Petition for a Writ of Certiorari — Garrison v. United States

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1 CHARLES FLAC

OCTOBER, 1943, TERM.

WILLIE GRAY GARRISON, PETITIONER,

VS.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI AND

BRIEF IN SUPPORT THEREOF.

D. B. HotMgEs,

BEN F. CAMERON,

LESTER E. WILLs,

Meridian, Mississippi,

Attorneys for Petitioner.

Supreme Court of the United States

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TABLE OF CASES

Petition for Certiorari

men SION 5 cache te caso csecedeaonnasonticdan aanisiliecanioie 1

Opinion Below_.. cMarket 4

Jurisdictional Statement... UsSMetlena bien Morena rate t tere Ne 4

E.R ea Ecce en EVO ER EASE. 5

Remons for Allowance of Writ OT

SEY 6. NEON Wi Oey OT TE 8

Brief in Support of Petition

Siatement of Facts__£.£.___._.___.. a 9

emery a ATT... ice

Argument—

dae, ER RRS BPR a rrmecnries REDD sO Dy tek aM ES

Decisions of Supreme Court... 19

Federal Statutes... ee:

Circuit Court of Appeals Decisions. tetas a

Fifth Circuit Court of Appeals Cases 26

Right to Have Law Correctly Stated —...._._ _ 28

MMIII sis ochcsi-s-osceamppnloabcdsincosctucsidiui spelen siete eaaeeve baseciealiokc me 29

TABLE OF CASES

Ash vs. Ash, Comberback 367... ____..___.___._..14 18

Barker vs. Dixie, 2 Strange 1051-_..--- 14, 18

Bates vs. United States, 269 Fed. 563... 15, 25

Beaton vs. United States, 5 F. 2d 966... 5, 26

Bernal vs. United States, 241 Fed. 339... 16, 26

Bradley vs. United States, 264 Fed. 79... «16, 27

Bright vs. Eynon, 1 Burrow 390... 14, 19

Brown vs. United States, 9 F. 2d 588... 15, 26

Casey vs. United States, (9 Cir.) 20 F. 2d 752 16, 27, 28

II INDEX

Commonwealth vs. Rollins, 242 Mass. 427, 136 N. E.

a coe cesieeneeaainaghinciinte 14,17

Coplin vs. United States, (9 Cir.) 88 F. 2d 652 scene

Detroit United Ry. Co. vs. Craven, 13 F. 2d 352. 15, zi

Ex parte United States, (7 Cir.) 101 Fed. 870, 131

i al coca ncpsnaiedpamesigsnipialitimeietiden 16, 28

Gibson vs. Hunter, 2 H. Blackstone 187 — of

Lords, 1793) a aS ai A 19

Harrison vs. United States, 7 F. 2d 259, 262. 15, 23

Haws vs. Victoria Copper Mining Co., 160 U. S. 303,

313 | Ng Sek gt hala ia 14, 19

Sondite « VS. . United States, 219 U.S. 79, 91. 14, 20

Holmgren vs. United States, 217 U. S. 509, 521 14, 20

Hyde vs. United States, 225 U. .. 3, 2. 14, 21

Jones vs. Spencer, 77 L. T. R. 536__--.-.---.---.-..14, 20

Jordan vs. United States, 120 F. 2d 65 —.... ......... 16, 27

Katz vs. United States, 273 Fed. 157 Mawar 15, 23

Lopez vs. United States, 17 F. ' 15, 23

Mattox vs. United States, 146 U. S. 140 14,117

Maitox vs. United States, 146 U. S. 919... “14, 19, 27

McDonald vs. Pless, 238 U. S. 264, 268 . phe 14, 20

Murhard Estate Co. vs. Portland, Seattle e Ry. | Co., 163

Fed. 194 ~ ; 15, 26

Ogden vs. United States, “112 Fed. 523 we 15, 24

Paine vs. St. Paul Union Stockyard Co., 35 F. 24 624. 15, 26

Prisament vs. United States, 96 F. 2d 865_. we fC

Pugh vs. Bluff City Excursion Co., 177 Fed. 399 15, 25

Rex vs. Francis, 2 Strange 1015... BP: _...14, 19

Shannon vs. Shaeffer Oil and d Refining ¢ Co., “51 F. 2d

Re _15, 26

Slade’s Case, Style 138 ; sc ptiaciicvihsiecpge

Smith vs. United States, 231 Fed. 25. fob a ne

Smith vs. United States, 281 Fed. 696_........____ 15, 24

Spreckels vs. Brown, 212 U. S. 208, 215... 14, 20

State vs. Messino, 325 Mo. 743, 30 S. W. 2d 750, 755... .14, 17

Stokes vs. United States, 93 F. 2d 744... —...16, 27

Sulzbacher vs. Continental Casualty Co., 88 F. 2d 122. 15, 26

Tate vs. Baugh, 264 Fed. 892... 215, 8

INDEX III

Towe vs. United States, 238 Fed. 557... 15, 24

United States vs. Glasser, (7 Cir.) 116 F. 2d 690, re-

versed in part Glasser vs. United States, 315 U. Ss.

