Application of Wyckoff, Civ. A. No. 3140.

• Citation: 196 F. Supp. 515
• Decision Date: 31 July 1961
• Docket Number: Civ. A. No. 3140.
• Parties: Application of Elizabeth Porter WYCKOFF, for a Writ of Habeas Corpus.
• Court: U.S. District Court — Southern District of Mississippi

196 F. Supp. 515

Application of Elizabeth Porter WYCKOFF, for a Writ of Habeas Corpus.

Civ. A. No. 3140.

United States District Court S. D. Mississippi, Jackson Division.

July 31, 1961.

William Kunstler of Kunstler & Kunstler, New York City, Jack H. Young, Jackson, Miss., for petitioner.

Joe T. Patterson, Atty. Gen., Dugas Shands, Edward L. Cates, Peter M. Stockett, Jr., Asst. Attys. Gen., J. A. Travis, Jr., Tom H. Watkins, E. W. Stennett, Robert G. Nichols, Jr., Jackson, Miss., for respondent.

MIZE, Chief Judge.

This matter is before the Court upon a petition of Elizabeth Porter Wyckoff for a writ of habeas corpus and upon the answer J. R. Gilfoy, as Sheriff of Hinds County, Mississippi. The petition for a writ of habeas corpus was filed with the Court and the Court issued a show cause order to the Sheriff of Hinds County why the writ should not issue and he responded thereto and the matter came on for hearing.

The petitioner alleged that she was a citizen of the United States, a resident of the state of New York, and she alleged that she is now imprisoned and restrained of her liberty in the Hinds County Jail in the State of Mississippi in the custody of J. R. Gilfoy, Sheriff of Hinds County, Mississippi. She alleged that the cause of such imprisonment is not known to her, but that she is held as a county prisoner under the exclusive jurisdiction or custody of said Sheriff pursuant to a judgment of the Municipal Court of the City of Jackson, Hinds County, and that she was convicted of violating Sec. 2087.5 of the Mississippi Code of 1942 as amended, and by virtue of that conviction was committed to imprisonment in the Hinds County Jail for a period of four months and fined $200. She further alleged that the judgment, sentence and commitment were void and without authority of law, and that her imprisonment was a denial of due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States, and also in violation of the First and Fifteenth Amendments to the Constitution of the United States; that the Court rendering the judgment of conviction was without jurisdiction.

The Respondent, Gilfoy, answered the petition and set up as a defense thereof that he held the custody of the Petitioner by virtue of a judgment of conviction of breach of the peace in Hinds County, Mississippi and the commitment issued by the Ex Officio Justice of the Peace of that District, and denied all the other material allegations of the petition.

The Petitioner, who is a white woman, was convicted of a violation of Section 2087.5 of the Code of 1942 and the amendments thereto, after a fair trial in the Ex Officio Justice of the Peace Court of James L. Spencer. The Sheriff further set up as affirmative matter a certificate of the Ex Officio Justice of the Peace wherein he certified that the Petitioner was represented in his court by four attorneys of her own choice and that the Petitioner, along with counsel for the State, announced ready for trial. She was tried by the Court upon evidence and, after argument, was convicted by the Ex Officio Justice of the Peace, and Respondent also set up as a defense that the Petitioner had not exhausted her state remedies which were available to her and that there was no emergency existing in her behalf to justify the disregarding of the plain mandate of the Act of Congress, being Section 2254, Title 28 U.S.C.A.

Counsel for Petitioner urges that if the writ should be denied, the Court should retain jurisdiction until she has had an opportunity to avail herself of the remedies afforded by the laws of the State of Mississippi.

The Court has considered the oral argument of the attorneys and their very able briefs filed in this case, and is of the opinion that the writ should be denied. In granting the writ the Court would be compelled to disregard and ignore the plain language of Section 2254 of Title 28 of the United States Code Annotated, which provides that a Federal Court shall not grant a writ of habeas corpus to one who is held under a commitment of the State Court unless the Petitioner has exhausted the state remedies. The Petitioner admits in her petition that she has not exhausted them, but urges the Court that the present petition is an emergency and that the Act of Congress should be disregarded by the Court. With this contention I cannot agree. There is no emergency to justify a disregard of the Act of Congress. Petitioner alleges that she is unable to pay the cost of exhausting her remedies. In Mississippi this is not an excuse or justification. The statutes of Mississippi provide that any person who is unable to pay the cost or give bond therefor may file a pauper's oath and the appeal will be perfected immediately without cost. Section 1203, Mississippi Code of 1942.

