p t  it. B o y ’s g u n  in  th e  
t r u n k .  A f te r  se e in g  th e  d e c e a se d  sh o o tin g  in to  
th e  h o u se , th e  d e fe n d a n t  te s tif ie d  th a t  h e  lo o k ed  
o u t  th e  d o o r  a n d  w as  in te n d in g  to  ta lk  to  M r. 
P o lk , a n d  th e  d e c e a se d  h a d  h is  g u n  o n  th e  d e ­
fe n d a n t ,  a n d  sa y s , “ I f  y o u  c o m e  o u t o f  th a t  
d o o r , I w ill k ill y o u ,” a s  I tr ie d  to  b e  a  b ig g e ty  
n ig g e r . G ot h is  g u n  a f t e r  th e  d e c e a se d  h a d  
th re a te n e d  to  k ill  h im , i f  he  c a m e  o u t o f  th e  
d o o r . H e id e n tif ie d  h is  g u n  a s  th e  lo n g  o n e , a 
38. C am e  b a c k  to  d o o r  w ith  g u n  in  h a n d  a n d  
s ta r te d  o u t  th e  d o o r , b u t  p u t  g u n  o n  th e  b ed  
a n d  w a s  g o in g  o u t  a n d  t r y  to  re a s o n  w ith  M r. 
P o lk  a n d  t r y  to  m a k e  h im  q u it,  b u t  a s  h e  s ta r te d  
o n  th e  p o rc h  M r. P o lk  h a d  g u n  o n  h im  a n d  th e  
d e fe n d a n t  th e n  re a c h e d  f o r  h is  g u n  a n d  sh o t 
h im . D id  n o t  ta k e  d e lib e ra te  a im , b u t  th e  d e ­
c e a se d  fe ll  a s  so o n  as th e  sh o t w a s  f ired . H e (M r. 
P o lk )  w a s  s ta n d in g  a t  th e  c o rn e r  o f  th e  p o rc h . 
T h e  r ig h t  c o rn e r  o f  th e  p o rc h . T h e  d e fe n d a n t  
w a s  s ta n d in g  in  th e  d o o r  o f  th e  h o u se , a b o u t  
40 fe e t  f ro m  h im , a n d  w a s  in  th e  h o u se  w h e n



37

th e  f a th e r  w as  sh o o tin g  in  th e  h o u se . D id  n o t 
k n o w  h o w  f a r  he w as  f ro m  M r. P o lk  th e n . Mr. 
P o lk  w as o n  th e  g ro u n d  w h e n  th e  d e fe n d a n t  
sh o t, a n d  th e  f a th e r  w a s  sh o o tin g  in to  th e  w a ll. 
D id  n o t  k n o w  w h e th e r  he  w as  sh o o tin g  to w a rd s  
M r. P o lk  o r  n o t. D a d d y  w as  in  the  h o u se  w h e n  
th e  d e fe n d a n t  w e n t to  th e  d o o r  a n d  t ire d  th e  
sh o t. D id  n o t s w e a r  b e fo re  A. J . W a tts , a n o ta ry  
p u b lic , “ th a t  th e  t im e  he  f ired  th e  sh o t a t M r. 
P o lk  th a t  he  w as  s ta n d in g  a b o u t th re e  fe e t  f ro m  
th e  p o rc h  o n  th e  g ro u n d , o n  th e  r ig h t s id e  o f  the  
h o u s e .” D id  n o t  k n o w  th e  a c c u ra te  n u m b e r  o f  
sh o ts  f ire d  b y  h is  f a th e r ,  b u t re c k o n e d  it to  be 
a b o u t  th re e . F a th e r  d id  n o t sh o o t th ro u g h  th e  
w in d o w  f o r  M r. P o lk  sh o t th ro u g h  it h im se lf . 
D id  n o t  m a k e  th e  s ta te m e n t,  “M y f a th e r  th e n  
sh o t tw o  sh o ts  th ro u g h  th e  w a ll o f  th e  h o u se , 
a n d  in  th e  d ire c tio n  o f  M r. P o lk .” D id  n o t 
s w e a r  to  a n y th in g  in  th e  p re se n c e  o f  M r. E llis , 
s h e r if f ;  B. M. M iln er, d e p u ty  sh e r iff , a n d  J . W . 
N e w to n  a n d  T . M. C liffo rd . D id  n o t say , “ I 
le a n e d  o u t  th e  d o o r  w ith  m y  45 se c u re ly  h e ld  
in  m y  le f t  h a n d  a n d  a f t e r  I t ire d  o n e  sh o t I 
k n e w  I h a d  h i t  h im . I sa w  h im  f a l l .” T o ld  A. J. 
W a tts , n o ta r y  p u b lic , th a t  M r. P o lk  h a d  a g u n  on  
h im , b u t  th e  n o ta r y  fa i le d  to  p u t  it  in  th e  s ta te ­
m e n t. A f te r  sh o o tin g  th e  d e ce ase d  he  th re w  
th e  g u n  o n  th e  b e d  a n d  w e n t to th e  r a i l r o a d  a n d  
s a t  d o w n . N o o n e  s ta y e d  a t  h o m e  f o r  d in n e r .  
O n e  b o y  a n d  m o th e r  w e re  th e re  w h e n  th e  f a ta l



38

sh o t w as  f ired . A f te r  f a th e r  t ire d  in  th e  h o u se  
th e y  r a n  o u t  th e  b ack . D id  n o t go to  see  w h e th ­
e r  M r. P o lk  w a s  h u r t  o r  n o t, k n o w in g  h is  life  
w as  in  d a n g e r , i f  he  w as  n o t h u r t .  D id  n o t tell 
f a m ily  he  h a d  sh o t th e  d e ceased , b u t f a th e r  
m a d e  th e  r e p o r t .  H ad  n o t  m a d e  a n y  a r r a n g e ­
m e n ts  b e fo re  he  d id  th e  k i ll in g  a n d  w as n o l 
th in k in g  o f  k ill in g  a n jm n e  o r  g e ttin g  k ille d . 
A f te r  th e  k illin g , h e  f irs t  w e n t to  P in e  B lu ff. 
S ta y in g  th e re  o n e  n ig h t, he  w e n t to S ta m p s , A r­
k a n sa s , a n d  w e n t to  A ce T h o m a s ’ a t S ta m p s  a n d  
c a lle d  th e  o fficers a n d  to ld  th e m  w h e re  h e  w as. 
W a s  n o t  p ic k e d  u p  a t a  g ro c e ry  s to re  th e re , b u t  
c a lle d  th e  o fficers a n d  w a ite d  u n t il  M r. T a tu m  
a r r iv e d . H e d id  n o t h a n d c u f f  m e . T h e  s ta te ­
m e n t  w a s  w r i t te n  a n d  re a d  o v e r  to  h im  a n d  he  
s ig n e d  it a s  b e in g  tru e , a f t e r  te ll in g  th e m  th a t  
lo ts  o f  th in g s  in  th e re  (W r i t te n  S ta te m e n t)  w as  
n o t  r ig h t, a n d  h e  say s , “ T h a t  w ill be  a ll r ig h t .” 
Y et he  s ig n e d  it. K n ew  M r. W a tts , n o ta r y  p u b ­
lic. R e la te d  M r. W a t ts ’ s ta te m e n t ,  “ T h e m  fe w  
lit t le  m is ta k e s  d o n ’t a m o u n t  to  a n y th in g .” D id  
n o t s w e a r  to  th e  s ta te m e n t.  W a s  a t th e  b a r n  w ith  
M r. P o lk , a n d  he  w a s  d r in k in g . T h e  d e c e a se d  
h a d  so m e  in  h is  p o c k e ts  a n d  ta lk e d  a s  a  p e rs o n  
ta lk s  w h e n  d r in k in g . H a d  a lw a y s  o b e y e d  th e  
d e c e a se d  a n d  n e v e r  h a d  a n y  c ro ss  w o rd s  w ith  
h im .

O n  redirect examination b y  M r. M a rtin , 
th e  d e f e n d a n t  te s tif ie d  th a t  he  h a d  n e v e r  b e e n



39

im p u d e n t  to  th e  d eceased , a n d  it w as  th e  firs t 
tim e  a n y  c ro ss  w o rd s  w e re  p a sse d  b e tw ee n  
th e m . H e d id  lik e  M r. P o lk . F a th e r  w a s  a lw a y s  
o b e d ie n t to  M r. P o lk . S ix sh o ts  w e re  f ired  b e ­
f o re  th e  f a ta l  sh o t w as  fired . D e fe n d a n t  te s t i ­
fied  th a t  h e  co u ld  n e i th e r  re a d  n o r  w r ite  a n d  
th a t  he  h a d  liv ed  a n d  w o rk e d  on  th e  f a r m  all o f  
h is  l ife . D id  n o t s ig n  th e  p a p e r , ju s t  to u ch e d  
th e  p e n , a s  h e  w as  to ld . D id  n o t k n o w  w h a t th ey  
w e re  p u t t in g  d o w n  o n  th e  p a p e r .

O n  re-cross examination b y  M r. S m ead , th e  
d e fe n d a n t  te s tif ie d  th a t  w h ile  a t th e  c o u r th o u s e  
in  th e  p re s e n c e  o f  J . W . N e w to n , th e  s ta te m e n t 
w a s  d ra w n  u p  a n d  ty p e w ri t te n , a n d  th e re  w ere  
so m e  th in g s  th a t  w e re  n o t t ru e  a n d  he d id  n o t 
g e t r ig h t  a n d  w h e n  to ld  th e se  th in g s  w e re  n o t 
r ig h t, M r. C liffo rd  sa id , “T h a t  is o k a y , w e w ill 
s t r a ig h te n  th a t  o u t .”

O n  re-redirect examination b y  M r. M artin , 
th e  d e f e n d a n t  te s tif ie d  th a t  th e  s ta te m e n t w as 
n o t  w r i t te n  d o w n  a t  h is  re q u e s t , b u t  h e  w as  sen t 
fo r ,  in  o r d e r  th a t  th is  s ta te m e n t  m ig h t  be 
d r a w n  u p .

W itn e s s  e x cu se d .

(T r . p p . 85-90)

H omer Brow n , a w itn e s s  o n  b e h a lf  o f  th e  
d e fe n d a n ts ,  o n  b e in g  d u ly  sw o rn , te s tif ie d  th a t 
h e  w a s  18 y e a r s  o ld . O n C h r is tm a s  d a y , 1931,



40

he  w as  a t  th e  h o m e  o f  L o u is  B lak e . S aw  th e  
d e ce ase d  o n  th a t  d a y , w h e n  h e  c a m e  f ro m  h is  
h o m e  d o w n  th e re . D id  n o t see  th e  sh o o tin g . 
T e lls  th e  j u r y :  “W ell, I w a s  g o in g  o n  d o w n  th e re  
a n d  he  (P o lk )  to ld  m e  to  te ll L o u is  to  co m e 
u p  th e re  a n d  I to ld  h im  (L o u is ) , a n d  L o u is  sa id , 
‘N o, h e  w as  n o t g o in g  u p  th e re ,’ a n d  I w e n t o n  
in  th e  h o u se  th e n  a n d  sa t  d o w n  a n d  I w as  p la y ­
in g  w ith  th e  c h ild re n , a n d  o n e  o f  th e m  w e n t to  
th e  d o o r  a n d  sa id  so m e th in g  a n d  th e n  I w e n t  to  
th e  d o o r  a n d  lo o k ed  a n d  I saw  E lb e r t  r u n n in g  
u p  th e re  a n d  L o u is  c a lle d  h im  a n d  to ld  h im  to 
co m e  o n  to  th e  h o u se , a n d  h e  c a m e  o n  to  th e  
h o u se  a n d  th e n  I lo o k e d  u p  a n d  th e n  M r. P o lk  
w a lk e d  in to  th e  y a rd  ga te , a n d  th e n  I g o t u p .” 
M r. P o lk  w as  a t  N e lse s ’ h o u se  w h e n  h e  s e n t  fo r  
L o u is  B lak e . S aw  M r. P o lk  a f t e r  E lb e r t  a f t e r  
h e  (M r. P o lk )  h a d  le f t  N e lse s ’ h o u se . T h e  w i t ­
n e ss  te s tif ie d  th a t  he  w a s  in  th e  h o u se  w h e n  M r. 
B ra d  P o lk  w a lk e d  in to  th e  y a rd  g a te  a t  L o u is ’ 
h o m e . D id  d e liv e r  th e  m e ssa g e  to  L o u is  B lak e  
f r o m  M r. P o lk  a n d  a lso  to ld  M r. P o lk  w h a t  L o u is  
h a d  sa id . L o u is  B la k e  w a s  o n  th e  p o rc h  in  a 
c h a i r  w h e n  M r. P o lk  w a lk e d  in to  the  y a rd . D id  
n o t  h e a r  w h a t M r. P o lk  sa id  to  L o u is , a n d  d id  
n o t  k n o w  h o w  lo n g  th e  c o n v e rs a t io n  la s te d  f o r  
h e  l e f t  th e n . E lla  W a ts o n  c a lle d  h e r  tw o  c h il ­
d re n  a n d  le f t ,  a n d  I le f t  too , b e fo re  a n y  sh o ts  
w e re  f ired . D id  n o t  k n o w  w h e th e r  th e re  w as  
a n y th in g  in  th e  v o ice  o r  c o n d u c t  o f  a n y o n e  th a t



41

w o u ld  c au se  a n y o n e  to  b eco m e  a f r a id .  H ad  
b e e n  g o n e  ju s t  a  l i t t le  w h ile  b e fo re  sh o ts  w e re  
h e a rd , a b o u t  a h u n d re d  y a rd s  a w ay .