Oe ak LENSE

Wood vs. Guston, ‘Style 466. SS |

Woodford vs. Eades, 1 Strange 425, eas er

STATUTES

Act of January 31, 1928 (28 U.S.C. A. 86la) 14, 22

Constitution of United States, Amendment Six... _ 16

Criminal Code, Section 19 (18 U. S. C. A. 51)...

Sens 1, 2, 8, 9, 10, 13

Criminal Code. Section 37 (18 U. S. Cc A. 88)... 2,8

Criminal Code, Sections 19 to 21 (18 U. S. C. A. 51,

52, 54) aiti asl 8

Judicial Code, Section 240, as “amended by Act of

February 13, 1925, Subsection (a) (28 U. S.C. A.

347) - é 4,5

Judicial Code, ‘Section 269, formerly R. s. ‘See. 726 (28

ae SS | ‘ _5, 6, 14, 17, 20, 21

Rules of Criminal Procedure, Rule ees Ls Oe

Supreme Court Rules, Rule XXXVIII. 4

Supreme Court of the United States

OCTOBER, 1943, TERM.

WILLIE GRAY GARRISON, PETITIONER,

VS.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI.

Petitioner, Willie Gray Garrison, respectfuliy prays

that a writ of certiorari issue from this Honorable Court

to review a final judgment of the United States Circuit

Court of Appeals for the Fifth Circuit, rendered on the

28th day of May, 1942.

SUMMARY STATEMENT.

Petitioner and another were convicted in the Western

Division of the Northern District of Alabama on one of

two counts, each of which charged one and the same con-

spiracy under Section 19 of the Criminal Code (18 U. S.

C. A. 51). The indictment was drawn on the erroneous

assumption that an overt act was a necessary element of

the offense. In charging the jury, the trial court fell into

this same error, and also erroneously charged that the

object of the conspiracy, as charged in the indictment,

2

was an offense against the United States, obviously con-

fusing the offense denounced by Criminal Code, Section

19, with the offense defined by Criminal Code, Section 37

(18 U. S. C. A. 88), and assuming that some section of

the Criminal Code denounced the commission of the acts

which might be the objects of criminal conspiracies under

Section 19. Moreover, the court charged the jury that:

“The question for you to determine is, did these

defendants, or either of them, oppress or threaten or

intimidate Mr. Dorough because of his having re-

ported the activities of the defendant (petitioner) in

the whiskey business,”

thereby authorizing the jury to convict if they found that

the overt act charged in the indictment, which was also

the object of the alleged conspiracy, had actually been

committed, without regard to whether or not the defend-

ants had conspired.

Insofar as the two counts charged violation of Section

19, they were identical. Unnecessary and superfluous al-

legations follow the conspiracy charge in each count, al-

leging the commission of different overt acts, and this

was the only difference between the counts. Although

each count charged the same conspiracy, both counts

were submitted to the jury under the charge mentioned

above. The jury convicted as to Count One, but acquitted

as to Count Two. Since the offense charged in each

count was one and the same, the jury must have taken

the court at its word, and considered whether or not the

defendants had oppressed, etc., Dorough for the reasons

stated, and must have found that they did so oppress as

charged in Count One, but did not oppress as charged in

Count Two. Under this, the only consistent interpreta-

tion of the record, the jury acquitted as to the conspiracy,

which was the only offense charged in the indictment.

On appeal, petitioner brought forward his motion for

a directed verdict on the insufficiency of the evidence.

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The Court of Appeals found that there was some evidence,

under the wide latitude allowed in conspiracy cases, and

stated that

“The circumstances convinced the jury that there

was concert of action and community of purpose,”

and thereupon affirmed the conviction, one Judge dis-

senting on the ground that there was no evidence of con-

spiracy.

On Petition for Rehearing, petitioner renewed his Mo-

tion for New Trial, as filed in the trial court, and urged

that the verdict was the result of a mistake of law which

had pervaded the entire proceeding. That the Court of

Appeals fell into the same error as the trial court is evi-

denced by the following quotation from its opinion:

“There was evidence in the record, which the

jury evidently believed, upon which it could find that

there was an understanding and concert of action

between Garrison and Walker, and there is ample

evidence of the commission by Garrison of the overt

act alleged in the first count. The act of one of the

conspirators is the act of all.”

