United States v. Wood

• Decision Date: 30 November 1961
• Docket Number: No. 19237.,19237.
• Citation: 295 F.2d 772
• Parties: UNITED STATES of America, Appellant, v. John Q. WOOD et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

295 F.2d 772 (1961)

UNITED STATES of America, Appellant, v. John Q. WOOD et al., Appellees.

No. 19237.

United States Court of Appeals Fifth Circuit.

October 27, 1961.

Rehearing Denied November 30, 1961.

COPYRIGHT MATERIAL OMITTED

Burke Marshall, Asst. Atty. Gen., John Doar, First Asst. Atty., Civil Rights, Dept. of Justice, Washington, D. C., for appellant.

Edward L. Cates, Asst. Atty. Gen., Joe T. Patterson, Atty. Gen., Dugas Shands, Asst. Atty. Gen., for appellees.

Before RIVES, CAMERON and BROWN, Circuit Judges.

RIVES, Circuit Judge.

The United States appeals from the denial of a temporary restraining order pending a hearing for a preliminary injunction.¹ The Government seeks to restrain the defendants from prosecuting one John Hardy, a Negro, before a Justice of the Peace in Walthall County, Mississippi. The case was filed in the Southern District of Mississippi under the Civil Rights Act of 1957, 42 U.S.C.A. § 1971, on the theory that the continued prosecution of John Hardy was designed to, and would, intimidate the qualified Negroes of Walthall County from attempting to register to vote.² The defendants are John Q. Wood, Registrar of Walthall County; Edd Craft, Sheriff of Walthall County; Breed O. Mounger, City Attorney of Tylertown, county seat of Walthall; and Michael Carr, District Attorney of that judicial district of Mississippi. The suit was filed on September 20, 1961, just two days before the scheduled date of Hardy's trial, which was set for 9:00 a. m., September 22; service was made on the evening of September 20; the hearing on the temporary restraining order was set for September 21, when the Government submitted its case on affidavits. These affidavits were not disputed, the defendants claiming insufficient notice or time for obtaining counter-affidavits. At 5:00 p. m. on the 21st, the district court entered its decision denying the order. The district judge refused to sign a certificate under 28 U.S.C.A. § 1292(b) allowing the Government to seek appeal of an interlocutory order. On the evening of the 21st, an attorney for the Government, accompanied by a Mississippi Assistant Attorney General representing the defendants, flew to Montgomery, Alabama, to submit to Judge Rives a petition for stay of the state prosecution pending appeal of the district court's decision. There, decision on whether the stay should issue became unnecessary when the Mississippi Assistant Attorney General commendably agreed to continue the prosecution of Hardy pending disposition of the Government's appeal. Judge Rives then entered an order expediting the appeal and setting argument for 9:00 a. m., October 3, 1961. Over the Government's objection, Judge Rives further ordered that the defendants, because of the minimum of time allowed them before the hearing in the district court, would be permitted to obtain counter-affidavits, provided they served them on the Government by September 29, and that the Government could then obtain rebuttal affidavits up until the argument on October 3. He stated that any such affidavits would be considered by this Court if that proved legally permissible.³

The facts as stated in the complaint and affidavits of the Government are as follows:

There are at the present time some 2,490 Negroes of voting age in Walthall County, Mississippi, none of whom are registered to vote. There are some 4,530 white persons of voting age in Walthall County, a substantial majority of whom are registered. In July 1961, John Hardy a Negro citizen, resident of Nashville, Tennessee, having completed two years at the Tennessee Agricultural and Industrial State College, came to Mississippi as a member of the "Student Non-Violent Coordinating Committee" for the purpose of encouraging Negroes to register and vote. This organization is currently sponsoring a voter registration project in Walthall, Amite, and Pike Counties, Mississippi. In early August, John Hardy and several other Negro students came to Walthall County to set up a voting registration school to teach the qualified local Negroes how to register and to encourage them to make application to the Voting Registrar. From August 18 to September 9, they conducted classes for several hours a day. In these classes, Hardy and his helpers would issue facsimiles of the necessary registration forms and a copy of the Constitution of Mississippi. Those attending the classes would practice filling out the forms, copying sections of the Mississippi Constitution, and explaining their meaning. Attendance varied from 25 to 50 each evening.

