On April 9, 1933, Haywood Patterson, the first of the Scottsboro defendants to be tried a second time, was found guilty and sentenced to be executed on June 16, 1933. The execution was stayed on appeal as defense counsel Leibowitz asked that Judge Horton order a new trial. On June 22, 1933, presiding judge Horton responded, stunning the state of Alabama with an unprecedented action. He "put aside" the jury's guilty verdict in the case of Haywood Patterson on the grounds that the evidence did not warrant conviction.

In a lengthy, detailed opinion, Judge Horton combed the evidence presented at trial with great care, analyzing it scrupulously. His opinion is a thorough summary of the evidence up to this point. First, he examines the case for the state, or prosecution, looking for any evidence that would corroborate Victoria Price's charge. Then he turns to arguments for the defense.

As he makes clear, it is his strong opinion that the Scottsboro defendants should not be sentenced to die on the basis of the uncorroborated testimony of one person and other evidence that is only circumstantial in nature. Therefore, he tests the reliability of Price's testimony, trying to discover if there is any hard evidence to corroborate.

FROM THE OPINION OF JUDGE JAMES E. HORTON, JUNE 22, 1933

The defendant in this case has been tried and convicted for the crime of rape with the death penalty inflicted. He is one of the nine charged with a similar crime at the same time.

The case is now submitted for hearing on a motion of a new trial. As human life is at stake, not only of this defendant, but of eight others, the Court does and should approach a consideration of this motion with a feeling of deep responsibility, and shall endeavor to give it that thought and study it deserves.

Social order is based on law, and its perpetuity on its fair and impartial administration. Deliberate injustice is more fatal to the one who imposes than to the one on whom it is imposed. The victim may die quickly and his suffering cease, but the teachings of Christianity and the uniform lessons of all history illustrate without exception that its perpetrators not only pay the penalty themselves, but their children through endless generations. To those who deserve punishment who have outraged society and its laws-on such, an impartial justice inflicts the penalties for the violated laws of society, even to the tabling of life itself; but to those who are guiltless the law withholds its heavy hand.

The court will now proceed to consider this case on the law and evidence, only making such observations and conclusions as may appear necessary to explain and illustrate the same.

Is there sufficient credible evidence upon which to base a verdict?

[L]et us now turn to the facts of the case. The Court will of necessity consider in detail the evidence of the chief prosecutrix, Victoria Price, to determine if her evidence is reliable, or whether it is corroborated or contradicted by the other evidence in the case. In order to convict this defendant, Victoria Price must have sworn truly to the fact of her being raped. No matter how reliable the testimony of the defendant and his witnesses, unless the State can make out a case upon the whole evidence, a conviction cannot stand.

[T]he State relies on the evidence of the prosecutrix, Victoria Price, as to the fact of the crime itself, necessarily claims that her relation is true. The defense insists that her evidence is a fabrication-fabricated for the purpose of saving herself from a prosecution for vagrancy or some other charge.

The Court will therefore first set out the substantial facts testified to by Victoria Price and test it as the law requires as to its reliability or probability, and as to whether it is contradicted by other evidence.

She states that on March 25, 1931, she was on a freight train traveling through Jackson County from Stevenson to Paint Rock; that Ruby Bates was with her on the train.... That at Stevenson, she and Ruby Bates walked down the train and got on a gondola car-a car without a top. That the train was filled with chert, lacking about one and one-half or two feet of being full; that the chert was sharp, broken rock with jagged ends.

... that in about five or ten minutes twelve colored boys jumped from the boxcar into the gondola, jumping over their heads.

That one of the negroes picked her up by the legs and held her over the gondola, and said he was going to throw her off; that she was pulled back in the car and one of the negroes hit her on the side of the head with a pistol, causing her head to bleed; that the negroes then pulled off the overalls she was wearing and tore her step-ins apart. That they then threw her down on the chert and with some of the negroes holding her legs and with a knife at her throat, six negroes raped her, one of whom was the defendant; that she lay there for almost an hour on that jagged rock ... that the last one finished just five minutes before reaching Paint Rock and that her overalls had just been pulled on when the train stopped at Paint Rock with the posse surrounding it.

That she got up and climbed over the side of the gondola and as she alighted she became unconscious for a while, and that she didn't remember anything until she came to herself in a grocery store and she was then taken to Scottsboro, as the evidence shows, in an automobile and that in about an hour or an hour and one-half Dr. Bridges and Dr. Lynch made an examination of her person.

With seven boys present at the beginning of this trouble, with one seeing the entire affair, with some fifty or sixty persons meeting them at Paint Rock and taking the women, the white boy Gilley, and the nine negroes in charge, with two physicians who examined the women within one to one and one-half hours, according to the tendency of all the evidence, after the occurrence of the alleged rape, and with the acts charged committed in broad daylight, we should expect from all this cloud of witnesses or from the mute but telling physical condition of the women or their clothes some one fact in corroboration of this story.

Let us consider the rich field from which such corroboration may be gleaned.

