American decisions

Media

Part of The Lawyers Journal

Title: American decisions
Language: English
Year: 1952
Subject: Judgments (Law); Courts.; United States -- Law and legislation.
Rights
Fulltext: American Deelslou MORRIS LELAND, Appellant, STATE OF OREGON SUMMARY OF Dl!CISION Oregon criminal law provides that "-bid properuily" lo commit a crime is no defense. It ako casts upon a defendant the burden of proving his deferr.e of insanity "beyond a reason· able doubt." At defendant's trial fOr murder in the first degree, the court inslJucted the jury in accordance with these stalutory rui.., bat also charged that the state had the burden of provin• ~d a reasonable doubt every element of the crime, including premeditatio;ll, deliberatioq, mal~. and intent. Defendant's cmvic:tion was affamed by the Oregon Supreme Court. He ratsed due ~ objections. In an opinion by Clark, J., seven members of the·United Sta,.. Supreme Court held that due process w.. not violated eilher by the state's casting upon the defendant the burden of proving insanity "beyond a re.,onable doubt" or by ita choooins "the right and wrong" ... t rather than the "irresistible impulse" ttst of insanity. Frankfurter and Black, JJ., disiented on the ground that due·proceta wu violated by the state's requiring the defendant lo prove his insanity "beyond a reuonable doubt." HEADNOTES Con•tit11tional Law-du• proce.s-burden of proof •• to acouaed'a in-. .. nit,y. , 1. A state statute. which casts upon a defendant, Including one charged with murdel.' In the first degree, the burden of proving hta defense of Insanity '"beyond a renaonable doubt" does not violate due ll&""oceU, where, unde1• olhe1· statutory requirements and the t1·lal court's b:structl1»na to the Ju1·y In acco1·dance therewith, the state has the burden of provlnc every element of the crime charsed beyond a reasonable doubt, Including', In the case of first degree murder, premeditation, dellberatlon, malice, and Intent. Constitutional Law-clue proo .. a-criminal la-prmotice adopted by many states. I. The fact that In the admlnlat1·at1on of crlmlnal justice a pracUce la followed by a large number of statea Is not conclualveir.. a decision as to whether that practice accords with due proceBB, l•ut It Is plalnly worth considering' In determining whethei· the practice offena& some principle of 'justice so 1'0~ted In the traditions end consc.lence of the nation aa to be ranked o.a fundamental. COnatltutional Law-clue proce........oriminal prooe~ure. 8. The criminal procedure of a state does not violate the Fourtfenth Amendment because another method may seem fall•er er wiser or· give a surer pl'Omlee or protection to a defendant, Appaal and Error; Constitutional Law-clue prooeu-dafaronce to Judgment of state court. 4. The Judie.lat judgment In applying the due process clause must 1r.ove within the limits ot accepted notions of justice and Is not to be baaed upon the Idiosyncrasies of merely personal Judgment. An Important aafecuard qalnst such merely Individual Judgment Is an alert deferen\le to the judgment or the 15tate court under review. Trlal-lnatructiona aa to burden of proof-aoouHd'a insanity, &:. Instl'uctlOlls cbarglng·the jucy at a trial In a: state cou1·t for n.urder In tbe fir.at cklll'ee tba.t the st.ate ha& the bw-den of proof of guilt, and of all the necessary •1emenis of cunt and that U1c defendant a!iould be found not culliY. If the jury found hla mentai condition to 1'e so diseased that he could formulate no plan, design, or Intent to kill In cool blood, coupled with Instructions, given In accordance with the perUnent statute, that the Jurors were to conalder aePU&tely the l11sue of lecal sanity per se and tho.t on that Issue the defendant had the burden of pnvlq hla lnsanltY beyond, a reasonable doubt, are not. subject to the obJecUon that they might have confused the jury as to the dlatfnctlon between the state's burden of provlllg' premeditation o.nd ·the other elemeiita or the charge on one hand and defendant'• ~urden of provlq Insanity on tile other. Constltutlonal Law-clue proc .. a-"'morbid propensity" to commit orime. &. Duo process la not violated by a state atatute provllllns that a "morbid propensity to commit prohibited acte, exlstlns In the mind r.f & person, who la not shown to have been Incapable or Jr.nowJng the wrongfulneBB of such acts, forms no defense to a prosecution therefor." Ccnlltitutional L•w-due procaa.....,.;cUMd's in .. nity-''right and wrong" .tfft, 7. Due process does not ·require a sto.te to eliminate tJw. "rlsht and wronc" test of Insanity an11 to adopt the "lrre.elstlble bnpulae" U11t. Coftatitutlonal L"w-clu9 procn~efenclant'e oonfeaalon-tivailability to defense oounHI befora trial. 8. A trtal court's refusal to require the district attorney to make ct.fendant'a contusion or crime avaUable to 11la counael before trial 111 not contrary to due proceaa, where the conte1181on waS produced In OC!urt five days befOl'e defendant rested hla case, and, In addition, the trial judge offered further time both for defense counsel and upert witnesses to study the confession; and this Is partlcularly ao where r.o aulgnment of error was made on that acore In defendant's motton for a nsw trial. POINTS FROM SEPARATE OPINION Conetitutional \Law-clue procna-tovernment'a burden of proof In orlmlnal case. I. The covernment'e duty to establish a defendant's sullt beyond n reasonable doubt la a requirement of due proceaa In the proeedural cnntent of the term. [l'er Frankfurter.and Black,.J'J.l Conat:ftutlonal Law-dua proc .. .....tnaanity of accuHd. 10. Without vlolat.lns due proceu, a state maJ' require that the <1efense of "Jnaanlty" be apeclally pleaded, or that be on wboSd bellalf tht- claJ.m or Insanity Is made should have the burden of abowlq e11oul'h to overcome the assumption and presumption that normally a man knows what he Is about and Is therefore responsible for wh&t he does, that the lasue be separately tried, 01• that a standJng dlalbtereeted expert agency advise cou1·t and ju1•y, f Per Franktu1·ter and B .... , JJ.j [No. 176.] Argued January 29, 1952. Decided June 9, 1952. Appeal by defendant from a judgment of the Supreme Court of Oregon affirming a conviction of murder in the Cireuit Court of Multnomah County. Affinned. Thomu H. Ryan, of Portland, Oregon, argued the ca,,.. for appellant. J. Rayinond c:arskadon and Charles Eugene Raymond,, beth of Portland, Oregon, argued the cauae· for appellec. Mr. Justice Clark delivered the opinion of the Court. APPellaat wu cbi.tsed with inurdor in. il(o fini' degrt;e. He rleaded not guilty and gaV. nOlice of his iritentian .{O prove ino&iiity: Upon ~ in the Circuit Court iii Multnomah County, Oregon, !te 628 THE LAWYERS JOURNAL December 31, 1952 waa found guilty by a jury. In accordanCe with the jury .. a de.. c!rion not to recommend life imprisonment, appellant ~ived a sentence of death. The Supreme Court of Oregon affirmed .. 190 Oi 598, 227 P2d 785. The case is here on appeal. 28 USC § 1257 (2). Oregon statutes required appellant to prcve his inaanity be .. yonr;I a reasonable doubt and made ''a morbid propensity"' J!O defense.1 The principal questions in this appeal are raised. bv appellant's contentions that these statute deprive him of hi'a life and liberty without due process of law as guara·nteed by th~ Fourteenth Amendment. The facts .of the. crime were revealed by appellant's con .. ft uions. as cwroborated by other evidence. He killed a fifteen.year old girl by striking her over the head '.ieveral times with a steel bar and stabbing her with a hunting knife. Upon being arrested five days later for the theft of an automobile, he aske4 tc talk with a homicide officer, voluntarily confessed the murder, arid directed the pclice to the scene of the crime, where he point~ out the location of the body. On the same day. he signed a full ccnfes\lion and. at his own request, made another in his own handv..1iting. After his indictment, counsel were appointed to represcQt him. They have done so with diligence in carrying his ~se through three courts. One of the Orego? statutes in question provides: "'When the commi'.ision of . the· act charged as a crime is proven. an~ the defeme sOught t~ be established is the insanity of the defendant, the same must be proven beyond a reasonable doubt ..