The Court's Order Staying All Proceedings Against Ed Johnson (March 19, 1906)
Stipulated Facts Concerning Intervention
Supreme Court's Account of Events Surrounding Intervention
SUPREME COURT ORDER STAYING EXECUTION OF ED JOHNSON (MARCH 19, 1906)
ED JOHNSON, APPELLANT, vs. THE STATE OF TENNESSEE.
On motion of Mr. E. M. Hewlett, of counsel for the appellant, it is ordered by the court that an appeal from the Circuit Court of the United States for the Eastern District of Tennessee be, and the same is hereby, allowed, and that all proceedings against the appellant be stayed, and the custody of the said appellant be retained pending this appeal.
Per MR. CHIEF JUSTICE FULLER.
The following facts, relating to the intervention of the federal courts in the Ed Johnson case, were agreed to by the United States and defendants in the criminal contempt action. The stipulated facts appear in the appendix to the opinion of Justice Oliver Wendell Holmes in his decision announcing that the Court had jurisdiction to try Shipp and others for criminal contempt (203 U.S. 571):
That on the 11th day of February, 1906, one Ed Johnson, a citizen of the United States and a resident and citizen of the State of Tennessee, and a colored person of African descent, was convicted of the crime of rape in the criminal court of Hamilton County, held at the city of Chattanooga, in the State, of Tennessee, and said court thereupon sentenced the said Ed Johnson to suffer the penalty of death.
That on the 3d day of March, 1906, and before the date set for the execution of the said Ed Johnson, a petition for a writ of habeas corpus, signed by the said Ed Johnson as petitioner, was duly presented to the United States Circuit Court for the Northern Division of the Eastern District of Tennessee in which it was alleged, among other things, that upon the trial of the said Ed Johnson in the criminal court of Hamilton County, in the State of Tennessee, for the crime of rape, for which he had been convicted, said petitioner had been denied a trial by a fair and impartial jury, and had been denied the aid of counsel in violation of the fifth and sixth amendments to the Federal Constitution, and that said petitioner was also denied rights secured to him under the fourteenth amendment to the Federal Constitution; that thereafter, to wit, on the 10th day of March, 1906, the application of the said Ed Johnson for a writ of habeas corpus came on for hearing before the said United States Court for the Eastern District of Tennessee upon the petition, return, answer, and replication, and upon the testimony of witnesses given orally in open court, and after argument of counsel the said Circuit Court ordered that said petition be dismissed and that the writ of habeas corpus prayed for in said petition be denied, and further ordered that said petitioner be remanded to the custody of the sheriff of said Hamilton County, in the State of Tennessee, to be detained by said sheriff in his custody for the period of ten days in which to enable said petitioner to prosecute an appeal from said order should he be so advised and should an appeal lie from said order, and in default of the prosecution of an appeal within said time to be then further proceeded with by the court of the State of Tennessee under its sentence.
That thereafter, on the 17th day of March, 1906, an application was duly presented by the said Ed Johnson to the Hon. John M. Harlan, an associate justice of the Supreme Court of the United States, assigned to the sixth circuit, asking that an appeal be allowed to the Supreme Court of the United States from the judgment rendered in the Circuit Court of the United States for the Northern Division of the Eastern District of Tennessee on March 10, 1906, denying his, the said Ed Johnson's, application for a writ of habeas corpus, as aforesaid, which said appeal was on the same day allowed by Mr. Justice Harlan.
That on the 19th day of March, 1906, a motion was duly made in the Supreme Court of the United States by counsel for and representing the said Ed Johnson for an order allowing an appeal to the Supreme Court of the United States from the judgment of the Circuit Court of the United States for the Northern Division of the Eastern District of Tennessee, rendered on the 10th day of March, 1906, denying his, the said Ed Johnson's, application for a writ of habeas corpus, which motion was thereupon granted by the Supreme Court of the United States and an order duly made and entered by the Chief Justice in the words and figures following, to wit:
ED JOHNSON, APPELLANT, vs. THE STATE OF TENNESSEE.
On motion of Mr. E. M. Hewlett, of counsel for the appellant, it is ordered by the court that an appeal from the Circuit Court of the United States for the Eastern District of Tennessee be, and the same is hereby, allowed, and that all proceedings against the appellant be stayed, and the custody of the said appellant be retained pending this appeal.
Per MR. CHIEF JUSTICE FULLER.
That there was also published and circulated in said city of Chattanooga in the evening paper on the said 19th
day of March, 1906, before six o'clock p.m., an account of the action of the Supreme Court of the United
States in allowing an appeal and granting a stay of further proceedings on the part of the state courts against
the said Ed Johnson until the determination of said appeal before the Supreme Court of the United States.