On cross-examination by M r. S in ead , the  
w itn e s s  te s tif ied  th a t  he  saw  B ra d  P o lk  a t  N else  
B o x ’s p lac e  a n d  h e  (P o lk )  to ld  h im  to  tell L o u is  
to  co m e  u p  th e re . V an  B ro w n  w as  th e re  w ith  
th e  w itn e s s , a n d  he  (B ro w n )  s ta y e d  th e re  a b o u t  
a  h a l f  h o u r . E lb e r t  B lak e  c a m e  h o m e , a n d  le f t . 
C o u ld  n o t sa y  he  sa w  th e  d e fe n d a n t  c a r ry  a n y ­
th in g  w ith  h im . D id n o t see a n y  g u n s . Mr. 
P o lk  w a s  a f t e r  E lb e r t  a n d  the  b o y  w as  ru n n in g . 
N o g u n s  w e re  sh o t th e n , a n d  s e a te d  in  th e  h o u se , 
th e  w itn e s s  so o n  sa w  M r. P o lk  w a lk  in  th e  ga te . 
L o u is  w a s  s e a te d  o n  th e  p o rc h , a n d  th e  c o n v e r ­
s a tio n  s ta r te d . D id  n o t k n o w  w h e re  E lb e r t  w as 
a t  th is  tim e , b u t  L o u is  w as s till  o n  th e  p o rc h  
w h e n  th e  w itn e s s  le f t .  S u re  th a t  L o u is  h a d  no  
f i r e a rm s  re a d y  w h e n  he le f t . V an  B ro w n  w as 
h o m e , h a v in g  le f t  a lo n g  tim e  b e fo re  th is . B ro w n  
te s tif ie d  th a t  h e  w a s  re la te d  to  L o u is  B la k e ’s 
w ife . H e d id  ta lk  to  M r. T. M. C liffo rd  a b o u t  
th e  case , b u t  d id  n o t te ll h im  th a t  M r. P o lk  d id  
n o t  r u n  a f t e r  E lb e r t  B lak e .

W itn e s s  ex cu se d .

(T r . p p . 90-95)

Van Brow n , a w itn e s s  o n  b e h a l f  o f  th e  d e ­
fe n d a n ts ,  o n  b e in g  d u ly  sw o rn , te s tif ied  o n



42

DIRECT EXAMINATION by Mr. Martin, that he 
was 17 years old, and lived two miles from Ste­
phens. Knew the defendants, and also the de­
ceased. On Christmas day, 1931, he was at the 
home of Louis Blake. Saw the deceased on that 
day going up to Blake’s house. Saw Elbert 
Blake at the house. First saw Mr. Polk at 
Nelses’ barn, and Louis Blake’s barn was located 
up at Nelses’. Was not at Blake’s house when 
Mr. Polk arrived. Did not see Mr. Polk run­
ning after Elbert Blake, but saw young Blake 
running. Left the house immediately after see­
ing young Blake running.

On cross-examination by Mr. Sinead, the 
witness testified that he was a brother to Homer 
Brown, and that they arrived at Blake’s house 
about 12 o’clock. Did not talk to Mr. Polk, after 
seeing him at Nelses’ barn, but the brother did. 
Did not know what conversation went on be­
tween them. Went into Blake’s house and El­
bert was there, but did not know when he went 
out. Did not leave with brother, but a little 
while before. Left running for he did not know 
what would happen. Saw Elbert running, but 
did not see Mr. Polk at all. Did not see any 
guns. Did not hear Louis make any statement 
about having trouble with Mr. Polk. Nothing 
to alarm him when he saw Mr. Polk up at the 
barn.

Witness excused.



DIRECT EXAMINATION, Mr. Martin:
(Tr. pp. 95-99)

E l l a  W a t s o n , a witness on behalf of the 
defendants, on being duly sworn, testified that 
she knew the two defendants and that they were 
related by marriage. Had been at the house, 
prior to the time the shooting was done. Went 
to the Blake house to have dinner with them 
about 11 o’clock, but left before dinner, because 
Mr. Polk called Louis Blake up to that house on 
side of the highway and Louis would not go, 
and after seeing Elbert running around the 
house. Mr. Polk had called Louis and told him 
to come up there that he wanted to have a set­
tlement with him. Elbert Blake was just out­
side of the yard when the witness left. Came 
over to the house with Louis Blake in a wagon. 
Had seen Mr. Polk while in Louis Blake’s wagon 
that morning, when they passed Mr. Polk’s 
house and he came out to the wagon and asked 
them to come in and have a drink, but Louis 
refused, saying he would return after carrying 
her home. Neither of them appeared to be 
angry.

On cross-examination by Mr. Smead, the 
witness testified that when Mr. Polk came out to 
the wagon, both of them seemed to be in good 
humor. The witness was there when the Brown 
boy told Louis what Mr. Polk had said. Louis

43



44

said that he wouldn’t go up there. She testified 
that she was back in the garden among the trees 
when the shooting took place. Did not see Louis 
with a gun before leaving the house, but had 
seen him with a gun when he came to her house 
about 11 o’clock that morning. He carried it in 
his right pocket. Elbert did not have a gun. 
Louis mentioned that he was going to move, but 
did not speak of any trouble with Mr. Polk. Did 
not know Louis and Mr. Polk had some trouble 
about the settlement over the crop.

On redirect examination by Mr. Martin, 
the witness testified that she could smell liquor 
on Mr. Polk’s breath when he was standing near 
the wagon.

Witness excused.

(Tr. pp. 100-117)

Louis Blake, one o f the defendants, on be­
ing duly sworn, testified that he was 42 years old 
and was reared at Nevada County, Arkansas, 
but had lived in Ouachita County about five 
years. Farmed all of his life, except the two 
years at war. Had moved down to Mr. Polk’s 
place about March of last year, but had lived 
there on his place before that. Had granted Mr. 
Polk a loan of $200, bonus money. Never any 
trouble between the two of them before. Had 
no words at all about moving. Mr. Polk said,



45

“I hate to see you leave, my girls like your wife 
to help them.” Drew water for them that morn­
ing and would get wood for them, also. Had a 
final settlement about our business transactions, 
except one bale of cotton. Never any hard feel­
ings between the two of them. Did not make 
this statement to Walter Jones: “that I was hav­
ing trouble with Mr. Polk, and I would stay there 
if it took my 45 to do it.” Between 10 and 10:30 
that morning I was home, and stayed there to 
help Gris Guttry and Brown Harris to put some 
blocks under a house and helped them to saw 
some blocks. Got to Stephens about 12 o’clock 
that day. Was not in Stephens Christmas Eve 
day between 10 and 10:30 o’clock, and did not 
have any conversation with Jones. Never 
threatened Mr. Polk in any way. Mr. Polk came 
to Blake’s house about 12:15 Christmas Day. 
Had seen Mr. Polk when he (Louis) went to get 
Sam Watson’s wife and children to have dinner 
with him. Coming by Mr. Polk’s house, he saw 
Mr. Polk in the road, and he (Louis) said, 
“Christmas gift,” and the deceased laughed and 
said, “Louis, I got a drink for you around here, 
if you want it,” and I says, “Mr. Polk, I done 
quit drinking,” and he says, “Come on, it won’t 
do any harm,” and I says, “No, sir,” but then I 
says, “I will come back and take it.” After not 
going back, Mr. Polk sent word for me to come 
up to Nelses’ house, but did not go, nor did I



46

send anyone. Elbert was sent to tell some boys 
to have dinner with him. The barn is located 
about 30 yards from Nelses’ house and corn and 
seed was kept in there. Could see the door ot 
the barn from the house. Saw Mr. Polk inside 
of the crib, throwing corn out into the lot, and 
saw him when he got after the boy. Tells jury 
what he saw: “I could not hear what they said. 
My wife told the boy that she was going to put 
dinner on the table and for him to go and tell 
Joe and Clarence to come and eat dinner with 
us, and I was sitting out there on the porch 
and some of them says, “Look at Elbert run­
ning,” and I hollered and told Elbert to come 
on home and he run on down there and he did 
and Mr. Polk come over the lot behind him and 
he (Polk) had his pistol in his right hand, and 
I got up and went out on the porch and Elbert 
then run under the well shed and then ducked 
around the house, and then ran out into the 
field up towards the light plant, he was running 
for life, and I says, “What in the world is the 
matter with you,” and he says, “Mr. Polk is 
after me with the single tree and gun,” and I 
says, “You come on to the house,” and he come 
to the house then. Did not go when Mr. Polk 
sent for him because he knew Mr. Polk to be 
dangerous when drinking. Ella Watson saw 
Mr. Polk coming and said, “He is coming, and 
I is gone,” and she went out the back way. She



47

did not leave until she saw him (Polk) coming 
towards the house. He states what was done and 
said from the time he left the crib door until 
he (Polk) was killed:

“He says, ‘Louis, come on and get this,’ and 
I says, ‘Mr. Polk, I is not coming up there,’ and 
I says, ‘Mr. Polk, this is Christmas Day, this is 
the Lord’s prayerful day,’ and he says, ‘That 
don’t make a damn, you come on up here and I 
want to show you what your boy has done,’ and 
I says, ‘What is he done, Mr. Polk?’ and he says, 
‘He has my tools in your crib, and two wooden 
singletrees and an iron singletree,’ and I says, 
‘No, sir, Mr. Polk, them is ours,’ and he says, 
‘You God damn black son-of-a-bitch,’ and then 
he got his gun and I broke and run into the 
house and my boy was looking out the crack in 
the door and he (Polk) shot right there close, 
and my baby fell; I thought it was shot, and I 
grabbed my pistol and I shot into the wall of 
my house. I was just shooting in the wall; was 
just trying to frighten him, and then after I 
shot four (4) times, Mr. Polk shot through the 
window and the bullet lodged in a 2 x 4 there 
in the house, and I grabbed the little child and 
I started out the back way, and Elbert says, ‘Mr. 
Polk nearly knocked me crazy with the single­
tree,’ and I was backed up there against the 
wall, and I thought by that time that Mr. Polk 
was gone, and Elbert stepped out on the porch



48

and then run back and got his gun and shot, and 
I looked around and Elbert says, ‘I done shot 
him,’ and I says, ‘You should not have done 
it,’ and Elbert then says, ‘Papa, he had his gun 
right on me,’ and then I got my hat and told 
my folks that I was going to tell Mr. Polk’s folks 
that he was shot, and I run up there and I called 
Miss Helen and I says, ‘Miss Helen, Elbert has 
done shot Mr. Polk,’ and she says, ‘Tell me what 
to do,’ and I says, ‘Us go and get the doctor and 
the law,’ and I said to her, ‘You should not drive 
the car yourself, you is too nervous,’ but she did 
anyway, and I jumped into the back seat and 
went on up there and she stopped the car and 
I got out and went into Dr. Sander’s house, and 
he (Dr. Sanders) says, ‘You better tell Mr. Her­
bert,’ and we went on up to Mr. Herbert’s house 
and told him, and don’t you know if I had shot 
Mr. Polk that I would not have gone up there. 
(Herbert is Mr. Polk’s son.) Then after that I 
got in Mr. Cecil Thornton’s car and he drove me 
back to the house and when we got there Mr. 
Herbert looked over there and saw that his papa 
was dead, and he pulled his gun and tried to 
shoot me and I grabbed it and says, ‘I have not 
done anything, and you ought not to shoot at 
me,’ and Mr. Cecil Thornton says, ‘Don’t do 
that; don’t shoot him; I don’t think that Louis 
did anything,’ and they held them and would not 
let him shoot me. I did not try to hurt Mr. Her-



49

bert Polk for I liked him, and it was the only 
trouble we had ever had. It was perfectly sat­
isfactory for me to move from the place.”

On cross-examination by Mr. Smead, the 
defendant testified that he never did have any 
trouble with Mr. Polk about the settlement. He 
denied that Mr. Polk made the following state­
ment to him in the fall, in the presence of Joe 
Huddleston, and he walked away: “that you 
would have to come on and shoot square like 
the rest of the boys with the corn and the peas.” 
Did not try to hold out more than his share of 
the crop. Did not owe him any money, having 
had a settlement along in the fall. He identified 
the large gun as his wife’s, and said the boy 
used that one and he used the 38, but he was not 
accustomed to carrying a gun everywhere he 
went. He had the gun that day because on the 
night before after coming from town he heard 
the dog bark, and thinking someone about the 
crib, he got his gun and went to the crib, but 
did not see anyone. Placed the gun under the 
blanket on the wagon seat. On the following 
morning, when the defendant went for Ella 
Watson, he testified that the pistol was on the 
spring seat, and he did not tell her he carried 
it all the time, nor did he make such a statement 
to Mr. Jones or Mr. Huddleston. Never threaten­
ed Walker with it, and had never had any trou­
ble with him. The gun was given to him by a



50

sergeant in the army. Said “Good morning” to 
Mr. Polk when he saw him, and Mr. Polk, seem­
ingly, was in a good humor. He (Polk) did not 
pull a gun on him. Offered the defendant a 
drink but he says, “No, sir, Mr. Polk, I done quit 
drinking, it hurts me,” and he say, “That don't 
matter, come on and take a little drink,” and I 
says, I don’t want to take one.” There was no 
discussion of the settlement there, and did not 
ask him to come to my house for a settlement. 
At that time the gun was on the seat, under a 
blanket. Arriving home, the children pulled the 
blanket off of the seats, and I (Louis) carried 
the gun in the house and put it up. Did not 
know that Mr. Polk was coming up to the house. 
I got home about dinner time and it was about 
30 minutes later when the boy came and told me 
Mr. Polk wanted to see me. I didn’t go for I 
saw Mr. Polk turn up a bottle with something 
red in it and drink it under the well shed. Shed 
is about 100 yards from the house. Don’t know 
what he was drinking, only it was red. Polk was 
not drunk when he came to the house, but was 
staggering, as he entered the gate. Had never 
had any trouble with him and he always dealt 
fairly. Had seen him get after other fellows 
when drinking, but had never bothered him 
(Louis). Mr. Polk did not mention any more 
corn that was to come from me. Didn’t want 
to go when Mr. Polk sent for him because he



51

(Polk) was drinking. Tells what happens when 
the boy goes up there: “I seen the boy running, 
he come out of the lot running, and Homer 
Brown says, ‘Look yonder, how Elbert is run­
ning,’ and I run to the door and says, ‘What is 
the matter with you?’ and by that time he had 
gone behind the house beside the fence, and he 
says, ‘Mr. Polk is after me with a singletree,’ and 
I says, ‘You come to the house,’ and he come on 
around back of the house and come into the 
house, and then Mr. Polk says to me, ‘Louis, I 
want you to come and look and see what Elbert 
has done, he has all of my singletrees up there,’ 
and I says, ‘No, sir, he don’t have any of yours,’ 
and he says, ‘Yes, he has four or five of them.’ 
and I says, ‘No, sir, I guess not, I bought them 
singletrees myself from Mr. Smith and they are 
mine,’ and then he says, ‘You God damn son-of- 
a-bitch, don’t you say that any more,’ and then 
he reached for his pistol,” and at that time he 
had his specks in his hand. He pulled his gun 
and his specks at the same time. Started in the 
house and he (Polk) shot at me, but did not 
hit me. Did not close the door, because my wife 
and children were standing around the edge of 
the door. I got my gun, but did not go out, and 
starting shooting in the north end of the house. 
Mr. Polk was standing right out the other way 
by the post of the gallery. Did not see Elbert 
then, for all of the children were crying. Just



52

shooting to scare him. Made a statement to 
the officers about the killing and they wrote it 
down. Being unable to read or write, he did not 
sign it. I shot three or four times. Did not 
shoot in the direction Mr. Polk was standing. I 
denied the shooting at first, because I thought it 
best to testify in court. Mr. Polk shot two times, 
once when I went in the door, and through the 
window once. The porch faces the west, and 
the rooms run north and south. Did not shoot 
at Mr. Polk through the window, he shot at me. 
The distance between the two bullet holes, the 
one at the door and the one at the window, is 
about fourteen feet.

