Mason v. Pamplin, Civ. A. No. 3398.

• Court: United States District Courts. 5th Circuit. Western District of Texas
• Writing for the Court: SPEARS
• Citation: 232 F. Supp. 539
• Parties: Alexander MASON, Petitioner, v. Brady PAMPLIN, Sheriff of Falls County, et al.
• Docket Number: Civ. A. No. 3398.
• Decision Date: 10 August 1964

232 F. Supp. 539

Alexander MASON, Petitioner,
v.
Brady PAMPLIN, Sheriff of Falls County, et al.

Civ. A. No. 3398.

United States District Court W. D. Texas, San Antonio Division.

August 10, 1964.

Robert L. Penrice, Waco, Tex., for petitioner.

Waggoner Carr, Atty. Gen. of Texas, Howard M. Fender, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., Thomas B. Bartlett, Jr., County Atty., Marlin, Tex., for respondents.

SPEARS, Chief Judge.

Petitioner, Alexander Mason, a person in State custody on a misdemeanor conviction, having exhausted his remedies in State Court,¹ filed in this Court his petition for writ of habeas corpus, alleging that he was being held in violation of his rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States, in that he was denied a hearing in the trial court on his motion for change of venue.

On August 12, 1963, the petitioner, a Negro minister, was charged by information in the County Court of Falls County, Texas, with aggravated assault upon a peace officer, a misdemeanor. The alleged incident took place while petitioner was in jail on charges apparently growing out of his refusal to leave a cafe in Marlin, Texas, which catered to white customers only. Testimony of witnesses for the State was to the effect that petitioner struck a Deputy Sheriff on the nose, bloodying it, and knocked his glasses to the floor.

The aggravated assault case came to trial on August 23, 1963. Before announcing ready, petitioner presented his motion for change of venue, stating under oath that "there exists so great a prejudice against him and his case until he cannot obtain a fair and impartial trial of this cause in said Falls County".

In its answer the State excepted to said motion on the ground that "there is no provision in the Code of Criminal Procedure for change of venue in misdemeanor cases."² For this reason, petitioner

232 F. Supp. 540

was not accorded a hearing on the motion, and it was promptly overruled, as was his subsequent request that the jurors be examined individually

After a trial, which was concluded the same day, petitioner was found guilty by a jury which assessed his punishment at a fine of $1,000 and two years in the county jail, the maximum allowed by law.³ Judgment on the jury verdict was entered on August 26, 1963.

A motion for new trial was timely filed, in which petitioner urged through his counsel, among other things, that when his motion for change of venue was submitted he had witnesses present who would have testified that the racial tension in Falls County was so high at the time that it would have been impossible for petitioner to select a fair and impartial jury in that county; that the incident involving petitioner's refusal to leave the all-white restaurant was the first and only racial demonstration in the county; that the case had tremendous racial overtones; that some of the leading people of the community had labeled petitioner as the leader of the racial movement in that area; that on one occasion the petitioner was publicly displayed before the County Commissioners Court; that members of the white race had called and warned them to discontinue their relations with the petitioner; and that in their opinion pressure would have been brought upon anyone manifesting any outward interest in civil rights, and any such activities would have been very distasteful to the people in that community.

The record reflects that the prospective jurors, who apparently qualified as a group, stated that they did not know petitioner; that they had not formed any opinions in the case; and that they had no prejudices against the Negro race, or against a Negro acting as counsel for petitioner. No testimony on this question, other than the sworn statement of petitioner's counsel, was offered at the hearing on the motion for new trial.

The Court overruled the motion for new trial on August 27, 1963, after which an appeal was taken to the Court of Criminal Appeals of Texas. That Court affirmed the judgment of the trial court on March 4, 1964, holding, in part, that: "(I)t has been the consistent holding of this Court that our statutes, which do not provide for a change of venue in misdemeanor cases, are not unconstitutional".⁴ Although the Court acknowledged petitioner's contention that his rights under the due process clause of the Federal Constitution had been violated, the clause was not further mentioned in the opinion, and in none of the cases constituting the "consistent holding" of that Court has that provision of the Fourteenth Amendment been considered in passing upon the constitutionality of the venue statutes.⁵ Nevertheless, the

232 F. Supp. 541

Court overruled a motion for rehearing, and issued its mandate on March 20, 1964

At a preliminary hearing before this Court on April 2, 1964, the mandate of the Court of Criminal Appeals was stayed without objection from the respondents, and petitioner was released on bond pending final judgment herein.

It is agreed by counsel that the Statutes of Texas provide for change of venue in felony cases, but that, as construed by the highest Court in the State on criminal matters, they do not authorize change of venue in misdemeanor cases, except in counties having a population of less than 2,500. Falls County has a population in excess of 2,500.

Simply stated, the problem presented is whether change of venue is a constitutional right or a mere privilege. If the right of an accused to a change of venue, when he demands a jury trial to which he is entitled under the State Constitution, and it appears that he cannot obtain a fair and impartial trial in the county where the prosecution is pending, is guaranteed by the due process clause of the Fourteenth Amendment, then he cannot be deprived of this right, whether he is charged with a misdemeanor or a felony. On the other hand, if change of venue is only a privilege which is left to the will of the legislature, one charged with a misdemeanor cannot be heard to complain that his right to due process of law is violated when the privilege has been withheld from him.

After careful consideration I find that I cannot agree with the able and learned judges of the Court of Criminal Appeals, insofar as they may have held, by implication at least, that the statutes which do not provide for a...