# Brief for the Respondent — Hysler v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0516%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent - **Published:** January 1, 1942 - **Citation:** 315 U.S. 411 ## Text ~ SUPREME: COURT OF STATES, " OCTOBER | TERM. A. D. 1941 NO. 6 ' CLYDE HYSLER, 7 Petitioner, st Mlle ee fy en THE STATE OF FLORIDA, ° 3 ~* Respondent.’ CN WRIT OF CERTIORARI TO THE SUPREME COURT OF ' THE STATE OF FLORIDA = BRIEF FOR. RESPONDENT ad -J Tom ‘Wiseomn, : ¢.. . Attorney General of Florida; JosepH E, Gren, Assistant ‘Attorney General of Florida; Wooprow M. Me vin, Special Assistant Attorney General of Florida, Counsel for Respondent een aoe EC AA A A - ee INDEX _ 8 Surssecr INDEX Opinion below — -...:. Jurisdiction Se eke Ted POR ARES wre ae Argument i ns (1) The Writ of Error Corin Nobis will not Lie, to relieve one of a judgment of. conviction beeause of false or perjired testimony given at the-trial by an important Witness .. (2). The application, and exhibits ‘thereto, filed in the Supreme Court of Florida by the petitioner for leave, to apply, for a writ of error coram nobis, failed .to affirmatively show any denial to him by the State ‘of .¢ Florida ofthe equal protection of law guar- anteed under the Fourteenth Amendment of the Constitution of. the United States (3) . is application, and exhibits thereto, filed ‘the Supreme Court of Florida by the setianes for leave to apply for a writ of error coram nobis, failed to affirmatively show any ‘denial to him by the State of Florida. of due process of law guaranteed under the’ Fourteenth Amendment of the Constitution of the United States -. a NN 5s, 65 Eas seca eae Page “11 14 31 Lamb vs. Harrison, 91 Fla: 927, 108 So, 671 a Lamb vs. State, 1 Fla. 396, 107 So. 585....\......4, a, 6 Linton vs. State, 81'S, W. 608, 72 Ark. 582.00... 0.5. 6° vei BSD Be ees RI Le p TABLE or AUTHORITIES” A “Cases: ee, “ " , Page Adler vs, State, 35 Ark. o17.. ...-.. eke ces = 6 Asbell vs. State, 62 Kan. 209, 61 P: 690.2 -.. 0... 25 Baker vs. State, 188 So. 634,137 Fla. 27..0 6.0... 31- Barhin vs. Connally, 113 «OU +S. 20 rete: ae aa “Beara: Vs. s. State, 99S. W. ‘837, Sl Ark. ie wea es . 42 -- Brown vs. Mississippi, 297. “U. S. 278- seaph 0 Fi ed. | oe en awa ; Sieh. aa . Chesser ia Wilete of Florida,-92.Fla. 734, 109 Soe, 906 ae ‘Dobbs vs. State, 65 P. 658, 63 Kan, o2b.. Erust vs, State, 193 N. W. 78; 18] Wis. 155. Brust vs. W isvonbin is , Wi is. G46: 192 N. W.. 65, 30 est et ag a SE RA eran Sry eivsaxtesy - ~ . . . ° ° - x . . \ ‘ . . . \ ne : ‘ . . ~~ . . ® ~ . . ny . . s ° . 2 . 4 . ‘ . “i ; e . . \ . . Manistee AG EOTURPTE STE SSO SE HALO RBA RD LE ABE EM: Se ORME a ° \ , ‘ ang ne . ; . \ . 2 @ x Tos g P “ . as a ye "SUPREME COURT: OF THE UNIT ED pe STATES | OCTOBER TERM, A. D. 1941: NO. 64 CLYDE HYSLER, - Petitioner, ? e : Us. THE STATE OF FLORIDA, Respondent. : y ee ‘ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF FLORIDA BRIEF FOR RESPONDENT* ape p ‘Opinion. Below The opinion of the Supreme Court of Florida from which this Writ of Certiorari was granted is reported as _ Hysler vs. State of Florida, 1 So. Rep. 2d Series 628, ° (not yet published in official Florida Reports). This opinion also appears in the record ‘before this Court at - page 31. Other opinions ‘of the Supreme Court of Florida ee . in related cases are: Hysler vs. State, 187 So. 261, 136 Fla. 563; Hysler vs. State, 181 So, 354, 132 Fla. 209; Hysler vs. State, 181 So. 350, 132 Fla. 200 ; Baker vs. ‘State, 188 So. 634, 137 Fla. 27. ») Jurisdiction The Supreme Court of the United States granted cer tigrari in this case on June 2 1941 (R. 32)... . Summary of Augumant 1. The Writ of Error Ciena: Nobis will not lie to re- lieve one. of a.judgment of conviction because of false or perjured testimony given’ at the tetal | by an important witness beeing : ® ‘The application, and exhibits thereto, filed in the Prabeis Court of Florida by the Petitioner ‘for. leave to apply for a Writ of Error Coram Nobis, failed to _ affirmatively: show any ‘denial to him by the State of Flor- ida of the equa] protection of law- guaranteed under ‘the . Fourteenth Amendment of the Constitution: of the United States, et The. application, and exhibits thereto, filed in the_ Supreme Court of Florida by the: Petitioner for leave to apply. for a Writ of Error Coram Nobis, failed ‘to af- . firmatively show any denial to him by the State of Florida of the due process of law"guaranteed under the .Foutteenth Amendment of the Constitution of the United