Witness excused.
(Tr. pp. 117-126)

Stella Blake, a witness on behalf of the 
defendant, Elbert Blake, on being duly sworn, 
testified on DIRECT EXAMINATION by Mr. 
Martin, that Louis Blake was her husband. Was 
at home on Christmas day when Mr. Polk was 
killed. Saw Mr. Polk up at the barn, and when 
he got over the fence and started running after 
Elbert. Tells the court what she knows: “Mr. 
Polk come on and got over the fence and went 
into Louis’ barn and commenced to throwing 
out some feed and corn, and then he called 
Louis and told Louis to come up there and they 
would settle up and Louis did not go and then



53

Mr. Polk called him again and Louis still would 
not go, and in a few minutes after that, after he 
(Polk) went into the barn, Elbert got up and 
went up towards the barn, and in a few minutes 
I saw Elbert making a break to run, and he run 
on through the next yard and run a piece up the 
highway and by that time Louis called him and 
told him to come on to the house, and then El­
bert turned and got over the fence and come 
back through the cotton field and I don’t know 
which way Elbert came into the house, but he 
come in some way, and then Mr. Polk come on 
down that way, and he was cursing and coming 
down the path there, and before he got to the 
house Elbert was in the house, and then Mr. 
Polk commenced to talking to Louis, and Mr. 
Polk says, ‘It don’t make a damn if this is Christ­
mas, I want to have a settlement with you,’ and 
Louis said, ‘You go ahead and let me alone, 1 
ain’t doing nothing to you—”

(The court here instructs the jury that the 
testimony of this witness can only be considered 
as to the defendant, Elbert Blake, she being the 
wife of the defendant, Louis Blake.)

And then Louis hushed up, and did net say 
another word, and then Mr. Polk started to come 
in the door, and I was standing close by the door, 
and then Mr. Polk says, “You God damned son- 
of-a-bitch, if you get up and go in there I will



54

break you half in two,” and then he pulled his 
gun and Louis run into the door and then Mr. 
Polk shot, and then Louis shot and then I got my 
baby and got in bed, and by that time Louis 
made another shot; he shot into the wall, and 
then Mr. Polk run from that place to the glass 
window and made another shot, and then by 
that time Elbert made a shot, and then when he 
made his shot Mr. Polk disappeared. Mr. Polk 
had said, “Come up here and let’s settle up for 
this stuff this morning,” that is what he said. 
He did not have any papers or a pencil in his 
hands. Nothing was said about the rent.

On cross-examination by Mr. Smead, the 
witness testified that Louis kept corn and peas 
in the crib and was the stuff raised there on the 
farm last year. Mr. Polk called Louis to come 
up there and told him he wanted to straighten 
out some things, but Louis did not go. Did not 
send Elbert up there and did not know where 
he was going- next thing, saw him running. 
Louis was in the house, but went out into the 
yard to call the boy. Elbert got to the house 
first, and came in the house, about that time Mr. 
Polk was entering the gate. Mr. Polk walked to 
the porch and started to talking about a settle­
ment for his corn. Louis was on the porch then. 
Did not hear any discussion concerning steal­
ing. He (Polk) was cursing and talking about



55

some tools and things. As Louis started to go 
into the house, Mr. Polk said, “Don’t you get 
up and go in there, you black son-of-a-bitch, I 
will break you half in two.” Louis shot after 
coming into the house. Heard a shot fired from 
the outside. Knew Mr. Polk fired it and saw him 
pull it from his pocket. He had his glasses on. 
Mr. Polk did make a shot at Louis. Don’t know 
where Louis shot, but remembered him shoot­
ing two shots. Elbert was standing in the door 
when he shot and Mr. Polk was at the north end 
of the porch. Mr. Polk was standing about 8 
or 10 feet from Elbert when shot. Saw Elbert 
shoot, but did not see Mr. Polk fall. Elbert came 
back through the house and Louis was in the 
house also. Asked Louis if he killed Mr. Polk 
and he said he didn’t know but he must have. 
Did not hear any conversation between the two 
of them, but Elbert walked out first, and Louis 
went on out after him, both going out the back 
door. Knew the daughters of the deceased, and 
talked to them about it the next day. Did not 
tell them that I was in the kitchen and did not 
know a thing about it.

Witness excused.

(The defendant here moves the court for 
the introduction of the written confession of 
both defendants. Same is here read to the jury, 
and follows here.)



56

DEFENDANT’S EXHIBIT “A”
(Tr. pp. 127-130)

INTRODUCED AT THE REQUEST OF THE 
DEFENDANT

STATEMENT OF ELBERT BLAKE

“After being first fully advised by T. M. 
Clifford, assistant prosecuting attorney, that 
anything I might say at this time will be used 
against me, I wish to make the following state­
ment regarding the killing of Mr. Brad Polk, 
who lived near Stephens, Ouachita County, Ar­
kansas, and which killing took place shortly 
after noon on December 25,1931:

“My name is Elbert Blake and I am the son 
of Louis Blake and have been living on Mr. 
Brad Polk’s place, close to Stephens, Ark. Along 
about twelve o’clock on Christmas day, I had 
started to Nelse Box’s house, where Clayborn 
Turner and some other boys were, to ask them 
to come down to my house and have dinner 
with me. As I passed the crib where we kept 
our corn and plow tools, located about 300 feet 
in front of the house where I live, Mr. Brad 
Polk called me and accused me of stealing two 
singletrees that he found in the crib. I told him 
that we had possession of these singletrees for 
a long time and that I did not steal them, he 
then hit me with a singletree which he had in



57

his hand, which was used on a plow and was 
about three feet long and about two inches in 
diameter. He hit me on the left side of my 
head and dazed me for about five minutes. He 
said he was going to kill me and I saw a pistol 
in one of his coat pockets. I do not know which 
pocket. Although he did not knock me down, 
and although I was dazed, I ran around the shed 
and wagon and mules and around the house, 
through the crack of the fence and up towards 
Stephens. My father saw me from the front 
porch of our house, where he was standing 
and called me to come back to the house. I then 
turned and came back to the house. Mr. Polk 
had walked, in the meantime, up by the side of 
our house and was talking to my father, who 
was still on the front porch. I went in the front 
door of the house, and just as I went in Mr. Polk 
shot at me with his revolver and I heard the bul­
let go by me.

“After the first shot was fired, my father 
came in off the front porch and went to the bed 
with me where we kept our pistols and he went 
up close to the window and began shooting 
towards the place where Mr. Polk was standing 
on the outside. Mr. Polk at this time was stand­
ing about three feet from the porch on the 
ground on the right side of our house. I got 
my 45 calibre revolver and walked to the door



58

and when I looked out I saw Mr. Polk pointing 
a gun at me. My father had already fired about 
three shots, one of which he shot through the 
window in the direction of Mr. Polk and the 
other two shots he fired through the outside wall 
of the house, also in the direction of Mr. Polk. 
I leaned out the door with my 45 securely held 
in my left hand, and after I fired one time I 
knew that I had hit Mr. Polk, as I saw him fall. I 
then turned and told my father I was very sorry 
I thought I killed Mr. Polk, but that I had to do it. 
I then laid the gun back on the bed in the front 
room and went on through the house out the 
back door and on over to the Cotton Belt Rail­
road, where I caught a freight train going north 
and got off at Pine Bluff. I caught another train 
Saturday night out of Pine Bluff and went to 
Stamps, Arkansas, Saturday night where I stay­
ed until I was picked up in a grocery store in 
the town of Stamps, Ark.

“I had never had any previous trouble with 
Mr. Polk and I do not know whether he had 
been drinking or not as he was talking as he 
always did in the usual way except that he talk­
ed angry.

“This statement is made by me and signed 
this 31st day of December, 1931, in the presence 
of A. W. Ellis, B. M. Milner, J. W. Newton and
T. M. Clifford, without any promises on their



59

part or anyone else of immunity and without 
threats of any kind on their part or any per­
suasion. This is my voluntary statement.
“ W i t n e s s :

“J. W. Newton
his

“Elbert X Blake, 
mark

“Subscribed and sworn to before me, a No­
tary Public, in and for the County of Ouachita, 
State of Arkansas, this 31st day of December 
1931.

“A. J. Watts, N. P.
(SEAL)
“My commission expires July 1st, 1935.”

DEFENDANT’S EXHIBIT “B”
(Tr. pp. 131-133)

INTRODUCED AT THE REQUEST OF THE 
DEFENDANT

STATEMENT OF LEWIS BLAKE

“My name is Lewis Blake, I live a mile and 
a half from Stephens, Ark., on No. 3 highway on 
the farm of Mr. Brad Polk, who was shot and 
killed on this 25th day of December, 1931, about 
12 noon. Shortly before noon, Homer Brown 
came to my house and said that Mr. Brad Polk



60

wanted to see me. When I did not go down to 
see Mr. Polk, he came up to the place where I 
lived and went to the barn, about 125 yards from 
the house, and about this time my son, Elbert 
Blake, was passing the barn where Mr. Polk was 
and I saw that they got into some kind of an 
argument. Then Elbert ran through the yard 
and came over the fence and started off toward 
town. I said to Elbert, ‘Come to this house and 
behave yourself.’ Elbert came in the house, 
entering by the back door. Just before Elbert 
reached the house, Mr. Polk walked in front 
of the house where I was sitting on the front 
porch. He tried to tell me that my boy had the 
reputation of stealing and said that he wanted 
me to settle with him about some stuff my boy 
had stolen from him. I told Mr. Polk that Wal­
ter Jones had given me the things that he said 
my boy had stolen from him. Mr. Polk got mad 
at me then and became abusive and called me 
a God damned black son-of-a-bitch and at the 
same time he pulled his revolver from his right- 
hand coat pocket and I got up and started in the 
house, and as I got in the door, Mr. Polk fired 
the shot. I went to the foot of the bed where I 
kept my revolver, a 38 Smith & Wesson, and 
came to the front of the house and began to 
shoot through the outside walls in the direction 
where Mr. Polk was standing. I did not intend 
to shoot Mr. Polk, but thought he would be



61

frightened away. I shot three or four times 
after which my son, Elbert, came to the front 
door and leaned out and fired one shot from a 
45 calibre pistol and then turned and stated to 
me that he had killed Mr. Polk. Elbert went on 
through the house and out the back door and I 
have not seen him since.

“Mr. Polk seemed to me to be drinking very 
heavily and was very abusive. Mr. Polk shot 
the second time from his revolver after I shot 
three or four times and the ball came into the 
room and I heard it hit somewhere near the 
stove. This happened in Ouachita County on 
this the 25th day of December, 1931, and I have 
made this statement which constitutes the true 
facts and circumstances regarding the shooting 
of Mr. Brad Polk, after first being advised by 
T. M. Clifford, deputy prosecuting attorney, that 
any statement that I made would be used 
against me. I further wish to state that this 
statement was made by me without any promise 
of immunity and without any threats being 
made on the part of any officer or anyone, in 
the presence of J. C. McGaughy, J. W. Newton 
and T. M. Clifford.

his
“Lewis X Blake, 

mark

“I, Stella Blake, the undersigned, have 
heard and read the above statement made by



62

my husband, Lewis Blake, and state that his 
statement is true. I was present at the time Mr. 
Polk was killed and was standing in the front 
room of the house.

“Stella Blake.
“This 25th day of December, 1931.”

(Tr. pp. 134-135)
Louis Blake, the defendant, on being re­

called, testified on DIRECT EXAMINATION by 
Mr. Martin, that he was right-handed.

On cross-examination by Mr. Smead, the 
defendant testified: “Q. After this shooting and 
when you were under arrest, how many shells 
did you have in your pocket for this gun?”

(Defendant objects; overruled; excep­
tion.)

The defendant stated he had two shells in 
his coat but had not worn the coat for six 
months, his wife having gotten it out of the 
trunk, and he did not know the shells were 
there. One shell did fit the gun, and the other 
two were for the 45. Had the shells in pocket 
when arrested.

(The defendant here moves the court to 
strike the cross-examination of the defendant. 
Overruled; exception.)

W itn e s s  e x c u se d .



63

Elbert Blake, the defendant, on being re­
called, testified on DIRECT EXAMINATION by 
Mr. Martin that he was right-handed.

On cross-examination by Mr. Smead, he 
stated that he could shoot with either hand. Had 
not had much practice with the gun. Stated that 
he shot one time.

Witness excused.