The Court will now present the evidence which will show:

that none of the seven white boys, or Orville Gilley, who remained on that train were put on the stand, except Lester Carter;

that neither Dr. Bridges nor Dr. Lynch saw the wound inflicted on the head by the pistol, the lacerated or bleeding back which lay on jagged rocks;

that the semen they found ... was of small amount [or] dead; that they saw no [bleeding];

that these doctors testified that when brought to the office that day neither woman was hysterical or nervous about it at all, and that their respiration and pulse were normal ....

Taking up these points in order, what does the record show?

None of the seven white boys were put on the stand, except Lester Carter, and he contradicted her.

Returning to the pistol on the head. The doctor testifies: "I did not sew up any wound on this girl's head; I did not see any blood on her scalp. I don't remember my attention being called to any blood or blow in the scalp." And this was the blow that the woman claimed helped force her into submission.

Next, was she thrown and abused, as she states she was, upon the chert the sharp jagged rock?

Dr. Bridges states as to physical hurts: "We found some small scratches on the back part of the wrist; she had some blue places in the small of her back, low down in the soft part, three or four bruises about like the joint of your thumb, small as a pecan, and then on the shoulders a blue place about the same size-and we put them on the table, and an examination showed no lacerations [or cuts]."

The evidence of other witnesses as well as the prosecutrix will show that the women had traveled from Huntsville to Chattanooga and were on the way back. There is other evidence tending to show they had spent the night in a hobo dive; that they were having intercourse with men shortly before that time. These few blue spots and this scratch would be the natural consequence of such living; vastly greater physical signs would have been expected from the forcible intercourse of six men under such circumstances.

Upon the examination under the microscope he [the examining physician] finds that there are spermatozoa [present]. This spermatozoa he ascertains to be nonmotile. He says to the best of his judgment that non-motile means the spermatozoa were dead.

While the life of the spermatozoa may be variable, still it appears ... [that] it would have taken at least several hours for the spermatozoa to have become nonmotile or dead.

When we consider, as the facts hereafter detailed will show, that this woman had slept side by side with a man the night before in Chattanooga, and had intercourse at Huntsville with Tiller on the night before she went to Chattanooga; when we further take into consideration that the semen being emitted, if her testimony were true, was covering the area surrounding the private parts, the conclusion becomes clearer and clearer that this woman was not forced into intercourse with all of these negroes upon that train, but that her condition was clearly due to the intercourse that she had had on the nights previous to this time.

Was there any evidence ... on the clothes of any of the negroes?

In the case of State vs. Cowing, 99 Minn. 123; 9Am. & En. Ann. cases, 566, the Court said the physicians who testified stated that the semen would have remained on the clothes and could have been found after the expiration of several days. And this is probably a well-known fact. Though these negroes were arrested just after the alleged acts, and though their clothes and pants were examined or looked over by the officers, not a witness testified of seeing any ... wet or damp spots on the clothes.

Judge Horton goes on to note that a detailed examination of the women's clothes did not reveal the expected evidence.]

What of the physical appearance of these two women when the doctors saw them?

Dr. Bridges says that when these two women were brought to his office neither was hysterical, or nervous at all. He noticed nothing unusual about their respiration, and their pulse was normal.

Such a normal physical condition is not the natural accompaniment or result of so horrible an experience, especially when the woman testified she fainted from the injuries she had received.

The fact that the women were unchaste might tend to mitigate the marked effect upon their sensibilities, but such hardness would also lessen the probability of either of them fainting. if the faint was feigned, then her credibility must suffer from such feigned actions. And this witness's anger and protest when the doctors insisted on an examination of her person was not compatible with the depression of spirit likely to be caused by the treatment she said she had received.

is there any other corroboration? There was a large crowd at Paint Rock when the freight arrived there. While they differed in many details as to the makeup of the train and the exact car from which the different persons were taken, all of which is apparently unimportant, all agreed upon the main fact-that the nine negroes, the two women, and the white boy were all taken from the train. This undisputed fact constitutes about the whole extent of their evidence except a statement by Ruby Bates that she had been raped, which experience the said Ruby Bates now repudiates.

[Horton then examines the questionable circumstances under which the charge of rape was first made (by Bates): of the three witnesses who testified as to seeing the women at Paint Rock, the first only saw them "standing"; the second saw them only some time after the arrival; the third saw them getting off the car, then starting "to run toward the engine and as they approached a crowd of men they turned and ran back in the opposite direction, and met a part of the posse who stopped them," at which point Mr. Hill, the station agent, coming upon the women, asked them "if they had been bothered."]

Thereupon Ruby Bates stated that they had been raped. The facts appearing that the women instead of seeking the protection of the white men they saw were at first frightened, and the question propounded was in itself suggestive of an answer.

This is the State's evidence. It corroborates Victoria Price, slightly, if at all, and her evidence is so contradictory to the evidence of the doctors who examined her that it has been impossible for the Court to reconcile their evidence with hers.