States. , ARGUMENT The Writ of Error Coram Nobis will not. lie to re- | lieve one of a judgment of conviction because of false ‘or perjured testimony given at the trial | by, an im- portant witness. On April -10, 1941, the Petitioner, filed in the Supreme Court of Florida his application for permission to apply — to the Circuit Court of. Duval County, Florida, for a Writ — of Error Coram Nobis, addréssed-to the judgment of eon- m ‘ J 3 j ; / 3 vietion oc eragh against him in, said Court. on 1 April 2 , 1937, whereby he was adjudged guilty of murder in. ed , first degree and sentenced to be electrocuted (R. 1). The Pbtition charges that the testimony given by -pe- titioner’ s co-defendant, James Baker, a witness for the _ State of Florida, was false and that petitioner ’s con- viction was based primarily ‘upon such false testimony. _ The Supreme Court of Florida denied petitioner's ap-— plication (R. 31), and this Court “granted Certiorari (R. 32). _ Among other things the Supreme -Court of Florida held in its ordér denying petitioner’s application, - that the ‘Writ. of Error ‘Coram Nobis would. not lie because of false testimony given at the trial by an important witness. er ee WN carte eet 2 ot . & The Writ of: Error Coram .Nobis is a' common. law._ writ and is no longer in use in some jurisdictions: ‘At. common Jaw a writ of -error coram. vobis. ‘brought before the court certain mistakes of fact not put. in issue or passed upon, such as the death of ‘a party, coverture, infancy, error in process or mis- ‘take of the Clerk. This wrt is no longer in use, but its objeets are attained by motion. Puckett Vs. Lerger- wood, 7 Pet. 142, 147.”’ 4 Wetmore Vs . Kar ric “ 205 U. “11, text- 151. 7 However, this writ is still in use and recognized inf ti State of Florida. The Supreme Court of | Floride 4 had occasion to set forth in a number of cases they “stances in which the writ was applica ble. That Court has held that the writ will not Hie in a criminal case . where the conviction was had upon perjured testimony : ee alee Jones. Vs. State; 30° Fla. ‘640, 178 Sd. 404. | Skipper'vs. State, 127 Fla. 553, 173 So. 692. > Lamb vs. State, 91 ‘Fla, 396, 107 So. 535. _ Lamb: vs. Harrison, 91 Fla, 927, 108 So. 671, \ Je nnirigs Vs. Pope, 101 Fla. 1476, 136 So. 471. : | Pike Vs. State , 103 Fla. 594, 1: 39 So. 196. — | This holding is net, sain to the isneieis Court: of Florida but is in harmony with the decisions -of courts | : of other’ states’ ‘of the Union: State .V8. ‘Asbell, 62 Kan. 209, 61 Pac. 690. State), ex rel., ' Davis vs. Superior Court and Pierce “County, 46 Pae. 399, 15 Wash. 339. ; ‘Biord ve. State 90 f S. W. 837,81 Ark. 515. _ People vs. Moone ynlié Pac. 325, 178 Cal. oz rf _ It has also been: held by a. _number of State Courts. |, ’ that this’ writ will not lie to obtaim.a ew trial. upen as- | sertions of newly discovered ev idence + ‘Howard vs. State, S. W/ 8, 8, 58 Ark. 229: Humphreys Vs. State, 224 P, 937,129 ‘Wash 208, 33 A. L. B. 78, and notes. ‘A ° Dobbs vs. State, 65 P. 658,, 63 Kan. Rais ‘Holt vs, State, 29 So. 527, 78 Miss. 631, 12 Cyc. 789. Ernst vs. State, 193 N. W. 978, 181 Wis. 155. Smith vs. Commoiecalth, 146 S. W. 4, 148 Ky. 60. State vs. Ray,.207 P. 192, 111 Kan. 350, _ State vs. Richardson, 2 237 S. W. 765, 291 Mo. 566. State vs. Latshaw, 237 ii W. 770, 291 Mo. 592, . e* ' Stute vs. , iethie: 200 P. 790, 101 Or. 368. People. vs. Mooney, 174. P. 325, 178 € ‘al. 525. . People vs. Drysch, 143 N. BK. 100, 311 Ne 342. Sease va. State, | 247 S. W. 1036, 157 Ark. 2M. ; / ‘The ‘Seen, Court of Wcrida: has further bela that ‘the writ will nof reach- facts actually det ermined in the original - ‘proceeding : Lamb vs.) \State, 9] Fla. 396, 107 So: 635.” a Nok will it lie, because “the Paci Attorney calls for the State one who is under agreement to be exon-. erated in the event of a conviction of a ‘defendant : Pike vs. State, 199 So. 196, 103 Fla.’ e4. It is true that the narrow scope of the writ at common: law has been broadened i in those states which still permit its use, and_it has been held that the writ will now lie’ in. . cases where ‘the accused, through well gro nded fear of _ mob violence, has been forced to enter a plea of guilty “to a aion nal charge: Beate vs. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 1. R. A. 838. Sees, - And it has been granted where the accused was forced to enter a plea of guilty because of fear that -he would be killed if he did not do so: Nickels vs. State, 98 So. 506 Fla. 208. Nickels Vs. State, 99 So. 121, 86, Fla. 208. And where it, i is ane that the RAGE A Be eer at the time. of his conviction the writ will lie: a : 6. Hawy vs. State, 83 So. 158, 121 Miss," 197, 10 A, L. R. 205, and note. aa . —Hydrick vs. State, 148 S. W! 541, 104 Ark. 43.. . Hodges vs. State. 