DOBIE, Circuit Judge.
An information was filed against Martin Louis Catlette, Deputy Sheriff of Nicholas County, West Virginia, and Bert Stewart, Chief of Police of Richwood, West Virginia, in the United States District Court for the Southern District of West Virginia, for alleged violations of 18 U.S.C.A. §§ 52, 550. Demurrers filed by the defendants were overruled and the ensuing trial resulted in verdicts of guilty for both Catlette and Stewart. Motions to set aside the verdicts were also overruled. Upon Catlette was imposed a fine of $1,000 and a sentence of twelve months imprisonment in Federal Prison Camp, at Mill Point, West Virginia, and a fine of $250 was assessed against Stewart, which has been paid.
Only Catlette has taken an appeal, which appeal presents three questions for our consideration: (1) Did the lower court properly overrule the demurrer to the information? (2) did the lower court properly instruct the jury with respect to the scope of the statutory phrase "color of law"? (3) did the lower court have jurisdiction to proceed by information for a violation of 18 U.S.C.A. § 52?
The relevant facts proved by the evidence were thus stipulated for the purpose of this appeal:
"That on June 28, 1940, Charles Stanley Jones and C. A. Cecil, two young, native-born citizens and residents of Mount Lookout, West Virginia, and members of the Jehovah Witness Company in that area, went to Richwood, an incorporated town within the Southern District of West Virginia, to distribute literature of said religious sect, seek converts, and secure signatures to a petition addressed to the Governor of Ohio, protesting the action of the Ohio State Fair Association in cancelling a contract for the use of the Ohio State Fair Grounds, at Columbus, Ohio, for a national convention of said sect or organization;
"That said Jones and Cecil were asked to come to State Police Headquarters at Richwood, to answer questions and under questioning by West Virginia State Policeman Bernard McLaughlin, advised him of their business and purpose in Richwood; said Jones and Cecil were thereafter questioned in said State Police Headquarters by about six members of the Richwood American Legion Post, including Lee Reese, Louis Baber, and the defendant Catlette, who accused said Jones and Cecil of being spies and Fifth Columnists and ordered Jones and Cecil to leave town within four hours; that Jones and Cecil returned to Mount Lookout, West Virginia, on the same day.
"On June 29, 1941, said Jones and Cecil, together with Walter Stull, 31; Arthur Stull, 30; Howard Stull, 20; John Leedy, 39; Harding Legg, 21; Carlton Stull, 27; and Robert Shawver, 18; also residents of Mount Lookout, returned to Richwood about 10:30 A. M. and stopped at the Town Hall, in order to present a letter to the Mayor, requesting police protection while carrying on their work as such Jehovah's Witnesses; Carlton Stull, Cecil, and Jones, leaving the other four Jehovah's Witnesses in the car, went toward the Mayor's Office, but did not find the Mayor and met the defendant Bert Stewart, who was then Chief of Police of Richwood, and the defendant Catlette, who was a Deputy Sheriff of Nicholas County acting under and pursuant to the laws of the State of West Virginia, in which county said Town of Richwood is situate. A letter was thereupon delivered to Chief of Police Stewart requesting police protection and explaining the intended activity of the group. The three were ushered into the Mayor's Office, which was also used by Catlette in the collection of taxes as a Deputy Sheriff, and who detained the Witnesses in his said office and was wearing his official badge at the time, and the defendant Stewart acted as doorkeeper.