(Tr. pp. 136-142)
W. A. Green, a witness on behalf of the de­

fendants, on being duly sworn, testified on DI­
RECT EXAMINATION by Mr. Martin, that he 
lived at Stephens, Arkansas, and had lived there 
for 25 years. Operates a grocery store. Visited 
the scene of the killing and on entering the house 
found six holes, where six bullets hit the house. 
Explains what he saw there as to bullet holes: 
“Well, there is a bullet hole above the door, in 
the door facing above the door. It hit right 
square in the front, and there were two shots 
fired on the inside of the room, right in the 
north corner of the room, and there were two 
shots fired from the inside of the room and 
which went through the corner of the room, 
next to the corner of the porch. One bullet 
came from the front door and hit the door and 
hit the window and come back inside of the

(T r. pp. 135-136)



64

h o u se  a n d  s tu c k  in  th e  w a ll. It w a s  in  th e  l in e  
o f  th e  d o o r . T h is  is B la k e ’s h o u se , a n d  it is 
s tr ip p e d , y o u  k n o w , a n d  th e  b u lle t  h e re  h i t  o v e r  
th e  d o o r  a n d  h it  th e  b a t to n  o n  th e  o u ts id e . T h is  
b u lle t  h e re  j u s t  h i t  th e  b o a rd  o n  th e  o u ts id e , a n d  
it d id  n o t  b r e a k  a p a r t ,  it h it  th e  b o a rd  o n  th e  
o u ts id e  a n d  w e n t r ig h t  s tra ig h t , s q u a re  in  lin e  
d o w n  th e  w a ll, a n d  th e n  th e re  w a s  a  sh o t w h ic h  
a p p e a re d  to  h a v e  b e e n  sh o t f ro m  th e  n o r th w e s t  
c o rn e r  o f  th e  h o u se , r a n g in g  u p w a rd  a n d  h i t ­
tin g  th e  e a s t c o rn e r  o f  th e  w in d o w  fa c in g . T h e  
size  o f  th is  b u l le t  a p p e a re d  to  be  a 32, a n d  it 
lo d g ed  in  th e  w in d o w  c a s in g .”

(T h e  p la t  is h e re  e x h ib ite d  to  th e  j u r y  a n d  
th e y  a ll e x a m in e  sa m e .)

A  j u r o r  n o w  ta k e s  th e  w itn e s s  f o r  f u r t h e r  
e x a m in a t io n :

B u lle t  th a t  h it  th e  b a t to n , s e e m in g ly , c a m e  
f r o m  a 38. T h e  b u l le t  h o le  th r o u g h  th e  w in d o w , 
se e m in g ly , w a s  a 32. T h e  o n e  th a t  c a m e  in  th e  
ro o m  w a s  a  la rg e  b u lle t ,  a b o u t  a  38. I t  c a m e  
th ro u g h  th e  d o o r  h e re  a n d  h it  th e  w in d o w  a n d  
c o m e  b a c k  in s id e  a n d  lo d g e d  in  th e  w a ll  o f  th e  
h o u se . T h e  sh o ts  w e re  a b o u t  a  f o o t  f r o m  th e  
c o rn e r — o n e  w a s  a  l i t t le  f u r t h e r  a w a y  th a n  th e  

o th e r .  T h e  b u l le t  th a t  h it  a b o v e  th e  d o o r  h it  

s t r a ig h t .



65

(P la t  is h e re  in tro d u c e d  in  e v id e n ce , m a r k ­
ed  E x h ib it  “ C” d e fe n se , a n d  m a d e  a  p a r t  
h e re o f .)

On cross-e x a m in a t io n  b y  M r. S m ead , the  
w itn e s s  te s tif ie d  th a t he  d id  n o t see  th e  b u lle ts , 
b u t  he  ju d g e d  f ro m  th e  size o f  th e  h o les . B u l­
le t  th a t  w a s  sh o t f r o m  th e  d o o r  a n d  w e n t r ig h t 
d o w n  b e s id e  th e  w a ll, w a s  a la rg e  b u lle t , a n d  
p ro b a b ly  th e  o n e  th a t k ille d  M r. P o lk . T h e  
o th e r  b u lle t  th a t  w a s  f ired  f ro m  th e  d o o r  a n d  
lo d g ed  in  th e  w a ll w as  a b o u t  th e  sa m e  size b u l ­
le t. W e n t th e re  w ith  L u th e r  E llio tt . T h e re  
w a s  o n e  45 sh o t th a t  w a s  f ired  in  th e  d o o r  a n d  
w e n t in  th e  w in d o w . T h e  o n e  sh o t f ro m  th e  
o u ts id e  a n d  h it  th e  b o a rd  o n  th e  w in d o w  w a s  
a s m a lle r  b u lle t .

O n  r ed ir ec t  e x a m in a t io n  b y  M r. M a rtin , th e  
w itn e s s  s ta te d  th a t  h e  k n e w  th e  d e fe n d a n t ,  L o u is  
B lak e , a n d  h a d  k n o w n  h im  f o r  th re e  y e a rs . As 
f a r  a s  k n o w n , th e  d e fe n d a n t ,  L o u is  B lak e , h a d  
a  g o o d  re p u ta t io n .

O n  r e -cross e x a m in a t io n  b y  M r. S m ead , 
th e  w itn e s s  s ta te d  th a t  he  h a d  n e v e r  h e a rd  a n y ­
o n e  s a y  th e  r e p u ta t io n  o f  th e  d e fe n d a n t  w as  
goo d . N e v e r  h e a rd  M r. B. M o rg an  m a k e  s ta te ­
m e n t  c o n c e rn in g  th e  d e fe n d a n t ,  L o u is  B lak e .

( D e fe n d a n t  o b je c ts ;  su s ta in e d .)

W itn e s s  e x cu se d .



66

B. G u t t r y , a w itn e s s  o n  b e h a lf  o f  th e  d e ­
fe n d a n ts ,  o n  b e in g  d u ly  sw o rn , te s tif ied  o n  
D IR E C T  E X A M IN A T IO N  b y  M r. M a rtin , th a t  
he  liv ed  a t  S te p h e n s , A rk ., a n d  h a d  liv e d  th e re  
a ll o f  h is  l ife . K n ew  th e  d e fe n d a n t ,  L o u is  B lak e . 
S aw  th e  d e fe n d a n t  o n  C h r is tm a s  E v e  d a y  a n d  
h e  (L o u is )  h e lp e d  th e m  to  d o  so m e  w o rk , b u t  he 
(L o u is )  w a s  n o t h ire d . H e lp e d  th e m  f o r  th i r ty  
o r  fo r ty  m in u te s , o r  lo n g e r . I t w a s  a r o u n d  10 
o ’c lock , o r  a  l i t t le  a f t e r  w h e n  he  (L o u is )  le f t .

W itn e s s  e x cu se d .

(T r . p p . 143-144)

J . W . R ig g in , a w itn e s s  o n  b e h a lf  o f  th e  
d e fe n d a n ts ,  o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  
D IR E C T  E X A M IN A T IO N  b y  M r. M a rtin , th a t  he  
liv ed  a t  B u c k n e r , A rk a n sa s , a n d  g av e  h is  ag e  a s  
66 y e a rs . O c c u p a tio n  a s  a f a r m e r  a n d  h a d  
k n o w n  th e  d e fe n d a n t ,  L o u is  B lak e , f o r  15 o r  18 
y e a rs , o n c e  l iv in g  n e a r  h im . S a id  d e fe n d a n t  h a d  
g o o d  re p u ta t io n .

O n  cross-e x a m in a t io n  b y  M r. S m e ad , th e  
w itn e s s  s ta te d  th a t  it h a d  b e e n  se v e ra l  y e a r s  
s in c e  th e  d e f e n d a n t  h a d  liv e d  c lo se  to  h im . K n ew  
n o th in g  a b o u t  th e  g e n e ra l  r e p u ta t io n  a ro u n d  
S te p h e n s  o f  L o u is  B lak e .

(T r . p p . 142-143)

W itn e s s  e x c u se d .



67

Ch a r l e y  T a y l o r , a w itn e s s  o n  b e h a lf  o f  th e  
d e fe n d a n ts ,  o n  b e in g  d u ly  sw o rn , te s tif ied  on  
D IR E C T  E X A M IN A T IO N  b y  M r. M a rtin , th a t  he 
liv ed  a t  B u c k n e r , A rk a n sa s , a n d  h a d  b e en  fo r  
19 y e a rs . K n ew  th e  d e fe n d a n t ,  L o u is  B lak e . 
K n ew  th e  d e f e n d a n t ’s r e p u ta t io n  a s  good.

O n  cross-e x a m in a t io n , th e  w itn e s s  te s tif ied  
th a t  h e  k n e w  o f  n o  g u n  th e  d e fe n d a n t  h a d  w h e n  
in  B u c k n e r , a n d  o f  n o  m u r d e r  h e  h a d  c o m m itte d  
th e re . A d m itte d  th a t  th e  d e fe n d a n t  h a d  figh ts , 
b u t  w a s  n o t  b ad .

W itn e s s  e x cu se d .

(T r . p p . 146-147)

Z a c k  H a r r is , a w itn e s s  o n  b e h a l f  o f  th e  d e ­
fe n d a n ts ,  o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  D I­
R E C T  E X A M IN A T IO N  b y  M r. M a rtin , th a t  h e  
liv e d  a t  S te p h e n s , A rk a n sa s , a n d  g av e  h is  ag e  a s  
47 y e a r s  o ld . K n ew  C ris G u ttry  a n d  th e  d e fe n d ­
a n t ,  L o u is  B lak e . S aw  h im  (L o u is )  o n  C h r is t­
m a s  E v e  d a y  a t  th e  h o m e  o f  C ris  G u ttry . T h e  
w itn e s s  s ta te d  th a t  L o u is  a r r iv e d  a b o u t  10 
o ’c lo c k  a n d  s ta y e d  a b o u t  fo r ty  (40) m in u te s , 
h e lp in g  th e m  to  p u t  so m e  b lo c k s  u n d e r  th e  
h o u se . T h e  d e fe n d a n t  le f t  b e tw e e n  1 0 :3 0  a n d  
11:00.

O n  cross-e x a m in a t io n  b y  M r. S m ead , th e  
w itn e s s  s ta te d  th a t  h e  d id  n o t  k n o w  e x a c tly  w h a t

(T r . pp . 145-146)



68

lim e  it w a s  w h e n  L o u is  c am e  a n d  le f t , h o w e v e r , 
it w as  in  th e  m o rn in g .

W itn e s s  ex cu se d .

T h e  d e fe n s e  re s ts .

T H E  S T A T E  IN T R O D U C E D  T H E  F O L L O W IN G  
T E S T IM O N Y  IN  R E B U T T A L :

(T r . p p . 148-149)

A. J . W a t t s , a w itn e s s  o n  b e h a lf  o f  th e  
S ta te , o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  D IR E C T  
E X A M IN A T IO N  b y  M r. J o in e r ,  th a t  h e  to o k  th e  
a ffid av its , b u t  w a s  n o t p re s e n t  w h e n  th e  s ta te ­
m e n ts  w e re  r e d u c e d  to  w r i t in g  a n d  s w o rn  to  by  
th e  d e fe n d a n ts .  B e fo re  ta k in g  th e  a c k n o w le d g ­
m e n ts  th e  s ta te m e n ts  w e re  r e a d  to  th e  d e fe n d ­
a n ts , a n d  th e y  sw o re  it w as  th e i r  t r u e  a n d  c o r ­
re c t  s ta te m e n ts .

W itn e s s  e x cu se d .

(T r . p p . 149-151)

J . W . N e w t o n , a w itn e s s  o n  b e h a lf  o f  th e  
S ta te , o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  D IR E C T  
E X A M IN A T IO N  b y  M r. J o in e r ,  th a t  h e  w a s  p r e s ­
e n t  w h e n  th e  s ta te m e n ts  w e re  m a d e  a n d  he  
w ro te  th e m . A f te r  th e  s ta te m e n ts  w e re  c o m ­
p le te d  th e y  w e re  re a d  o v e r  to  th e  d e fe n d a n ts ,  
th e  d e fe n d a n ts  h a v in g  to ld  h im  w h a t  to  p u t  in  
th e  s ta te m e n ts ,  a n d  s a y in g  th a t  th e y  w e re  t r u e



69

a n d  c o rre c t. S ta te m e n ts  w e re  m a d e  t ru e  a n d  
v o lu n ta r i ly  a n d  w ith o u t  a n y  p ro m is e s  o f  r e ­
w a rd  o r  im m u n ity .

On cross-e x a m in a t io n  b y  M r. M a rtin , the  
w itn e s s  te s tif ie d  th a t  the  d e fe n d a n ts  w e re  
b ro u g h t  o v e r  to  th e  s h e r if f ’s office f o r  q u e s t io n ­
in g  a n d  in v e s tig a tio n , a n d  th e  s u b s ta n c e  o f  th e ir  
a n s w e rs  w e re  d ic ta te d  to  h im . M r. C liffo rd  
ta lk e d  to  th e  n e g ro e s  a n d  got th e ir  s ta te m e n ts , 
a n d  th e n  it w a s  d ic ta te d  to  h im . (w itn e s s )  D ic ­
ta te d  o n ly  su c h  th in g s  a s  th e i r  s ta te m e n ts  w o u ld  
in d ic a te .

On r ed ir ec t  e x a m in a t io n  b y  M r. S m ead , he 
s ta te d  th a t  h e  to o k  th e  s ta te m e n ts  d o w n  o n  th e  
ty p e w r i te r ,  a n d  th a t  th e y  w e re  re a d  o v e r  to  th e  
d e fe n d a n ts  a f t e r  b e in g  w r i t te n . M r. C liffo rd  
q u e s t io n e d  th e  d e fe n d a n ts  a n d  th e  a n s w e rs  w e re  
c a lle d  o ff to  h im  (w itn e s s )  in  th e  p re se n c e  o f  
th e  d e fe n d a n ts .  N e ith e r  o f  th e m  (d e fe n d a n ts )  
m a d e  a n y  s ta te m e n ts  a b o u t  th e re  b e in g  so m e  
th in g s  in  th e  s ta te m e n ts  th a t  w e re  n o t  t ru e .

W itn e s s  ex cu se d .

