Crews v. United States

• Decision Date: 01 May 1947
• Docket Number: No. 11796.,11796.
• Citation: 160 F.2d 746
• Parties: CREWS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

160 F.2d 746 (1947)

CREWS v. UNITED STATES.

No. 11796.

Circuit Court of Appeals, Fifth Circuit.

April 5, 1947.

Rehearing Denied May 1, 1947.

Charles Cook Howell, of Jacksonville, Fla., for appellant.

Herbert S. Phillips, U. S. Atty., of Tampa, Fla., Fred G. Folsom, Atty., Dept. of Justice, of Washington, D. C., and Fred S. Rogers, Asst. Atty. Gen., for appellee.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

WALLER, Circuit Judge.

The beautiful Suwannee River — the mention of which calls to memory a plaintive melody of strumming banjos, humming bees, childhood's playful hours, a hut among the bushes, and a longing to go back to the place where the old folks stay — was the scene of the cruel and revolting crime that provoked the gesture of dealing out justice that is this case.

The defendant, although guilty of a cruel and inexcusable homicide, was indicted and convicted merely of having deprived his helpless victim of a constitutional right, under strained constructions¹ of an inadequate Federal statute,² and given the maximum sentence under that statute of one year in prison and a fine of $1,000.

Sam McFadden — "Puddin" he was customarily called — was missing for some time from the little village of Branford on the banks of the Suwannee River in the county that bears the river's name. Some knew that he had gone away but none knew where until his bleached and putrescent corpse was discovered by fishermen against the overhanging willows at the edge of a little island in the middle of the river.

It would have been better for the county's reputation for law and order among justice-loving men had this piece of decaying flotsam drifted out into the sea and into oblivion and the facts of its venomous and vicious slaying had never come to light. But the willows arranged otherwise and held it until the fishermen came.

Tom A. Crews, the defendant, was the Town Marshal of Branford and also the Constable of the District that embraced the Town. He was "the law," twice fortified. Four or five months before the occasion involved in the present case, the Constable was said to have had trouble with McFadden when the latter seized a shot gun and threatened to kill the officer as he was attempting to arrest another person. The deceased was arrested at that time and taken before the County Judge who declined to comply with the Constable's request that McFadden be charged with an assault with a deadly weapon, or some kindred felony. Instead, the County Judge charged McFadden merely with the misdemeanor of having been drunk and disorderly. It was said to have come thereafter to the defendant's ears that McFadden had stated on more than one occasion that he intended to kill defendant, and it was in evidence that he attempted to buy a pistol with the expressed purpose of getting in readiness to carry out that threat.

The defendant, nursing his wrath, and being resentful of certain vile and opprobrious epithets which McFadden was said to have applied several times to him, and being also apprehensive of harm at McFadden's hands, and perhaps deeming the law, as administered by the County Judge, inadequate — so it is argued — took matters into his own hands.

Riding with his nephew in an automobile belonging to the latter, on the night of September 21, 1945, he stated, according to that nephew, that he was "going to get McFadden if he was drunk." Later that night he located the Negro, took him by the arm, guided him without effort or resistance to the nephew's car, and had him take the rear seat. The nephew, who testified that McFadden "looked like he was drunk," declined to swear positively whether he was or not. Other witnesses saw no evidence whatsoever of inebriation on the part of the deceased.

We shall skip the shocking details of the beating that Crews administered with a bull whip after the taking of McFadden into custody and come to the ultimate act of personal venom and hate, or of the vicious exercise of official despotism and cruelty — depending upon how one views the evidence.

After directing his nephew to drive the automobile toward Live Oak, the county site, Crews also directed him to stop at the home of one Cribbs, who lived outside Branford on the road to Live Oak. Cribbs then became a passenger in the car. Instead of placing McFadden in jail when they reached Live Oak, the defendant directed his nephew to drive to a highway bridge several miles west of the county site and some thirty miles up the river from Branford. Before reaching the bridge the defendant stated that he was going to give McFadden a fifty-fifty chance, but notwithstanding McFadden's protestations that he could not swim, the Constable forced him to jump from the high bridge into the deep, swift current of the river, from which he never came out until he was taken from the water and the willows by the undertaker.

There was evidence that, as Town Marshal, the appellant, when on duty, regularly wore a cap denoting his position, and that at the time of taking McFadden into custody he was without this cap, which he considered as the symbol of his official authority and without which, it was argued, he considered that he was not on duty. There was evidence that Crews, unofficially, or without formal or official sanction from the Town, frequently procured one Lee to take his place, during which period, it was also asserted, Crews considered himself not to be on duty as Town Marshal. There is also evidence that Crews had on no uniform or badge as the Town ordinance was said to require, and that he was riding in no official police car. From these circumstances it was argued that Crews considered he was off duty at the time. As Constable there was no requirement of cap, badge, or uniform, nor limitation of hours. He was always on call.

It was not shown that Crews accused McFadden of being drunk at the time of taking him into custody, nor that he ever stated to the deceased that he was under arrest. He had no warrant for the arrest of McFadden. None was necessary if he were drunk in the officer's presence.

Counsel for the appellant concedes that the evidence is sufficient to establish the commission of the homicide of McFadden by Crews with all of its heartless cruelty; but he earnestly and ably insists that the act was solely one of personal vengeance and entirely devoid of official character or...