The Court of Appeals took no notice of the renewal

of the Motion for a New Trial, but overuled the Petition

for Rehearing. Therefore, there is open for consideration

by this court, the question of whether the Motion for New

Trial was open for consideration by the Court of Appeals

on questions of law. There are also questions as to

whether or not the motion has been acted upon by the

Court of Appeals, and what disposition of the cause a

proper consideration of the motion would require.

As shown by the majority and minority opinions, the

evidence of conspiracy was either very slight, or com-

pletely nonexistent. Petitioner contends that the trial

court should have directed an acquittal, and that the Court

of Appeals was in error in not reversing on this ground.

An essential allegation of the indictment was that

Dorough was a citizer of the United States. While some

EAE RAP LEAL Slt DARE ESL EIR ELLEN DIN EL MN INE DE ALIN A PEER ABS MOP FSIS Mo ae

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witnesses testified as to his place of residence, the court

erroneously charged that the evidence showed that Dor-

ough was a citizen of the United States.

OPINION BELOW.

The opinions of the court have not yet been reported,

but are set out in the Record (R. 152 et seq.). No opin-

ions were filed to explain the action of the Court of Ap-

peals in overruling the Petition for Rehearing and Motion

for New Trial (Original Certified Record 175).

JURISDICTIONAL STATEMENT.

Within the time allowed by Rule 11 of the Rules of

Criminal Procedure in United States Courts, petitioner in-

vokes the jurisdiction of this court under Section 240 of

the Judicial Code as amended by the Act of February 13,

1925, Subsection (a) (28 U. S. C. A. 347), and Rule

XXXVIII of the Rules of the Supreme Court of the United

States, adopted February 12, 1939.

Petitioner was found guilty by the jury on November

4, 1942 (R. 11). Thereupon he was sentenced and judg-

ment was entered on November 6, 1942 (R. 12). On the

same day, Notice of Appeal was filed (R. 120). Within

the extended time (R. 16), petitioner filed his Bill of Ex-

ceptions (R. 119), and the Transcript of Record was filed

in the Circuit Court of Appeals for the Fifth Circuit on

February 3, 1943 (Hem Thereafter, the cause was sub-

mitted to said court on the record and briefs on May 12,

1943 (R. 151), and on May 28, 1943, the judgment of the

District Court was affirmed (Original Certified Record

152, 157). Petitions for rehearing were filed by petitioner's

original attorney (Original Certified Record 158) and by

newly employed attorneys (Original Certified Record 162)

on June 16, and June 18, 1943, respectively, all within

the time allowed for filing such petitions by Rule 29 of

we AONE IA CN

the Rules of the United States Circuit Court of Appeals

for the Fifth Circuit.

On June 25, 1943, the Court of Appeals overruled the

petitions for rehearing (Original Certified Record 175),

and on the same date entered its order (Original Certified

Record 176) staying the issuance of mandate for thirty

days to allow petitioner to file this petition to this court.

Attention is called to the fact that it is immaterial whether

the order of the Court of Appeals overruling the Petition

for Rehearing had the effect of overruling the Motion for

New Trial, since this court may grant the writ either be-

fore or after judgment or decree of the Court of Appeals.

Judicial Code, Section 240 (28 U. S. C. A. 347).

od

QUESTIONS PRESENTED.

SS RAE RENO ALI RES CI RIES TATE ATTRA OR SLA ID ERE RES Cee Sg

1. Whether or not Judicial Code, Section 269, for-

merly R. S., Sec. 726 (28 U. S. C. A. 391), authorizes the

filing of a motion for a new trial in the Circuit Court

of Appeals in a case tried in the District Court, where

the reasons assigned on such motion present questions of

law, or demonstrate that the trial and all subsequent pro-

ceedings were had on an erroneous theory of law.

2. Whether or not the grant or refusal by the trial

court of a motion for a new trial rests solely in the dis-

cretion of the court and can not be reviewed by the Ap-

pellate Court, even on questions of law, except for abuse

of discretion.

3. Whether or not, after a trial, proceedings subse-

quent to trial in the trial court, including motion for a

new trial; and the consideration of the case on appeal, the

entire proceeding having been conducted on a mistaken

theory of law, and the mistake not appearing to be prej-

udicial to appellant until the Appellate Court stated its

reasons for affirming; appellant may move in the Appel-

late Court for a new trial, renewirig the grounds alleged

in the trial court and adding thereto the ground based

upon the mistake of law.