(T r . p p :  152-153)

A. W . E l l is , a w itn e s s  o n  b e h a lf  o f  th e  
S ta te , o n  b e in g  re c a lle d , te s tif ie d  o n  D IR E C T  
E X A M IN A T IO N  b y  M r. J o in e r ,  th a t  h e  m a d e  a n  
in s p e c t io n  o f  th e  h o u se  a s  to  b u lle t  h o le s  a n d  h a d  
p r e p a r e d  a  p la t  sh o w in g  th e  lo c a tio n  o f  th e



70

b u lle t  h o les . B o d y  w a s  ly in g  o n  th e  g ro u n d  
( in d ic a t in g  N W  c o r n e r ) .  A b u lle t  w e n t th ro u g h  
th e  c o rn e r  o f  th e  h o u se , in  th e  d ire c tio n  o t 
w h e re  th e  d e ce ase d  w a s  k ille d . T h e re  w a s  a 
b u lle t  th a t  w e n t th ro u g h  th e  w in d o w  ( in ­
d ic a tin g )  a n d  th e  g lass  fe ll  o n  th e  in s id e  o f  th e  
h o u se . T h is  sh o t w a s  f ire d  f ro m  th e  in s id e  o f  
th e  h o u se . T h e  b u lle t  h o le s  in  th e  c o rn e r  o f  th e  
h o u se  w e re  p re t ty  c lo se  to g e th e r . T e lls  j u r o r  
th a t  M r. E ll io tt  c o u ld  e x p la in  h o w  m a n y  h o le s  
w e re  f o u n d  o n  th e  in s id e  th a t  w e re  f ire d  f r o m  
th e  in s id e . T e lls  j u r o r  h e  saw  th e  b u l le t  h o le s  
th a t  w e re  t ir e d  f ro m  th e  o u ts id e  a n d  th a t  th e y  
s t ru c k  o v e r  th e  d o o r .

On cross-e x a m in a t io n  b y  M r. M a rtin , h e  
s ta te d  th a t  h e  d id  n o t  n o tic e  a 32 b u lle t  th a t  
lo d g ed  o n  th e  in s id e  o f  th e  w in d o w , b u t  M r. 
E ll io tt  h a d  o n e  th a t  h e  sa id  lo d g ed  th e re . D id  
n o t  e x a m in e  th a t  a s  c lo se  a s  th e  c o ro n e r ’s j u r y  
d id .

W itn e s s  e x cu se d .

(T r . p p . 154-156)

Luther  E lliott, a w itn e s s  o n  b e h a l f  o f  th e  
S ta te , o n  b e in g  re c a lle d , te s tif ie d  o n  D IR E C T  
E X A M IN A T IO N  b y  M r. J o in e r ,  th a t  th e  b u lle t  
h o le s  th a t  w e re  f o u n d  in  th e  h o u se  w e re  o n  th e  
c o rn e r  o f  th e  h o u se  a n d  w e n t  th ro u g h  f r o m  th e  
in s id e . T h e re  w e re  tw o , a n d  th e y  w e re  k in d e r  
r a n g in g  to w a rd s  th e  c o rn e r .



71

(T h e  w itn e s s  h e re  p o in ts  o u t th e  p la t, he  
s ta n d in g  b e fo re  th e  ju r y ,  th e  p la c e s  w h e re  th e  
b u lle t  h o le s  w e re . W itn e s s  a lso  p o in ts  o u t  o n  th e  
p la t  th e  p lac e  w h e re  h e  fo u n d  th e  b o d y  o f  th e  d e ­
c ea sed .)

B u lle ts  r a n g e d  k in d e r  to w a rd s  h is  b o d y , a n d  th e  
size  o f  th e  h o le s  w a s  a b o u t  a  .38. T h e re  w as  
a n o th e r  b u lle t  h o le  d o w n  n e a r  th e  c o rn e r , a n d  
it w e n t  th ro u g h  th e  w in d o w  a n d  sa sh  a n d  
th ro u g h  a  2 x  4 t im b e r  a n d  th e n  lo d g ed  in  th e  
w a ll.

(W itn e s s  h e re  m a k e s  a m a r k  o n  p la t  in d i ­
c a t in g  p lac e  o f  a b o v e  m e n tio n e d  b u lle t.)

T h is  w a s  a lso  a .38. A n o th e r  b u lle t  r a n g e d  r ig h t  
d o w n  th e  w a ll o n  th e  o u ts id e  o f  th e  h o u se , o n  
th e  p o rc h . T h is  b u lle t  w a s  b e tw e e n  th e  w in d o w  
a n d  th e  c o rn e r  o f  th e  h o u se . T h e  b u lle t  a b o u t  
th e  w in d o w  w a s  a  .32. T e lls  M r. S m e ad  th a t  he  
f o u n d  w h e re  a b u lle t  h it  in  th e  fe n c e  o n  th e  
o u ts id e  o f  th e  h o u se , a p a lin g  fe n c e  a b o u t  15 
fe e t  f r o m  th e  h o u se . T h a t  w a s  a b o u t  15 fe e t  
f r o m  w h e re  th e  b o d y  w a s  f o u n d  ly in g . T h e  b u l ­
le t th a t  w e n t  th ro u g h  th e  w in d o w  sa sh  lo d g ed  
in s id e  th e  h o u se .

W itn e s s  e x cu se d .

(T r . p . 156)

A. W . E l l is , a w itn e s s  f o r  th e  S ta te , o n  b e in g  
re c a l le d , te s tif ie d  o n  D IR E C T  E X A M IN A T IO N



72

b y  M r. J o in e r ,  th a t  th e re  h a d  b e e n  so m e  te s t i ­
m o n y  a b o u t  a .32 b u lle t, th a t  ( in d ic a t in g  g u n  o f  
d e c e a se d )  w as  a .38.

W itn e s s  ex cu se d .

(T r . p. 157)

A. L. W e s s o n , a w itn e s s  f o r  th e  S ta te , o n  
b e in g  d u ly  sw o rn , te s tif ie d  th a t  h e  liv ed  a t  S te ­
p h e n s , A rk a n sa s , a n d  h a v e  liv e d  th e re  f o r  61 
y e a rs . K n ew  th e  d e fe n d a n t ,  L o u is  B lak e , a n d  
k n e w  th e  d e f e n d a n t ’s g e n e ra l  r e p u ta t io n  in  th e  
c o m m u n ity .

D e fe n d a n t  o b je c ts ;  o v e r ru le d ;  e x c e p tio n .

K n ew  th e  d e f e n d a n t ’s r e p u ta t io n  to  be  b ad , 
in  so m e  in s ta n c e s .

W itn e s s  ex cu se d .

(T r. p. 158)

W . G. T y s o n , a w itn e s s  o n  b e h a l f  o f  th e  
S ta te , o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  D IR E C T  
E X A M IN A T IO N  b y  M r. J o in e r ,  th a t  he  liv ed  a t  
S te p h e n s , A rk a n sa s , a n d  th a t  h e  k n e w  th e  d e ­
f e n d a n t ,  L o u is  B lak e . K n ew  h is  r e p u ta t io n  to  
b e  b a d .

W itn e s s  e x c u se d .

(T r . p p . 158-159)

J . B. M o r g a n , a w itn e s s  o n  b e h a lf  o f  th e  
S ta te , o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  D IR E C T



73

E X A M IN A T IO N  b y  M r. J o in e r ,  th a t  h e  liv ed  a t 
S te p h e n s  a n d  k n e w  the  d e fe n d a n t ,  L o u is  B lak e , 
a n d  h a d  k n o w n  h im  fo r  s ix  y e a rs . K n ew  h is  
r e p u ta t io n  to  be b ad . S ta te s  d e a lin g s  he  h a d  h a d  
w ith  L o u is  in  r e fe re n c e  to  g e ttin g  h im  o ff o f  
h is  p la c e :

“ I b o u g h t 160 a c re s  o f  la n d  th a t  he  liv ed  o n , 
a n d  L o u is  liv ed  in  th e  h o u se  th e re  a n d  w a n te d  
to  s ta y  th e re , a n d  I to ld  h im  th a t I d id  n o t w a n t  to  
w o rk  th a t  la n d , th a t  I w a s  g o in g  to  u se  it f o r  
a  p a s tu ra g e , a n d  I g u ess  it  w a s  a b o u t  tw o  
m o n th s  b e fo re  I f in a lly  go t h im  to  m o v e . I t  w as  
r e p o r te d  a m o n g  th e  n e g ro e s  th a t  he  c a r r ie d  a 
g u n , in  fa c t, th e re  w a s  a  n e g ro  w h o  w o rk e d  
o n  m y  p lace , a n d  h e  sa y s  to  m e, he  say , ‘C ap, 
a in ’t y o u  h a v in g  t ro u b le  in  g e ttin g  L o u is  o ff o f  
y o u  p la c e ? ’ a n d  I sa id , ‘N o tro u b le , b u t  h e  w o n ’t 
m o v e ,’ a n d  h e  say s , ‘B oss, y o u  w a tc h  h im , he  
c a r r ie s  a  g u n  a ll o f  th e  tim e , a n d  he  m ig h t h u r t  
y o u ’.”

W itn e s s  e x cu se d .

T h e  S ta te  c loses.

T h e  d e fe n d a n t  in tro d u c e d  th e  fo l lo w in g  
te s t im o n y  in  s u r r e b u t ta l :

(T r . p p . 160-161)

J im  Broadus, a w itn e s s  f o r  th e  d e fe n d a n ts ,  
o n  b e in g  d u ly  sw o rn , te s tif ie d  o n  D IR E C T  E X -



74

AMINATION by Mr. Martin, that on Christmas 
Day between 11 and 12 o’clock, he was bird hunt­
ing about a mile this side of Stephens, on the 
north side of the road. Knew where Louis Blake 
was living. John Eddington and Lewis Berry 
were with him on the hunting trip, and they 
were hunting about a half mile trom Louis 
Blake’s house. Heard shots from a revolver that 
probably lasted five or ten minutes.

Witness excused.
John Eddington, a witness on behalf of the 

defendants, on being duly sworn, testified on 
DIRECT EXAMINATION by Mr. Martin, that he 
lived at Stephens’ Arkansas, and was out bird 
hunting on Christmas Day, with Jim Broadus. 
Knew the defendant, Louis Blake. Heard shots 
fired in the direction of Blake’s house and were 
fired straight in rotation, 6 or 8 shots were fired 
together and one of the boys said “someone is 
shooting birds in over there.”

Witness excused.
This was all of the testimony introduced by 

the State and the defendants.

THE COURT ORALLY CHARGED THE JURY 
AS FOLLOWS:

1. You are instructed that if you believe 
from the testimony in this case beyond a rea-



75

sonable doubt that the defendants, Louis Blake 
and Elbert Blake, or either of them, in Ouachita 
County, Arkansas, and at sometime prior to the 
return of this indictment into court, which was 
on January 25, 1932, did unlawfully, wilfully, 
feloniously, of their malice aforethought, and 
after premeditation and deliberation, killed 
Brad Polk by shooting him with a pistol as is 
alleged in the indictment, you will find them, or 
either of them, guilty of murder in the first 
degree, and assess their punishment at either 
death by electrocution or life imprisonment in 
the State Penitentiary.

2. You are instructed that if you believe 
from the testimony in this case beyond a rea­
sonable doubt that the defendants, Louis Blake 
and Elbert Blake, or either of them in Ouachita 
County, Arkansas, and within three years be­
fore the return of this indictment into court, 
which was on January 2'5, 1932, did unlawfully, 
wilfully, feloniously and of their malice afore­
thought, killed Brad Polk, by shooting with a 
pistol, as is alleged in the indictment, you will 
find them or either of them guilty of murder in 
the second degree and assess their punishment 
at some term in the State Penitentiary of not 
less than 5 nor more than 21 years.

You are further instructed that if you find 
from the testimony in this case, beyond a rea­
sonable doubt, that the defendants, Louis Blake



76

and Elbert Blake, or either of them, were pres­
ent, aiding, abetting and assisting the other in 
the commission of this crime, if you find that a 
crime was committed, and if you should find 
that he did not actually do the shooting of or 
the killing of the deceased, but that he was stand­
ing by, aiding, abetting and assisting the other 
in the commission thereof, if you find a crime 
was committed, then, and in that event, you will 
find him guilty as though he were a principal, 
and actually did the killing himself.

INSTRUCTION NO. 3 
State—Given

You are instructed that murder is the un­
lawful killing of a human being in the peace of 
the State, with malice aforethought, either ex­
press or implied.

INSTRUCTION NO. 4 
State—Given

The manner of the killing is not material 
further than it may show the disposition of the 
mind or the intent with which the act is com­
mitted.

INSTRUCTION NO. 5 
State—Given

Express malice is that deliberate intention 
of mind unlawfully to take away the life of a



77

human being, which is manifested by external 
circumstances capable of proof. Malice shall 
be implied when no considerable provocation 
appears or when all circumstances of the killing 
manifest an abandoned and wicked disposition.

INSTRUCTION NO. 6 

State—Given
Manslaughter is the unlawful killing of 

human being without malice, express or im­
plied and without deliberation. Manslaughter 
must be voluntary upon a sudden heat of pas­
sion caused by a provocation apparently suffi- 
icent to make the passion irresistable. That is 
voluntary manslaughter. If you find the de­
fendant guilty of voluntary manslaughter you 
will assess his punishment at some term in the 
penitentiary of not less than two nor more than 
seven years.

INSTRUCTION NO. 7 

State—Given
If the killing be in the commission of an 

unlawful act without malice, and without the 
means calculated to produce death, or in the 
prosecution of a lawful act done without due 
care and circumspection, it shall be manslaugh­
ter. This is involuntary manslaughter. If you 
find the defendant guilty of involuntary mans-



78

laughter you will assess his punishment at some 
term in the penitentiary not to exceed twelve 
months.

INSTRUCTION NO. 8 
State—Given

You are instructed that although you may 
believe that the defendant, at the time he shot 
the deceased, believed he was in danger of los­
ing his life or receiving great bodily injury at 
the hands of the deceased, still, if you believe 
beyond reasonable doubt, that the defendant 
was negligent, as explained in these instructions 
in coming to such belief, then, it would be your 
duty to find him guilty of manslaughter.