The first attempt of participants in the school to register took place on August 30, when Hardy accompanied five Negroes to the Registrar's office, where at least two completed the registration forms. Outside the Registrar's office, Hardy encountered the Sheriff of Walthall County, Edd Craft (a defendant), in the company of the editor of the Tylertown Times. The Sheriff asked Hardy a number of questions about the registration school and whether he had a driver's license. The Sheriff soon left, but the editor of the Tylertown Times interviewed Hardy more extensively for an article which appeared on the front page of the Tylertown Times the next day. On September 5, 1961, three more Negroes went to register; on September 6, one Negro; on September 7, two Negroes. The incident giving rise to this action took place on September 7, and since then no Negroes have attempted to apply for registration in Walthall County.

On September 4, Mrs. Edith Simmons Peters, a Negro, aged 63, owner of an 80-acre farm in Walthall County, having had an eighth-grade education, attended her first registration class. On about the same day, Lucius Wilson, a Negro, aged 62, owner of a 70-acre farm in Walthall County, also started attendance. By September 6, they thought they were ready to apply and agreed to accompany Hardy to the Registrar's office the next morning. They arrived in Tylertown in Mrs. Peters' pickup truck at about 9:30 on the morning of September 7 and went to the Registrar's office in the courthouse. The Registrar, John Q. Wood, a defendant, was in an inner office; Mrs. Peters and Wilson went in and Hardy remained just outside the door. When Registrar Wood looked up, Mrs. Peters told him that they desired to register. Wood then replied that, "I am not registering anyone now. You all have got me in court and I refuse to register anyone else until this court is cleared up." John Hardy heard this from his position outside the door of the office some 5 or 6 feet away and came in. According to the affidavits of the Government, Hardy had given Wood only his name when Wood got up and said, "I want to see you John." He then brushed past Hardy into the main room and from the drawer of a desk took out a revolver. Holding the gun down by his right side he pointed to the door going outside and said, "Do you see that door, John?" Hardy replied, "Yes." Wood told him, "You get out of it." Hardy said OK, and turned to go. Wood followed him, and just as Hardy got to the door, Wood struck him on the back of the head, saying, "Get out of here you damn son-of-a-bitch and don't come back in here." Mrs. Peters and Wilson rushed on out, held Hardy up, and helped him out of the building. Hardy went first to the newspaper office, where he told the editor what had happened. The editor instructed him to get medical attention. Meanwhile, Wilson went to get the pickup truck, and Mrs. Peters helped Hardy eventually to a little cafe. Wilson returned and they headed out to the street. When asked what he was going to do, Hardy then told several people that he had better find the sheriff. Going up the street, they met the sheriff and, according to the affidavit of Mrs. Peters,

"They met right where I was standing and the sheriff asked, `What happened to you, boy.\' John told the sheriff what had happened. The sheriff told him he didn\'t have no business in that courthouse. Wilson walked up at this time. The sheriff then said to John, `If that boy (pointing to Wilson) wants to register he know (sic) how to go down to that courthouse and he don\'t need you to escort him. You didn\'t have a bit of business in the world down there. You is from Tennessee, you was in Tennessee and you ought to have stayed there.\' The sheriff told him to `Come on.\' John asked him, `Are you arresting me?\' The sheriff said `Yes.\' John asked `On what charges\' and the sheriff said for disturbing the peace and bringing an uprising among the people. John said, `Will you allow me to tell my side of the story.\' The sheriff said, `Don\'t give me none of your head boy, or I will beat you within an inch of your life.\' After the sheriff took John, I went home."

At the Tylertown jail, Hardy was interviewed twice during the day of the 7th — first, by the defendants Sheriff Edd Craft and City Attorney Breed Mounger, and later by the same two plus defendant Michael Carr, the local District Attorney for the State of Mississippi. That evening, because the feeling about the incident was evidently running high in the community, Hardy was transferred by the defendants to the jail in Magnolia, Mississippi. Hardy was released on bond the next morning and his trial for disturbing the peace was set for the 22nd of September.

Hardy claims in his affidavit that, about the time the formal charge was entered, the District Attorney took him into a room "and several white people whom I can't identify told me that I was in a lot of trouble and that I was asking for a lot of trouble to come down there; that they had good Negroes here and that they treated their darkies good but that I was causing a lot of trouble. The Justice of the Peace was present but the sheriff was out." There are no allegations that Hardy was otherwise mistreated in any way during his confinement.

The appellees move this Court to dismiss the appeal, and, at the very outset, this Court is faced with the question of its jurisdiction....