Jerry Summers
It is well documented that the Tennessee Supreme Court in a 3-1 decision in 1927 upheld the 5-9 minute (?) jury deliberation verdict in 1925 that found Rhea County football coach and part time biology teacher John T. Scopes guilty of violating the Anti-Evolution statute (Butler law) by allegedly teaching the theory of evolution of humans contained in a 1909 textbook “A Civic Biology Presented in Problem” by George W. Hunter wherein it was represented that the bulky treatise was the official Tennessee biology text. However it was not officially adopted by the Tennessee Education Commission until 1919.
At both the request of the prosecution and defense counsel, the twelve person jury found Scopes guilty but imposed no fine (there was no jail time provision in the statute) and left the fine up to the trial judge, John T. Raulston.
Although the Tennessee constitution (Article VI, Section 14) required that any fine over fifty dollars ($50.00) had to be imposed by the jury this was not decided by the all white male trial panel.
When the case came before the highest court in the State of Tennessee a large contingency of attorneys argued for both sides but none of the justices raised the question of the illegal fine imposed by the trial judge. Chief Justice Grafton Green without deciding the main issue of the various attacks on the constitutionality of the Butler Act reversed the conviction, sent the case back to the Rhea County Criminal Court with the suggestion that the local Attorney-General enter a “nolle prosequi” (dismissal) in the “bizarre” case.
Such request was eventually accepted and the 1925 case lay in limbo until 1966 when the Tennessee General Assembly struck down the statute.
Who was the dissenting justice who was willing to express the opinion in writing that the law was void because of it being “a statute which forbids or requires the doing to an act in terms so vague and uncertain that men of common intelligence must necessarily guess at its meaning and differs in its application that violates the first essential element of Due Process Law?”
Colin P. McKinney (1873-1944) was born in Ripley, Tennessee, attended public schools and originally intended to be a court reporter but studied law under his uncle and was a practicing attorney from 1896 until he was selected as a Chancellor (judge) in 1910 and after eight years in that position was elected to the state Supreme Court.
McKinney retired from the judicial position in 1942 due to ill health and died in Nashville in 1944 at the age of 70.
The significance of his dissent in Scopes in expressing his opinion the Butler Act was invalid because of a denial of due process was an act of judicial courage in a Fundamentalist majority against evolution existing in Rhea County (and Tennessee).
Although judges were not subject to the public and judicial scrutiny in 1927 that now exists in court systems in America, it still may have required atypical fortitude in his opinions to invalidate the law!
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