Wyche v. State of Louisiana, 24165.
| Decision Date | 26 October 1967 |
| Docket Number | No. 24165.,24165. |
| Citation | 394 F.2d 927 |
| Parties | Zelma C. WYCHE, Appellant, v. STATE OF LOUISIANA, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alvin J. Bronstein, Jackson, Miss., Richard B. Sobol, New Orleans, La., for appellant.
William P. Schuler, Asst. Atty. Gen., New Orleans, La., Jack P. F. Gremillion, Atty. Gen., for State of Louisiana, Thompson L. Clarke, Dist. Atty., Sixth Judicial Dist. of La., for appellee.
Before TUTTLE, THORNBERRY and GODBOLD, Circuit Judges.
This is an appeal from an order remanding to the state courts of Louisiana for trial a bill of information filed against the appellant charging that he is guilty of aggravated burglary in violation of L.S.A.-R.S. 14:60.1 The maximum punishment for aggravated burglary is thirty years.
The bill of information filed against the appellant states that he "committed aggravated burglary of a building belonging to A. W. Pressley, in that he did unauthorizedly enter a building, to-wit: Highway 80 Truck Stop, belonging to A. W. Pressley, where John Monsell was present, with the intent of committing a battery upon John Monsell, and while leaving said building did commit a simple battery upon the person of John Monsell."
After the filing of the information and before trial, on October 12, 1966, appellant filed in the United States District Court for the Western District of Louisiana a petition removing the case to that court, pursuant to the provisions of 28 U.S.C.A. §§ 1443(1), 1446. In that petition, the appellant alleged that the entry charged to be "unauthorized" was entry during normal business hours into a restaurant covered by Section 201 of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000a, and that, therefore, the entry was specifically authorized by Section 201 of the Act; that the purpose of the entry was to exercise rights guaranteed by Section 201; that appellant acted peacefully at all times, and, conversely, did not commit any criminal or violent acts while in or while leaving the restaurant; and that the prosecution is "an attempt to punish" appellant for the attempted exercise of rights under Section 201, and is therefore forbidden by Section 203 of the Act, 42 U.S.C.A. 2000a-2.
On October 19, 1966, a motion to remand the case to the state court was filed by the State. The trial court without a hearing, on October 20, 1966, entered an order of remand. On October 21, 1966, a stay of the order of remand was entered by a member of this court pending consideration by a panel of this court of appellant's application for a stay pending appeal. On November 2, 1966, a stay of remand pending appeal was granted by a panel of this court.
It is immediately apparent that the issue here for our consideration is whether this case falls within that class of cases which the United States Supreme Court in State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, 1966, held may properly be removed under the provisions of 28 U.S.C.A. § 1443(1), or whether it falls within the remaining class of cases which the Supreme Court said in City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L. Ed.2d 944 1966, were not removable under the Civil Rights removal statute.
In the Rachel case, the Supreme Court held that if, as alleged in the removal petition, the state prosecution of the movants was being pursued by the state authorities for a violation of the state trespass statute (which made it a crime for a person not to leave the premises of another when requested to do so) solely because the movants were requested to leave a place of public accommodation (a restaurant) on account of their race or color, such prosecution by the state of Georgia was expressly prohibited by Section 203 of the Civil Rights Act.
"No person shall * * * intimidate, threaten, or coerce, or attempt to intimidate, threaten or coerce any person with the purpose of interfering with any right or privilege secured by section 2000a Section 201 of the Act of this title or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 2000a or 2000a-1 of this title." Pub.L. 88-352 Title II § 203, 78 Stat. 244.
Such a prosecution, the Court held, would provide a basis for a trial court to make a "firm prediction that the defendant would be `denied or cannot enforce' the specified federal rights in the state courts." This was so because the federal statutes specifically prohibited the prosecution punishment of any person seeking to exercise the rights provided for in the public accommodations sections of the Civil Rights Act.
In this case, one of the ingredients of the crime of aggravated burglary in Louisiana is an "unauthorized entry" into a structure. There can be no crime of burglary under that statute unless it is proved that there was an "unauthorized entry." Thus, it clearly appears that the prosecution here for the act of entry is prosecution for an act which the...
To continue reading
Request your trial
-
Perkins v. State of Mississippi
...of the petitioner's alleged assault "just happened to be armed with a pistol and blackjack." 405 F.2d at 1192. And see Wyche v. Louisiana, 5 Cir., 1967, 394 F.2d 927. 58 See, e. g., New York v. Davis, supra, note "The distinction thus made by the Supreme Court in Rachel and Peacock is respo......
-
Naimaster v. NAACP
...Provision, § 203, Civil Rights Act of 1964, 42 U.S.C. § 2000a-2; Achtenberg v. Mississippi, 393 F.2d 468 (5 Cir. 1968); Wyche v. Louisiana, 394 F.2d 927 (5 Cir. 1967); § 11(b), Voting Rights Act of 1965, 42 U.S.C. § 1973i(b); Whatley v. City of Vidalia, 399 F.2d 521 (5 Cir. 1968); Davis v. ......
-
State of South Carolina v. Moore
...peaceful, protected conduct, but not if he has committed some act of violence. Peacock clearly delineated the distinction. Wyche v. Louisiana, 5 Cir., 394 F.2d 927, presented a situation much like that here. Wyche sought to remove a prosecution for aggravated burglary. An essential element ......
-
People of State of New York v. Horelick, 524
...be exercising their rights to equal accommodation were prosecuted on what allegedly were trumped up charges of burglary, Wyche v. Louisiana, 394 F.2d 927 (5 Cir.1967), and vagrancy, Achtenberg v. Mississippi, 393 F.2d 468 (5 Cir.1968), rather than of trespass. The Fifth Circuit has also com......