• "2 Appellant urges that this statute in effect requires a defendant pleading insanity to eitablish his innocence Headno!e I by dispro¥ing beyond a reasonable doubt elements of the crime oecusary to verdict gf guilty, and that the 'statute is therefore violative of that due process of law 1¢CUrcd by the- Fourteenth Amendment. To determine the merit of this challen1e. the sta_tute must be viewed in its relation to ether relevant Pregon law and in its place in the trial of this case. In conformity with the applicable state law, 3 the trial judge ir.•tructed the jury that, although appellant was charged with n1urder in the lint degree, they might determine that J.e had committed a 10ser crime included. in that charged. They were further instructed that his plea of not guilty put in ilsue every material and neceasuy element of the leoser degreea of homicide, as well as of the offense cha~ in the indictment. The jury could have returned any of five Verdicra:°' (I) guilty of murder -in the first degree, if they found beyond a rea!onable doubt that appellant did the killini purpotely and with deliberate and premeditated malice; (2) 111ilty of murder in tJie !econd d-...gree. if they found beyond a reasonable doubi that appellant did the killing purposely and maliciOU!ly, but withoUt deliberation and premeditation; (3) •uilty cf manslaughter, if they found beyond a reasonable doubi that appellant did the killing witthout malice or deliberation, but upon a sudden heat of passion catt.aed by a prbvoeation apparently su~ficient to make the passion irresistible; (4) not guilty, if, alter a careful c:Oruideration of all the evidence, there r~mained in their mindi a reasonable doubt as to the exi:.Jtence oi •VY of the nec;essary elements of each degree of homicide; and (5) not guilty by reason of in .. nity, if they found beyond a reasonable doubt that appellant was insane at the time of th~ offen!e charged. A finding of in"Aanity would have freed apt Or Comp Lnu-s, 1940, 88 26-929. 23-122. 2 Id, 8 28-9t9. a Id, SS 21-947, 28-Ha. 4 Six poSBlble verdl~ts, were listed In the. Instructions, _cul!ty of mUrder In the first degree being divided Into two ver8.lcts: with, and without, recommendation of life lmprlaonme'nt as the penalty. SJnce the jury In this case did not recommGDd that punishment, tho death sentence was automa&lcal13- Invoked under Oregon l&w. Id, 8 21 <tJ 1. American Decisions pe)bmt frbm.teiponiibllky for aay·of the pcuible olfenm. The •-erdict which the· jury delermined-giiilty of lint degree· murder -required. the qreemeht Of all twelve· jurOrs;. a .verdict of not iUiky by reaeon of insanity would have require"d the coDcUrrence of only tea members ef the panel. s • · · It ~' apparent that .the- jury might have found appellant tQ have been mentall,. in&apable .of the·prem'editatien ·and deliberation reqQired to support a fint clegr.ee murdtr verdict or ·of the intent ~eceuary to find him guilty of either first ·or second. degree muz:der .. and~ not·have found. him to have been lega.JIV-injane. Although a plea of insanity was .made, the· pl'Olecirtion: W'ai ~ qu~ to pt:O\le. beyond a. reasonable doubt every element of the oime. charged, including, in the case of first degree murder, premeditation, delib!!fation. malice and intent.6 n.e trial coqrt l"t'peatedly emphaSiz~d lh;is reqU.irem~t in ih ch~r.ge to,.the.. jµry.? Moreover, the judge directed the jury as follows: · · ' ••1 instruct you that the ~i~ce adduced during· thii triai to prove defendant's insanity shall be con$idered and weigbed .. &j> you, with all other evidence, whether or not you ·find defendant iti.&ane, in regard to the ability ·of the defendant. t9' ·pretnech"?ate, form a purpc;tAe. to deliberate, act wilfo:lly; and act maiicioUslv~ and if you find the defendant lacking in such ability;the 'dolehd~nt cannot have committed the critne ·of murder in ·the first ·deRfee. ""[ instruct you that should you find the defendant91 mental conditioli to be so affected or diseased to the end· that "the der fendant coU}d formulate no plan, desigri, ·or i.nt"ent to k:ill iP .ci:i01 blood, the defendant has rio.t c'o!Dlilitt~ the crime ··of miii"dei JD the fint degree. "1 · Thne and other instructions, and the charge as a whole~ make it dear that the burden of proof of guilt, and of all "the ntceHary element.I .of guilt, w~ .placed squarely upon thC State. A. the jury, was told, this bUl'<len did net shift. but mt.d upon the State throughout t~e trial, jud as. .acccrding to the in~ructiom appellant was presumed to be innocent untjl the. jury witl convinced beyond a i:eason~ble do1:1bt ~hat ~e w~ e~i~ty.11 The jurors were to consider separately: the iss\J.e cf legal ·sanity Pe.f se-an issue ~t ap~rt from the crime charged, to be inq-oPiJce,:l b)· a special Plea and decided by a epecial .verdict.10 . OP ~iS ·Wue appe_llant had the burden of proof under the stat~te in ·question ~ere. · · 5 .The ngreem1mt Of teri Jll1~rn•s .\\"o\•ld al110 h:we hl'<"n ~llfn<"l('Jlf fol" a verdlct of not l!;"hllty. a "\"ei·dlct" of guilt)' or i:eC'nn<l <1E"g1•ee n;m'de-r, 01 a verdict· or guilty of manslaughter, R 333-3U. 8 Id, 88 23-401, 23-U4. 26-933; of Stnte '"· IJntl"h<"k. 121 01• 141, :!53 p 3S7. 264 p 806 (1927). . 7 R 321, 123, 324. HO. 331, 32t. 8 R 330. Agnln: "'I Instruct you that te constitute: murd~· in the rh~t 'legree. it h• necessary that the State prove beyoml n r1>1u1onable doubt, nnd to you1· moral ce1·talnty,. that i110 'lefendant·~ ,1e~bm 01• 11lan to ti1ke 111<" was formed and mn~ured, In cool blood nnd not hiu•tlly Ut··"I"• the occasion. . "'I Instruct you that In determining whether· 01· not thl!' dl!'fcrdant acted purposely and with. p1•eme1tlL11ted and dellberatl!'c1 mnlll"C. tt 111: your duty to. take Into consideration defendant's mental cotldttion and all factors relatlnc thereto, and that even though you may r.ot find him leplly lnaa.ne. If, In fact, bis mentality was t1n1mlred. that evidence benra upon theae factors. and ·It Is your duty to com•l,ler thl~ evidence along with all the other evidence In the case:· n 332. 9 R 321, 324. . 10 Or Comp Laws, 1940, 8 26-846 (l-equlrlng notice oC pu1·pose to show insanity as defense); id, R 28-966 (providing ·for venllct of not guilty by reason of Insanity and consequent commitment to asylum by Judge). After defining legal Insanity. the trial court Jn~t1·ucted the Jury: '"In this case, .evidence Ima been Introduced 1•(.1ntlng to the 1nental capacity and condition or the derendant . , .. ai the .time (tba girl) is alleged to have been kllled. and if you are satisfied bt")-"ond a reasonable doubt that uie ~efendant kllled hel' In• the manner alleged In the lndlct~ent, or within the lesser degrees lncludea therein. then )-"OU are to consider the meqtaJ. capQ!:ltr of tile df!fl'ndant nt rhe time the homlcl,le Is alleged to have been committed." R 3!? (em11lmsis supplied)., December 31, 1952 THE LAWYERS JOURNAL 629 By this atatute, oriainally enacted in 1864, 11 · Oregon adopted the prevailing clactrine of the time--diat, lince most men are sane, a defendalit ·must prove his insanity to avoid. respomibili!¥ for bio ac~. That was the rule announced in 1843 in the leading English decition in M'Naghten's Cu., "[T]he jurqn Olllht to be told in all cases that every man is to be - d to be ,ane, and to'- a sufficient degree of reaann to be respoaaible far bio crimes, until the conorary be proVed to their oatisfaction: and ••• to eatablish a defence on the 8f0Ulld of insanity,. it mWt be clearly proved that, at the time of the committing of the act, the party accused .was laboring under. such a defect of reunn, &.... diseaae of ·the mind, as not to know the nature and quality of the act he was doing •.. "11 Tbio remains the English view today. 