INSTRUCTION NO. 9 

State—Given
A bare fear of those offenses, to present 

which the homicide is alleged to have been com­
mitted, shall not be sufficient to justify the kill­
ing. It must appear that the circumstances were 
sufficient to excite the fears of a reasonable per­
son, and that the party killing really acted un­
der their influence, and not in a spirit of re­
venge.

INSTRUCTION NO. 10 

State—Given
Reasonable doubt is not any possible or 

imaginary doubt hatched up for the purpose of



79

an acquittal, because everything that depends 
upon human testimony is susceptible of some 
possible doubt. To be convinced beyond a rea­
sonable doubt is that state of the case which 
after entire consideration of the testimony 
leaves the minds of the jurors in that condition 
that they feel an abiding conviction to a mortal 
certainty of the truth of the charge.

INSTRUCTION NO. 11 
State—Given

The law of self-defense does not imply 
the right of attack. If you believe from the 
evidence in this case that the defendant, armed 
with a deadly weapon, sought the deceased with 
the felonious intent to kill him, or sought or 
brought on or voluntarily entered into the diffi­
culty with the deceased with the felonious in­
tent to kill him, then the defendant cannot in­
voke the law of self-defense, no matter how 
imminent the peril in which he found himself 
placed.

INSTRUCTION NO. 12 
State—Given

You are instructed that the danger, real or 
apparent, to the defendant, must have been so 
urgent and pressing as to cause the defendant 
to honestly believe that the killing of Brad Polk 
was necessary in order to save his own life or



80

prevent him from receiving great bodily harm 
at the hands of the deceased, and defendant 
must have acted under the influence of these 
fears, and not in a spirit of revenge.

INSTRUCTION NO. 13 

State—Given
You are instructed that the right of self- 

defense begins with necessity and ends in nec­
essity, and before the defendant can justify him­
self in taking the life of the deceased, defend­
ant must have employed all reasonable means 
in his power consistent with his safety to have 
avoided the danger, real or apparent, to himself 
to avert the necessity of taking the life of the 
deceased.

INSTRUCTION NO. 14 

State—Given
In ordinary cases of one person killing an­

other in self-defense it must appear that the 
danger was so urgent and pressing that in order 
to save his own life, or to prevent his receiving 
great bodily injury the killing of the other was 
necessary and it must appear also that the per­
son killed was the assailant or that the slayer 
had really and in good faith endeavored to de­
cline any further contest before the mortal shot 
was fired.



81

You are instructed that the only purpose 
for which proof of threats is admissible is to 
throw light on the defendant’s act at the time 
he fired the shots, and to show who was the 
probable aggressor; and if you believe from the 
evidence as explained in these instructions that 
the deceased was not making any attempt to 
kill the defendant, as viewed from the stand­
point of the defendant, acting as a reasonable 
man, you will not consider threats if proved, for 
any purpose; and in this connection you are 
instructed that threats alone, however, violent, 
would not justify an assault, or afford provoca­
tion for a homicide.

INSTRUCTION NO. 16 

State—Given
In order to constitute the killing of a hu­

man being murder in the first degree, there 
must be a specific intent to take the life formed 
in the mind of the slayer before the act of kill­
ing was done. It is not necessary, however, 
that the intention be conceived for any particu­
lar length of time before the killing. It may be 
formed and deliberately executed in a very brief 
space of time. If it was the conception of a 
moment, but the result of deliberation and pre-

IN S T R U C T IO N  N O . 15

State—Given



82

meditation, reason being on its throne, it would 
be sufficient. The law fixes no time in which it 
must he formed, but leaves its existence as a 
fact to be determined by the jury from the evi­
dence.

INSTRUCTION NO. 17 
State—Given

The court instructs the jury that the de­
fendant is a competent witness in his own be­
half. In weighing the testimony of the accused 
you have the right to take into consideration the 
reasonableness or the unreasonableness of his 
account of transactions, and the interest that he 
has in the result of your verdict, as affecting his 
credibility; you are not required to receive 
blindly his testimony as true, but you are to 
consider whether it is avoiding conviction. The 
court nowhere in these instructions means to 
tell the jury that you are to disregard the testi­
mony of any witness; that is a matter solely for 
the jury, and it’s not within the province of the 
court to tell the jury what weight you should 
give to the testimony of any witness.

INSTRUCTION NO. 18 

State—Given
If you find the defendant guilty of murder 

in the first degree, you will so state in your ver­
dict, in which event the court will fix his punish-



83

ment at death; but should the jury decide to tix 
the punishment at life imprisonment in the 
penitentiary, you can so state in your verdict

INSTRUCTION NO. 19 
State—Given

If you find the defendant guilty of murder 
in the second degree, you will so state in your 
verdict, in which event you will fix his punish­
ment in the penitentiary for some period of time 
not less than five years nor more than twenty- 
one years. If you find him guilty of voluntary 
manslaughter, you will so state in your ver­
dict, in which event you will fix his punish­
ment at some period of time in the penitentiary 
not less than two and not more than seven years. 
If you find the defendant not guilty, you will 
so state in your verdict. Whatever your verdict 
is, one of your number will sign it as foreman.
THE DEFENDANTS SAVED GENERAL EX­

CEPTIONS TO A L L  INSTRUCTIONS
GIVEN ON BEHALF OF THE STATE.
THE COURT, AT THE INSTANCE OF THE 

DEFENDANTS, GAVE THE FOLLOWING IN­
STRUCTIONS:

INSTRUCTION NO. 2 
Defendant—Given

You are instructed, that the defendant is at 
the beginning of the trial presumed to be in-



84

nocent of any offense, and that this presumption 
accompanies him all the way through the trial, 
or until it has been overcome by evidence, 
which convinces you beyond a reasonable doubt 
of his guilt. The court further instructs the 
jury that this presumption of innocence is a sub­
stantial part of the law, and not a mere form to 
be by you disregarded, and it is your duty at all 
stages of the trial and in your deliberations, to 
give the defendant the benefit of this presump­
tion.

INSTRUCTION NO. 3 

Defendant—Given
You are instructed, that before you can con­

vict the defendant, the burden is upon the State 
to prove every material allegation in the indict­
ment as therein charged; and nothing is pre­
sumed, or to be taken by implication against the 
defendant; and the court further instructs the 
jury, that in order to prove his guilt beyond a 
reasonable doubt, it is not sufficient for the evi­
dence to show that he is probably guilty, or that 
it is more likely that he is guilty than innocent, 
but what the law requires is, that you should 
be convinced from that evidence beyond a rea­
sonable doubt, that the defendant is guilty as 
charged.



The court instructs the jury, that it is in­
cumbent upon the prosecution to prove every 
material allegation in the indictment as therein 
charged. Nothing is presumed or to be taken by 
implication against the defendant. The law pre­
sumes him innocent of the crime of which he is 
charged until he is proven guilty beyond a rea­
sonable doubt by competent evidence. And if 
the evidence in this case leaves upon the mind 
of the jury any reasonable doubt of the defend­
ant’s guilt, the law makes it your duty to ac­
quit him.

INSTRUCTION NO. 5 
Defendant—Given

You are instructed, that the burden of proof 
is on the State to prove that the defendant is 
guilty as charged in the indictment and if the 
evidence fails to satisfy your minds beyond a 
reasonable doubt of his guilt; then, it is your 
duty to give him the benefit of such doubt and 
acquit him.

If any reasonable view of the evidence is 
or can be adopted which admits of a reasonable 
doubt of the guilt of the defendant; then, it is 
your duty to adopt such view and acquit the de­
fendant.

85

IN S T R U C T IO N  NO . 4

Defendant—Given



The court instructs the jury, that the de­
fendants are competent witnesses for each other 
and in their own behalf. In weighing the tes­
timony of each of the defendants in his own be­
half, you have the right to take into considera­
tion the reasonableness or the unreasonable­
ness of his account of transactions and the in­
terest that he has in the result of your verdict, 
as affecting his credibility. You are not required 
to receive blindly the testimony of any witness 
in his own behalf as true, but you are to con­
sider whether it is true and made in good faith 
or made for the purpose of avoiding conviction. 
The court tells you that you cannot arbitrarily 
disregard the testimony of any witness and fur­
ther tells you that nowhere in these instructions 
does the court mean to tell the jury that you are 
to disregard the testimony of any witness, that 
is a matter solely for the jury and it is not 
within the province of the court to tell the jury 
what weight you should give to the testimony 
of any witness.

INSTRUCTION NO. 7 
Defendant—Given

You are instructed that you are the sole and 
only judges of the weight of the evidence and

8G

IN S T R U C T IO N  N O . 6

De fendant—Given



87

the credibility of the witnesses, and in passing 
upon the credit to be given to the testimony of 
a witness, you should take into consideration 
any bias or prejudice that may be shown; the 
reasonableness or unreasonableness of the tes­
timony of any witness; the interest of any wit­
ness in the matter in controversy; the opportun­
ity of any witness to know the facts about which 
he has testified, the manner of testifying while 
on the witness stand, and, in the light of these 
rules and your common knowledge of men and 
affairs, you should weigh and consider all the 
evidence adduced in the trial of this cause in 
arriving at the truth.

INSTRUCTION NO. 8 
Defendant—Given

You are instructed, that under the law a 
person has the right of self-defense; that is, the 
right to defend himself against an unlawful as­
sault upon his person which is of such a violent 
nature as to cause him to believe, acting as a 
reasonable prudent person under all of the facts 
and circumstances in the case and without fault 
or carelessness on his part, that his life is in dan­
ger or that he is in danger of receiving great 
bodily harm; and under such circumstances 
would be justified in taking the life of his as­
sailant in repelling such an attack; and, you are 
further told that this same right applies to a



88

person in defending members of his household, 
including his wife, child or children, and you 
are further told that a son has the same right to 
defend such members, including his father, 
mother, brothers and sisters, under such circum­
stances as has the father, and if you believe 
from all the facts and circumstances in this 
case that at the time the defendants, either or 
both of them, shot and killed the deceased, Brad 
Polk, that the deceased was making or was at­
tempting to take their lives or the life or either 
of them, or do them or either of them, great 
bodily harm; or that the defendants, acting as 
reasonable prudent persons under all of the 
facts and circumstances in the case and without 
fault or carelessness on their part or on the part 
of either of them, believed, or had reasonable 
grounds to believe that their lives or the life of 
either of them, was in danger; or that they, or 
either of them, was in danger of receiving great 
bodily harm at the hands of the deceased; then, 
you will find the defendants not guilty. And, 
you are further told that the defendants, either 
or both of them, had the same right to defend 
members of their household, including wife, 
children, father, mother, brothers and sisters, 
against such an attack as they, or either of them 
had to defend himself; and if you should find 
from the evidence in this case that at the time 
the defendants, either or both of them, shot and



89

killed the deceased, Brad Polk, that the deceased 
was making an assault on any member or mem­
bers of the defendants’ household, including 
wife, children, father, mother, brothers and sis­
ters, with a deadly weapon or was attempting to 
take the life of any member of such household, 
or to do any member of such household great 
bodily harm; or that the defendants, acting as 
reasonable prudent persons under all of the 
facts and circumstances in the case and without 
fault or carelessness on their part, or on the 
part of either of them, believed or had reason­
able grounds to believe that the life of any mem­
ber or members of such household was in dan­
ger or that any member or members of such 
household were in danger of receiving great 
bodily harm at the hands of the deceased; then, 
you will find the defendants not guilty.

After argument of counsel the court in­
structed the jury that they could return a ver­
dict in the following forms:

We, the jury, find the defendants, or either 
of them, guilty of murder in the first degree, as 
charged in the indictment; that verdict carry­
ing with it the death penalty, or

We, the jury, find the defendants, or either 
of them, guilty of murder in the first degree, as 
charged in the indictment, and assess their 
punishment, or either of them, at life imprison­
ment in the State Penitentiary, or



90

We, the jury, find the defendants, or either 
of them, guilty of murder in the second degree, 
as charged in the indictment, and assess their 
punishment, or either of them, at some term in 
the penitentiary of not less than 5 or more than 
21 years, or

We, the jury, find the defendants, or either 
of them, guilty of voluntary manslaughter as 
charged in the indictment, and assess their, or 
either of them, punishment at some term in the 
penitentiary of not less than 2 nor more than 7 
years, or

We, the jury, find the defendants, or either 
of them, guilty of involuntary manslaughter as 
charged in the indictment, and assess their pun­
ishment at some term in the penitentiary of not 
to exceed twelve months, or

We, the jury, find the defendants not guilty.

Whatever your verdict is let one of your 
number sign it as foreman and return it in 
court.

THE ABOVE AND FOREGOING WERE 
ALL OF THE INSTRUCTIONS OF THE COURT.



91

STATEMENT
This is a case of Louis Blake and Elberl 

Blake, father and son, convicted in the Ouachita 
Circuit Court and sentenced to death on a charge 
of first degree murder from which conviction 
and judgment, the appellants are respectfully 
asking this court for relief.



92

BRIEF
Counsel for appellants herewith present the 

contentions for a reversal of the judgment in 
this cause as follows:
I. THE EVIDENCE IS INSUFFICIENT TO 

SUPPORT THE VERDICT OF MURDER 
IN THE FIRST DEGREE.

II. THE RIGHTS OF THE APPELLANTS 
WERE PREJUDICED BY THE ADMIS­
SION OF INCOMPETENT TESTIMONY.

III. THE RIGHTS OF THE APPELLANTS 
WERE PREJUDICED BY THE FAILURE 
TO GIVE PROPER INSTRUCTIONS AND 
BY THE GIVING OF IMPROPER IN­
STRUCTIONS.



93

ARGUMENT

I. THE EVIDENCE IS INSUFFICIENT TO
SUPPORT THE VERDICT OF MURDER
IN THE FIRST DEGREE.

Counsel deems it expedient under this head­
ing to set out fully the testimony of the State on 
direct and on rebuttal and has briefly outlined 
the testimony of the defense conceding that on 
the question of whether the testimony for the 
State is sufficient to sustain a conviction that 
it must be viewed in its most favorable light 
to sustain the verdict of the jury and so we have 
left no part of the State’s material testimony out 
and have included the testimony of a large num­
ber of witnesses which we contend was inad­
missible and prejudicial to the rights of the 
defendants.

