Carruthers v. Reed

• Decision Date: 25 February 1939
• Docket Number: No. 11210.,11210.
• Parties: CARRUTHERS et al. v. REED, Keeper of Arkansas State Penitentiary.
• Court: U.S. Court of Appeals — Eighth Circuit

102 F.2d 933 (1939)

CARRUTHERS et al. v. REED, Keeper of Arkansas State Penitentiary.^*

No. 11210.

Circuit Court of Appeals, Eighth Circuit.

February 25, 1939.

John A. Hibbler and J. R. Booker, both of Little Rock, Ark. (Scipio A. Jones, of Little Rock, Ark., on the brief), for appellants.

John P. Streepey, Asst. Atty. Gen. (Jack Holt, Atty. Gen., and Millard Alford, Asst. Atty. Gen., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

The appellants, Jim X. Carruthers and Bubbles Clayton, are negroes who were convicted in the Circuit Court for the Chickasawba District of Mississippi County, Arkansas, of the crime of rape and sentenced to be executed. They appealed from the sentence to the Supreme Court of Arkansas and that court considered all questions presented, reviewed the evidence and found it substantial and sufficient and affirmed the judgment. Clayton v. State, 191 Ark. 1070, 89 S.W.2d 732. On petition for rehearing the Supreme Court handed down a further opinion in which it reiterated its conclusion that the evidence in support of the conviction was substantial, direct and positive, and the petition for rehearing was denied. Habeas corpus was then applied for in the Federal District Court on the grounds: (1) that the trial was dominated by mob violence which prevented a fair trial; (2) that negroes were systematically excluded on account of their race from the panel of the grand jury which found the indictment and of the petit jury which rendered the verdict; (3) that a change of venue was prevented because of the mob spirit dominating the district and county in which the trial was held. It was alleged that appellants had been denied due process of law "in contravention of the 5th and the 14th Amendments to the Federal Constitution, U.S.C.A." The State joined issue upon the petition for habeas corpus by answer.

On the hearing for the writ it appeared to the District Court that the grounds upon which invalidity of the judgment was asserted had not been presented to or passed upon by the state courts and the habeas corpus proceedings were stayed because state court remedies had not been exhausted. Under the Arkansas rule, where a case has been before the Supreme Court, permission to apply to the court of first instance for a writ of error coram nobis must first be obtained from the Supreme Court. Application for such permission was accordingly made to the Supreme Court, 112 S.W.2d 1115, and denied by it without opinion. The petition for habeas corpus in the Federal court was amended to show such application and the denial thereof, and trial was had upon the petition for habeas corpus as amended. The writ was denied and the District Judge having made certificate of probable cause (28 U.S.C.A. § 466), this appeal was taken.

The question for this court is whether the appellants were denied due process of law or the equal protection of the law by the procedure in the state courts under which they are now held for execution of the death penalty.

The decisions of the Supreme Court have firmly established that a prisoner in custody pursuant to the final judgment of a state court is entitled, on petition for habeas corpus in the federal court, to have "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 sufficient extent to test the jurisdiction of the state court to proceed to a judgment against him. * * * It is open to the courts of the United States * * * to look beyond forms and inquire into the very substance of the matter * * *." Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461.

Here there is no claim of defect in the statute defining the crime for which appellants were convicted or in the form of the indictment against them or for want of general jurisdiction in the courts where they were tried or to which their appeal was taken. But the provision of the 14th Amendment to the Federal Constitution that no state shall "deprive any person of life, liberty, or property, without due process of law" constitutes a continuing guarantee by the federal government against conviction or punishment for crime by any state without a fair and impartial trial accorded the accused. If the trial of these appellants was in fact dominated by mob violence so that there was an actual interference with the course of justice, then there was a departure from due process of law in the proper sense of that term. If the state, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a judgment produced by mob domination, the state deprives the accused of his life or liberty without due process of law. Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L. Ed. 969; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. We have, accordingly, carefully examined the evidence and the proceedings to determine whether in truth and in fact there has been a fair and impartial trial according to law.