13 In mdlt of the nineteenth-century American cues, also, the deleildant was required to "de.arlv" JU'OYO insanity,14 an4 that was ·probably the rule followed· in moat states in I 89S, 15 when Davi'I ·v. United States l!'U ·decided. In that cue this Court, speaking through Mr. Jllllice Harlan, announced the. rule· for fedetal lrisecutions to be that an accuoed 1• "entitled IC! an acquittal of the specific crime charged if upon all the evidence there i1 reasonable doubt whether he was capable in law of. committing. crime. ••16 Jn reaching that condusion, the Coun oboerved: •'The views we have expressed are 1upported by many adjudications that are entitled to hiJh. respect. If 'ouch were not the fact, we might. have fdubliged to accept the general doctrine announced in oome of the above caoe1' for it is deoiralde thpt there be uniformity ·of rule in the ~dmini1tralion of the . aiminal law in ·government.· whooe Constitutions equally recognize the fundamental principlo that are deemed essential for the protection of life and liberty:"" · · The decision obviously utaldiihes no constitutional doctrine, but only the rule to J,e followed in federal court.. A. ~ich, the rule is not in question here. · Today, Oregon is the only 'date that requires the accused, on a plea of insanity, to establish that defense. beyond a reasona~e doubt. Some twenty states, howe!er, place the burden on mo accused to eatablish his illNnity by a preponderance of the evidell!" or 101De similar measure of penuuion.18 While theie is an evident distinction between these two rul"' as to the quantum of proof required, we 1ee no practical difference of such magnitude as to be aipifjcant in detenninin1 the coaatitutional question we face here. 'Oregon merdy requires a heavier burden of proof. In eac;h ir.stance, in order to est.ablilh· imanity as a complete defene to n Deally's Gen. Laws Or 1845-1864, Code or Crim Proc. S 204. 11 10 C1ark &: F ZGO, 110, a Ens Reprint 718 (HL, lBfl). 18 Stephen, Dlpgt of the Crlmtnal· La.w (9th ed, Sturge, 1950). II: or Sodeman v. Hex (Enc) [1911] WN 110 {PC): see Woolmln·rton v. Director of Public Pl'OtlecuUons (Eng) [1915] AC 413, 4'1'5--HL 14 Welhofen, Insanity as a Defense Jn Criminal :C.w (1911), Hl-11&. "Clea1· proor• wna sometlmea Interpreted .to mean proof bP...-c.nd a reasonable doubt. e. g., State v •. De Rance, If La. Ann 118, 4" Am Rep 4!6. (181!), and· aomeUmes to mean proof b)' a preponderanee of the e\'ldenee, e.;-;, Hurst v. stO:te, 40 Tex Crim 878 378, 183, iO SW 719 (1899). ~= :0 ~=·::,'u~.r~r;t~a!dE:~~e:: ::': ~;,~·~!sf~; •::;•:;~tema v United States, 186 US U3, 48 L ed 1116, H S Ct 81& (1901); '\t:a.theaon v. United Sta.tH, 227 us &40, 67 Led 811, aa s Ct 385 (1913). 17 Id, 160 US at 488. 40 L ed &08, 11 S Ct 161. 18 WelhoCen llata tweh·e states as requiring proof bY n preponderance of the evidence, rour as requiring proof "to tlle satlef11.ctlon of the Jury,'' two which combine theae formulae, one where by statute the defense must be "clearly proved to the reil.aonable sat111Cactlon of the Jury.'' one where It has been held that the jury must "believe" the defendant Insane, and one where the quantum of proo[ has not i>elE'n sta.ted by the court or la&t resort, but whleh appea.ris to follow the preponderance rule. Welhoten, Insanliy aa a Defense In Criminal Law (1988), 141-151", 1721-JOO. Twenty-two atatea,, Including Oregon, are mentlt>ned aa holding tha.t the accused· baa the burden of proving 11)sanlty, at leaiit by a preponderance of the evidence, In 9 Wlgmore, Evidence "cad •d 1140 and Supp lllil) S 1601. 11 Wethofen, Insanity aa a Defense In Criminal Law (1933), 181; D Wlgmore, Evidence Cid ed 1940) g 2&01. the charges preferred, the aecu1ed mull prove that insanity. The fact .that a practice is followed by a large Headnote 2 number of states is not ·conclusive in a dec:DioD as to whether that prac!ice accords with due proceu. but it is plainly worth . consiq.mng in determining whether the practice "offends some princi~le· at; jwtice so rooted in the t.-aditiom and conscience of our pe_gple as to be ranked as funda~ mental." Snyder v. M ... achusetto, 291 US 97, IOS, 78 Led 674, 677, 54 S Ct 330, 90 ALR S7S (1934). Nor is this a ca'ae in which it is sought to enforce against the states a right which we have held lo be secured to delendanta in federal couns by the Bill of Rights. In Davis v. United States (US) supra, we adopted a rule of procedure for the kderal court. which t. contrary to that of Oregon. But "[i]ts procecl.ure does not run foul of the Fourteenth Amendment because another method may seem to our thinkin11 Headnote 3 to be fairer or wist;r or to give a surer ~e of protection to the prisoner at the bar."" Svncler v. Matsachuoetts, supra (291 US at IOS, 78 L ~ 677, S4 S Ct 330, 90 ALR S7S). ·"The judicial judgment in Headnote 4 applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be ·biP'ed upon the idiosyncrasif's of a merelv personal judgment ... An impprtant safeguard against such merely indivi~ dual judgment is an alert deference to th_e judgment of the state court under revieW."" Mr ..... Justice F.rankfurter, c~ncurring in Malinski v. New York, 324 US 401, 417, 89 L ed 1029, I039, 6S S Ct 781 (194S). We are therefore reluctant to interfere with Oregon's determination of it. policy with respect to the burden of proof 9n the issue of sanity since we cannot say t~a.t p~licy violates generally accepted concepts of basic standards o. Justice. Nothing •aid in Tot v. United States, 319 US 463, 87 L ed 1519, 63 S Ct 1241 (1943), suggeats a different conduoion, That decisio,n struck down a specific presumption created by ccngressional enactment. This Court found that the fact thus. required to be prt!swned had no r.ational connection with the fact 1\·hich. when proven, set the presumption _in operation, and that the statute resulted in a presumption of guilt based only upon. proof of a fact neither criminal in itself nor . an elemen~ of the crime charged. We have seen that, here, Oregon required the prosecutor to prove beyond a reasonable doubt every element of the offense charged. Only on the irtsue of insanity was an absolute bar to the charge was the burden placed upon appellant. In all English-opeaking courts. the accuoed is obliged to iotroduce proof if he would overcome the.in:esumption of t.anity.19 It is contended that the instruction may have confuse-:1. the jury a'• to the distjncrion between the State's burden of proving premeditation and the other elements of Headnote 5 the charge and appellant's burden of proving ininsanity. We.think the charge to the jury was as dear as instructions to juries ordinarily are or reasonably ~n be, and, with rc9pect to the State's burden of proof upon all the elements of the crime. the charge was particularly emphatic. Juries have for centuries made.~ basic d~ ~ ~h and innocence and between cnm1nal respon11b1hty and legal m1anity upon the basis of the fact., as revealed by all the t.vidence, and the law. as explained by instructions detailing the legal dW-tinctiona, the placement and weight of the burden of P"?"'· the 1effect of presumptions, the meaning of intent, etc. We think that to condemn the operation of this system here would be to condemn the operation of t~is system here would be to .condemn the system generally. We are not prepared to do s0. Much we have said applies also to appellant's con~!on that due procO& is violated by the <?regon sta~ ~g that a ~'morbid propen11ty to commit proh~bited Headnote 6 acts, CKisting in the mind of a person. who II not ·· shown to have been incapable of knowing the 680 THE LAWYERS JOURNAL December 31, 1952 wron1fulne11 of such acts, forms no defense to a prdsecution therefor." That statute amounts to no more than a legislative adoption of the "right and wrong"' t~t of legal insanitJ• in preference to the "irreslstible impulse" test. 21 Knowledge of right and wrong is the exclusive test of crinW:!al responsibility in a 111ajority of American jurisdictions. 