"Thereupon, a mob gathered estimated to contain upwards of fifteen hundred persons, and other members of the American Legion arrived; that Catlette called other members of the American Legion by phone, saying among other things, `We have three of the S____ O___ B____'s here and we are rounding up the others'; that one Louis Baber, also a member of the local American Legion Post, brought the other four Jehovah's Witnesses into the room; that the defendant Catlette thereupon removed his badge as Deputy Sheriff of Nicholas County, West Virginia, and stated in substance and effect, `What is done from here on will not be done in the name of the law'; three of the Jehovah's Witnesses were forced to drink eight ounces of castor oil and another, who protested and at first refused, was required to drink sixteen ounces of castor oil, after having been threatened by a doctor with a stomach pump; that said seven Jehovah's Witnesses were thereupon tied along a large rope, each being fastened thereto by his left arm and some three or four feet removed from each other on the rope; that so tied they were marched to the front of the Richwood Post Office on the top of which was flying an American flag; the defendant Catlette read the preamble to the American Legion Constitution and all persons present saluted the flag, except the Jehovah's Witnesses;
"That said Jehovah's Witnesses were thereafter marched through the streets of the Town of Richwood and out of its corporate limits, yet attached to the rope, and there, released from the rope, restored to their automobiles, which had been damaged, and their other property, which had been covered with castor oil and uncomplimentary inscriptions, and advised never to return;
"That they entered the office of said Deputy Sheriff about 9:30 in the morning and were released between 3 and 4 o'clock P. M. in the afternoon of the same day, and except for said castor oil, none of said Jehovah's Witnesses received either food or drink during said hours, nor was permitted to go to a toilet;
"That between said hours no request for protection was made of the defendant Catlette and at no time did the defendant Catlette protect the Jehovah's Witnesses from the acts administered to them, but actually participated in the infliction of the same, and the only protest made during the time of such treatment was made by the Jehovah's Witness who originally refused to drink the castor oil."
The information in the instant case stated:
"That on or about the 29th day of June, 1940, at Richwood, in Nicholas County, State of West Virginia, in the Southern District of West Virginia, and within the jurisdiction of this court, Martin Louis Catlette, who was then and there a deputy sheriff of said Nicholas County, West Virginia, acting under the laws of the State of West Virginia creating the office of deputy sheriff and prescribing the duties of said office, aided and abetted by Bert Stewart, who was then and there a police officer and Chief of Police employed by the municipality of Richwood, acting under the laws of the State of West Virginia and the ordinances and regulations of the municipality of Richwood creating the office of police officer and Chief of Police and prescribing the duties of said offices, did willfully, unlawfully, and wrongfully, under the color of the laws, statutes, ordinances, regulations and customs of the State of West Virginia and of the County of Nicholas in said State, and of the municipality of Richwood in said county and State, creating the offices of Deputy Sheriff of Nicholas County, State of West Virginia, and Chief of Police of the municipality of Richwood, Nicholas County, State of West Virginia, subject and cause to be subjected C. A. Cecil, Walter Ernest Stull, Charles Stanley Jones, Thomas Howard Stull, Henry Carlton Stull, John Wesley Leedy, Arthur James Stull, Glen Harding Legg, and Robert Wendell Shawver, all of whom were, at the time mentioned in this information, inhabitants of the State of West Virginia and citizens of the United States (all of whom are hereinafter referred to as `persons'), to the deprivation of rights, privileges, and immunities secured to them and each of them and protected by the Constitution and laws of the United States, to-wit, the right and privilege of said persons and each of them not to be deprived of their liberty and property without due process of law, the immunity of said persons and each of them from illegal assault, battery and restraint to the person, the right and privilege of said persons and each of them not to be denied the exercise of free speech, the right and privilege of said persons and each of them not to be denied equal protection of the laws, and the right and privilege of said persons and each of them to practice, observe and engage in the tenets of their religion, all secured to the said persons and each of them by the Fourteenth Amendment to the Constitution of the United States; that is to say, on or about June 29, 1940, the said `persons' hereinabove mentioned, came to the city hall in the municipality of Richwood, West Virginia, and requested police protection of the defendants, but the defendants wrongfully refused and denied such protection and wrongfully caused the said `persons' to be detained in the said city hall and compelled and forced C. A. Cecil, Charles Stanley Jones, Henry Carlton Stull and Glen Harding Legg against their wills to drink...