6

4. Whether or not the various United States Cir.

cuit Courts of Appeals (and the Supreme Court of the

United States) are “United States Courts” within the

meaning of the first sentence of Judicial Code, Section 269

(18 U. S. C. A. 391), which provides that, “All United

States Courts shall have power to grant new trials, in cases

where there has been a trial by jury, for reasons for

which new trials have usually been granted in courts of

law.”

5. Whether or not “Courts of Law” as used in Ju-

dicial Code, Section 269 (18 U. S. C. A. 391), includes the

Court of the Kings Bench as it was organized and existed

on September 24, 1789, whether sitting at nisi prius, at

bar or en banc; and whether or not the organization of

the United States District Courts and Circuit Courts of

Appeals is analogous to the Court of the Kings Bench in

the handling of criminal cases, in that the power to grant

new trials is preserved on appeal to the same extent as if

the legal questions presented by the record had been re-

served by the trial court at nisi prius or on application for

a venire facias de novo.

6. Whether or not the Circuit Court of Appeals for

the Fifth Circuit committed error in refusing to enter-

tain petitioner’s motion for a new trial, either as presented

in the District Court, on the record on appeal, or as re-

newed in the Appellate Court on a new motion adopting

the grounds of the motion already of record and raising

questions of law, or new matter tending to show that peti-

tioner had not been properly convicted.

7. Whether or not the jury which returned a verdict

against petitioner can be said to have convicted him for

any offense denounced by the United States Criminal Code,

the court having instructed that the question for the jury

to consider was whether or not petitioner had committed

certain acts which did not constitute any offense against

the United States.

8. Whether or not, under all the facts presented by

the record and the legal propositions arising therefrom,

petitioner was entitled to a new trial.

9. Whether or not the court below committed error

in affirming the conviction of petitioner in the District

Court.

10. Whether or not the affirmance of a conviction up-

on slight evidence can stand when it appears that a mis-

take of law pervaded the trial and raises doubts as to

whether or not the jury actually found the defendant

guilty of the offense charged in the indictment.

REASONS FOR ALLOWANCE OF WRIT.

1. The Circuit Court of Appeals, in not passing upon

the action of the trial court in overruling the Motion for

a New Trial, and in not entertaining the motion filed with

it, deferred passing upon the procedural questions con-

cerning motions for new trials as to which:

A. The decisions of this court are not clear, re-

quire re-examination, or do not cover the questions

here involved.

B. There is an apparent conflict in the decisions

rendered by the various Circuit Courts of Appeals.

C. There is an apparent divergence of views held

by the judges of the Fifth Circuit Court of Appeals,

under which that court does not rely upon its former

decisions.

2. The course and conduct of the trial, conviction,

and affirmance of the judgment under which this peti-

tioner has been condemned is in violation of the Sixth

Amendment to the Constitution of the United States, in

that the jury was not properly charged by the court as

to the law applicable, but was permitted to convict for

conduct not amounting to an offense against the United

States.

DONC ra Pg

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3. There being fundamental differences between the

offense denounced by Criminal Code, Section 19 (18 U. §.

C. A. 51), and those defined by Criminal Code, Section

37 (18 U. S. C. A. 88), and no decision of this court as

to the quantity and quality of evidence necessary to sus-

tain a conviction, under the former section; so that lower

courts are compelled to look to the decisions under the

latter section for analogous rulings; this court should con-

sider the sufficiency of the evidence on this record to sus-

tain a conviction under the Criminal Code Section under

which the indictment was returned.

4. The questions raised and to be raised on this peti-

tion are believed to be of great national importance, and

especially so in view of the expansion of rights enjoyed

by citizens under Federal Law, which may be protected

in the United States Courts only by prosecutions under

Criminal Code, Sections 19 to 21 (18 U. S. C. A. 51, 52

54).

PRAYER.

Wherefore, petitioner prays that a writ of certiorari

issue under the seal of this court directed to the United

States Circuit Court of Appeals for the Fifth Circuit, com-

manding said court to certify and send to this court a full

and complete transcript of the record and proceedings in

said court had in Cause Number 10506 on the docket of

said court, entitled Willie Gray Garrison, Appellant, v.

United States of America, Appellee, to the end that said

cause may be reviewed and determined as provided by

the statutes of the United States and the Rules of this

court; and that the judgment of the Circuit Court of Ap-

peals entered therein be reversed, and for such other re-

lief as law and the due and proper administration of jus-

tice shall demand.

Willie Gray Garrison,

Petitioner.

By D. B. HoLMEs,

Ben F. CAMERON,

LESTER E. WILLs,

Meridian, Mississippi,

Counsel for Petitioner.