22 The science of psychiatry has made tremendous 'strides since that telt was laid down in M'Naghten's Case,2J but the progress of science has not "reached a point where its learning woulcJ compel us to Headnote 7 require the states to eliminate the right and wrong te'st from their criminal law.24 Moreover .• choice of a test of legal sanity involves not only scientific knowledge but. questions of basic policy as to the extent to which that knowledge ·should determine criminal reaponsibility. zs This whole pr>bl.em ha's evoked. wide disagreement among those who have studied it. In these circumstances it is clear that adoption of the ~i=~~. impulse test is not ••implicit in the concept of orderelf Appellant also contends that the trial court'• reluo..I to require the district attorney to make one of appelll\nt's (".Oft .. fessions available to his counsel before trial was c.gnti-ary to due proces!s. We think there is no substance in this argument. This conclusion i1 buttressed by the absence of any Hedtlnote 8 assignment of error on this ground in appellant's motion for a new trial. Compare Avery v. Alabama, 308 US #1, 452, 84 L ed 377, 382, 60 S Ct 321 (1940). While it may be the be11er practice for the P"""" cution thus to W:.ibit a confe'ssion. failure to do so in this caae in no way deni~ appellani a fair trial. The record shows that the confession was produced in court five days before appellant rested his case. There was ample time both for counsel and expert witn-. to study the confesoion. In addition the trial judge offered further time for that purpoae but ~ was refuoed, There is no indicati911 in the record that appellant was prejudiced by the inability. of his counsel to aCQuire earlier access to the confesai2n. . Affirmed. Mr. Justice Fran/r/urler, joined by Mr. Justice Black, d-,senting. However much conditions m:ay have improved. since- 190S. William H. [later Mr. Chief Justice) Taft exprelled his d11tur!?ing conviction "'that the administration of the criminal law in all the States of the \Inion (there may be one or two except-ions) is a disgrace to our civilization .. (Taft. ""The Administration cf, Criminal Law," 15 Yale LJ 1, 1_1), no informed person can be other than unhappy about the §eriOus defects of present-day American criminal justice. It is not unthinkable that failure to bring the guilty to book for a heinous crime which deeply stiro popular sentiment may lead the l•islature of a State, in one cJ those emotional storms which on occaskn sweep Cr\'t.I' 9111' people. ta enact that thereafter an indictment for murdtl", following attempted rape. should be presumptive proof of guilt and cast upon the defenda~t the burden of proving beyond a rea'sonable doubt that he did not do the killing. Can there be any 20 Or Comp Laws. lHO 8 23-122. 21 State v. Garver, lDO Or 291, 226 P!d 771 (1950); St11.te v. Wallace. 170 Or GO, 131 P?d 222 (1942); State v. Jiuslng, 60 Or Sl, 118 P 195 (1911). 28 Welhofen, Insanity ns a Defense In C1•Jmlnal Law '1933), 15, 64.-68.100-Hf. !3 10 Clark & Ii' 200, 8 Eng- Reprint 118 CHL. 1043). 24 Compare Flshe1• v. United States, 328 US •&3, 475, 476, 90 L eel 1382. 1389, 1390, 66 S Ct 1318, 166 ALR 1176 (1946). 25 See Holloway y. United States, 80 App DC 3, 148 F!d 66ii (1945): Glueck, Mental Disorder & the Criminal Law (1925); Hall, Mental Dlaease and Criminal Responslb111ty, 46 Col L Rev 677 ClHi): Keedy, Ir.sanity and Criminal Responsibility, 30 Harv L Rev 535, 72..! (1017). Z6 Palko v. Connecticut, 302 US 319, 325, 82 L ed ZSB. 292, SS B Ct U9 (1917). Arnerlcan Decision• doubt that such a statute would go beyond the freedom of the States, under the Due Process Clause of the Fourteenth Amendment, to fuhion their own penal codes and thOir own ~ for. enfOl'Qng the!"? Why is that so? Beca1tse from the time t~at the la'!!!' which we have inherited has emer«ed from dark and barbaric times, the conception of jusrice which has domin~ our criminal law has refused to put! an accused at the hazard o( punishment if he fail•· to remove every reaionable doubt of his innocence in the minds of juron. It is the duty of the Government to esablish bis guilt beyond a reasonable Headnote 9 doubt. This noti-'iuic: in our law and rightly one of the bout. of a free society-is a requirement and a safeguard of due proc:eu of law in the historic, procedural content 9f "due pn>ce11." Accordingly ii.ere can be no doubt, I repe_at, that a State cannot c;iat upon an ac:cused the duty of establlahing beyond a reasonable doubt that his was not the act which caused the death of another. But a muscular contr,ction tesulting in a homicide does not comtitute murder. Even though a person be the immediate o:cosion of another's death, he is not a cleocland to be forfeitoi like a thing in the ·medieval law. Behind a muscular confraC!ioli re<uhing in another's death there ~ be culpability to turn ~i cicle into murder. The telll by which such culpability Ql&Y be cleterminOd are varying and conflicting. One does not have to echo the scepticism uttered by Brian, C. J., in ·t1te fifteenth ~tury. th&I "the devil himself boweth not the mind of men" to appreciale hew vast a darkness still aivelopds mail's understanding of man's mind. Sanity and insanity aie concepts oi incertitude. They are given varving and coilflicti!ll content at the same time ancl from time to time by si>eci81i1te in the field. Naturally there hu always been conflict between the psychological views absor~ b) law and the contradictory viOWI! '!f. students of mental health a..- particular time. At this stage of scientific knowledlie it would bo indefensible to impooe upon the States, through the due procen o! law which they mu"st accord before deoriving a penon of life or liberty, one !eot rather than another for determining criminal culpability, and thereby to displace a State's own chnice of such a \ftt, no matter how backward it may be in the light of the best scientific canon1. Inevitably, the legal tells for cletennininl! the mental state on which criminal culpability 'is to be based are in strong conflict in our forty-eight States. But when a State has chooen ill theo,, for teoting culpability, it ii a deprivation of life without due proc:eu to send a man to hi> doom if ·he· cannot prove beyond a reasonable doubt that the physical evento of homicide did not conllitute murder because under the State's theory he wu incapable of acting culpably. This does not preclude State> from utilizing common sens< regarding merital irresponoibility for &cts reoukin• in bom~ hom taking for _@anted that most. men ~ 1ane and ~pon11b.lf! for their acts. That a man\-act 11 not h ... became he IS devoid of that mental state which begets culpabil~y. is so exceptional a situation that the law has a right to devile an exceptional procedure regarding it. Accordingly. States may provide various ways for dealing with thU exceptional 1ituation Headnote 10 by req'uiring. for· inll;ance, that the defense of _''insanity'' be apecially pleaded, or that he on whote behalf the claim of insanity is m11.de should have the bur<!en of showing enough to overcome the assumption and pre'aumptiOD that normally a man knows what he is about and is therefore respon11Dle for what he .doa. or that the iuue be separately tried. or that a 'standing disinterested expert agency adyjse court and juy. or that these and other devices be u_sed in com~nat!<m·. Th:: law• of the forty-eight Stales Pl':'""t t~ gre_aleot diveraity 10 ~ liwing the proeecution from· provmR affirinatively that a man u sane in the way it must prove affirmatively that the defenda~t ·;, the man who pulled the trigger or struck the blow. Such 1_. December 81, 1952 THE LAWYERS JOURNAL 631 American D.alalon• letion mak~ no inroad upon the basic principle that the State nuut.pro.e guat,.not th~ ·olel"'1Clont, in~; anil pm>e it to lhe oatiolaction of a' jury beyond a re.