Apodaca v. United States
| Decision Date | 21 May 1951 |
| Docket Number | 4199,No. 4200.,No. 4198,4198,4200. |
| Citation | 188 F.2d 932 |
| Parties | APODACA v. UNITED STATES. SANDMAN v. UNITED STATES. BEASLEY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Harry L. Bigbee, Santa Fe, N. M., for appellant, Apodaca.
A. T. Hannett, Albuquerque, N. M. (G. W. Hannett and W. S. Lindamood, Albuquerque, N. M., on the brief), for appellant, Sandman.
H. A. Kiker, Santa Fe, N. M. (Charles C. Spann, Albuquerque, N. M., on the brief), for appellant, Beasley.
Maurice Sanchez, Asst. U. S. Atty., Albuquerque, N. M., and Albert H. Clancy, Asst. U. S. Atty., Santa Fe, N. M. (Everett M. Grantham, U. S. Atty., Albuquerque, N. M., on the brief), for appellee.
Before BRATTON, MURRAH and PICKETT, Circuit Judges.
An indictment containing two counts was returned in the United States Court for New Mexico against Alfonso Luchini Apodaca, Jr., Roy L. Sandman, Hubert W. Beasley, and I. E. Salazar. The first count charged that Apodaca was sheriff of Dona Ana County, New Mexico, Sandman was deputy sheriff of such County, Beasley was Chief of the New Mexico State Police, and Salazar was police officer of such State; and that acting under the laws of the State creating their respective offices and positions and prescribing the duties thereof, they conspired to commit an offense against the United States, namely to violate the provisions of Title 18, section 242, of the United States Code. And it further charged that the substance of the conspiracy was that the accused would, while acting under color of the laws, statutes, ordinances, regulations, and customs of such State and County, subject and cause to be subjected Wesley Eugene Byrd, an inhabitant of New Mexico, to the deprivation of rights, privileges, and immunities guaranteed to him and protected by the Fourteenth Amendment of the Constitution of the United States, to-wit, the right and privilege to be secure in his person while in the custody of the State, the right and privilege while in such custody not to be subjected to punishment without due process of law, the right and privilege to be immune while in the custody of persons acting under color of the laws of the State from illegal assault, battery, and torture by any person exercising the authority of the State, and the right and privilege to be tried by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the State, that is to say, that the accused, while acting in their official capacities, would cause Byrd to be arrested and placed in the jail of Dona Ana County, and while he was in their custody they would unlawfully and wilfully beat and assault him, and would unlawfully and forcibly torture him by applying, clamping, and squeezing a bicycle type lock and another type lock around his testicles, inflicting upon him serious pain and bodily harm and injury, for the purpose of forcing him to confess that he had committed a criminal offense. And it further charged that in furtherance of the conspiracy, the accused committed five specified overt acts.
The second count repeated the charge contained in the first count respecting the official positions of the accused. And it charged that the accused, acting under the laws of the State creating their respective offices and positions and prescribing the duties thereof, did wilfully, under color of the laws, statutes, ordinances, regulations, and customs of the State and County, subject and cause to be subjected Wesley Eugene Byrd, an inhabitant of the State, to the deprivation of rights, privileges, and immunities secured to him and protected by the Fourteenth Amendment, namely the right and privilege and to be secure in his person while in the custody of the State, the right and privilege while in such custody not to be subjected to punishment without due process of law, the right and privilege to be immune, while in custody of persons acting under color of the laws of the State, from illegal assault, battery, and torture by any person exercising the authority of the State and County, the right and privilege to be tried by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the State, in that while Byrd was in their custody the accused did wilfully, unlawfully, and forcibly torture him by applying, clamping, and squeezing a bicycle type lock and another type lock around his testicles, inflicting upon him serious pain and bodily harm and injury, for the purpose of forcing him to confess that he had committed a criminal offense.
Apodaca was found guilty on both counts and sentenced on each count to imprisonment for a term of one year, with provision that the sentences should run concurrently. Sandman was found guilty on the first count, acquitted on the second, and sentenced to imprisonment for a term of one year. Beasley was acquitted on the first count, found guilty on the second, and sentenced to imprisonment for a term of one year. And Salazar was acquitted on both counts. Apodaca, Sandman, and Beasley appealed.
Appellant Apodaca attacks both counts in the indictment; appellant Sandman assails the first count; and appellant Beasley challenges the second count. Approached from different positions, the argument in effect is that each count failed to charge a criminal offense under the laws of the United States. The pertinent part of section 1 of the Fourteenth Amendment to the Constitution of the United States provides "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And section 5 expressly empowers Congress to enforce by appropriate legislation the provisions of the article. Section 242, Title 18 United States Code, provides in presently pertinent part that whoever, under color of any law, statute, ordinance, regulation, or custom wilfully subjects any inhabitant of any State to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States shall be punished as therein specified. And section 371 of the title provides among other things that if two or more persons conspire to commit an offense against the United States, and any one or more of such persons do any act to effectuate the object of the conspiracy, each shall be punished as therein specified. The right to the enjoyment of life, liberty, and property does not find its source in section 1 of the Fourteenth Amendment. That constitutional provision was not designed to create or vest rights of that nature. It was intended to safeguard and protect the individual against the deprivation of such rights under color of State authority, without due process and equal protection. But section 242 does not undertake merely to protect rights and privileges derived from the Constitution of the United States. It makes criminal the wilful deprivation under color of State authority of any right, privilege, or immunity secured or protected by the Constitution. It brings within its sweep the wilful deprivation under color of State authority of any right, privilege, or immunity which is guaranteed by the Constitution. It does not include wrongful acts of officers of the state or county solely in their personal pursuits. But it does bring within its ambit any wilful deprivation under color of State authority of any right, privilege, or immunity which is guaranteed by the Constitution of the United States. And the assault and torture of a person by state and county officials, not in their personal pursuits but under color of official authority solely for the purpose of compelling such person to confess the commission of a crime, constitute deprivation of rights, privileges, and immunities guaranteed by the Constitution. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495.
The first count in the indictment in this case did not merely charge that the accused conspired to assault and torture Byrd. And the second court did not merely charge that they assaulted and tortured him. Each went further. The first count charged in language too clear for misunderstanding the formation of a conspiracy to deprive Byrd, under color or pretext of State authority, of rights, privileges and immunities guaranteed to him by the Fourteenth Amendment by assaulting and torturing him in the manner set forth for the purpose of forcing him to confess the commission of a criminal offense. And the second count charged in equally clear language the substantive offense of depriving Byrd, under color or pretext of State authority, of such rights, privileges, and immunities by assaulting and torturing him for such purpose. Each count in the indictment followed the statute in its generalities; each charged an offense under the laws of the United States; and neither is open to the attack directed against it. Screws v. United States, supra; Williams v. United States, 5 Cir., 179 F.2d 656.
The sufficiency of the evidence is challenged. It was stipulated at the outset of the trial that the defendants occupied the official positions as charged in the indictment. While the evidence presented sharp conflicts, direct and circumstantial evidence was adduced which tended to establish these facts. A girl residing in Las Cruces, county seat of Dona Ana County, had been murdered and her body had been found at a point several miles from the city. Byrd — a Negro — had resided in Las Cruces for approximately seven months. A deputy sheriff told Byrd that the sheriff desired to talk with him. Without any warrant or other process, the deputy took Byrd to the office of the sheriff. Immediately upon arriving there, Apodaca showed him a pair of shoes,...
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