WALLER, Circuit Judge.
Appellants were indicted, tried, and convicted, for an alleged violation of Sec. 20 of the Criminal Code, being Sec. 52, of Title 18 U.S.C.A., and for a conspiracy to violate said Sec. 52 of Title 18. It was alleged that the appellant Screws, while sheriff of Baker County, Georgia, and appellant Jones, while acting as a policeman of the City of Newton, in Baker County, Georgia, both aided and abetted by appellant Kelley, did, under color of the law of Georgia, arrest or cause one Robert Hall, a negro citizen of the United States and of the State of Georgia, to be arrested, and brought into the courthouse yard of Baker County, where said Robert Hall was beaten over the head with a blackjack by defendants, from which the death of the said Robert Hall resulted. The substantive offense, alleged in Count 2, was that the appellants were acting under color of the law of the State of Georgia and deprived the said Robert Hall of rights, privileges, and immunities secured or protected by the Constitution and laws of the United States, among other things the right to be secure in his person and to be immune from illegal assault and battery; the right and privilege not to be deprived of life and liberty without due process of law; the right and privilege not to be deprived of the equal protection of the law; the right to be tried, upon the charge upon which he was arrested, by due process of law; and the right and privilege not to be subjected to different punishments, by reason of his race and color, than are prescribed for the punishment of other citizens.
The third count in the indictment charged a conspiracy to commit the offense charged in the second count
[664] Appellants challenged by demurrer the jurisdiction of the court below, asserting that in the killing of Hall and the doing of the other acts charged in the indictment they did not violate Section 52 of Title 18 because the rights, privileges, and immunities enumerated in the indictment are “fundamental or natural rights” which do not have their origin in the Constitution and laws of the United States; that these natural and inalienable rights find their source in the sovereignty of the States, whose duty it is to secure and protect these rights, and that the beating and killing of Hall deprived him of rights afforded by the State rather than by the Constitution and laws of the United States; secondly, it was asserted that the 14th Amendment to the Constitution was a prohibition against deprivation by the State of the life, liberty, or property of any person without due process of law, or against the deprivation by the State of the equal protection of the law to any person within its jurisdiction, and that the prohibitions of the 14th Amendment were not applicable to the individual or personal acts of a citizen; and, thirdly, that Section 52 could not be applied to situations where a sheriff or other State officer was acting contrary to and against the positive prohibition of State law.
Does Sec. 52, Title 18, U.S.C.A., confer jurisdiction upon the federal court to try a sheriff, a policeman, and another (who aided and abetted the two officers) for unlawfully beating to death one under arrest and in custody of such officers, on the theory that such beating and consequent death was done under color of State law and was a willful deprivation of rights, privileges, and immunities secured or protected to the deceased by the Constitution and laws of the United States?
The pertinent part of the 14th Amendment to the Constitution provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 5 of the 14th Amendment provides that: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”, pursuant to which, and in order to implement the 14th Amendment, Congress enacted what has now come to be Sec. 52 of Title 18, U.S.C.A., which is as follows: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both.”
Sec. 88, Title 18 U.S.C.A., provides in substantial part that if “two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.”
The lower court properly overruled the demurrer to the second and third counts of the indictment upon which the defendants were tried and convicted.
The right to the enjoyment of life and liberty is a fundamental or natural right, and is not derived from nor created by the Federal Constitution.1 Nevertheless, the 14th Amendment was designed to safeguard and protect the individual against the deprivation without due process of law of those rights by the State rather than to create new rights in the individual. Sec. 52 of Title 18 does not merely undertake to protect rights which are derived from the Federal Constitution but it undertakes to protect and make secure any rights secured or protected by the Federal Constitution and laws, and to that end makes criminal the wrongful deprivation of any rights that are secured or protected by the Constitution or laws of the United States. Clearly the right to be secure in one’s person and to be immune from illegal- arrest and battery, or the right not to be deprived of life or liberty without due process of law, and the right to enjoy the equal protection of the laws, are rights “secured or protected” by the Constitution of the United States, and this ground of the demurrer was not tenable.