-able doubt. For soine unr~ded . .;;ason, Or-egon is the only •e id the lofty-eight St•te• that,ha:1 made ·inroa,jg.upon that prineip)e !>Y requiring the accused to pr<>Ve beyoncl a ......,.ble deul.t the absence of one of the easen!W elementJ .for ,the -commimon of murder, namely, culpabilily for .his DUtlCU!ar contraclioa. Lib evezy .. othet: State. Oregon pmuppq-oes that an insane penon cannot be made to pay with hia life fer a homicide,though for the poblic good he may of course be. put beyond doing furth!r hara Unlike evezy other Slate, however, Oregon says .that the ac:cu1ed person' must satisfy a jury beyonc! a reasonable doobt that, being incapable of committing murder, he has not committed murder. Such .has been the law of Or<gon since 1864. That year the .Code of Criminal !',ocedure -.lefined murder in the conven· tional way; but it also. provided: .. When the commission of the act ~arge~ as a. crim~ is proven, and the defence sought to be estaJ» .. liihed ,. the m1a111ty of the defendant, the same must .be proven. beyond a rea'sonab(e doubt ...... " Ceo Laws Or 1845-1864, pp. 441 et seq, Section& so2. 204. The !alter section. thtou•h Various revisions, is !:}le law of Oregon today and WU applied in th!!: ·conviction uncl~ review. What,wer tentative and intermediate stq:t5 .erx.perience makes permiffil/l.e for aidin• the. Slate in establialYnR the ultimate issues io a Pl'9ol<Clltion .for crime,. the State cllonot ,be relieved. on a fin•! sl;owdo.wD, from proving its:~ Te prove the ~ it m1;11t .'pfove each of the.1 iteuls which in combination constitute the Offense. And it mua make such proof beyood a - able doubt. This duty of the State .of •toblilhing every fact •i the equation which add& up to a -crime, -~d of e11ablishino it to the sotislactioo of a jury beyond ·a reasooable doubt is tlie c!ecisive differens,e belween aiminal cul~obility and civil liabilitv. The only. exception ii that very linlite!l d- of, -- variouolv ~;acti:~~ :=.~ ~':~ s:~: ~~"i'6 US 2'71. 88 L ed -46, 64 S Ct 134; Moriuette ¥, Uoited States. 342 US 246, ante, 180, 72 S Ct 240. Murder is not a malum piolu'bitum or a public tort or the object of resulatory legislation. To suggest that the legal odd'tty by Which Orqen im- upon th• accused the burden of proving beyond reasonable cloabt lhat he had the mind wi'th wruch to commit murder is a mEre dif. ference in the mea'lure ef proof, is to obliterate the -di1tihction betweeil civil and criminal law. It is suggested that the jury were charged not merely in confonnity with this requirement of Oregon law but also in 'Va .. rious general terms, as to the duty of t}te State to proye every element of lhe crime charged bel""'d a reasonable doubt, in· eluding In the ca,e of first degree murder, •.'premei:litation, deli .. her.ab.on, malic~ '-nd- intent." Be it so. Thp "11~ of the mat .. · ter is that the Oregon Supreme Court sustained the conviction on the ground that the Oregon statute "cut upon the defendant th• :~tt .. cl s:::.in:. t1:~~wf 6':"'5;, ~~'k7"~-;kt. To Sugge"1t, as is sugges;ted by this Court but not by th.; State court, that, although the jury wai compellecl to act upon this requirement, the statute does not offend the· Due Procr.ss Glause because the trial jud1e also indulged in a faRago of ~~n .. etalties to the jury ab~t '"prem:editation, c:leliberatiqn, ma)ice and inteyit," i's to exact gifts of subtlety that not even judges. let alone juries, noems. See International Harvester Co. v Kentucky, 214 OS '216, 224, 22S, S8 L ed 1284, 1288, 34 S Cl 8s3. ·u ihe Due Proco.. Clause 'has any nieaninR at all, it.d~es Doi P.e~.Ui~ li_f~ _to be·put·t~ 11qcti haz~fds. · . ,To deny this mode-of ~g with. ti;;, a"""" oHnsanity plean and with 11nedifyinr' 1peetades of atestimoay, ·is not to dep•ive 'Oregon •of the widest:-pdllible choice of mnediesfor cirCW!!,Ventiog &Uch. a~usea. The multiform leaislation prevailing in the ~t States evinces the great variety of the ar.uerimen .. tal methods open to them .for ~eating with the problems raised bv insanity defenses in prosecutions for murder. To repeat the streme reluctance with which I find a tons~i .. tutional burier. to aJ!Y lqisialion is ~ot to mout~ a thre~ar.e phrase. Especially u delerente due to the. policy of a Sta~e when it deals wit\! local crime, its repression al!_d punishment. There is a 111lf, however narrow, between deference to local leg .. islation and -complete disregard of the duty of judicial review which ha& falleo to this Court by virtue of the limilll placed i>v the Fourteenth Amendment upc;!n Siate action. This duty is not to be escaped, whatever I may think of investing ji.J.dges with the power which the enforcement of that Amendment involves. BROTHERHOOD OF RAILROAD TRAINMEN. an Unincorporated .AS'JOciation, et al., Petitioners, v. SIMON L. HOWARD, Sr., and St. Louis-San Francisco Railway Co. SUMMARY OF' DECISION To avoid a strike, a ·railroad entered into a collective labor COD.tract with a union, Coi;nptlled aclusively of white 1tainn1en, which provided .that train P'!rtero should no longer do any work as bragmen, and the effect of which wu to compel the railroad te abolish the position of "train porten," there!~ occupied bv Negroes doing all the work of br,akemen, and to lill their jobo with white men. The conb'acting union did not represent pOl'· ten, who were represented by an'!!her union of their own choosing. A Negro train porter who was iriven notice by the railroad brought a cl.., action in a federal slittrict court for a deeree enjoining ~ railroad from dlacontinuing the jobs k~own as "train porters" and' from hiring white brakemen to -replace the Negro pcrten. In an opjnion by Black, / .. six member> of the Court held that injuneti~ relief should be granted. toking the viow that a baqaining repfetentative who acts by the ·authority of the Rail· , way Labor Act has the duty to refrain from using its statutory bargaining power &0 u to abolioh the jolts of the colored workere, even thoqh they are in a separate claus for -rep~esentation pur·· pose• and a~ in fact, represented by another· union of their own choosing. Minion, /.. with the concurrence of Vinaon, Ch. /.. anJ Reed, /.. clj&sented on the oround.i that no applicable federal law prehibi~ed racial discrimination by private parties such as the railroad and the union, and that the case in~lved a dispute between employees of. a ca1rier as to whether the union was the ~_presentative of the train porters. a matter to be resolved by the Ne.tiooal Mediation Board, not by the courts. • HEADNOTE& Labor-bargaining reprnentative acting under Railway L•bor Act-duty tcnnrd colored employ••• in craft or cla.. not repr .. ented by It. 1. The Railway La.boa· Act Imposes on a. labor union acting by a.;.thorlty of the statute aa the exclusive bargaining agent of brakemen tbtt duty to refrain from. uaJng Ila bargaining power ao as o abolish tt.e. Jobe of colored porters and drive them fl"om the railroads, eve11 though these porters have ror man)" years been ta·ealed b)" the can•lei.•s and the union as a .separate ch1.se for I"epresentatlon pua·poaes and hr.ve In fact been represented by another u11lon of their own cbooaJng-; and auch duty Is violated by the negot111tl~n by such a union of a .cc:llectlve" labor contract the effect of whlcb la tb compel a i·atlroad tu abolish "the position of ""train porters'; theretofore occupied by Negroes and to fill theh· jobs with white brakemen. 6831 . 1THE LA WYERS JOURNAL December 31, 1952 Lilllllio~a ..... hUng ·rllpr'nehtatlft" 1lotltig' unftr :·Rlti'lway 'i!.abeifo·~A~ · ; il .. Nylng" oolli'N.. Wbfolcefs' "JDIM, ~ ' -. i: · 1 • L··'-ii-11~ R&11wil'y-i;.ab9r ACt Prob'1&1i:ilb61-iatn1hS e.Plita It ai:itbor1zff trom: ueiqg thel'(' · po81Ucin a.ftd power to deatroy · ciolori!d warke-n' Joba li._'order. to best~~}~e111'"on. white worker&. · · . · · .. Co~l".ft--fedffal Jurl•diction-unla"'!ful .uH"Pf power granted by feder11I !