Stewart v. Gilmore

• Decision Date: 01 October 1963
• Docket Number: No. 20067.,20067.
• Citation: 323 F.2d 389
• Parties: James STEWART, Appellant, v. Tom D. GILMORE, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

323 F.2d 389 (1963)

James STEWART, Appellant, v. Tom D. GILMORE, Appellee.

No. 20067.

United States Court of Appeals Fifth Circuit.

October 1, 1963.

Geo. M. Leppert, George W. Gill, Jr., New Orleans, La., for appellant.

No appearances entered for appellee.

Before PHILLIPS,^* CAMERON and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

In this action James Stewart, a Negro who had been a sharecropper for many years in West Feliciana Parish, Louisiana, alleges that Thomas D. Gilmore, the defendant, pistol-whipped him, without provocation, and forced him to flee for his life to Mississippi.

In 1956 Stewart raised cotton on a halves-agreement with Gilmore. Stewart had a lot of irons in the fire. He worked twenty acres here in potatoes, and seventeen acres there in corn, and he did a little carpentry on the side. Stewart and Gilmore had words over the cotton crop. Gilmore felt that Stewart was neglecting it. Stewart had a wife and fourteen children to help pick the cotton; still, it was getting ruined from not being picked.

To make bad matters worse, on Labor Day morning Stewart came riding through the lead rows, the headlands, of Hazelwood Plantation "hollering and carrying on and all that sort of stuff". This was too much for Gilmore to take. As he said on the stand: "I don't allow no whooping and hollering in the field when people are trying to work. When I went out on the road to find Stewart, he was not there. I drove around to this little store. * * * His car was sitting out there in front." The store was a typical country store, Matt Gilmore's grocery store at Laurel Hill, near Clinton. Gilmore walked into the store, in his hand the loaded "38" he usually carried in his pick-up truck.

Stewart had gone to the store to buy a sack of flour. When he went in, his wife and four of the older children stayed in the car. He came out, put the flour in the car, then went back for a pound of coffee. Matt Gilmore, the proprietor, was reaching for the coffee and Stewart was drinking a Coca-Cola, when Tom Gilmore, without word or warning, walked in and struck Stewart across the back of the head with the pistol. He hit Stewart several times more on the head and also on the back when Stewart retreated. Stewart ran out of the store, "blood all over his face, all over his head and down his eyes and all around him". After circling the building at least twice, with Gilmore at his heels, pistol still in hand, Stewart took off for the woods. That night he went to New Orleans where he was given emergency treatment at Flint-Goodrich Hospital. Stewart never went back to his home in West Feliciana, except secretly at night, preparatory to moving his family, first to New Orleans and then to Picayune, Mississippi.

That was what happened, according to Stewart. The five members of Stewart's family who were eye witnesses corroborated his testimony. Gilmore's testimony corroborates a substantial portion of the account.

The Sheriff and the former Sheriff of West Feliciana testified for Gilmore, but the defendant did not produce Matt Gilmore or any other eye-witness, despite the fact that the incident occurred in a country store during a busy shopping period. On appeal, the defendant elected to file no brief.

Gilmore testified:

"I come into the door and there was a little narrow space and an ice box sitting there and when I come in this door, he come around that thing with a bottle in his hand and I knocked the bottle out of his hand and hit him with the gun, just a glance-like, and he went out the side door; and that was it.

"Q. Let me ask you one parting question: Can you give any reason why you — first of all, did you strike him over the head?

"A. I don\'t think I even hit him on the head.

"Q. Do you deny under oath that you ever hit him on the head?

"A. I don\'t recall. When I hit him the second time, it seemd to be glancing-like and he left.

"Q. Do you deny that he ran outside of the store with you after him with the pistol?

"A. I ran out of the store, I don\'t deny that."

There is no evidence in the record of any provocation by Stewart. The relationship of the parties and the place where the beating occurred make it highly unlikely that Stewart would make a hostile move. Gilmore himself admitted striking Stewart, admitted hitting him a second time, and admitted chasing him out of the door — although he did not "recall" orbiting the building in hot pursuit of Stewart.

The case was tried in an atmosphere commendably free from improper appeals to prejudice. The attorney for Stewart made it plain that he did not regard the defendant as a Simon Legree. The...