DOWNER v. DUNAWAY, 53 F.2d 586

BRYAN, Circuit Judge. This is an appeal from an order denying a petition for the writ of habeas corpus. It is here upon a certificate of the district judge that in his opinion probable cause was shown for its allowance. 28 USCA § 466. The petition was filed on June 13,1931, and the order appealed from was made on the same day, without the issuance of the writ or an order to show cause why it should not be granted.

The appeal is therefore to be disposed of upon the material averments of fact contained in the petition which in substance are these: Appellant Downer was in the custody of appellee Dunaway, as superintendent of the Georgia State Penitentiary, under sentence that he be electrocuted on June 15,1931, two days later. That sentence ' was imposed upon appellant by the superior court of Elbert county, Ga., upon a verdict that found him guilty of the crime of rape. On May 17, 1931, so it is supposed, that crime was committed upon a white woman near the city or town of Elberton in Elbert county. Appellant is a negro man.

On the 18th four negroes other than appellant were arrested and held in jail as suspects, and on that day a mob of from 1,000 to 1,500 people surrounded the jail. Early on the 19th the mob had become so threatening that the officers placed those negroes in automobiles and rushed them away -to Athens to prevent them from being lynched. The mob became so enraged at this action that it pursued the officers and fired a number of shots into the automobiles carrying them and their prisoners. On the 19th appellant and another negro named MeCalla were also arrested and placed in jail at.Elberton.

A mob again gathered at the jail, overrunning the square in front of it and the courthouse, forced its way into the sheriff’s quarters on the ground floor and up the stairs to the floor on which the jail was located, and attempted to break down the door leading into the cell where MeCalla and appellant were imprisoned. By that time the Governor had ordered out .the local National Guard troops, and they immediately gathered at the jail and began attempting to dispel the mob.

As soon as it became dark the mob increased to not less than 1,500 people, constantly threatened to break into the jail and lynch appellant and MeCalla, and members of it did actually break into the sheriff’s quarters and force their way up the stairs leading to the jail, where they were stopped by the firing of a machine gun. One member of the mob was injured and threats were made against the lives of the National Guardsmen who were manning the machine gun. For more than six hours the mob stormed and threatened, fired shots into the jail, smashed windows, threw dynamite, and threatened to blow up the jail.

The arrival of more troops made it possible for appellant and MeCalla, disguised in National Guard uniforms, to be secretly placed in automobiles and taken to the Fulton county jail in Atlanta. On the 25th a special term of court was convened solely for the purpose of indicting and of trying the person alleged in the indictment to be guilty of the crime for which appellant was being held. A grand jury was immediately organized and on that day found an indictment against appellant for the rape. On the 26th he was tried, convicted as charged in the indictment, and sentenced to death.

The trial began at 10 o’clock in the morning; the verdict was rendered at 10 o’clock that night, after the jury had been out about five minutes. The court at once pronounced sentence, and appellant was immediately taken charge of by troops and returned to the jail in Atlanta. Appellant had no funds with which to employ counsel, and first met counsel appointed by the court about an hour before the trial. He had no opportunity after the trial to consult with his counsel before the adjournment of court, which occurred on the 27th at noon.

No motion was made for a continuance, or change of venue, although during the trial a large and unruly crowd of people congregated in the courthouse square. No motion for a new trial was made by appellant’s counsel before adjournment or afterward. During the trial two hundred officers and men of the National Guard attempted to keep order. If it had not been for their presence in and about the courtroom, it would have been impossible to hold the trial, and appellant would have been lynched.

If he had been acquitted he would not have been permitted by the mob to leave the courtroom without the protection of the troops. The same spirit of mob violence obtained from the date of the commission of the crime until after the trial. During that time a number of negroes had been beaten without provocation by white men. Counsel was prevented from moving for a continuance, for a change of venue, or for a new trial by the fear of mob violence. Finally, the petition alleges that appellant was innocent of the crime of which he was convicted.

The leading cases in the Supreme Court on the question whether there is due process of law in the trial of a criminal ease in the presence of or under the influence of actual or threatened mob violence are Frank v. Mangum, 237 U. S. 309, 35 S. Ct. 582, 586, 59 L. Ed. 969, and Moore v. Dempsey, 261 U. S. 86, 43 S. Ct. 265, 266, 67 L.

Ed. 543, In the first of these cases it is said that “a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, is ‘due process’ in the constitutional sense.” And again: “We, of course, agree that if a trial is in fact dominated by a mob, so- that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of that term.

And if the state, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the state deprives the accused of his life or liberty without due process of law.” And in Moore v.

Dempsey, supra, it is said: “But if the case is that the whole proceeding is a mask — that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw mr other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.” In Dunn v.

Lyons, 23 F.(2d) 14, .15, this court, after considering the two cases above cited, held “that a writ of habeas corpus will not lie where the state supplies and its courts make available process adequate to' correct errors committed during the trial of a ease.” In Ashe v. United States, 270 U. S. 424, 46 S. Ct. 333, 334, 70 L.

Ed. 662, it was held that the regular administration of the criminal law of a state can only be attacked collaterally in habeas corpus proceedings in “extraordinary eases where there is only the form of a court under the domination of a mob.” The petition in this case follows closely the petition in the Moore v. Dempsey Case, and makes an equally good showing for the issuance of the writ of habeas corpus.