163 S.-W. 506, 111 Ark. -22. Linton vs. State, 81 8. W. 608, 7 (2 Ark. 532. Gibson vs. Pollock; 166 8. W. 874, 179 Mo. App. 188. Adler vs. State, 35 Ark. 517." Johnson Vs. State, 1538. W. O96, 47 - Ark, 131. . it is “not a writ of right but may he granted in the exercise of sound judicial discretion, and -will not be granted unless it be duly shown that a fact existed at — the trial that if then known to the Court would have pre- vented the. judgment that*was rendered, and in order to . authorize the granting of the w rit such facts’ must appear with reasonable ey: "Ernst vs: Wisconsin, 179, Wis. 646, 192 N. Ww. 65, 30 A. L. R. 681, also? * hamb vs. State, 107 Sé. “535, 91. -Fla. 296. . + The Supreme Court of Florida in the’ case ot Wash- ington vs. State, 110 So. 259, 92 Fla. 740, in discussing the writ held that ‘an Appellate Court should not grant - permission to apply to a trial court for a writ of error coram nobis except upon a proper. and adequate show- .” ing of essential facts .duly made by competent, and ade _ quate legal evidence. : The case of Mooney. vs. Holohan reported in 294 U, page 103,.79-L. ed. 791, seems to be very similar to, ok case now before ‘this Court. In the Mooney case a motion was filed _ the Supreme Court ‘of the United States for leave to file. a petition ae WG Sy >. re a hated Verio’ Mas. 00 siti ) for an original ‘writ of habeas eorpus.. The petitioner, ‘Mooney, alleged that he was unlawfully, restrained of his liberty by the State of California under a commit: ) ment pursuant to a ‘conviction of murder in the first - | degree. The petition charged that the State of California | held him in cugtody without due process of law, in vio- lation of the Prartocnith -Amendment of the Constitution & of the United States, in that the sole basis of his convie- , tion was -perjured. testimony _whtek. was knéwingly used by the prosecuting authorities in order to obtain his conv iction. | 7) As we believc the decision of this Court in tle Mooney case is directly in point and that the action of the Court >» in that case should co 1 in the case at bar; we take, the liberty of quotin somewhat at length from the opin- ion of this Court jn the Mooney case : **The decisions. of ‘the Supreme © ourt of California J ‘in relation to petitiener’s convietion have dealt with ° the questions presented to that Court within the li e itations of particular appellate proe ‘edure. When thre was submitted to that Court the consent of the. At- torney General to the reversal of the judgment against petitioner and to the granting of a new trial the - Court pointed out that no motion had been made by the defendant and that his appeal was awaiting hearing. People vs. Mooney, 175 Cal. 666, 166 -P. 999. . «+ When, again. in advance of the hearing of his appeal, the defendant made his motion solely: upon the ground of the Attorney- General’s consent, the Court’ held _ . . that: its jurisdiction on appeal was limited to a de, . determination whether there had been any abet al law in the proceedings of the trial court and that the Court .was confinéd to the record sent to it by. the court helow. People vs. Mooney, 176 Cal. 105, . 167 P: 696. On the appeal, the, Court, thus dealing Tas Fee eee Ce . . > 8 with the record before it, found that the verdict,was supported by the testimony presented | and that no ground appeared. for -reversal. ° People vs. Mooney, 177 Cal. 642, 171 P. 690. When, later, the defendant “moved to set aside the judgment, and sought a cer- tifieate of probable cause.on his appeal from an order - denying, his motion, the Court -heid that the keneral averments against the fairness of the trial were ‘in- - sufficient, but the Court did not place its denial of: the application eutirely upon that ground. The Court ‘concluded that the proceeding by way of metion to- set aside the judgmént after it had become final and a motion for a new trial had--been denied, and the time therefor had expired, was ‘fn the nature of an ‘application. for a writ of coram’ nobig, at common . law.’ The Court thought.that such a- No fundamental right of the petitioner was violated by the refusal ‘of the Florida Court to ‘extend the appli- cation of this discretionary writ té cases in which it was never intended to apply. Ge mah, oe ea ees ae Ft Ne a ORS ee aS ee eS AbD ABIL BAAR CaS . s i Me ate 0 9 in tig Ae TRIE et et es Uifferent position than any other litigant. tt rag eee . ccagenammmneras ss ° : ‘s The application, and exhibits thereto, filed in the . Suprenie Court of Florida by the petitioner for leave to apply for a Writ of Error Coram Nobis, failed to affirmatively :show any denial to him. by the State of Florida of the equal protection of law guaranteed -under the Fourteenth Amendment of the Constitution of the United ‘States. Petitiotier apparently attempts to show that he has - heen denied the equal protection of law by the State’ of. Florida by- alleging in effect that he was convicted ,on testimony known by the Prosecuting Attorney to have been false. He further contends that the Supreme. Court’ of Florida had applied a different rule’ in his case from the rule announced by that court in the case of Wash. iigton vs State, 110 So. 259, 92. Fla. 740. The purpose of the Thirteenth and Fourteenth Amend- — on the’ same plane of equality) with white. persons 80. far as their civil and political rights: were concerned, The Fourteenth Amendment was adopted for the pur- pose of prohibiting any state from discriminating against any négro by reason of his race orcolor._The petitioner in this case is a white man. We do not admit petitioner's allegation that the Su- preme Conrt of. Florida has adopted a rule in his case contrary to its previous decision: ‘However, if this were true, it constitutes. no action prohibited -by the Constitu-. tion of ‘the United States: for, it. places petitioner in no . ¢* ‘The same is true as to- his allegation ie to the action of the prosecuting attorney. As, was said ments was to elevate the colored race and place negroes.’ ~ “ , 12 by the Cireuit Court of Appeals for the Ninth Circuit -~ in a casé involving au, alleged conspiracy brought against the Prosecuting Attorney; Deputy Prosecuting Attorney; and Judge, charging that they conspired to deprive a lawyer of his right to prectics law: ‘*No such purpose was involved in the ulleged con-. spiracy in the case at bar.- Appellant was subjected to no greater hazard than any other individual ih - . the state, namety, the hazard of -being prosecuted for a crime and convicted by false testimony, and if the ° prosecuting officer of the county were sufficiently corrupt to use his-high office for the purpose of convicting innocent people by perjured testimony, all the citizens ‘within his jurisdiction would be ‘subject to the same hazard. " Mitghell vs. Greenough, 100 P. 2d 184. : area Further in the same opinion the Court said: “The prohibition against ‘denial of the eqaal : pro. tection, of the law’ was to prevent class legislation ‘or action.” — Mitchell vs. Greenough, supra. The Supreme Court of the United States in discussing the purpose of and underlying reasons for the adoption of the Fourteenth Amendment to the Constitution of the — United States said: : = _ ‘*“Phis is one ‘of a series of constitutional provis- ions having a common purpose, namely: securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights_ that. the- superior race enjoy. "The true spirit and meaning of the -Amendments, as we said ‘in the Slaughter-House cases, 16- Wall., 36, 21 L. ed., zo 394, cannot be ‘understood * ‘Without~ ~_keoping_in. view . 13 the history of the. times when they were adopted, andthe general objects they plainly -sexught to accom- plish. At the time when they were: iticorporated into the Constitution, it required little knowledge of hu- mar nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddeuly raised to’ the. rank of citi- zenship, be looked upon with jealousy and positive distike, arid that state laws might be enacted’ or . enforced to perpetuate the distinctions that had bée- fore existed. Discriminations against them had been. habitual: It was. well known that, in some states, jaws ‘making such discriminations then existed, and others might well be expected. The colored race, as. a race,t was abject and ignorant, and in that condi- - tion was unfitted to command the respect of those who had superior intelligence. Their training had _ left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. ‘They especi- ally needed. protection against unfriendly action ‘in - the States where they were resident. It was in view _of these considerations the 14th Amendment was framéd and adopted.’’ o Strauder vs., West Virginia, 55 L. ed. 664. See also Barbin Ws: Connally, 1130U. S. 2%. ‘Lhe equal protection amendment _¢annot be ‘said to ap- ‘ply to petitioner’s case, as it is not shown that-the State of Florida has accorded him avy, other or different, treat- ment than is accorded any other citizen of the State under like circumstances. 14 ze Ape : . fs } , The application, and exhibits ehibetne ‘filed in - the Suprenis Court of Florida by the petitioner for leave. to apply for a Writ of Error Coram Nobis, failed to affirmatively show any denial to him by. the State of Florida of the due process of law guaranteed under the Fourteenth Amendment * the Constitution of the United States. — Petitioner further alleges in his: application filed’ in - the Supreme Court of Florida; that he has’ been denied due process of law, in that he was convicted on’ the tes- timony of two co-defendants, Alvin Tyler and James Baker; that their testimony was false and that they were coerced, infimidated, beaten, and fhreatened with violence in order. to compel them to give testimony against peti- ' -tioner, and’ further, for the reason that prosecuting -dt- torney, in. order to induce the witness James Baker to testify, agdinst the petitioner, prongsed ° the said James Baker that he would not receive "the death penalty: The application of petitioner is not sclf-proving, and we must, therefore, look to the affidavits attached to such application and made a part thereof, in order to determine whether the. _allegagions of petitioner are sub- stantiated, * The petitioner was convicted\in this case on April 5, 1937 (R. 1). At that trial the co-defendant James Baker testified_as a witness for the State. Four vears later he attempts to’ repudtate the testimony he gave at that trial by means of his affidavits attached to petitioner’ s appli cation (R. 6 to 16 & 21). At this point we would ‘like to call the. Court’s atten- tion to the case of U.S: ex rel., Lesser vs. People of New York, reported ini 34 Fed. Sap. page 730. In. this ease an —_ 15 application was made to the United States District Court forthe Western District.of New York for a writ of habeas corpus. .The application was based on the ground that - — the conv iction was based ‘en false and per jured testimony. Various affidavits were submitted in support of the ap- plication, among them affidavits to. the effect that the complainant had stated*that he was forced by the: policé to bring the charge of kidnapping against the relator and that the. ‘relator was not guilty of- the offense. __As) was stated by the Court ‘in that: case: ny Admissions offfhis type are to be serutinized and _ weighed i caution.’ The first affidavit of James. Baker (R. 6) appears to “have been made at the State; Prison, Raiford, Florida, between 5:00 gnd 6:00 clock i M. on April 7, 1941. In the narrative part of. this atfidavit Baker states that . Avid es killing of Mr. and Mrs. Surrency, that he and Alvint fyler, the man who did the actual killing, asin between them while they were. in “Cracker Swamp’” ; Duval County, Florida, that thay Would lay the blame the. planning of the robbery of the: Surreneys on. Clyde Hysler, because they had had ‘considerable liquor deal- ings with him and knew him well, an because the Hyslers bore a bad reputation in Duval County, and Clyde Hy sler’s ‘father had* plenty of money and they thought he and his otherrelativ es would heyable to get Clyde Hysler. out of: . the trouble, and that ‘by doing. this- James Baker and *- ‘Alvin Tyler. would. fas the death penalty. He- farther sttes in this affidavit that Clyde Hysler _ Was not implicated in the planning of the roNbery and. had nothing to do with the killing of Mr. and Myvs. ‘Sur- rency, but that one, "Joe Peterson, was the man who : , oe eee ey s ieee \ + - 16 ‘planned the robbery and hired ’ James Baker and Alvin Tyler to perform the robbery.’ ‘It is significant to note..the phraseology, used in. this affidavit. Baker says that he and ‘Tyler agreed to lay the blame of the planning of the robbery, on- Clyde Hy sler for the above reasons.’ He farther says ‘thet Clyde Hysler was not. im plic ated in. the planning of the robbery’ and had nothing te.de with the killing of Mr. and Mrs. Sur-’ rency. Nowhere in this affidavit or in any .of the other affidavits filed with petitioner’s application does James Baker deny the truth of the facts testfied to by him at the trial.As the testimony given at the trial of. this ease has not been incorporated in the printed record, refer- . ences to such testimony are to the original page numbers of tne transcript on file in. this Court. Baker testified at the trial that Clyde Hysler earried him iti an automobile out to the vicinity where the rob- bery was to take place several days prior to the murder "and. showed him the roads in that section and where Clyde Hysler would meet Baker. and Tyler after the holdup, and that Clyde Hysler did in fact meet, Baker - and’ Tyler in that viciRity immediately after the murder of. Mr. and Mrs. Surreney and carried’ them in his car to : a swamp where they ,got out, Hysler advising them that. he would come back for them: later that day (1030-1065). This testimony Was also corroborated by the testimony of Alvin Tyler (911- 927). - cies does not in any of his affidavits attached to the petitioner’s application, state that these facts as testified to by him and Alvin Tyler were not true. By reading ‘the testimony of the witnéss Baker and comparing it with the affidavit which he made on April 7, 1941, (R. 6), =o |) )=—— _ oo 2 pede eed, eee 1 » . ‘ : . . as). A es Sts, ila aie (aes Paci hain 227 Ont wheal ae aaa elas pegs ths ww PMA Me | nt ts rere oe od . 7 Ch An See Me tetieha tel We AMT RIN V7 it will be readily seen that in- this affidavit he merely -sulistitutes: the name | of Joe Peterson for that of Clyde . Hy wer. In this first affidavit (R. 9), it appears as follows: ° “Q. You are making these statements and this affi- ‘ dayit of your own’ free will and: accord without any liope or reward or fear of punishment, and. without any intimidation and realizing that you are likely_to die next week ?”’ Sires, “AL Y es, sir, but that is the truth. he **Q. Do you say that all the statem ents you have made _ In hére is the truth and nothing but the truth?” “A, Yes, sir.’ Notwithstanding this statement by Bakér that the truth was contained in that affidavit, it was found neéessary to interview him again on the following day, April 8, 1941, at which time Baker appears to have made another — e statement to counsel for petitioner at the State Peniten- — tiary between 6:00 and 7:00 o’clock P. M.. In this state- - ment James ‘Baker, instead of narrating his story, was specifically. interrogated, and in this statement appears ‘for the first time any indication of any mistreatment of this witness by any officers. q Notwithstanding the fact that the petitioner’s applica- _tfon (R. 5, par. 8) states that the affidavits made by Baker were made freely and voluntarily and without ariy - suggesting or prompting, we find (R.-11), the alleged | mistreatment of Baker introduced in this manner: “Q. ‘Now what threats or promises did they make you to testify and implicate ee Hysler?’’ ae ae Sar PO ae “AL “Well, Mr. Griffen and them didn’t, “théy wdidn't make no promises, Mr. Hulbert did talk to, me, that ‘he would get me. life. imprisonment—life. i in- stead of. the ¢hair.”’ And iii Baker states that Jobin W. Harrell, the State’s Attorney, told him that he would: help get him out in threes years and that he; Baker, wouldn't. burn, Baker. then ‘states, according to this atfidavit, that the officers beat and mistreated him, aml contrary ‘to othe statement -made by him in. the first affidavit as to his‘reasons for layinig the blame of the murder on ¢ ‘lyde Hy sler, ‘he’ says in’ this second affidavit (Rv ; 12), that he did so’ bevause . he was beaten end mistreated : > And it it hadn‘t-been‘for the heatings and threats «> * ‘and the promises to get you ont of here in three ' years as you have stated above would you have implicated M r. Vivsier in the case at all?” “A. No; sir, case I told them T didn't no ‘anything. about it; and another thing, between Mr. Hysler’s ~~ first trial.and last one,’ Mr. Harrell came down io the: County Jail after.’ was allowed to see_ ‘ people, T-said, don’t you know: that if you burn “Mr. Hysler vou will have to burn me too, and he _said-he could burn the whole Hysler family and’ «don’t burn me cause he and Mr. Sidney Hulbert, r -. Mr. Carsonvand Mr. Cannoi and, some more .of- + ' fieers: was going to run the county as long as — they were running it.”’ —- ° r a a liaise CERRO TER ALOT ERO . we 7 a Siaws: Le , . ’ 4 lows The affidavits of Baker, to the petition attached, can- 2 not be reconciled one with the other. _ The matters al- ‘ leged in the first affidavit stand in defiance to the al- leged truth -of the allegations: ‘contained in the ‘second | affidavit. That portion of Baker’s affidavits that is in - question and answer form, reveals that his anSwers were ‘in reply to direct, leading; and “suggestive questions. pro- ae pounded to him, the form and structure of such questions being at Variance witir the'moest-elementary rules of trial procedure. Ht is respectfully submitted, therefore, that the affidavits of Baker are not competent and adequate : ~tegatevidence-of any—taets.