The opinion of Chief Justice Fuller in United States vs. Shipp (214 U. S. 386)(1909) gives the following account of the events relating to the Supreme Court's intervention in the Ed Johnson case:
March 3, Johnson filed a petition for a writ of habeas corpus in the United States Circuit Court for the Northern Division of the Eastern District of Tennessee.
March 10, 1906, the petition was denied, the Circuit Court ordering that Johnson be remanded to the custody of the sheriff of Hamilton County, Tenn., to be detained by him for ten days in which to enable petitioner to prosecute an appeal from said order, and in default of the prosecution of said appeal within that time to be then further proceeded with under the sentence.
This order was made public through the press.
Johnson was at Knoxville, where he had been kept since his conviction, for hearing upon his petition, and was taken back to Chattanooga, March 11.
Saturday, March 17, application was duly presented by Johnson to Mr. Justice Harlan of the Supreme Court of the United States (Circuit Justice of the Sixth Circuit), at Washington, asking that an appeal be allowed to that court from the order of the Circuit Court, denying Johnson's petition for a writ of habeas corpus. This appeal was allowed by Mr. Justice Harlan on the same day.
March 18, The Chattanooga Times published notice that application for said appeal had been made.
The same day Judge Clark, of the United States Circuit Court, received a telegram from Mr. Justice Harlan, which was communicated to Sheriff Shipp on the afternoon of that day, that he had allowed appeal to accused in habeas corpus case of Ed Johnson; that the transcript would be filed the next day, and motion also be made by Johnson's counsel for formal allowance of appeal by the Supreme Court.
March 19, The Chattanooga Times published news of the allowance of the appeal by Mr. Justice Harlan, in which it said, among other things:
"From these authorities it was learned that the granting of an appeal in a case like this acted to supersede all process in the state courts. No stay is necessary, according to the authorities, and the statute is self-operative. Pending a decision of the appeal there can be no execution by any state authority."
March 19 an order was made by the United States Supreme Court, allowing an appeal to that court from the final order of the Circuit Court denying petition for writ of habeas corpus, and directing that all proceedings against the appellant be stayed, and that the custody of appellant be retained pending the appeal.
About 1 o'clock in the afternoon of said March 19 the following telegram was delivered to a telegraph company for transmittal to the addressee:
"Washington, March 19, 1906.
"To Sheriff of Hamilton County, Tenn., Chattanooga, Tenn.
"Supreme Court of United States has allowed Ed Johnson appeal from Judge Clark's order, and directed all further proceedings stayed, and custody of Johnson retained pending appeal here. See Section 766, Revised Statutes of the United States.
"JAMES H. McKENNEY, "Clerk Supreme Court, U.S."
This was received by the telegraph office at Chattanooga about 3.30 on the same afternoon and delivered between 4 and 5 o'clock on that afternoon.
About 2 o'clock on the afternoon of the nineteenth Judge McReynolds told Sheriff Shipp that the Supreme Court had granted a stay in the Johnson case, and that thereafter Johnson was a Federal prisoner.
Between 2 and 4 of the afternoon of March 19 the following telegram was received by Judge Clark, and by his secretary communicated to Sheriff Shipp, at the jail, about 5 o'clock that afternoon, with a copy of the statute therein referred to:
"Washington, D.C., March 19, 1906.
"Hon. C.D. Clark, United States Court, Chattanooga, Tenn.
"Court has just allowed appeal in Johnson's case, and ordered all further proceedings against him delayed and custody retained pending appeal here. It will be well to call attention of state officers immediately to Section 766 of Revised Statutes.
"JOHN M. HARLAN."
The statute referred to reads (including the proviso added March 3, 1893):
"Pending the proceedings on appeal in the cases mentioned in the three preceding sections and until final judgment therein, and after final judgment of discharge, any proceedings against the person imprisoned or confined or restrained of his liberty, in any State court, or by or under the authority of any State, for any matter so heard and determined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void.
"Provided, That no such appeal shall be had or allowed after six months from the date of the judgment or order complained of."
Shipp understood that thereupon Johnson was held as a Federal prisoner.
There was published and circulated in Chattanooga, in the evening paper published in that city, on March 19, about 4 o'clock, an account of said action of the Supreme Court, under the headlines, "An Appeal is Allowed. Ed Johnson Will Not Hang Tomorrow." This reads, in part:
"The gallows in the Hamilton County jail has again been disappointed in the case of Ed Johnson, convicted by the state courts of rape and sentenced to death. The hanging will not take place tomorrow morning, as scheduled."
The news of the action of the court was also posted on a newspaper bulletin.