While there can he no doubt that the state of Georgia provides ample means for correcting the errors of a trial court, according to the petition the corrective process was not made available to appellant by the state trial court. Counsel who represented appellant may have construed their appointment as covering only the actual trial, such as impaneling the jury, examining and cross-examining the witnesses, and making arguments in the case; and not as including the making of motions for continuance, change of venue, and a now trial.

If so, the construction they placed upon their appointment is too narrow to he countenanced, and cannot be attributed to appellant who had no choice in the selection of his counsel. It goes without saying that an accused who is unable by reason of poverty to employ counsel is entitled to be defended. in all his rights as fully and to the same extent as is an accused who is able to employ his own counsel to represent him.

The trial judge is given authority by law to change the venue of the trial of a criminal case of his own motion and without petition whenever in his judgment the accused is in danger of being lynched or violently dealt with in the county where the crime was committed. Georgia Penal Code-, § 964.

Under the circumstances disclosed it was the duty of counsel to seek to have the case continued, or the venue changed, or the conviction set aside; and it was equally the duty of the trial court to refuse to put the accused to trial in the presence of a mob whose violence against him was prevented only by the attendance of troops. A fair opportunity should have been afforded for the presentation of a motion for a new trial before adjournment of the term. A trial conducted as this one is alleged to have been cannot be other than void.

But it is argued in behalf of appellee that appellant had not exhausted his remedy in the state courts, because it is said the way was open both before the filing of his petition and since to file an extraordinary motion for a new trial in the trial court, and upon denial of it to appeal to the Supreme Court of Georgia.

We are of opinion that appellant’s rights must be determined as of the date of his petition, as in view of the fact that he would have been executed two days later he could not have applied to the trial court at a regular term, because none was to be held until after the date set for his execution, Georgia Laws 1929, page 1544, and he could not have based an appeal upon the incorrectness of the verdict in the absence of a motion for a new trial. Holsey v. Porter, 105 Ga. 837, 31 S. E. 784.

It is provided by statute that all applications for a new trial, except in extraordinary cases, must be made during the term at which the trial was had. Georgia Penal. Code,-§ 1090.

The extraordinary motions for a new trial provided for by this statute are not defined by it, but the Supreme Court of Georgia has held them to- be “such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder, and it afterwards turns out that the man he was charged with having killed is still alive, or where a man has been convicted on the testimony of a witness who is afterwards found guilty of perjury in giving that testimony, or from some providential cause, and eases of like character.” Cox v. Hillyer, 65 Ga. 57. To the same effect are Harris v.

Roan, 119 Ga. 379, 46 S. E. 433; Wheeler v. State, 149 Ga. 473, 100 S. E. 568. An extraordinary motion for a new trial cannot be made to take the place of an ordinary motion therefor, or to excuse the lack of due diligence in applying for a new trial during the term at which the trial was held. Cox v. Hillyer, supra. However, we think that the case presented by petition is so unusual as that the conviction could properly be reviewed upon such extraordinary motion. But even that kind .of motion cannot be entertained by the trial court in vacation; it must be presented during a term of court. Brinkley v.

Buchanan, 55 Ga. 342; Ferrill v. Marks, 76 Ga. 21; Blalock v. Waggoner, 82 Ga. 122, 8 S. E. 48; Collier v. State, 115 Ga. 17, 41 S. E. 261. The earlier case of Jackson v. Clark, 52 Ga. 53, if it can be construed as permitting an extraordinary motion in vacation, must be considered as having been overruled by the later eases above cited. In Fambles v. State, 97 Ga. 625, 25 S. E. 365, the motion relied on as an extraordinary one was presented at a regular term of court.

But it is argued that appellant failed to exhaust his remedies in the state courts, because it is said that he could have made application to the trial court to call a special term for the purpose of considering a motion for new trial to be presented in term time. In support of this argument reliance is had on

section 796 of the Georgia Penal Code, which provides for the calling by trial judges of adjourned and special terms of court. Such judges are “authorized to hold special terms of said courts for the trial of criminals, or for the disposition of civil business, either or both, in any county of their .circuits, at discretion,” etc. It doubtless is. true that usually the discretion conferred upon trial courts must be reasonably and not arbitrarily exereised. But we think that the authority here conferred is to call or refuse to call special terms of court at the will or pleasure of the trial judge.

What evidently was intended was to allow him to hold special terms whenever in his judgment they ought to be held.' The language used affords no basis for the contention that the trial judge’s action in refusing to call a special term could be made the basis of complaint in that or in any other court; and so appellant would have had no right to assign error-upon the refusal of the trial court to grant his application for a special term.

It cannot be said that one has a legal remedy where the relief sought may be granted or withheld at will: Upon the showing made by the petition, appellant was not afforded an opportunity to have the judgment of conviction against him set aside either before or after - the adjournment of the special term of court; and he therefore became entitled to resort to-the remedy afforded him by the writ of habeas corpus in the federal district court, in order- that he might be heard to question the-validity of the sentence that was imposed upon him.

We conclude that the writ applied for-should have been issued, and that a hearing should promptly be had to determine whether the allegations of the petition are true or false. If those allegations are true, the sentence imposed upon appellant should be held for naught; if they are false, of course the~ writ should be discharged. The order appealed from is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.