- ie ae Fk. eile In an effort to corroborate statements made in these affidavits by Baker, there are attached to the Petitioner’s | application affidavits: of one Ed Mosley. (R. 16), A. 2 Mooney (R. 17), Ruby Crews (R. 18), Rudolph J. Dowling _ (RR. 19), H. Le Anderson and W. J. Sears, Jr, (R. 20): The affidavit of Kd Masley (R. -16) attempts to ‘cor: reborate the affidavits of\ the witness James : Baker in his -statement,,that Joe Peterson and’ not’ Clyde Hysler Was implicated in the attempted robbery and murder of Mr. and. Mrs. Stirtenct. This. affidavit states that Joe Peterson: told affiant about some. man who went to’ get a bunch of Fruit Growers Express checks cashed, and in effect it weanld be an easy matter to rob him. Nowhere in this aftiRerit is it shown that the man Joe Peterson had reference to:was- Mr. Surreney. “it is merely a gen- eral statement purporting. to have been made by Joe core to affiant in an endeavor to get affiant to-hold up sont® unk own man. me Pics MM actor gr TN, Dil ies aS gate gf Os Vie eee ‘There was.also submitted with petitioner’s application - + filed in. the. Sepryeme Court of Florida an affidavit of ene A. J. Mooney (R. 17), in which he states that one Rudolph Dowling told him, affiant, that that negro Baker. _ said for him, Peterson, to briny him. something; that he. Baker, was keeping his mouthy shut.. “This is evidently intended to imply that Bak was keeping his mouth shut about Peterson’s supposed connection with the’ at-. tempted robbery and murder of the Surreucys. Howey ery neither in this affidavit nor in the. affidavit of Rudolph Dowling (R. 19), does this poaitively appear to have been what “Baker had. in mind. .It will be recalled that Baker, ia his affidavit of April 7, 1941 (Ry 7, -statedthat he had liquor dealings with Joe Peterson, and ‘we sub- “ mit.that. it is” just as reasonable and probable to believe that Baker. meant ‘to convey io" Toe “Peterson tis inten tion.-to keep his mouth shut cone erning Peterson's | liquor, dealings. ‘There also appears in the affidavit of A. J. Mooney . (RR. 18), a statement purporting to have been made by Joe Peterson to the effect that he, Joe Peterson, was- ' |- , the cause of ‘tall of it.’ petitioner to mean that Joe Peterson stated that he -~was———- the cause of the death of Mr: and Mrs. Surrepey in cor- ak 9° No doubt this is construed by roboration of the statements made hy James Baker. tank Ruby Crews stated. in her affidavit (R. 18), that Joe Peterson had told her that he was responsible for the whole thing, speaking about the death of Mr. and Mrs, Surrency. -These stiteménts Were made to her, accord: ing to her affidavit, at different times between the death of the Surrencys, and Christmas 1939, Joe Peterson was a witness for the State of Fiorida at the trial of the petitioner, and according to his tes- timony, he went into. Jacksonville to a bank with Mr. ? Surrency. on the morning of the day that Surrency was killed” (617) and that he, about 9:30 or 0:45 that morh- ing, returnd to his home with Mr. and Mrs. Surrency | (627); that he remained At ‘his home -and -Mry aud Mrs. Surrency left (627-628); that shortly thereafter one Wiley Prescott came to his housé and said, ‘Come on you want ‘to see at bad looking sight’? (629), and that he, Peterson, then went down to the place where Mr. and Mrs. Sur- rencyv had beeu shot (631 -636). . . The statements purporting to have been made by Joe + Peterson to affiants A. dF. Mooney’ and Ruby © rews con- Ts eerning his sense ot. responsibility for the death. of, Mr. and Mrs. Surrency may mean any: one of a great num- ler of things. He might have meant that he could have traveled home a different, route from Jacksonville on that particular morning and Mr. and Mrs. Surreney would not have been killed, or he could have meant that had they made their visit to Jacksonville at a different hour ‘of the day they might not have met these two negroes, ——or_if they had gone to Mr. Surrency’s home on their yeture from Jacksonville before first going by Mr. Peter- .son's home they might not have met these two negroes. There is certainly no direct and positive contention in any of these affidavits sufficient to impeach the positive testimony of the witnesses who testified at the. trial of petitioner. ° The