The Court which convicted the Petitioner is a State Court known as an Ex Officio Justice of the Peace. The law of Mississippi provides that the Police Justice of a city of over 10,000 shall also be Ex Officio Justice of the Peace, authorized to try all misdemeanors committed within the limits of the municipality. See Section 3374-103, Mississippi Code of 1942 and amendments thereto. The Petitioner was convicted June 5, 1961. Under Sections 1175, 1202 and 1203 of the Code of 1942 as recompiled, she had the right of appeal immediately to the County Court, where she would be entitled to a trial de novo by a jury, if she desired one and if convicted there would then be entitled to an immediate appeal to the Circuit Court, where the case would be tried on the record, and if affirmed there she would be entitled to an appeal to the Supreme Court of the State. These remedies are speedy and exhaustive, and even go further than in many states. The statutes give the trial court the right to release one without bond pending appeal, upon proper petition and showing that one is unable to give bond. Petitioner further contends that she was denied due process of law because she did not have a jury trial. This contention is without merit. When one is tried in a Justice of the Peace Court as was petitioner, he is entitled to trial by jury if he requests it, but the record shows that Petitioner went to trial represented by able counsel without calling for a jury.

Petitioner contends through her counsel that this is an effort to prevent integration and to enforce segregation. This contention is without merit. Petitioner was not convicted of a violation of any law with reference to integration or segregation but was convicted of a breach of the peace in refusing to disperse and move on under the direction of a lawful officer. The section of the Code above referred to provides that it is a misdemeanor to congregate with other persons or crowds with the intent to provoke a breach of the peace and to refuse to disperse or move on upon the order of a lawful officer. This statute, or one similar thereto, is common to many states in the Union and is a very wise exercise of police powers of the state. Petitioner's own state, New York, has a very similar statute and with the same purpose as has the Mississippi statute. See Section 722, New York Penal Law, McKinney's Consol.Laws, c. 40.

It is not necessary in the present hearing to determine the constitutionality of this statute or similar statutes throughout the nation for the reason that Congress has specifically forbidden the Federal Courts to grant a writ of habeas corpus unless a petitioner has exhausted all state remedies. That section of the Act of Congress reads as follows: "An applicant shall not have been deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." The Federal Courts as well as Congress are reluctant to interfere with the enforcement of the criminal statutes of a state, but leave that function to appropriate action of each state. The wisdom of this statute is exemplified by oral argument of counsel for petitioner when he refers to the bloodshed that occurred in Montgomery. No such occurrences happened in Mississippi, but had it not been for the orderly enforcement by the officers of the State of Mississippi under the provisions of this statute, such occurrences could have happened. By virtue of the power of this statute the officers are authorized to require assemblies which are likely to provoke a breach of the peace to move on, and if one refuses so to do, he may be arrested for violation of the statute.

Counsel for Petitioner, upon his request for the Court to retain jurisdiction even though the writ is denied, cites the case of Duffy v. Wells, 9 Cir., 201 F. 2d 503. Under this authority I agree that this case is an appropriate one for the Court to retain jurisdiction, but deny the writ. As heretofore stated, the Federal Courts are very reluctant indeed to interfere with the ordinary process of a State Court involving state matters. See Davis v. Burke, 179 U.S. 399, 21 S. Ct. 210, 45 L.Ed. 249; Ex Parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Stack v. Boyle, 342 U.S. 1, 72 S.Ct.

1, 96 L.Ed. 3; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469

The petition now before the Court for a writ of habeas corpus was heard upon the record without any evidence being introduced by either side. When the case was called by the Court counsel for Petitioner and counsel for the defendant were asked if either side desired to introduce any evidence and each answered that they did not. As heretofore stated, the law is that when a petition for habeas corpus is answered and the allegations of the petition are denied, the burden is upon the Petitioner to prove the allegations of the petition and her right thereunder.

As argued by counsel for Petitioner, the decision in this case will probably be far-reaching and one of importance. However, the question really is not a new...