Rape is a crime usually committed in secrecy. A secluded place or a place where one ordinarily would not be observed is the natural selection for the scene of such a crime. The time and place and stage of this alleged act are such to make one wonder and question did such an act occur under such circumstances. The day is a sunshiny day the latter part in March; the time of day is shortly after the noon hour. The place is upon a gondola or car without a top. This gondola, according to the evidence of Mr. Turner, the conductor, was filled to within six inches to twelve or fourteen inches of the top of the chert, and according to Victoria Price up to one and one-half feet or two feet of the top. The whole performance necessarily being in plain view of any one observing the train as it passed. Open gondolas on each side.

On top of this chert twelve negroes rape two white women; they undress them while they are standing on this chert; the prosecuting witness is then thrown down and with one negro continuously kneeling over her with a knife at her throat.

Her manner [Price's] of testifying and demeanor on the stand militate against her. Her testimony was contradictory, often evasive, and time and again she refused to answer pertinent questions. The gravity of the offense and the importance of her testimony demanded candor and sincerity. In addition to this the proof tends strongly to show that she knowingly testified falsely in many material aspects of the case. All this requires the more careful scrutiny of her evidence.

Lester Carter was a witness for the defendant; he was one of the white boys ejected from the train below Stevenson. Whether or not he is entitled to entire credit is certainly a question of great doubt; but where the facts and circumstances corroborate him, and where the failure of the State to disprove his testimony with witnesses on hand to disprove it, the Court sees no reason to capriciously reject all he said.

Victoria Price denied she knew him until she arrived at Scottsboro. it became a question to be considered as to whether Lester Carter knew her at Huntsville and saw her commit adultery on several occasions with one Tiller just before leaving for Chattanooga, and returning on the freight the next day. The facts he testified to might easily account for the dead spermatozoa in her . He says he met Victoria Price and Tiller while in jail at Huntsville; that all three were inmates of the jail at the same time; that Ruby Bates visited Tiller and Victoria Price while they were in jail, and he, Carter, met her at the jail; that after all had gotten out, and he had finished his sentence, he stayed in the home of Tiller and his wife, and he and Tiller would go out and be with these girls; that they all planned the Chattanooga trip together; and that just before the trip, or the night before, all four were engaged in adulterous intercourse.

Further, there is evidence of trouble between Victoria Price and the white boys in the jail at Scottsboro because one or more of them refused to go on the witness stand and testify as she did concerning the rape; that Victoria Price indicated that by so doing they would all get off lighter.

The defendant and five of the other negroes charged with participating in this crime at the same time went on the stand and denied any participation in the rape; denied that they knew anything about it; and denied that they saw any white women on the train. Four of them did state that they took part in a fight with the white boys which occurred on the train. Two of them testified that they knew nothing of the fight nor of the girls, and [were] on an entirely different part of the train. Each of these two testified as to physical infirmities. One testified he was so diseased he could hardly walk, and he was examined at Scottsboro according to the evidence and was found to be diseased. The other testified that one eye was entirely out and that he could only see sufficiently out of the other to walk unattended. The physical condition of this prisoner indicates apparently great defect of vision. He testified, and the testimony so shows, that he was in the same condition at Scottsboro and at the time of the rape. He further testified that he was on an oil tank near the rear of the train, about the seventh car from the rear; that he stayed on this oil tank all the time and that he was taken from off of this oil tank. The evidence of one of the trainmen tends to show that one of the negroes was taken off an oil tank toward the rear of the train. This near-blind negro was among those whom Victoria Price testified was in the fight and in the party which raped her and Ruby Bates. The facts strongly contradict any such statements.

Conclusion

History, sacred and profane, and the common experience of mankind teach us that women of the character shown in this case are prone for selfish reasons to make false accusations both of rape and insult upon the slightest provocation, or even without provocation for ulterior purposes. These women are shown, by the great weight, of the evidence, on this very day before leaving Chattanooga, to have falsely accused two negroes of insulting them, and of almost precipitating a fight between one of the white boys they were in company with and these two negroes. This tendency on the part of the women shows that they are predisposed to make false accusations upon any occasion whereby their selfish ends may be gained.

The Court will not pursue the evidence any further.

As heretofore stated the law declares that a defendant should not be convicted without corroboration where the testimony of the prosecutrix bears on its face indications of unreliability or improbability and particularly when it is contradicted by other evidence.

The testimony of the prosecutrix in this case is not only uncorroborated, but it also bears on its face indications of improbability and is contradicted by other evidence, and in addition thereto the evidence greatly preponderates in favor of the defendant. It therefore becomes the duty of the Court under the law to grant the motion in this case.

It is therefore ordered and adjudged by the Court that the motion be granted; that the verdict of the jury in this case and the judgment of the Court sentencing this defendant to death be, and the same hereby is,'set aside and that a new trial be and the same is hereby ordered.

JAMES E. HORTON
Circuit Judge

This June 22nd, 1933.

Johnson, Claudia Durst. Understanding To Kill A Mockingbird. The Greenwood Publishing, Inc. Wesport, CT:©1994.

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