\'-tu~. ·. • t.v·· it'ederal courts. Can proteet · thue threatened b}r ·.an · nnla.wful uea .ot power·.81'ante4 "by & "federal act. · Labo~~~ri: ·t~ cou'~q for pr.~lion ~f rlghta of colo.;.-d railroad •"-Pio~•·... . . ''. ;·· . . •. ,.· . . .~4- ~o n:lstl~.f adft\IDllltt;atlv& remedy_pncludu reaqn,,to,c.oµ..rts for.· protection. of. ~.o10N!4, .i:a11ro&d' employeea against ObllteratloD. of their l'lcht~ .u.n,~1 the Ra.i.1!a:v ,,~b~.; ~~t bf-a barp.lnlnC' &Cent aetl~g b:1, th~ a.~t~orl~ of ~he a.ct,. Labiii'-adrhin111tr11tlve reniodioe under Railway Lebor Act, i. No adeciuat& adnilDtstrai:lye remed:r against obllte1·atlon of the rlchta of eolored '.ralll'O~ employees uniter the RallWay Labor Aci ty' a barpinlns re'presentatl\re actlnir by the authority of the act e8n be: afforded by the Niltlolial Railway AdJustment or Medlatlo'll B~. 111'"llere tbe dl8puie ~nvolvff' taclal disCrlmlnatlon Practiced agaln•t thetii ai'ld ·the va,ttdlty or "a eollecttve barP,tnlng contraet, not Its nieanlfli,r, and dollB not hlnce oi:i the proper ·claas'lftea.tlon. of· thue employees. . . . Labor-acbl onjoin.ble-ratial di11eriminatlon by. bargoinlng repriieen• tati- authorized by Railway Labor Act-effect .of Norri•· L• Guardi• Aot. . . 6. NotwltbataruHng the · reetrletlons lmPoed on lhe inJunetlve powers of federal district courts by·the ~Ol'l'la-La Guardia Ac!, sueh a cr.urt haa Jul'llldletlon and power to Issue necessary ·lnjunetlve relief aplnet ~ dlserlmln&.tlon practiced against eolored railroad em· pJoyeea by a bargalnlq repres.entatlve aetlnc by the authority of the Il.allway Labor Aet; even though triey belong to a elasa or craft represented by anotb9r union. Labor--clutln of '&•rg•lnlng r•P.NHntativeo acting under R•ilw•)' L•~or Act. 7. Bar~nlng agents who enjoy the- advantagea of the Railway Labor A.et'• provisions must ezecute their tr.ust without lawleoa In,.-aalon• of the right ot other workers. Labo~njuftct:ion againot i'aeial discrimination by bargaining Con•· titutlonal Law-clue p'roooe.....,.urclen of proof •• to ocouHd'e in· sanity, · 8. A railroad and a unton aotlnc aa bargain.Inc repreaentatlve by thE. •1:1thorlty or the Railway Labor Act should be pei·manently 1..o.nJolned from using a' colleetlve labor eontract or any other almllar barplnlng cl1otC.: for ouaUnc eolo1-ed·traln porter.a from their Jobs. In fall!hlonlng Jt:s decree the trial eciUrt Is free to" eonelder what provisions are nf·eeuit.ry to afford these employees run protect.Ion from future dlserimlnlitory practices· of tbe union, bearing In• mind, however, that disputed questions of reclaaalflea.tlon of the craft 'or "train porters" are CC!'mmltted by the Railway Labor Act tO the National Mediation Boll.rd. [No. 458.] Argued and .Qbmittei:f April 22, 1952. Decided June 9, 1952. On writ of Certiorari to the United States Court of .Appeols for the Eighth arcuit to review a iu.clsment reversing. in par~ a judgment of tho United States District Court for tho Ea.tern. District of Missouri which dissolved ap interlocutory injunction in a suit,brougbt by Negro porters. against fl railroad nd a labor union and ll:ay disminal of the cause to afford them an opportunity to exhaUst the administrative remedies of the Rail· "lay .Labor Act. Affirmed. Charles R. /rMlge, of Wuhington, D. C;, and Victor PackAineriU.n Dhl•iOftt =~~:~ffi!T~~:.;r;t:i.!1.:t:3 /r., and .~lvin .j, B...,mann; all of;-51. Louia1 MS>u;i, oubmi,..<I tho·. ca.use for responden~ St. Lo~u .F ~anciaco It. c;o. ' , ·:. ~=~!!:';;t:!.:~:=·~;~~,;~ prot~t Negro railroad employees from loa . of thoir jobs .under com~ of a .,.,g&;ning ·~nt Wh\Ch•. tO avpl( a .. ~ the railroad made with an exdUSJVelY white· man's umon. Res' policlent Simon · t!O..aid; a Fri!c9' tl'aiif empl<>yeO !cit ne.,lv forty fHn. ""'1ighi thia action on . behalf ·.of him~f and'."~ colored · employ<res similarly s~uated. · · · In, '""'m.;y the complaint aU•d: N~ empk,y.es ;~ &.\ Tetpondent c:omtitut.cc:I a. group Called ~·train, porter•" althouKI\ they ·actually •performed all the "duties of•. white "brakemen''i lhe Brotherhood of• Railroad Trainmen, bagaining representative of "brakemen" under the ·Railway Labor Ar.t,2 had for yean Used its influence. in an.·attempt to ~iminate: Nepo trainmen and get· their jobs for· white men who, ·dnlike colore•U:train· p-" "I'"'" or could be members of.the Br«herhood: 0n Maroh 7. 1-946, the Bro.lierhood of Railroad Trainmen, baigainiiig ·<epresentative tho colored ."train porters" and fill their.jobs with white - who, under the. a - t . would do less Work ·l!lit GI "'°"' pay. .The complaint «liarged. that the 8\-<>:her)iood'o "<liacrimina.torv action" violated the train porter's rights ll!lder the .Raj]way La,; bor Act and under the Labor Act and under the ·Cons!itution; that the agreement was void. because against public policy, pre, judicial to the . public inerest, and desiipied to deprive N...,, trainmen of. the rj_ght to earn a livelihood because of their, race O_r color. .The prayers were that the court adjudge and decree )bat the ~tract Wllf void and unenforceable for the rea'JOD stated; that the Railroad be "enjoined from m-i.tinuing the jobl known a• Train Por~" and 'from hiring white Brakemen to replace oi clioplace plaintiff and other Train Porters as planned in accordance wiJ:!a said agreement." The facts as found by the District. Court, affirmed with emphallis by the Court of Appeals, substantia!lv eitablish I\>~ truth of the complaint'• material allegations. .These f..,. show<ld that the Ne-ro train porters had for· a Rreat ·many yean served ·the Railroad with loyaky, integrity and efficiency; that "trai• porters" do all the work of brakemen:' that the. Government adminiatrator of railroads during World War I had dat.tified them a& brakemen and had required that they be paid just lik• white b,.a,kemen: that when the railroads went ~ to their owners; they rede.il'!ated these colored brakemen as "train Porters.• "left thci~ dutiei untouched," and forced _them to ~t wages far below thme of white "brakemen" who were Brotherhood memben: that for more than a qllarter of.a century the Brotherhood and other exclusivel:Y white rail unions had continually carried O?i. a progr,.m of ~ggressive hostility to emplovment of Newros for train, eiasin.~ and yard service: that the agreement of MIRb i. 1946, here under •)tack, provides that train porters shall no longer do any work .. generaJly recognized an b_rakeman's duties"; that while tl!is agreement c!ld not in express words compel diS:. charge of .. train oorten." the .economic unsouDdness of keepirw them after b"an'Jfer of their. '"brakemen .. functions made .com-l St. Louis-San F1·nncl.seo :Railway Company and Its aul>8J!!larl" St. Louis-San Francisco & Texas Railway Company. 2 44 Stat r.77, as amended, 41 Stat lllli, 41 use· 88 111 et .aeq. I In addltlc•n to doing all the work done by ordinary tirakelilen, train porters ha\'<' been requ.lred to 9weeP the eoaebeS and uslst passenpra to get on and off the trains. A• the Collrt of Appeal• nOted, "'l'hese al.ale-sweeping ·and pnaeenPr-aulstlng ta.aka. however, are almpl;,: minor and lnclde~ia1, occupylnc only, o.a the record, Sh'ows, appi-o:x_imn.t~ly five per cent. of a tral~ porter's time." 191 P'ld ~U,~ 444. December 81, 1952 THE LAWYERS JOURNAL 638 Americ•n Dacifion~ plete abolition of the "train porter" 8fOUP · inevitable; that lw'l doya alter "the Corrien, reluc:iant)y, and u a result of the strike tbreab" siped the agr!O'Dent, they notified train. porters that "Under thia _..t we will, eflec:tive April 1, 1946, discoblinue all tr8in porter positions." Acconlingly, rtlopondent Howard, and others, were penonally notified to tum in then switch keys, lantemo, markers and other brakemen's equipment, and ilotiCes of 'job vacancies were posted to be bid in by white brakemen only. The District Court held that the complaint raised quations which Congre'M by the Railway Labor Act had made •ubject to the exclusive jurisdiction of the National Mediaton Board lllid the National Railroad Adjustment Board. 