The material part of the testimony is as 
follows:

1. Walter Jones testimony shows:

a. Sometime in fall defendant told him 
he had a good gun and was a good shot— (This 
testimony had no connection whatsoever and 
was inadmissible and prejudicial and was in­
troduced over objection of defendant).

b. At 10:00 or 10:30 a. m . on date of kill­
ing defendant told witness “that he would not



94

move until he had a settlement and he would 
have one if he had to kill Mr. Polk.” (This 
conversation was denied by the defendant and 
two other witnesses testified defendant was 
present with them at another place at the time 
the alleged statement was supposed to have 
been made.)

2. Joe Huddleston testified that some­
time in the fall the deceased told the defendant 
“that he (the defendant) would have to deal 
square like the other negroes were doing.”

3. Dr. G. P. Sanders testified:

He found the body of the deceased at the 
north end of the porch of the defendant’s house, 
lying on the ground, dead, from a bullet through 
the brain entering the left eye and that death 
was instantaneous. Deceased’s glasses were on 
his chest, the left lens shot out. Deceased had 
a full pint of liquor in his pocket. That the 
killing occurred in Ouachita County. There 
was a pistol that had been discharged lying at 
the feet of the deceased. He had fallen back­
wards, his legs doubled under him.

4. R. L. Elliott, deputy sheriff, testified:
He received a report of the killing at 12:15 

p. m. and made a search of the house. Found 
a .38 special that had been fired four times and 
a .45 Colts that had been fired once in a trunk 
in the home of the defendants.



95

That two shots had been fired from outside 
the house, one striking over the door in the 
corner of the facing. The other fired through 
the window sash into the house and lodged in 
the corner of the building on the inside. There 
were four bullet holes through the walls. The 
little gun Iging at deceased’s feet had two emptg 
shells in it.

5. Arthur W . Ellis, sheriff, testified:
He found three bullet holes in the wall, and 

one through the window that had been fired 
from inside the house ranging toward the spot 
where deceased was killed. There was one 
more fired outside toward where deceased was 
standing. There was a shot from outside the 
house over the door.

That appellant Louis Blake was arrested 
and first denied the shooting, but later admitted 
he shot three or four times through the wall, 
using the .38 special. There were four empties 
in the .38 special.

Elbert Blake was arrested and said he shot 
only one time using the .45 and first said he did 
not know whether he hit deceased or not, but 
afterwards said he did. Louis Blake said Elbert 
killed him (Tr. pages 48-49).

6. Ike W alker testified that Louis Blake 
carried a gun all the fall and threatened to



use it on him one day. (This testimony was 
inadmissible).

7. Will Moore testified he handled the 
body of the deceased and delivered some per­
sonal effects found on the body to Miss Ella 
Polk.

8. Miss Helen Polk testified three envel­
opes, pocketbook and a knife were delivered to 
her. The envelopes having figures on them 
made by the deceased.

Louis Blake came running up to her home 
and said Elbert had killed her father and he 
would get the car and go for help and told her 
she had no business going for she was so nerv­
ous and when they reached the doctor’s Louis 
jumped out and ran in to get the doctor.

9. Joe Huddleston testified deceased was 
not drinking or drunk at 10:30 a. m . on the date 
he was killed. (Inadmissible.)

10. H. G. Williams testified deceased was 
not drunk or drinking at 10:00 a. m . on the day 
he was shot. (Inadmissible.)

11. Mrs. Smart testified:
(a) Deceased was not drunk nor drinking 

at 9:30 o r  10:00 a. m . on the day he was killed. 
(Incompetent.)

(b) A few days prior to the killing Louis 
Blake told her he had a place to move on, but

96



97

didn’t have to move till the first of the year. He 
said he liked us, but could not get along with 
papa and was going to move after the first of 
the year.

12. Miss Helen Polk recalled testified; 
Deceased was not drunk nor drinking just be­
fore he left home about thirty minutes before 
Louis Polk came up there and told her he was 
dead. (Incompetent.)

13. A. W. Ellis recalled testified that El­
bert Blake said he could not tell whether de­
ceased was drinking or not he acted like he al­
ways did. (Incompetent.)

14. J. B. Morgan was introduced and ask­
ed about the reputation of deceased. (Incom­
petent.)

This was all the State’s direct testimony.

The testimony on the part of the defendant 
which appears in the transcript on page 67 to 
page 148 tends to prove by Elbert Blake that on 
the day of the killing he had started up past his 
father s barn to a neighbor’s house to invite two 
boys to eat dinner with him and that as he pass­
ed the barn, the deceased was in the defendant’s 
corn crib and called the defendant, Elbert 
Blake, over to him and accused him of stealing 
some single trees and when the defendant, 
Elbert Blake, denied the accusations, deceased



98

s tr u c k  h im  o v e r  th e h ea d  w ith  a s in g le  tree  a n d  
d e fe n d a n t ran  f o l lo w e d  b y  the d ecea sed  w ith  
d ecea sed 's  gu n  in h is  h an d . Defendant return­
ed to the home of Louis Blake, his co-defendant, 
and father, and went into the house. That the 
deceased came from the barn up to the house 
and began talking to the defendant, Louis Blake, 
about the single tree which he claimed Elbert 
had stolen. Louis Blake asked his son, Elbert 
Blake, what single tree Mr. Polk was talking 
about and when Louis Blake told the deceased 
that he had bought those single trees from 
another party, he th re a te n e d  to  sh o o t th e d e ­
fe n d a n ts  a n d  d r e w  h is  gu n . A s  th e d e fe n d a n ts  
w e n t th ro u g h  th e d o o r , th e  d e c e a se d  d isch a rg ed  
h is  gu n  to w a r d  th em , th e  b u lle t s tr ik in g  in th e  
d o o r-fa c in g . The defendant L o u is  B la k e  then 
got his gun and sh o t, as he says, to  sca re  th e d e ­
c ea sed  and the d e c e a se d  f ir e d  a  sh o t th ro u g h  the  
w in d o w  and in to  th e  ro o m  w h e re  th e tw o  d e ­
fe n d a n ts  w e re  a n d  w h e re  th e  w ife , m o th e r  a n d  
ch ild ren  w e re  a lso . The defendant, E lb e r t  
B la k e  g o t h is  gu n , a A5, and reached around the 
door-facing, sh o t a t  th e  d e c e a se d  w h ich  sh o t  
s tr u c k  h im  a n d  k il le d  h im  in s ta n tly . The de­
fendant Elbert Blake then went on out of the 
house and caught a freight train to Pine Bluff, 
spent one night there and returned to Stamps, 
Arkansas, and gave himself up to the officers 
about a week later. The defendant Louis Blake



99

ran up to the home of the deceased and secured 
his car and with the daughter of the deceased 
procured a doctor and brought him back to the 
scene of the killing at Louis Blake’s home.

Shortly thereafter, defendant Louis Blake 
was placed under arrest. The testimony of the 
appellant, Louis Blake was substantially the 
same as that of Elbert Blake. Both defendants 
immediately after their arrest gave statements 
to the officers which were reduced to writing 
and introduced as evidence which were practic­
ally the same as the testimony as above out­
lined.

As corroboration of their testimony, Homer 
Brown testified that he sa w  th e d e fe n d a n t E lb er t  
B la k e  p u rsu e d  b y  th e  d ecea sed . Vann Brown 
also testified that he saw Elbert Blake running, 
but did not see Mr. Polk after him.

Ella Watson, on behalf of the defendants 
testified that she was at Louis Blake’s house im­
mediately prior to the shooting, but had gone 
just before the shooting started. That they were 
all down at Louis Blake’s to take Christmas din­
ner and that earlier in the day the deceased had 
asked Louis Blake to take a drink of whiskey.

Louis Blake testified that before the killing, 
when he called Elbert Blake to the house that 
E lb e r t to ld  h im  th a t M r. P o lk  w a s  a f te r  h im  w ith



100

a s in g le  tree  a n d  a g u n  and that when they 
were talking about the single tree belonging to 
Louis Blake, that the d ecea sed  c u rsed  h im  a n d  
d r e w  h is  gu n  a n d  sh o t a t h im . That the d ecea sed  
sh o t tw o  t im e s  in to  th e h ou se . That he never 
had had any trouble with the deceased. That he 
had lent him $200 of his bonus money. That 
he had no enmity towards the deceased, but that 
he k n e w  th a t th e  d e c e a se d  w a s  d a n g ero u s  w h en  
he w a s  d r in k in g  a n d  sa w  th e  d e c e a se d  ta k e  a 
d r in k  b e fo re  h e g o t d o w n  to  th e  h o u se  th a t d a y .

Stella Blake, wife of Louis Blake and tes­
tifying on behalf of Elbert Blake corroborated 
the testimony of the two defendants.

Louis Blake also testified that at the time 
the witness, Walter Jones, testified he was in 
Stephens talking to him that he, Louis Blake, 
was in fact several miles away from Stephens 
helping B. Guttry and Zack Harris do some 
work. This fact was also testified to by Zack 
Harris and G. Guttry that the defendant was 
helping them do some work several miles from 
Stephens at the time he was supposed to have 
been in front of the People’s Bank at Stephens.

Charlie Taylor, J. W. Riggin and W. A. 
Green testified that the reputation of the de­
fendant, Louis Blake, was good. W. A. Green 
also testified that he visited the scene of the 
killing and made an examination of the house



101

and found where s ix  b u lle ts  b i t  th e h ou se. That 
th ere  w a s  on e o v e r  the d o o r  on th e o u ts id e ;  that 
there were two shot on the inside of the room 
that went through the corner of the room next 
to the corner of the porch and that th ere  w a s  
on e sh o t f r o m  th e o u ts id e  th ro u g h  th e w in d o w .

Louis Blake testified that he o n ly  sh o t to  
scare  th e d ecea sed  and E lb e r t B la k e  te s tif ie d  
th a t a t th e  t im e  he f ir e d  th e  fa ta l sh o t, th a t the  
d ecea sed  w a s  p o in tin g  h is  gun  a t h im  a n d  try in g  
to  k i l l  h im .

This was the sum and substance of the tes­
timony upon the part of the defense.

The State in rebuttal introduced A. J. Watts 
and J. W. Newton who testified that the state­
ments introduced by the defense were taken 
down and read to the defendants and signed and 
sworn to in their presence.

A. W. Ellis was recalled and testified in re­
buttal practically as he did in the direct as to 
the location of the bullet holes.

Luther Elliott, in rebuttal, testified that 
there were two bullet holes that went through 
the corner from the inside ranging kinder to­
wards the corner and towards the body of the 
deceased. That these bullet holes were made 
by a 38. That there was another hole down 
near the corner where the bullet went through



102

the sash and a two by four and then ranged in 
the wall. That there was one that ranged right 
down the wall on the outside of the house by the 
window and the corner of the house and that 
there was a bullet ranging in a pailing fence 
in front of the house.

A. L. Wesson, W. G. Tyson and J. B. Mor­
gan, in rebuttal for the State, testified that the  
re p u ta tio n  o f  L o u is  B la k e  w a s  b a d  in so m e  in ­
s ta n ces . J. B. Morgan also testified:

“Q. Did you have some dealings with him 
with reference to getting him off of your place?

“A. Yes, sir, I bought 160 acres of land 
that he lived on, and Louis lived in the house 
there and wanted to stay there, and I told him 
that I did not want to work that land, that I was 
going to use it for a pasturage, and, I guess, it 
was about two months before I finally got him 
to move. I t w a s  r e p o r te d  amount the negroes 
th a t he c a rr ied  a gu n , in fact, there was a n eg ro  
who worked on my place, and he s a y s  to  m e, he  
sa ys , ‘C ap, ain’t you having trouble in getting 
Louis off of your place’ and I said, ‘No trouble, 
but he won’t move, and h e sa ys , ‘B oss, you 
watch him, h e c a rr ie s  a g u n  a ll o f  th e  tim e , and 
he might hurt you’.” (Tr. 159) Inadmissible.

This covered the State’s rebuttal testimony.
The defense in surrebuttal introduced Jim 

Broadus and John Eddington who testified that



103

on Christmas Day, they heard some shooting in 
the direction of Louis Blake’s house which they 
thought was from a revolver and that the shots 
were fired in straight in rotation, six or eight 
fired together.

This was all the testimony in the case.
Taking the State’s testimony and viewing 

it in its most favorable light in behalf of the 
prosecution, counsel for appellants maintain 
that still th e p ro secu tio n  h as fa ile d  to  es ta b lish  
a case o f  f ir s t d eg ree  m u rd e r  beyond a reason­
able doubt with sufficient evidence to sustain 
the verdict herein rendered.

About the only thing that the State has 
proven is the venue and the co rp u s  d e lic ti;  how­
ever, they did go further in their proof and from 
the testimony of the case, there could be no 
doubt in the minds of any person that th e d e ­
fe n d a n ts  w e re  in th e ir  o w n  h o m e  a n d  th a t th e  
d ecea sed  w a s  a r m e d  and seeking the defendant, 
or defendants for some purpose and that he  
fo u n d  th em  in th e ir  o w n  h o m e  and the undis­
puted testimony on the part of the State further 
shows that when he found them, th e d ecea sed  
d isch a rg ed  h is  gu n  to w a r d  th em  a n d  in to  th e ir  
h o m e  and under the law:

“An assault upon a man’s home is an 
assault upon himself and he can repel such 
assault by force necessary to meet it and it



104

is not necessary that there should be ac­
tual danger provided defendant acts upon 
a reasonable apprehension of danger.”

H all v. S ta te , 113 Arkansas 454.

“Every man’s house is his castle.”
H a rris  v. S ta te , 34 Arkansas 469.

A large part of the testimony set out upon 
behalf of the State was inadmissible and did not 
shed any light upon the case at bar and is dis­
cussed more fully hereafter.