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WALLER, Circuit Judge.
Appellants were indicted, tried, and convicted, for an alleged violation of Sec. 20 of the Criminal Code, being Sec. 52, of Title 18 U.S.C.A., and for a conspiracy to violate said Sec. 52 of Title 18. It was alleged that the appellant Screws, while sheriff of Baker County, Georgia, and appellant Jones, while acting as a policeman of the City of Newton, in Baker County, Georgia, both aided and abetted by appellant Kelley, did, under color of the law of Georgia, arrest or cause one Robert Hall, a negro citizen of the United States and of the State of Georgia, to be arrested, and brought into the courthouse yard of Baker County, where said Robert Hall was beaten over the head with a blackjack by defendants, from which the death of the said Robert Hall resulted. The substantive offense, alleged in Count 2, was that the appellants were acting under color of the law of the State of Georgia and deprived the said Robert Hall of rights, privileges, and immunities secured or protected by the Constitution and laws of the United States, among other things the right to be secure in his person and to be immune from illegal assault and battery; the right and privilege not to be deprived of life and liberty without due process of law; the right and privilege not to be deprived of the equal protection of the law; the right to be tried, upon the charge upon which he was arrested, by due process of law; and the right and privilege not to be subjected to different punishments, by reason of his race and color, than are prescribed for the punishment of other citizens.
The third count in the indictment charged a conspiracy to commit the offense charged in the second count
[664] Appellants challenged by demurrer the jurisdiction of the court below, asserting that in the killing of Hall and the doing of the other acts charged in the indictment they did not violate Section 52 of Title 18 because the rights, privileges, and immunities enumerated in the indictment are “fundamental or natural rights” which do not have their origin in the Constitution and laws of the United States; that these natural and inalienable rights find their source in the sovereignty of the States, whose duty it is to secure and protect these rights, and that the beating and killing of Hall deprived him of rights afforded by the State rather than by the Constitution and laws of the United States; secondly, it was asserted that the 14th Amendment to the Constitution was a prohibition against deprivation by the State of the life, liberty, or property of any person without due process of law, or against the deprivation by the State of the equal protection of the law to any person within its jurisdiction, and that the prohibitions of the 14th Amendment were not applicable to the individual or personal acts of a citizen; and, thirdly, that Section 52 could not be applied to situations where a sheriff or other State officer was acting contrary to and against the positive prohibition of State law.
Does Sec. 52, Title 18, U.S.C.A., confer jurisdiction upon the federal court to try a sheriff, a policeman, and another (who aided and abetted the two officers) for unlawfully beating to death one under arrest and in custody of such officers, on the theory that such beating and consequent death was done under color of State law and was a willful deprivation of rights, privileges, and immunities secured or protected to the deceased by the Constitution and laws of the United States?
The pertinent part of the 14th Amendment to the Constitution provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 5 of the 14th Amendment provides that: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”, pursuant to which, and in order to implement the 14th Amendment, Congress enacted what has now come to be Sec. 52 of Title 18, U.S.C.A., which is as follows: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both.”
Sec. 88, Title 18 U.S.C.A., provides in substantial part that if “two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.”
The lower court properly overruled the demurrer to the second and third counts of the indictment upon which the defendants were tried and convicted.
The right to the enjoyment of life and liberty is a fundamental or natural right, and is not derived from nor created by the Federal Constitution.1 Nevertheless, the 14th Amendment was designed to safeguard and protect the individual against the deprivation without due process of law of those rights by the State rather than to create new rights in the individual. Sec. 52 of Title 18 does not merely undertake to protect rights which are derived from the Federal Constitution but it undertakes to protect and make secure any rights secured or protected by the Federal Constitution and laws, and to that end makes criminal the wrongful deprivation of any rights that are secured or protected by the Constitution or laws of the United States. Clearly the right to be secure in one’s person and to be immune from illegal- arrest and battery, or the right not to be deprived of life or liberty without due process of law, and the right to enjoy the equal protection of the laws, are rights “secured or protected” by the Constitution of the United States, and this ground of the demurrer was not tenable.
