United States v. Trierweiler

• Decision Date: 18 October 1943
• Docket Number: No. 16006.,16006.
• Parties: UNITED STATES v. TRIERWEILER et al.
• Court: U.S. District Court — Eastern District of Illinois

52 F. Supp. 4

UNITED STATES v. TRIERWEILER et al.

No. 16006.

District Court, E. D. Illinois.

October 18, 1943.

Ray Foreman, U. S. Atty., of Danville, Ill., for plaintiff.

Hunter J. Von Leer, of Terre Haute, Ind., and Acton, Acton & Baldwin, of Danville, Ill., for defendant.

LINDLEY, District Judge.

Defendants demur to an indictment charging them with conspiring to violate Section 52, 18 U.S.C.A., contending that it is insufficient to constitute a valid charge and asserting that the acts complained of are not shown to have been those of the state or of its agents and that the indictment contains merely conclusions of the pleader in the latter respect.

Briefly the indictment charges that certain defendants were sheriff and deputy sheriffs of Vigo County, Indiana; that, while acting in these capacities under and pursuant to the laws of Indiana, they conspired with certain other defendants to violate the Act of Congress in that, under color of the laws of the state of Indiana, they conspired to subject and to cause to be subjected one James Edward Person to deprivation of certain constitutional rights and immunities, including the rights, (1) to liberty and life and not to be deprived thereof without due process of law, (2) to be secure in his person and immune from arrest, assault or battery, and (3) to equal protection of the laws; that Person was a negro citizen of the state of Tennessee, lawfully traveling within the county of Vigo and state of Indiana, peacefully making his way toward Edgar County in Illinois; that he had violated no law of the state or of the United States; that no person had any reasonable cause to believe that he had committed any crime and that it was the purpose of the conspiracy that defendants, acting under color of the laws of the state of Indiana and under color of authority vested by statutory law in defendant state officers, each aiding the other, would pursue, apprehend and injure and even kill the said Person without justification.

Certain overt acts were charged, including an averment that the sheriff and deputies, acting under color of the laws and of the authority of their offices as aforesaid, requested and directed the other defendants to aid and assist them in pursuing Person and, in connection with said aiding and assisting, in substance, to shoot to kill or injure him; that the other defendants joined with the state officers in the pursuit and that certain of them thereafter in Illinois fired certain weapons into his body, wounding him so that he died.

The pertinent Act, Section 52, 18 U.S. C.A., reads thus: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both." The congressional purpose, obviously, is to assure enjoyment of the rights of citizens defined by the Fourteenth Amendment, including the mandate that no state shall deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction equal protection of the laws.

The amendment and the legislation are directed only against activities of the state and of its authorized agents. It does not create or add to the rights of one citizen as against another; it is, rather, a guaranty against encroachment by the state and its authorized agents upon the rights of the citizen under the Constitution of the United States. United States v. Cruikshank, 92 U. S. 542, 23 L.Ed 588; Civil Rights Cases 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L. Ed. 65; United States v. Powell, C.C., 151 F. 648, affirmed 212 U.S. 564, 29 S.Ct. 690, 53 L.Ed. 653; United States v. Wheeler, D.C., 254 F. 611, affirmed 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270. It follows, therefore, that if the indictment discloses that defendants acted in their individual capacity, or, stated otherwise, if it fails to aver that defendants acted under color of statutory authority, it is deficient. Validity depends upon whether we can rightfully say from its face that the plain intendment of the averments is that defendants were acting at the time of the alleged offenses as agencies of the state and under color of authority vested in them by virtue of the laws of the state. The government insists that such is the plain intent of the indictment and this defendants deny.

The court takes judicial notice of 10 Burns' Indiana Stat.Anno. 1933, p. 181, § 49-2802, providing that the sheriff shall (1) be conservator of the peace, (2) arrest without process all persons who have committed any crime, (3) suppress all known breaches of the peace, and (4) have authority to call to his aid the power of the county. These definitions of statutory power must be kept in mind in determining the effect of the averment of the indictment that the defendant sheriff and deputy sheriffs acted in pursuance of their authority under the statutes of Indiana and, in doing so, conspired with each other to deprive Person of his rights and the further charge that defendants, acting under color of the laws of the state and under color of the statutory authority vested in them, requested and directed the defendants other than the officers to come to the latter's aid and to assist in pursuing Person and, in rendering such aid, to shoot to kill or injure him. These averments, it seems to me, are an unequivocal charge that defendant officials, being charged by statute as peace officers to conserve the peace and to arrest law violators and having the power and authority to call others to their aid, did, under color of such power and authority, call to their aid certain individuals and charge them to shoot to kill or injure and that the defendants other than the officers in pursuance of said order joined in the search and pursuit by the sheriff as his legally constituted posse comitatus. It is not averred that the sheriff and deputies acted as individuals but the clear intent is to charge that they acted wholly within and under the color of the authority of the sheriff to call a posse and that he directed his posse to do unjustified shooting. This is the gist of the charge and it seems to me in no wise ambiguous, equivocal or uncertain.

This being true, it follows that the charge is one clearly within the provisions of Section 52. The amendment and the act are directed to the "actions of the political body denominated a state" by whatever instrumentalities or in whatever modes that action may be taken, whether by legislative, executive or judicial authority. The intent of Congress was to provide that no agency of the state, no officer or agent by whom its powers are asserted and carried into execution, shall deprive a citizen of the rights guaranteed by the Constitution. If he acts in the name of and for the state and is clothed by state powers, his act is that of the state and...