Counsel, therefore, submit that before these 
men can be convicted of murder in the first de­
gree and their lives taken by the State, the State 
must bring sufficient, competent and credible 
evidence to overcome the presumption of in­
nocence and establish their guilt, and in this case 
a perusal of the record and transcript will show 
the State wholly failed to establish the facts nec­
essary to sustain this verdict.

II. THE RIGHTS OF THE APPELLANTS 
WERE PREJUDICED BY THE ADMIS­
SION OF INCOMPETENT TESTIMONY.

1. The testimony of J. C. Huddleston (Tr. 
57), H. G. Williams, (Tr. 58), Mrs. Smart (Tr. 
60), Miss Helen Polk (Tr. 61-62), and Arthur
W. Ellis (Tr. 63) to the effect that the deceased 
was not drinking or drunk at the times they saw



105

and talked to him several hours prior to his 
death, which the State was allowed to introduce 
in its direct testimony, was not admissible—cer­
tainly at that time, and was highly prejudicial 
to the rights of the appellants. This testimony, 
introduced immediately prior to and in connec­
tion with that of J. B. Morgan as to the good 
reputation of the deceased was calculated to and 
actually biased and prejudiced the jury against 
the defendants, for it evidently caused the jury 
to think of and consider the good qualities of 
the deceased.

It is a binding rule of evidence that:

“Evidence of the quiet, peaceable dis­
position ot sober and industrious habits of 
the deceased, or of his general reputation 
as a good man or worthy citizen cannot be 
proved in advance.”

Underhill Grim. Ev. Par. 504.

“The character of the deceased is pre­
sumed to have been quiet and peaceable 
and until it has been attacked by the de­
fense it may not be made the subject of 
proof by the prosecution.”

13 R. C. L. Par. 219.

Besides this they were so remote that they 
could not be used even in rebuttal for his drink­
ing was testified to have taken place imme­
diately prior to the slaying and several hours 
after the witnesses had seen him.



106

2. J. B. Morgan was allowed to testify in 
rebuttal for the State:

“Q. Did you have some dealings with him 
with reference to getting him off of your place?

“A. Yes, sir, I bought 160 acres of land that 
he lived on, and Louis lived in the house there 
and wanted to stay there, and I told him that I 
did not want to work that land, that I was going 
to use it for a pasturage, and, I guess, it was 
about two months before I finally got him to 
move. I t w a s  r e p o r te d  a m o u n t th e n eg ro es  th a t 
he c a rr ie d  a gu n , in fact, there was a negro who 
worked on my place, and he says to me, he says, 
‘Cap, ain’t you having trouble in getting Louis 
off your place’ and I said, ‘No trouble, but he 
won’t move,’ and he says, ‘Boss, you watch him, 
h e c a rr ie s  a g u n  a ll o f  th e  tim e , and he might 
hurt you’ ” (Tr. 159-160).

This testimony was inadmissible and in­
competent and could have had no other effect 
than to arouse the passion and prejudice of a 
white jury in trying negroes for slaying of a 
white man. This is so obvious and well known 
that argument about it would be absurd and a 
useless gesture.

Such testimony was inadmissible because:
1. It was wholly immaterial, irrelevant, 

disconnected and shed no light on the matters
in issue.



107

2. It was hearsay and far fetched hearsay.
3. It tended to prove another and habitual 

crime.

Proof of other crimes are inadmissible and 
prejudicial.

W illia m s  v. State, 183 Arkansas 870.
M orris  v. S ta te , 165 Arkansas 452, and 

cases there cited.
3. For the same reason the testimony of 

Ike Walker (Tr. 51) “that defendant c a rr ied  a 
gun  all the fall” was erroneously admitted and 
was prejudicial to the rights of the appellants.

4. The testimony of A. L. Wesson (Tr. 
15/) introduced over the objections and excep­
tion of the defendants was not admissible and 
was prejudicial to the appellants.

It is improper to admit testimony of “in­
stances” in order to prove reputation. This is 
what was permitted and in so doing the court 
committed a reversible error.

III. THE RIGHTS OF THE APPELLANTS 
WERE PREJUDICED BY THE FAILURE 
TO GIVE PROPER INSTRUCTIONS AND
BY THE GIVING OF IMPROPER IN­
STRUCTIONS.

1. In the instructions given by the court 
there was a complete and absolute failure on



108

the part of the court in his instruction to define 
murder in the first degree and murder in the 
second degree and to make the distinction be­
tween first degree murder and second degree 
murder and even in his instruction on voluntary 
and involuntary manslaughter there was really 
nothing in the way of explanation to tell the 
jury the difference between any of the four 
degrees of homicide included in the indictment.

It is inconceivable that the average jury 
would be able to determine the difference be­
tween murder in the first degree and murder in 
the second degree and manslaughter from the 
meager instructions given by this court and it 
is a reversible error in the case and very pre­
judicial to the appellants that the jury was not 
properly instructed as to the different degrees.

The court gives the statute defining 
murder in his instruction No. 3. In instruction 
Nos. 1 and 2, he tells the jury if they believe the 
defendant guilty of first degree murder,, or, 
second degree murder, what punishment they 
shall assess, but after looking carefully through 
all of the instructions given on the part of the 
State and those given in behalf of the defend­
ant, there is nothing that defines to them what 
constitutes murder in the first degree and there 
is nothing that defines to them what constitutes 
murder in the second degree. There is no in-



109

struction given telling them the difference or 
by what manner they could differentiate and 
determine the degree of guilt.

The court also failed to instruct the jury 
that if there is a reasonable doubt as to the 
degree, that doubt should be resolved in favor 
of the appellants and a conviction found only 
of the lower degree.

In addition to this failure of the court to 
give these instructions as to the different 
degrees, we wish to call the attention of this 
court to the following instruction.

2. In instruction No. 8 on manslaughter, 
the court uses the expression that “if you be­
lieve beyond a reasonable doubt that the de­
fendant w a s  n eg lig en t, a s  e x p la in e d  in th ese  in ­
s tru c tio n s  in coming to such belief,” and yet 
there is no word in the instructions from the 
court defining or explaining negligence.

Therefore, this instruction No. 8 was mis­
leading to the jury and prejudicial to the ap­
pellants.

3. In instruction No. 10, the court com­
mitted a prejudicial error to the defendants 
and committed an error prejudicial to the 
rights of the defendants in using in such instruc­
tion as defining a reasonable doubt the expres­
sion, “h a tch ed  u p  f o r  th e p u rp o se  o f  a c q u itta l.”



110
This could have resulted in nothing other than 
prejudice to the defendants because it is an ex­
pression by the court given under particular 
circumstances that impress the minds of the 
jury and there could be no other meaning drawn 
from such an expression except that in the 
opinion of the court the testimony of the de­
fense was h a tch ed  u p  a n d  h a tch ed  u p  f o r  the  
sp ec ific  p u rp o se  o f  ra is in g  a d o u b t in th e m in d s  
o f  th e  ju r y .  The expression has no place in the 
instruction for any reason at all and unfortu­
nately for these two defendants, it must have 
led or influenced the jury to believe and to think 
upon the fact that the court was evidently think­
ing and believing that the defense was “hatched 
up.” It rendered the entire instruction pre­
judicial and bad.

4. Counsel for defendant is at a loss, after 
a careful reading of the entire testimony in 
this case a number of times, to find where there 
is one single scintilla of evidence upon which 
the instruction numbered 11 could be based. 
The instruction reads as follows:

“The law of self-defense does not imply 
the right of attack. If you believe from the 
evidence in this case that the defendant, armed 
with a deadly weapon, sought the deceased with 
the felonious intent to kill him, or sought or 
brought on or voluntarily entered into the diffi­
culty with the deceased with the felonious intent 
to kill him, then the defendant cannot invoke



I l l

the law of self-defense, no matter how immi­
nent the peril in which he found himself 
placed.”

There is no word of evidence in this case 
either upon the part of the State, nor by the 
flight of the most fertile imagination, that would 
justify any person to believe from the evidence 
in this case that the defendants, or either of 
them, w e re  a rm e d  w ith  a d e a d ly  w ea p o n  until 
after they had been attacked by the deceased. 
There is no evidence that these defendants, or 
either of them, so u g h t th e d ecea sed  with the 
intent to kill him or any other person. There 
is no evidence that they voluntarily entered into 
a difficulty with the deceased, but all of the evi­
dence, both for the State and the defense, indi­
cates that there were two negroes at home on 
Christmas day, “At peace with the world and 
with good will toward all men,” in honor of the 
Master’s birthday, they were preparing to “bake 
bread” with a number of their friends and 
neighbors, and the deceased, a rm e d  w ith  a p is to l  
in one pocket and a pint of liquor in the other 
pocket, ca m e  to th e ir  h o m e  a n d  c a s tle , under the 
law, and accused one of the boys of being a thief 
and when the boy and his father attempted 
mildly, as the evidence shows, to explain that 
the property which the deceased claimed was 
stolen from him was the property of the defend­
ants, the deceased assaulted a seventeen year



112

old boy by striking him over the head with a 
singletree and running after him with a pis­
tol, threatening to shoot and to kill. Then he 
went to the home of that boy’s father and be­
cause the father claimed the singletree in 
question, drove him into the house shooting at 
him as he went through the door and continued 
to shoot through the window at the father, the 
son, the mother, the wife and the other mem­
bers of the family.

Surely, this instruction which could do 
nothing but lead the jury to think possibly 
there might be some evidence which they might 
have forgotten in the hurry of the trial might 
justify them in believing the d e fe n d a n ts  so u g h t 
o u t th e  d ecea sed , and was practically a state­
ment by the court to the jury “th a t th ese  d e fe n d ­
a n ts  h a d  n o  r ig h t to  in v o k e  th e  la w  o f  s e lf  d e ­
f e n s e ,” and were deprived of the very thing the 
law of God and man gave them the right to use.

That it was prejudicial to these defendants 
goes without saying, for today they await rest­
lessly in a death cell for their life to be taken 
away from them, so decreed by the jury which 
heard and considered this erroneous and un­
called for instruction.

5. In instruction No. 12, reading as follows:

“You are instructed that the danger, real 
or apparent, to the defendant, must have been



113

so urgent and pressing as to cause the defendant 
to honestly believe that the killing of Brad Polk 
was necessary in order to save his own life or 
prevent him from receiving great bodily harm 
at the hands of the deceased, and defendant 
must have acted under the influence of these 
fears, and not in a spirit of revenge.”

The court, speaking of the danger to the 
defendant, rea l o r  a p p a re n t, gives the law cor­
rectly in so far as the instruction goes, but it is 
not the law to which these defendants were en­
titled. The instruction should have continued 
and given to the jury the real law which says, 
“but to whom must the danger appear to have 
been so urgent and pressing?” It must have so 
appeared to the defendant himself. It is use­
less to argue that under the stress of the circum­
stances, the excitement of battle, the danger of 
combat when hemmed in your home and being 
fired upon, that a person could take the same 
view as a jury in the safety, the calm, and order 
of a court room, who had not only a few seconds 
to deliberate, to think, but who had hours and 
even days to listen to the circumstances, to 
weigh and consider them and, so it was the duty 
of the court to have explained to that jury prop­
erly that the danger and necessity need not ap­
pear to them to be so urgent and pressing, but 
that it need only appear urgent and pressing 
to the defendant himself.



114

“To justify a killing in self-defense, it 
is not essential that it should appear to the 
jury to have been necessary.”

S m ith  v. S ta te , 59 Ark. 132.
“Whenever a man undertakes self-de­

fense, he is justified in acting on the facts as 
they appear to him.”

M agn ess  v. S ta te , 67 Ark. 594.
T in er  v. S ta te , 115 Ark. 494.
E ld e r  v. S ta te , 69 Ark. 648.

6. Instruction 13, reading:
No. 13. “You are instructed that the right 

of self defense begins with necessity and ends 
in necessity, and before the defendant can jus­
tify himself in taking the life of the deceased, 
defendant must have employed all reasonable 
means in his power consistent with his safety 
to have avoided the danger, real or apparent, 
to himself to avert the necessity of taking the 
life of the deceased.”

This instruction tells the jury that the de­
fendants must have taken all reasonable means 
and that they must have declined any further 
contest, but this is not the law. These instruc­
tions were prejudicial to the defendants in that 
the court failed to tell the jury further that i f  
th e  d a n g e r  w a s  as g rea t f o r  th e  d e fe n d a n ts  to  
r e tr e a t as to  s ta n d  th e ir  g ro u n d , th e y  h a d  a r ig h t  
to  s ta n d  th e ir  g ro u n d  a n d  k il l  th e  d e c e a se d  i f  
n e c e s sa ry  to  sa v e  th e ir  o w n  life . The court



115

should have instructed the jury further, “a 
m a n ’s h o m e, h o w e v e r  h u m b le , is  h is  castle , a n d  
w h en  a tta c k e d  in h is  castle , it is  n o t h is d u ty  
to  re trea t, bu t it is h is  r ig h t to  s ta n d  h is  g ro u n d  
a n d  to  p r o te c t h is  lo v e d  o n es  a n d  to  p ro te c t h is  
h o m e  f r o m  u n w a rra n te d  a tta c k .”

For these errors and failure of the court in 
giving complete proper and adequate instruc­
tions based upon the evidence in the case, coun­
sel insist that the judgment in this case should 
be reversed and proper relief afforded to these 
men now condemned to die.

CONCLUSION

In conclusion, counsel wishes to say to this 
court that this is a cause that should not be dealt 
with lightly nor passed over without a careful 
scrutiny and consideration of the errors here­
inbefore set out.

It is true that a white man has been killed; 
that two negroes have been tried and sentenced 
to death for the commission of the alleged 
crime. But it is a right of people to have a fair 
and impartial trial and to have justice meted out 
to them regardless of color, race or previous 
conditions of servitude and if this case is given 
a careful, considerate and fair consideration by 
this court, it is the opinion of counsel that no



116

other finding can be made in this cause, but 
that the trial in this case was not conducted 
fairly and according to legal procedure and law 
protecting the rights of the accused.

We respectfully ask and pray that this court 
consider this case impartially and that justice 
be served by reversing this cause in order that 
these men may secure the justice to which they 
are entitled.

Scipio A. J ones,
C o u n se l f o r  A p p e lla n ts .









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