record does not réveal whetlier . or not the affianti - ‘Ed. Mosley, A. J. Mooney, Ruby Crews,. ad Rudolph J: Dowling ure close relatives of ‘petitioner, It. is. a]vo to , Be noted that neither of these atfiants offer sny reason 23 ‘or explanation for.their having remained silent during the passing of years and until after the death of Joe Peterson. Petitioner also submits an affidavit of. the Honorablé W. J. Sears, Jr:, and the Honorable vil. L. Anderson, the | attorneys who represented him at his trial (R. 20), whom the Supreme Court) of Florida saw fit to refer to (R. 32) in its‘ Order denyjng petitioner’s application, as -able, diligeat, and faithful counsel. These attorneys state in - - their affidavit, that they questioned the witnesses James _ Baker and Alvin Thler.at great length prior to petitioner’s trial. On this oceaSion the .attorney for James: Baker * and the attorney for Alvin Tyler were Baker and Tyler, in the presence—of-theit esent, and evs and . the attorneys for Clyde Hysler, denied that one was involved in the case other than the defendants’ named in “the indictment; they also.-denied that: any Statements _ previously made by them to law-enforcing: officers were made under duress or with any hope or. expectation of reward. There certainly was no occasion for Baker to withhold — the truth from his own attorney and if in truth he had been subjected to mistreatment, or extended any promise —or_hope, of reward, -he would have then and there made such facts known 'to his own counsel. It certainly -———| not in fact be contended that Baker was on that occasion under duress | or fear: There is nothing in the.affidavit made by the Honor- able W. J. Sears,dr.,.and the Honorable H. L. Ander- son to indicate that they did not believe and have every reason to believe. the testimony given ‘at the trial. by these witnesses. It must. be presumed that such able em ont hae a. counsel had conferred at length with their client as well ‘ : ° ‘ . = be d ‘as with these two witnesses... They, therefore, knew at the time of the trial whether the testimony of these two Witnesses was in accord With the explanation given by the petitioner, The testimony given by these two Wit nesses, therefore, does not appear to have been any sur- prise to petitioner, and it certainly cannot he said that such testimony is newly discovered. . One of the. grounds assigned by the Supreme Court A Florida as a basis for its Order denying .petitioner’s ap- plication was that the record ef the Judgment of Convie- tion of- the petitioner shows ample evidcaée to support his conviction without the’ aid of the testimony of the witness’ James Baker. Out of-an abundance of precaution the or Court = Florida sh epee — from aan found ae ev iene it in that” recor to suitain-pe— - titioner’s conviction, © | / ; Respondent -concedes that a conviction of a criminal of- fense which rests solely upon a confession she «a to have been extorted by officers of the State by brutality and violence is inconsistent with due process of law as re- quired by the Fourteenth ‘Amendment to the: Constitution of the T United Sates: — - Brown vs. “Mississippi, 297 U. S. 278, 80 ic ed, 682, And. that it is ‘also inconsistent with due ‘pices for a State .to contrive a conviction through the pretense of a trial which in truth is but used as a means of depriv- ing.a defendant of liberty through a, deliberate decep- tion of the Court and Jury by the presentation of tes- timony known to be perjured. Mooney vs. Holohan, 294, U. S. 103, 79 L. ed. 791, ‘ | j | =) but the due process of daw. clause: of the Fourteenth Amendment was never intended té depriv e Courts gen- erally of the power to hear «and determine issues of faet and in doing: so to dee ide whic heev idenc “eis true and. whieh evidence is false: United States vs. Throckmorton, 98 cine: 61, : 95 L. ed. 93 ; ; Sp rringstein vs. Sawders, 182 lowa. 658, 164 N. W. 622, L..R. A. 1918F, 1076; Ashell vs. State, 62 Kan, 209, 61 _P. 690; Beard Vs. State, 81 Ark. old, 99 S. W, 837: State ex rel., Davis Vs. Superior C't., 15 Wash. 339, Cab 46 72. 399: ‘ Howard Vs. State, 58 Ark. 239, We W.8; Mooney Vs. Holohan, 294 U. S.-103-115, 79 L. ed. 791. There is po question in’ this case—ot-a—confession—ex- torted: by officers of the State, and petitioner has fallen _ far short of meeting the requirements indicated by the - statement of this Court-in the case of ‘Mooney vs. Holohan, supra. es The testimony given at petitioner's trial by the wit- nesses other than James Baker fits