72 Supp 695. The Court of Appeals reversed thia holding.• It held that the agreement, U con~ued and acted upon by the Railroad, . wa• an "attempted predatory appropriation" of the "train porters" jobs, and 'was to jhia exient illegal and unenforceable. h ther >fore ordered that the Raill'118d must keep the "train porters' as employees; it permitted the Railroad and the Btotherhood to treat the contract as valid on condition that the railroad would recognize the colored ''train ~orters" as members of the craft ,f "brakemen" and that the ~rotherhood would fairly represent them as such. 191 F2d 442. We aranted certiorari. 342 US 940, an:e, 372, 72 S. Ct SS I. . While different: in some respec:!s, the basic pattern of racial discrimination in tlds cue ie much the same as that we had tJ llOlllider in Steele v. Louisville & N. R. Co. 323. US 192, 89 L ed 173, 65 S. C: 226. In thia case, as was charged in the Steele Case, a Brotherhood acting as a bargaining agent under the Railway Loi>J>r Act has been hootile to Negro emplayees, h .. discriminated against them, and has forced the Railroad to make a contract which would help Brotherhood members take over the jobs of the colored "train porters." · • There is difference in the circums~ances of the two cues, however, which it ii contended requires us to deny the judicil'tl r<medy here that was accorded in the S:eele Case. That difference. is this: Steele was admittedly a locomotive fireman al· though not a member of the Brotherhood of Locomotive Firemen and Engine.men which under the Railway Labor Act was the exclusive bargaining representative of the entire craft of &ciemen. We held tha: the language of the Act impooed a duty on the craft bargaining representative to exercise the power conferred upon it in behalf of all :hoee for whom it acb, without hos· tile discrimination agaiDst any of them. Failure to exercise thil duty was held to give rise to a c;awe of action under the Ar::t. In this case, unlike the Steele Case, the colored ernplayees have for many yean been treated by the carriers and the Brotherhood as . a separate das& for seprt'Jentation purposes and have in fact been represented by ano~her union of their own choo~g. Since the Brotherhood has discriminated against 11train porters'" instead of minori:y members of ils own .. craft," it is argued that the Brotherhood owed no duty at all to refrain from Headnote I using it1 statutory barga_ining power so as to ~b.>lish the job'• of the colored porters and drive them from the railroads. We think this ara:ument is unsound and that the opinion" in the Steele Case points to a breach of statutory duty by this Brotherhood. As previousJ.w noted, the'..te train porters are threatened with Jou of their jobs because they are not white and for no other reason. The job they did hold under its old name would be abolif.hed by the agreement; their color alone would disqualify them for the old job under its new name. The end result of these transactions is not in doub!; for precisely the same reasons as itt 4 One part or tile District Cou1•t'H order was affirmed. The Coul't of Appeals held that the Dlfltrlct Court hac:1 p1·operly enjoined tlie Railroad from abolishing the position of "train porters" undel" the notices given, on the ground that these notices were lnsurftclent to meet the requirement. of S 2, Seventh, and 8 6 of the Railway Labor Act. The view we take makes It unneceSBary fiH' l!S to conslde1' this question. the St.eeJ., Case "discriminations l!osed on race alone are .,i,w..., ly irrelevant and invidious. Congraa plainlv did not underiak• to authorize the bargainiog _.,tative to make such discriminationa." St.ele •·Louisville & N; R. Co. .iu!>'a HeaJnote 2 (323 US at 203, 89 Led 183, 65 S Ct 22f!); Headnote 3 and cases there cited. Cf. Shelley v. KrH.trer, 334 US 7, 92 L etl 1161, 68 S Ct 836, 3 ALR 441. The Federal Act thw orohibits bargainin« agents i: authorizes from ysing their position and ppwer to demoy· colored workers' jobs in order to bestow them on white -ken. And courts can protect thooe threatened by such an unlawful use of power ·granted by a federal act. Here, a' in the Steele Case, colored workers niust look to a judicial reinedy to pr<Vent the sacrifice or obliteration of their righ:S under the Act. For ·nc;: adequate· administrative reme.dy can be afforded by the National RailWay AdjulllHeaJnoi~ 4 men1 or Mediation Boatct.· The -daims hrre can· Hemlnote S not be resolved by intei:pretation of a bargaining agreement so u to give jurisdiction. to the Adjustment Board under our holding in Slocum v. Delaware, L. & W. R. Co. 339 US 239, 94 Led 'j9S, 70 S Ct sn This dispute, involv"' the validity of :he contract, .not its meaning Nor does the di11P11te hinge . on the proper crah classification .of the por:en so as to call for settlement by the 'National Mediation Board under our holding in Switchmen"s Union of N. A. v~ National Mediation Board, 320 US 297, 88 Led 61, 64 s· Ct 95. For the coDtentioil here wi:h which we_ 11\!ree is that the recial cilscrimination practiced is unla~I. whether colored employees are dauified as Htrain porters," "brakemen,.. or aozne-thing else. Our conclusion is th_~ the District Court has juris-diction and power to iAue necessary injunctive or. Headnote 6 ders no withstanding the provisions of the NorrisLa'Guardia Act. s· Y/ e n~d add nothin1 to what was said about the inapplicability of that Act in the Steele Case and in Graham v. Brotht.rhood of Loe. Firemen & Engin"!ll"n, 338 US 232, 239, 240, 94 L ed 22, 29, 70 S Ct 14. Bargaining agent~ who enjoy the advan·tages of tj-,e' Railway Labor Ac~·s provisions mwt execute their b11st without lawless invasioit'.a of the right of other worken. We Headnote 7 agree with the Court of Appeals that the District Court had jurisdiction to protect these workers from the racial discrimin&tion practiced against them.. On demand. the. District Coun should permanently enjoin ?l:e Railroad and the Brotherhood from "°'° of the conlract or any o~her similar discriminatory bargaining device to oust the train porters from their jobs. In fashioning its decree the District Coun is left free to consider what prq_visions are necessary to alord these ernplO)'ee• lull protecrion from lu:ure discriminatory practices of the Bro~herhood. However. in drawjng its de· cree, the District Coun must bear in mind that Headnote 8 disputed questions of rechu4:fication of the craft of Labor Act to11~~n ~~i M~=ittB~.!'J: ~!!:!'::.~ Union of N. A. National Mediation Board (US) supra. The judgment of the Court of Appeals reversing that of the Dis:rict Court is affmned, and the cause is. remanded to the District Court for further proceedings in accordance with thi1 opinion. I~ is so ordered. Mr. Justice Minion, with whom The Chief /ullice •nd Mr. Justice Reed join, disaenting. The right cf the Broth~hood to represen~ railroad employees existed before the Railway Labor Act wb passed. The Act sim· ply protects the employees when this right of repreoentation ;, exercised. If a labor organization is designated by a majority Ii 47 s_tat 10. 29 tisc 88 101 et eeq. 634 THE LA WYERS JOURNAL December 31, 1952. E!r ~\:n1C:~re: ~_: c::: :.~~~iiJti1i:::i~~~ labor organiza~on has a duty to represent in good faith all wor· U...OI the croft .. Steele v, LouUville & N. R, Co. J23.US 192. 202. il9 l. -ed I 73i 183; 6S s. Ct ~-• In the. Steele Case, the'. COlllP~iR,nt was •. IOcomo~ve· firep.ian·; ~ii duti~ were .wholJy. thqse, cif :ii fireman. ~ 8.rothahocicl in. th~!- case repieserile4 the •"firemen's craft,"' bu~ would not admit Steele as a member bec~Uie' he iv•• a NOaio.. As. ~ Je5aJ representative <>f. hi• craft of."lii:eQleo, tb• 8rotberh0pcl !ll&<ie ·• contract with the ca·-· riei tl)at ~inai~ agaimt h~ b~ca"se of hia race. This Court. held the contract invalid.. · 1.t woul<I have been the. same if ihe Brotherhood had clscriminated. against him on .Ome Other g1ouncl. unrelated to race..