The second ground of the demurrer, to the effect that the 14th Amend[665] ment was a prohibition against the deprivation by the State of the constitutional rights covered thereby, and that the prohibitions of the 14th Amendment are not applicable to individual or personal acts of the citizen, has as its base a fundamentally correct concept.2 However, Sec. 52 of Title 18, and the indictment drawn thereunder, are not intended to cover personal and individual acts of a citizen in wrongfully depriving another citizen of constitutional rights.3 The section would have no applicability to a citizen who acts without any color of law, statute, ordinance, regulation, or custom of the State, or without the name or by the authority of the State. The act can only be applicable to one who acts under guise of authority of the State and thus brings about the illegal deprivation of constitutional rights. The statute was not designed to reach and cannot be stretched to reach the personal, individual act of one citizen toward another when same is not done under color of State law, even though the depriving actor were the holder of public office.
In the present case the sheriff contended both before and during the trial that he was acting pursuant to a warrant issued commanding him to arrest and take into custody Robert Hall for the alleged theft of a tire. A warrant can issue and be served only under color, or authority, of law. A void warrant, in the hands of the sheriff or his deputy, is color of authority, and acts done in the execution of such a warrant are done under color of law. The deprivation of the constitutional rights of one citizen by another is not a violation of Section 52 and becomes a violation only when the depriving citizen is acting under color of law, as distinguished from acting within the law.4 A sheriff who, acting under a valid warrant in making a necessary and lawful arrest and who in self-defense slays the person he seeks to arrest, has not violated the section, but if a sheriff were acting only under a pretext or color of law and in so doing unlawfully caused the death of another, such sheriff would be amenable to the section in question. The deprivation of liberty or property or life under valid State law constitutes no offense under the act, but it is a deprivation of a constitutional right under a mere pretense or color of law by one pretending to act under the authority of the State that calls the section into operation. In the instant case there is evidence to the effect that the alleged warrant of arrest was prepared by the sheriff and was a spurious afterthought. Be that as it may, he insisted that he was acting under color of authority in making the arrest. Assuming that the sheriff was possessed of a valid warrant, although there was evidence in the case to the contrary, the beating of a prisoner to death is not necessarily an incident to the making of a lawful arrest. The wrongful beating of a prisoner by an arresting officer acting under a warrant, whether void or valid, is an unlawful deprivation of a right of a citizen of the United States which the 14th Amendment protects, and which Sec. 52 makes a criminal offense, the constitutionality of which section is not raised.
The jury has found, under the overwhelming weight of the testimony, that the beating of the said Robert Hall to his death by the defendants was without justification and not in necessary self-defense and not in the exercise of such force as was reasonably necessary to make a lawful arrest or to repel an assault.
The third contention of appellants is that the section in question does not embrace the personal, unofficial, and individual acts of one who holds an office unless those acts were perpetrated under the guise or authority of State law. It may be conceded that if the sheriff gets into an altercation in a matter that is strictly personal and which has no connection with his official functions or duties and which arises out of no claim or effort or color of the exercise of lawful authority, the statute would not apply. Certainly the State is not to be held responsible for the unofficial and whólly personal acts of an individual who merely happens to be sheriff. If John Smith, who happens to be sheriff, is the owner of a house which he rents to Bill Johnson, and he and Bill [666] Johnson get into a fight over the failure of Johnson to pay rent to Smith, and in the fight Johnson is subjected to the loss of his life, such act would not call the federal statute into operation. It is essential that the act of deprivation not only be unlawful, but that it be committed under color or pretense of law.
The 14th Amendment renders State statutes unconstitutional which deny equal protection of the law, due process of the law, etc., but Sec. 52 makes punishable acts done by one under color or pretense of law which result in the deprivation of rights protected by the Federal Constitution.
The motion for directed verdict was based upon substantially the same grounds as were the demurrers, viz, the jurisdiction of the court. We are of the opinion that the court below had jurisdiction, that the evidence overwhelmingly supports the verdict of the jury, and that the judgment of the lower court should be affirmed.
Affirmed.