The petition for writ of habeas corpus includes some fourteen affidavits attached and made a part thereof and the record includes testimony given orally by numerous witnesses on the hearing of the petition for the writ as well as the proceedings and evidence upon the trial under the indictment.

It appears that on January 12th, 1935, Clarence H. Wilson, sheriff of Mississippi County, Arkansas, was shot and severely injured and on the same day the appellants were arrested for the offense at Blytheville, the county seat of the county. The shooting and the arrest aroused excitement in that community at the time and the officers took the precaution to remove the prisoners from the community. The record does not show any overt acts or threats or demonstrations made against the prisoners at Blytheville, but the action of the officers was a prudent precautionary measure. They took the prisoners first to Osceola, Arkansas, and then to Memphis, Tennessee, and then to the State Penal Farm at Tucker, Arkansas, where they confined them in a cell referred to as a death cell. Later the prisoners were returned to Blytheville and were lodged in the jail there without molestation for a period of about six weeks prior to their trial.

On the night of December 21, 1934, a white woman named Virgie Terry was raped by two negroes. She and a young man named Wiley Bryant were sitting in a parked car on the road about a mile and a half southeast of Blytheville and were subjected to assault with force of arms by two men who committed the rape while Bryant was forced, at the point of a gun, to lie in an adjacent ditch. Although the crime was committed at night and handkerchiefs were used to cover the lower part of the faces of the men who committed it, there was some moon light and light from automobiles which passed by, and Virgie Terry saw the faces of both of the men during the commission of the rape.

On about March 15, 1935, Virgie Terry and Wiley Bryant went to the State Penal Farm at Tucker where the appellants were confined and having been admitted to the corridor between the cells where the prisoners were in view, they identified the appellants as the men who had assaulted them and who had committed the rape upon Virgie Terry on the night of December 21, 1934.

On April 1, 1935, the grand jury returned an indictment in the Circuit Court of the Chickasawba district of Mississippi County, Arkansas, charging them with the rape upon Virgie Terry.

On the first day of the term of court the presiding judge appointed Mr. Arthur L. Adams, an attorney of Jonesboro, Arkansas, to defend the appellants and set the case for trial a week later. The judge testified that the custom in the court permitted the appointment of the younger lawyers to defend accused persons in the ordinary cases against indigent defendants, but he deemed the present case to be of serious importance. He did not think that an attorney residing in Mississippi County should undertake the defense. Mr. Adams had previously lived and practiced his profession at Blytheville and was an experienced and competent lawyer. He accepted the appointment and on the same day went to the jail and talked to the appellants and got the names of people he should see in the preparation of the case. He put in all of his time up to the trial in the preparation for the defense, excepting two days spent at the hearing of a case in Little Rock. His testimony concerning the trial is extended to all the particulars of his action as attorney for the defendants. It reflects his full appreciation of his responsibility and that he put forth his best effort to discharge it faithfully. There is nothing in his testimony to indicate that he was affected or disturbed by any thought of mob influence. Although the court room was crowded so that the court admonished that the aisles be kept clear, he did not consider the crowd out of the ordinary in that country on the trial of a serious offense. His recollection was that colored folks were in the gallery of the court room. He said, "My attention was centered on the trial of the case and I did not think of the crowd." He was not interrupted by any disturbance and recalled no disorder in the court room and was evidently untrammeled in the examination of witnesses and presentation of his contentions and arguments for the defendants.

The trial judge also testified at length and his testimony convinces of his earnest purpose to accord the accused a fair and impartial trial. He remembered that the balcony of the court room was crowded with negroes during the entire course of the trial. The audience was no greater than was usually to be expected in that locality at the trial of such a serious offense. The judge testified that nothing happened at the trial that led him to believe that undue influence was...