· Ii was t1u; Brothe,hood's duty "to act on behalf of all the. empl!>Yeeo which. b"y virtue of the st~ tu:e. it undertake• to repn!l<Rt." Steele, •upra (323 US at 199, 89 L ed 181, 65 S Ct 22§), · · ·. -Jb ~ ill'Stali.t case the Brotherhood has never purported ;o represent the · train porters. The train porters have never requ-.l that the BrDtherhocicl represent them. Clauifu;ation of the job of ''train por~'" was establishd more than 'forty yean ago and has· never been dlsputed. At that time, the principal duties of th.~ train porters ~cleaning the can-.·a11isting the paa........ and helping to load and unloac! baggage; only a small part of the- duties were tha.te of brakemen, who were required to hove higher educational qualifications. As early as 1921, the t1ain 'pmters ·orianized a' separate ba.rgaining unit throuch whi~b they have con::inuously bargained: with the carrier here involved; tl-.ey·now have an existing ~tract wjth. thi! carrier. AithouRh the carriers sradually impoSecl Upon the train porters more of tfte dutidl of brakemen until today mG>st of their duties are these N brakemen, they have nevet been classified as brakemen~ The majori~ does not .. y that the train porters are br.V men and therefore the Brother~ m__yst represent them fairlv. a> was held in Steele. Whether >hey belong to the Brotherhood is DOt determinative of the latter"s duties of representation, if :t rt-presents. the craf~ of brakemen and if the train porters are brakemen. Steele was not a member of the Brotherhood of Locomotive Firemen and Enginemen and could not be because of r~ same reason that the train porters cannot belon1 to the Brotherhood of Trainmen. But Steele wa• a fireman, while the train porten are not brakemen. · · The Brotherhocicl stoutly opposes the contention. that i: u the representative ef the train porten. For the Court oo lo hold would be to Hy in the face of the statute (45 USC § IS2 Ninth) anol the holding of this Court in General Committee of Adjustment, B.L.E. v. Miuouri-Kan:.as-T l!l<as R. Co. 320 US 323, 33!1;-396;-~ll L ell,.., 83, 64 S Ct 146.' The majority avoids the dispute in terms but FJDbraces it in fact by saying it is pan· ins. oo .the validity of the contract. If this is true, it ilo done a: th_e ~sta~ ·Of penOns for whom the BrOtherhoocl was 11ot cOntr•ctiql. and was undei n:o duty·. ro ·contract; The ··train por· t~ liad a duly elec!ed bargaibing representative; wllich "fact operated "to. e..:JUde the Brotherhood h<>m .._...,, the craft. s:<ele, .. pra. (323 US at 200, 89 L ed 181, 65 5. Ct 226) : VirlW& · R. Co. v. System Feder,tion, R.E.D .. 300 US S,15. 548, 81 Led 789, 799, S7 S. Ct 592. . · The majority reachels out to invalida~e. the con~ct. not b~usei the train oorten are bra~emen euitl~ to fair representation by the Bro,herhood, but because . thev are Negros who were discri.mjnated asainst by the canier at the ~! of the Bw.lierhocicl. I do not understand :hat pri•J!le. parties lluch u the carrier and the BrotherhOod may not discriminate on the ~round "of ra.ce. Neither .. a sta,te soyernmen~ nor the Federal Covernment may nor the Federal·Goyernment may do . .so, but I know of no ap~~able. federal law. which. says. tha~ priv•te par~ ties may nOI. That is the whole m:gblem underjying the ,...,.. posed federal Fair Employment Practices Code. Of. oours•, :h1' Court bY sh- power can •ay this case is Steele, or even lay clcwn a. code of fair employment" practices.· But sheer power is nbt a subatitute for lesality. I do nQt .have to asue.e With the discrimination here indulged in to question the legality oi today's decision. ' I think there was a dispute here be:w- empl07ees of the carrier a's ~ whether the Brotherhood ~ the repre11_t;ntative of of :he train porters, and that this is a in.litter to be resolved. ·bV the Naticinal Mediation Board, not the courtL l wodld remand this case to ~he Dis~ict COurt to be di'smi!~ed as nonjustificiabl~. • "Nflr does 8 I, Second make justiciable whnt othei·wlse ·Is not. [~ provides that 'AIJ disputes between a carrier. or carriers a.n<t its or tt.elr employeles shall be considered. and, If possible, decided, with all expedition, In conference between repreaentatlves destgn8.ted and authorized so to confer, respectively, by. the C&l'rler or carrlera and by the employees.thereot Interested In the dispute.' A• we ha•~· already pointed out, R 2, Ninth, aner providing tor a certification by the Mediation Board of the particular cratt or class repn1111entati"Ye, States t11at "the carrier shall treat with the rep1·esenta.t1ve so certified afl the: n.preaentath·e er the craft or clan fer the pu1·pollff of this Aet.' "Ii Is cl~r· fr~m th; 1eg1siatlve -hlRta.;. of 8" !, Ninth tfurt it -was designed not only to help tree the unions from the (nt:h1ence. · cuerclon and control of the carriers but also to resol'Ve a wld~ range ot JutlsdlctJonal disputes between unions or between croups of employeeir. H.R. =~e~; !~~~:i;;·abep.th!; :9~ ~;·J!~:!i1~:na~~~P::eas::.·~1·~ within 8 2, Ninth, Congreu did not selBCt U1e ·coui'ta to resol.Ve then\.'' ~~~~--~~~~~~~~~~~~WHEN CROSS-EXAMINATION WENT TOO FAR TBIS STORY -occurred at Fort Collins, Colorado, perhaps 25 'YeG.T!I aco, and at least the Pl'lnclpal pa1·tlclpanta ha'(e pa1Hted to anothe1· Jurisdiction. ·we were defending a ve1·y prominent citizen charged with sta • tutory rape. The Dlst1·lct Attorne)' was aaalated by a very able lllwyer whom we·ma.y kno"llt As R. Immediately alter the arrest, the girl In the case bad been taken to Denver, whe1>o she h&d: been kept In a Catholic Home uniu the ti:lal. In the course of her testimony, on crop-examination. she- stated ~i:at ~~!.~tl~:i, ~~o:.:• :C,rA ~:..!:eth:e~o::i.;.•·~~;'.edte':i:i:~~~:i:~ Just before closlng In tbe evening. During the night we succeeded ·tn Inducing the p1•Jest In charge. of the Home, with a couple· Of num1.· to l;>e presented In the court the next day. Havlnc kept them out ot sight, we put the girl back on the sta.nd and asked her 'it she Coul11 J(lentlfy the detective If she saw him. Upon her saying "yes," we had the priest Step · out and said that: was tlie man The ,prosecution. cloal~g llft caae aho11Jy after, we put the priest on ·the stand. He was a. brilliant man. UP.On direct examlnaUon, h11 said that ·as prl'eat be had charge of thta HOme", a1id· that no Q1!he.i• man could poulbly. bave communicated· with th•· girl. ~e au.Id thal he did talk with lier fully about the caae. She told her s.t<iry and Insisted that It was true. He, ot course, denied any bribe or o.n)-'lhlng of the sort. · ' Of course, c1•oss-exa.mlnatlon tor the purpoae of empba.Slslnc the girl's attlrma.nce of her story under the clrcumstancea was somethlnt; like this: First, he" was asked as to the details of her story which wei.-e repeated by counsel tram he1· te11tllnony. He ._kl she had t.old hl:n ~kaet :~:·y~~~tty~:i:":!::O::t~~- t.~1e ::10~:~.".~r:: ~::l~~l'lch!'::;~ lion to the prominent "position of· tlll& defendant In ~he community as a particular reu.son why no false charge :Should be ma.de acalnst Dim?" "I did, sir." 411 of this In 5re11.t detail, .aa may be JmaBi!J.ed. "H;ow long did you talk with herr• "Perhll"PI an hour, air." "And In spite of all of your lnshltence upon tbe gra\l'lty of bet cb&rges, and the sin and punishment, both in· this werld atld the· next, for falaotesllmony, she tillll Ir.slated she waa telling the· truth, did she?" "Sh~ d!J, sir." Certainly an Ideal place to stop. But one more fatal qiueetlon: "Now, Father, please tell thltJ jury, air, how this ypuns" l&dy hnpresse•l you." "She Impressed me, Sir, as w1sc··be)·ond her· years, n liar and a common pl'Olltltute."· Of course, the defendant won· the case.GEORG~ CL,A.].jll:MER, In D!)CKET, Vol. + No, .JG, p; S9.t14. Dlcembei: B;l, 1962 ·'JlliE .LA WYERS JOTJtiNAL 8311